Monday, November 26, 2001
Initiative Opponent Can’t Challenge County Counsel on Summary—C.A.
By a MetNews Staff Writer
An opponent of a local initiative lacks standing to challenge the summary and title prepared for the measure by the county counsel before the measure qualifies for the ballot, the Fourth District Court of Appeal has ruled.
In a decision late Wednesday, Div. Three overturned an order by Orange Superior Court Judge James P. Gray. The trial judge held that Orange County Counsel Laurence M. Watson had given an inaccurate and biased title and summary for the latest in a series of measures seeking to establish non-commercial uses for the site of the El Toro Marine Base, where opponents of the measures want to build an airport.
Div. One had earlier stayed Gray’s order requiring that Watson prepare a new summary and barring the registrar of voters from accepting petitions containing the original summary. On Wednesday—five days after the case was argued—the justices ruled that the petitioners in the trial court, former supervisor and assemblyman Bruce Nestande and his pro-airport group Citizens for Jobs and the Economy, lacked standing to challenge the original title and summary.
The court emphasized that it was not ruling on the accuracy or impartiality of the summary.
Justice Alex McDonald, writing for the Court of Appeal, noted that Elections Code Sec. 9106 permits the proponent of an initiative to seek a writ of mandate requiring changes in the summary or title if the original title or summary is false, misleading, partial, or otherwise inconsistent with statutory requirements.
There is no counterpart provision allowing an opponent to sue at the pre-qualification stage, the justice pointed out. He contrasted Sec. 9106 with Sec. 9190, which allows any voter to challenge the summary, title, or other materials prepared for the measure after it has qualified for the ballot.
The language of Sec. 9106, McDonald said, evinces clear legislative intent that persons other than proponents not be allowed to challenge the title and summary before the measure has qualified.
“Familiar canons of statutory interpretation confirm this construction of section 9106,” the justice wrote. “The phrase expressio unius est exclusio alterius expresses the principle that when a statute contains a specific list of matters, by negative implication the Legislature did not intend to extend that list beyond the specified matters.”
McDonald also noted that Sec. 9106 was enacted in 1987—seven years after the enactment of Sec. 9190—suggesting that the limitation of pre-qualification challenges to proponents was a deliberative choice on the part of the Legislature.
Nor, the jurist went on to say, should the general mandamus statute, Code of Civil Procedure Sec. 1084, be interpreted to allow an opponent to bring a pre-qualification challenge. To do so, he said, would negate legislative intent and violate the rule that a more specific statute controls over a more general one.
He also rejected the contention that Sec. 9106, as interpreted by the panel, repealed a common-law right by implication. There was no such right, McDonald explained, because prior to Sec. 9106’s adoption, proponents—rather than the county counsel—chose the ballot summary and title that appeared on the petitions.
“The legislative history shows that, before enactment of Assembly Bill No. 2202, proponents could circulate their petition with a statement of purpose without ‘any review . . . by a city or county attorney,’ ” the justice wrote. “…This legislative history accords with our understanding of the operation of this legislation: the proponent of an initiative is entitled to seek signatures in order to have the proposed legislation qualified for the ballot, subject only to the tempering effect of the county counsel’s impartial title, and is not required (as a condition to seeking signatures) to also obtain the approval of its title from those opposed to the measure.”
The matter was argued in the Court of Appeal by Robert D. Thornton of Nossaman, Guthner, Knox & Elliot for the proponents of the measure, Deputy County Counsel Steve Miller for the county, and Fredric D. Woocher of Strumasser & Woocher for the opponents.
The case is Songstad v. Superior Court, Nestande RPI, 01 S.O.S. 5635.
Copyright 2001, Metropolitan News Company