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DATE:
TO:
FROM:
MARCH 19, 1990
HONORABLE MAYOR AND CITY COUNCIL
WILLIAM A. HUSTON, CITY MANAGER
NEW BUSINESS N0. 5
3-19-90
Inter - Com
SUBJECT: APPEAL OF SUPERIOR COURT CASE NO. 61-72-39
(MARY WYNN vs CITY OF TUSTIN)
Councilmember Prescott requested that this item be placed on the agenda.
WAH/dms
Attachment
4 Civil No.
IN THE COURT OF APPEAL FOR THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT, DIVISION THREE
MARY WYNN, City Clerk of
The City of Tustin,
Petitioner,
VS.
SUPERIOR COURT OF THE STATE
OF CALIFORNIA FOR THE COUNTY
OF ORANGE
CITY OF TUSTIN; THE CITY
COUNCIL OF THE CITY OF
TUSTIN; RICHARD B. EDGAR,
URSULA E. KENNEDY, JOHN
KELLY and EARL PRESCOTT,
Real Parties in Interest,
Review by Writ of an
Order of the Orange
County Superior Court
Case No. 61-72-39
The Honorable Eileen C.
Moore, Judge Presiding
PETITION FOR PEREMPTORY WRIT OF MANDATE;
SIIPPORTING MEMORANDUM OF POINTS AND AUTHORITIES
(Immediate Action Requested)
RUTAN & TUCKER
LEONARD A. HAMPEL
ROBERT OWEN
611 Anton Boulevard, Suite 1400
Costa Mesa, California 92626
Telephone: (714) 641-5100
Attorneys for Petitioner MARY
WYNN, City Clerk of the City of
Tustin
TABLE OF CONTENTS
Page
PETITION................................................ 1
BENEFICIAL INTEREST OF PETITIONER ..................... 1
CAPACITY OF RESPONDENT ................................ 1
CAPACITY OF REAL PARTIES IN INTEREST .................. 1
STATEMENT OF THE CASE ................................. 2
WHY RESPONDENT SUPERIOR COURT'S RULING ON
PETITIONER'S PETITION CONSTITUTES LEGAL ERROR....... 3
INADEQUACY AT LAW AND THREAT OF IRREPARABLE HARM...... 3
VERIFICATION ............................................ 6
MEMORANDUM OF POINTS AND AUTHORITIES .................... 1
I INTRODUCTION ........................................ 7
II FACTUAL AND PROCEDURAL SUMMARY ...................... 7
III IMMEDIATE REVIEW BY WRIT OF MANDATE IS NECESSARY
DUE TO THE PENDENCY OF THE SCHEDULED ELECTION....... 9
IV ELECTIONS CODE SECTION 22050 IMPOSES A
MANDATORY DUTY ON REAL PARTIES IN INTEREST TO
APPOINT PRECINCT BOARDS PRIOR TO -THE SCHEDULED
APRIL 10 ELECTION ................................... 11
V THE SUPERIOR COURT RELIED ON ERRONEOUS LEGAL
ARGUMENTS IN DENYING PETITIONER'S UNDERLYING
PETITION............................................ 14
A. Current Tustin Law Mandates An .pril 10,
.1990 General Municipal Election ................ 14
B. This Court Has the Power to Compel Real
Parties to Comply With Elections Code
Section 22050 .................................. 17
VI GRANT OF PETITIONER'S WRIT PETITION WOULD
VALIDATE THE STATUS OF THE APRIL 10 ELECTION AND
PREVENT TWO POSSIBLE ADDITIONAL COURT ACTIONS...... 19
VII CONCLUSION ......................................... 21
-i-
t
TABLE OF AUTHORITIES
Ca
Page
Benny v.
City of
Alameda
(1980) 105 Cal.App.3d 1006..
16
Camara v.
Mellon
(1971)
4 Cal.3d 714 .................
13
Elliot v.
Pardee
(1906)
149 Cal. 516 .................
12
Goodenough v. Superior Court (1971) 18 Cal.App.3d
692 ................................................. 10,13
Halliman v. Mellon (1963) 218 Cal.App.2d 342.........
16
In Re Petersen (1958) 51 Ca1.2d 177 .................•
16
Independence League v. Taylor (1908) 154 Cal. 179....
12
Jolicoeur v. Mihaly (1971) 5 Cal.3d 565 ..............
9,13
Knoll v. Davidson (1974) 12 Cal.3d 335 ................
13
Miller v. Greiner (1964) 50 Ca1.2d 827 ................
10
Spallone v. United States (1990) 110 U.S. 625.........
19 -
Stanton v. Panish (1980) 28 Cal.3d 107 ................
21
Teaugue v. Board of Trustees (1909) 156 Cal. 117......
13
Visnich v. Sacramento County Board of Education
...........................................
(1974)37 Cal.App.3d 684 .............................
15
Statutes
Code of Civil Procedure
Section803 .......................................... 15
Elections
Code
11
Section'll
...........................................
13,18
Section15
...........................................
12,
Section
40 ...........................................
13,117
20
Section
1638 .........................................
13
Section
4022 .........................................
9
Section
10015 ........................................
71,
8, 9,
Section
22050 ........................................
11,
12,
13,
14,
16,
17,
18,
19,
20,
21
Government Code
Section36503 ........................................ 8
Section4 0 8 0 7 .......... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
8/290/013757-0001/001a toc/toa
PETITION FOR WRIT OF MANDATE
Petitioner MARY WYNN, City Clerk of the City of Tustin,
hereby petitions this Court for a peremptory writ of mandate
compelling Respondent Superior Court of California for the County
of Orange to issue a peremptory writ of mandate compelling the
performance of mandatory pre-election duties by Real Parties in
Interest CITY OF TUSTIN, CITY COUNCIL OF THE CITY OF TUSTIN,
RICHARD B. EDGAR, URSULA E. KENNEDY, JOHN KELLY and EARL PRESCOTT.
Petitioner alleges as follows:
BENEFICIAL INTEREST OF PETITIONER
1. Petitioner Mary Wynn is the City Clerk of the City of
Tustin, is a registered voter in the City of Tustin, and is the
Petitioner in an action filed in the Orange County Superior Court,
entitled Mary Wynn v. City of Tustin, et al., Case No. 61-72-39.
CAPACITY OF RESPONDENT
2. Respondent, the Superior Court of the State of California
for the County of Orange, is now and at all times ►entio:ed in
this Petition has been the court exercising judicial functions in
connection with the case referred to above in Paragraph 1.
CAPACITY OF REAL PARTIES IN INTEREST
3. Real Parties in Interest City of Tustin, City Council of
the City of Tustin, Richard B. Edgar, Ursula E. Kennedy, John
Kelly, and Earl Prescott, are the Respondents in the action
identified above in Paragraph 1. The individually named Real
Parties in Interest are City Councilmembers in the City of Tustin.
Only two of the Real Parties in Interest, John Kelly and Earl
Prescott, provided any opposition to the Petition in the
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underlying case.
STATEMENT OF THE CASE
4. On February 26, 1990, Petitioner filed her Verified
Petition for Peremptory Writ of Mandate against Real Parties in
Interest in the Orange County Superior Court (Exhibit "l") and a
Memorandum of Points and Authorities in support of said verified
Petition. (Exhibit 11211
.)
5. The underlying action involves a writ of mandate
proceeding resulting from the failure of Real Parties in Interest
to perform mandatory, procedural pre-election duties necessary to
physically conduct the scheduled April 10, 1990 Tustin general
municipal election. The thrust of Petitioner's claim is that once
the election date of April 10 was established by law, Real Parties
in Interest, pursuant to their capacity as the Tustin Election
Board, were charged with a mandatory duty under the Elections Code
to establish precincts, precinct boards, and polling places
necessary for the voters to cast their ballots. Real Parties
Prescott and Kelly, by voting "no" on a Resolution to establish
these procedural items, blocked the City Council's attempt to
comply with this mandatory duty.
6. On March 2, 1980, Real Parties Prescott and Kelly filed
written opposition to the underlying petition. (Exhibit "3".) On
March 7, Petitioner filed a reply memorandum in support of her
petition. (Exhibit "4".) Also on March 7, Real Parties Prescott
and Kelly each filed supplemental opposition points and
authorities (Exhibits "5" and "6", respectively), which brought
the total number of pages submitted by each of them to 25, in
violation of Orange County Local Rule 508. On March 8, Petitioner
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filed a reply memorandum objecting to the supplemental oppositions
on this basis. (Exhibit "7".)
7. On March 9, 1990, Petitioner's underlying petition came
on for hearing by Respondent Superior Court, before the Honorable
Eileen Moore, judge presiding in Department 22. Attorneys for
Petitioner Wynn and Real Parties Prescott and Kelly appeared and
presented oral argument. After hearing said argument, Judge Moore
took the matter under submission, and later that day issued a
Minute Order denying Petitioner's underlying petition. (Exhibit
118", )
8. A transcript of the March 9, 1990 hearing was not
available at the time of the filing of this Petition. Said
transcript will be provided to the Court as soon as it is
available.
WHY RESPONDENT SUPERIOR COURT'S RULING ON PETITIONER'S PETITION
CONSTITUTES LEGAL ERROR
9. The Minute Order of the Superior Court denying
Petitioner's underlying petition for peremptory writ of mandate
constitutes legal error because Elections Code Section 22050
imposes a mandatory duty on the Tustin City Council, acting as the
City's Election Board, to appoint precinct boards for each
precinct prior to the scheduled April, 10, 1990 municipal election.
INADEQUACY AT LAW AND THREAT OF IRREPARABLE HARM -
10. Appeal of the Superior Court's Minute Order is a -wholly
inadequate remedy. The Tustin general municipal election is
scheduled for April 10, 1990, and its status is made uncertain by
Respondent's Minute Order. Immediate relief is necessary to
compel Real Parties in Interest to establish precincts, precinct
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boards, and polling places a sufficient time prior to the
April 10, 1990 election. An appeal of the Minute Order would not
be decided prior to this date, rendering the issue moot.
11. This case involves a dispute over whether an election
should be held, and relates to whether the people of the City of
Tustin may have the right to cast their ballots at the scheduled
April 10 election. As such, the constitutional rights of
thousands of voters are at stake in this case.
12. Petitioner and many others would be irreparably harmed
by the denial of the instant Petition. First, the voters of
Tustin may be denied the opportunity to cast their ballots at the
April 10 election. Second, Petitioner, as City Clerk, would be
prevented from performing her mandatory duties under the Elections
Code and Government Code to conduct the scheduled election.
Third, the City will have wasted thousands of dollars spent in
preparation for the Election. Fourth, denial of relief would harm
the eight City Council candidates who have filed, collected
contributions, and campaigned for the April 10 election.
WHEREFORE, Petitioner Mary Wynn respectfully prays as
follows:
1. That a peremptory writ of mandate be issued by this
Court directing Respondent Superior Court to (a) vacate its Order
denying Petitioner's Petition for Peremptory Writ of Mandate, and
to (b) issue a Peremptory Writ of Mandate compelling Real Parties
in Interest to perform the mandatory duty prescribed by Elections
Code Section 22050 prior to the April 10, 1990 Tustin general
municipal election.
2. That Petitioner be awarded costs in this action.
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i � 1
3. That this Court grant Petitioner such further relief as
the Court may deem just and proper.
DATED: March 13, 1990. RUTAN & TUCKER
LEONARD A. HAMPEL
ROBERT OWEN
8/290/013757-0001/001a
ROBERT OWEN
Attorneys for Mary E. Wynn,
City Clerk of the City of Tustin
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VERIFICATION
I, ROBERT OWEN, declare as follows:
1. I am an attorney duly licensed and admitted to practice
by the California State Bar. I am an associate in the law firm of
Rutan & Tucker, attorneys for Petitioner MARY WYNN, City Clerk of
the City of Tustin.
2. I have personal knowledge of the facts set forth herein,
and would and could competently testify thereto if called and
sworn as a witness.
3. I have read the above Petition for Writ of Mandate and
know its contents. All facts stated in the Petition not otherwise
supported by citations to the record or exhibits are true by my
own personal knowledge.
4. The exhibits submitted as Petitioners' "Exhibits to
Petition for Writ of Mandate" are true and correct copies of those
filed with the Respondent Superior Court, except for Exhibit "8",
which is a true and correct copy cf the Minute Order prepared by
the Superior Court relating to the subject.
I declare under penalty of perjury under the laws of the
State of California that the foregoing is true and correct.
Executed this 13th day of March,.1990, at Costa Mesa,
California.
ROBERT OWEN
M -M
MEMORANDUM OF POINTS AND AUTHORITIES
I
INTRODUCTION
This Petition for Writ of Mandate presents the following
single issue: Whether the Respondent Superior Court erred in
denying Petitioner's underlying petition for writ of mandate to
compel Real Parties in Interest to perform certain mandatory pre-
election actions prior to the scheduled April 10, 1990 Tustin -
general municipal election. Specifically, Petitioner seeks to
compel Real Parties in Interest to appoint precinct board members
for each precinct in the City, pursuant to the mandatory duty
prescribed by Elections Code Section 22050, prior to the April 10
election. Due to the pendency of the April 10 election,
Petitioner requests immediate review from the Court of Appeal.
For the reasons stated in the instant Petition and in the
Memorandum of Points and Authorities, this Court should correct
the Superior Court's error of law.
II
FACTUAL AND PROCEDURAL SUMMARY
Petitioner Mary Wynn is the elected City Clerk of the City of
Tustin, is a resident and registered voter in the City, and is
charged under the Elections and Government Codes to conduct the
City's general municipal election. (See Wynn Declaration, 11 2
and 3, attached to Exhibit "2".) On November 20, 1989, the City
Council adopted Ordinance No. 1032, which established the City's
general municipal election date as the second Tuesday in April of
even -numbered years. Ordinance No. 1032 has never been judicially
invalidated. (A copy of said ordinance is attached as Exhibit "A"
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to Exhibit "2".) Government Code Section 36503 permits a city to
conduct its general election on said date. The 1990 Tustin
election is scheduled by law to occur on April 10.
On February 20, 1990, Real Party in Interest Tustin City
Council, acting in its capacity as the City's Elections Board
pursuant to Elections Code Section 40, considered Resolution No.
90-26. (A copy of Resolution No. 90-26 is attached as Exhibit "B"
to Exhibit "2" herein.) Resolution No. 90-26 was to establish
precincts, precinct boards, and polling places necessary to
physically conduct the scheduled April 10 election. Elections
Code Section 22050 states that the Elections Board "shall"
establish precinct boards for each precinct prior to an election.
Resolution No. 90-26 was defeated by a deadlocked 2-2 vote, with
Real Parties John Kelly and Earl Prescott ("Kelly" and "Prescott"
herein) voting "no." Kelly and Prescott indicated during the
meeting that they would continue to oppose the Resolution because
they desired to prevent the occurrence of the April 10 election.
(See Meeting Transcript, attached as Exhibit "C" to Exhibit "2"
herein.) Since there are currently only four members on the City
Council, it will be impossible for the Council, a_--ing as the
Elections Board, to perform its mandatory pre-election procedural
duties under Section 22050 short of judicial intervention.
On February 26, 1990, Petitioner filed the underlying
petition for peremptory writ of mandate against all Real
Parties in Interest (Exhibit "1"). Only Kelly and Prescott
provided any opposition to said petition. (Exhibits 3, 5, and 6).
On March 91 1990, after a hearing on the matter, the Honorable
Eileen C. Moore denied the underlying petition and refused to
a:1C
compel Real Parties to take those pre-election actions mandated by
Elections Code Section 22050.
The instant Petition followed.
III
IMMEDIATE REVIEW BY WRIT OF MANDATE IS NECESSARY
DUE TO THE PENDENCY OF THE SCHEDULED ELECTION
The Tustin general municipal election is by law set to occur
on April 10, 1990, less than a month after the filing of the
instant Petition. (Exhibit "A" to Exhibit 112".) Even with the
precedence given to appeals of cases concerning election disputes,
it is highly unlikely that an appeal can be noticed, briefed,
opposed, heard, and decided a sufficient time prior to the
election to allow Real Parties to take the action sought to be
compelled by this Petition. Therefore, Petitioner seeks immediate
mandamus review by the Court of Appeal.
Elections Code Section 10015 expresses a legislative
preference for deciding disputes involving pre-election duties by
writ of mandate, and provides that such disputes shall have
priority over all other civil matters. Additionally, case law
expresses a judicial preference for quickly resolving disputes
involving pre-election duties of election officers through the
writ of mandate process when there is.a danger of the dispute
becoming mooted by the pendency of an election. In Jolicoeur v.
Mihaly (1971) 5 Cal.3d 565, 570, n. 1, the Court of Appeal -issued
a writ compelling an election official to register voters,
stating:
Cases affecting the right to vote and the method of
conducting elections are obviously of great public
importance. Moreover, the necessity of
adjudicating the controversy before the election
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renders it moot usually warrants our bypassing
normal procedures of trial and appeal.
In Miller v. Greiner (1964) 50 Cal.2d 827, 830, the court,
based upon an interpretation of the city's charter, issued a writ
preventing a public officer from conducting an election for a city
manager, stating:
The controversy underlying this proceeding is a
proper subject for mandamus. We have frequently
entertained petitions in matters concerning
municipal elections (Citations], and mandamus will
issue to compel an officer to conduct an election
according to law. (Citations.] Because of the
imminence of the proposed election petitioners have
no speedy or.adequate remedy in any other court
.
In Goodenough v. Superior Court (1971) 18 Ca1.App.3d 692,
696, the Court of Appeal issued a peremptory writ of mandate
ordering the trial court to set aside.its judgment denying a writ
of mandate to compel a city council to call a special election, .
finding that the council had a clear duty to do so, and that due
to the pendency of the scheduled regular election it was "clear
that an appeal from the ruling of the superior court even if
successful could not in the ordinary course result in the holding
of a special election prior to the municipal electicn of April 11,
1972."
As in the above-cited cases, the.impending Tustin election
compels that this Court's review of the trial court's decision -be
through writ of mandate and not by the appeal process. The
Superior Court's decision leaves the status of the scheduled
election in dispute. Every day that this dispute is left
unresolved works to prejudice the voters, who must decide whether
and for and whom to vote; the candidates, who are left uncertain
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as to whether they should raise and spend more campaign funds or
conduct further campaign activities; and the Petitioner herself,
who is placed in legal limbo as to whether she can perform the
many tasks and procedures necessary to conduct the election, as
she is mandated to do by the Elections and Government Codes.
Therefore, immediate mandamus review by the Court of Appeal is
both proper and necessary. Petitioner has no other means to
obtain relief prior to the April 10 election date.
IV
ELECTIONS CODE. -SECTION 22050 IMPOSES A MANDATORY DUTY
ON REAL PARTIES IN INTEREST TO APPOINT PRECINCT
BOARDS PRIOR TO THE SCHEDULED APRIL 10 ELECTION.
As stated above, Ordinance No. 1032 (Exhibit "A" to Exhibit
112") sets April 10, 1990 as the date of the next Tustin general
municipal election. The Elections Code specifies several
mandatory duties which the City Council, acting as the City's
Election Board pursuant to Elections Code Section 40, must perform
prior to an election. One o` these duties is specified by
Elections Code Section 22050, which states in part:
The election board conducting the elections of any
city shall appoint a precinct board for each local,
special, or consolidated election precinct, to
consist of one inspector, one judge, and two clerks
for each local, special, or consolidated election
held within that city. (Emphasis added.)
The word "shall" in Section 22050 indicates a mandatory duty
to take the specified action. As is stated in Elections Code
Section 11, "'Shall' is mandatory and 'may' is permissive." Thus,
Section 22050 imposes a mandatory duty on Real Parties in
Interest, acting as the Election Board, to appoint a precinct
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board for each precinct in Tustin prior to the April 10 election.
Implicit in this duty is the obligation to establish the precincts
themselves and a polling location within each precinct.
On
February 20, 1990, the Tustin Election Board failed to adopt a
resolution which would have appointed precinct board members for
the April 10 election. (Exhibit "B" to Exhibit 1121'.) This
failure was due to the "no" votes of Kelly and Prescott, who at
the meeting indicated an intent to block the occurrence of the
April 10 election. (Exhibit "C" to Exhibit "2".) The two other
Councilmembers voted in favor of the resolution, and support the
instant Petition.
Long-standing case law establishes that the duty of an
officer to appoint election officials for a scheduled election,
when required by law, is ministerial and may be compelled by
mandamus. In Elliot v. Pardee (1906) 149 Cal. 516, 520, the court
issued a writ of mandate to compel the Governor to obey his
"statutory and ministerial" duty to appoint local election
officials in the City of Compton. In Independence League v.
Tavlor (1908) 154 Cal. 179, the court held that mandamus was
available to compel the mayor of San Francisco to appoint board of
election commissioners as required under the city's charter. In
both of these cases, the court compelled public officers holding
election responsibilities to appoint election officials as
required by law. In the instant case, the Petitioner seeks this
Court to compel the Tustin City Council, which pursuant to
Elections Code Section 40 acts as the Election Board of the City
of Tustin, to appoint precinct boards for each precinct as
required by Elections Code Section 22050.
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Case law firmly establishes that an election official charged
with performing any mandatory pre-election duty may be compelled
by mandamus to perform that duty. This general rule is stated by
Knoll v. Davidson (1974) 12 Ca1.3d 335, 341: "Mandamus is clearly
the proper remedy for compelling an officer to conduct an election
according to law." Specific applications of this rule include
Goodenough, supra, 18 Cal.App.3d 692 (writ issued to compel city
council to hold special election on initiative measure as mandated
by Elections Code Section 4022); Jolicoeur, supra, 5 Ca1.3d 565
(writ issued to compel an election official to register a
qualified voter); Camara v. Mellon (1971) 4 Cal.3d 714' (election
official ordered to place qualified candidate on city council
election ballot, as required by equal protection clause); and
Teauaue v. Board of Trustees (1909) 156 Cal. 117 (writ of mandate
issued to compel election official to give notice of scheduled
election.)
In the instant case, Real Parties are election officials who
have failed to perform the mandatory duty prescribed by Elections
Code Section 22050. For the purposes of Section 22050, the City
Council acts as the City's Election Board (Elections Code Section
40), and when conducting election duties the individual members
are considered "election officials". pursuant to Elections Code
Section 15. Case law clearly shows that election officials can be
compelled to perform mandatory pre-election duties. Thus, the
Tustin election officials should be compelled by writ of mandate
to perform their mandatory duties under Section 22050.
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V
THE SUPERIOR COURT RELIED ON ERRONEOUS LEGAL
ARGUMENTS IN DENYING PETITIONER'S UNDERLYING PETITION
Although the Superior Court's Minute Order (Exhibit "8") did
not state any reasons for its denial of Petitioner's underlying
petition, this denial was presumably based upon the oral and
written arguments presented by Kelly and Prescott. These Real
Parties presented two basic arguments. First, they contended that
Ordinance No. 1032, which set the April 10 general municipal
election date, was improperly enacted and may be ignored despite
the fact that it has never been judicially invalidated. Second,
they contended that the Court is not empowered to compel Real
Parties to perform a mandatory pre-election duty when such duty is
based upon a law which they believe might have been improperly
enacted. For the reasons stated below, these arguments are
legally erroneous and did not constitute sufficient basis for
denial of Petitioner's underlying petition.
A. Current Tustin Law Mandates An April 10 1990 General
Municipal Electicn.
The Tustin general municipal election used to be held on the
second Tuesday in November of even -numbered years. On November
20, 1989, the City Council adopted Ordinance No. 1032 (Exhibit "A"
to Exhibit "2"), which changed the municipal election date to the
second Tuesday in April of even -numbered years. The Council vote
on Ordinance No. 1032 was 3-0 to adopt, with Kelly and Prescott
absent. (Id.) Kelly and Prescott claim that Ordinance No. 1032
was invalidly adopted based solely upon the contention that one of
the approving Councilmembers, Ronald Hoestery, had lost his
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Tustin residency three days before the vote and was thus not
entitled to exercise the powers of his office. This subjective
belief, they argue, justifies their refusal to comply with the
mandatory pre-election duties imposed by Elections Code Section
22050, despite the fact that Ordinance No. 1032 is the current law
in Tustin and has never been judicially invalidated.
This argument is legally erroneous. Ordinance No. 1032 is on
the books and states the current law in Tustin. If Kelly and
Prescott believe that the law was invalidly enacted, their remedy
lies in filing an appropriate action to judicially invalidate it.
Apparently, an action challenging the ordinance was filed on March
8, 1990, one day prior to the underlying writ hearing. However,
Ordinance No. 1032 remains completely operative unless a final
judgment renders it invalid. Until this unlikely occurrence, the
provisions of Ordinance No. 1032 must be followed as law.
The claim that Ordinance No. 1032 is invalid is keyed upon
the single issue of whether Mr. Hoestery was entitled to hold his
title of City Councilman at the time he voted in savor of the
Ordinance. As such, the exclusive means of determining this issue
is through a quo warranto proceeding under C.C.P. Section 803. In
Visnich v. Sacramento County Board of Education (1974) 37
Cal.App.3d 684, 691, the court stated:
The law appears to be unquestioned that title
to an elective office cannot be litigated by
any other means other than in quo warranto by
the state.
Although Mr. Hoestery has since resigned his position as
Councilman, any attack of Ordinance No. 1032 would solely involve
a determination of the single issue of his right to hold that
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office at the time he voted on the Ordinance. Case law holds that
when an action involves the single issue of determining the right
to hold a public office, quo warranto provides the exclusive
remedy even when the objective of the action is not to vacate or
fill the public office. In Hallinan v. Mellon (1963) 218
Cal.App.2d 342, plaintiff brought a taxpayer's action against a
police commissioner to return money paid as salary to the
commissioner. Although the action sought only return of the money
and not vacation of the office, the court determined that the
single underlying issue involved in the action was whether the
commissioner lawfully held title to this office. Thus, the court
held that the exclusive remedy was a proceeding in quo warranto.
Even disregarding the fact that quo warranto provides the
exclusive remedy for Kelly and Prescott to challenge Ordinance No.
1032, it is irrefutable that this Ordinance exists and is the law
in Tustin until judicially invalidated or legislatively repealed.
A City Clerk's certified record of ordinances is prima facie
evidence of the contents of an ordinance and cf its passage and
publication. (Government Code Section 40807.1 Exhibit "A" to
Exhibit "2" is a certified record of Ordinance No. 1032.
Municipal ordinances are presumed to be valid (In Re Petersen
(1958) 51 Ca1.2d 177, 182), and every.intendment is to be indulged
in favor of their validity. (Benny v. City of Alameda (1980) 105
Cal.App.3d 1006.) No judicial decision has rendered Ordinance
1032 invalid, and Real Parties' collateral attack on the
ordinance, first presented in their opposition to the underlying
petition, cannot serve to do so.
Ordinance No. 1032 is the law in Tustin. This Ordinance
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provides that the next Tustin General Municipal Election shall
occur on April 10, 1990. Elections Code Section 22050 mandates
that Real Parties appoint precinct board members for this
election. Legal arguments to the contrary, as presented by Kelly
and Prescott, are clearly erroneous and could not, as a matter of
law, justify the Superior Court's denial of Petitioner's
underlying writ action.
B. This Court Has the Power to Compel Real Parties to
Comply With Elections Code Section 22050.
Kelly and Prescott argued below that the Court had no power
to compel them to comply with Elections Code Section 22050,
characterizing the decision of whether to appoint precinct boards
as "inherently legislative in nature." This argument is clearly
erroneous, and evidences a misunderstanding of both the nature of
Petitioner's requested relief and the role of Real Parties with
respect to local pre-election duties.
Petitioner seeks a writ of mandate compelling Real Parties to
perform the action mandated by Section 22050 by appointing
precinct board members for each precinct. Petitioner does not
seek to dictate who Real Parties must appoint; all she seeks is a
writ compelling Real Parties to take action to appoint someone for
each position. Section 22050 states a very clear legislative
intent that the City Council, acting as the Election Board, must
take certain actions prior to a scheduled election. All
Petitioner requests is that Real Parties be compelled to perform
those mandatory actions. The decision of whether or not those
actions must be performed is obviously not legislative or
discretionary, as it is mischaracterized by Prescott and Kelly.
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Additionally, the characterization of the mandatory duty
provided by Section 22050 as legislative misconstrues the nature
of Real Parties' role with respect to pre-election procedural
duties. Essentially, pursuant to the definition provided in
Elections Code Section 40, the City Council acts only as the
City's Election Board when it operates under Section 22050. As
such, each Councilmember is an "election official" (Elections Code
S 15), vested with only that amount of discretion consistent with
that role. With respect to Section 22050, the only discretion
vested in the Election Board relates to composition of the
precinct boards and the identities of the appointees. Absolutely
no legislative discretion is vested in the Election Board to
decide whether or not to create precinct boards; under the plain
language of Section 22050, there is under a mandatory duty to do
SO.
Kelly and Prescott additionally contend that their subjective
doubts as to the procedural sufficiency of the enactment of
ordinance No. 1032 somehow transforms the mandatory duty of
Section 22050 into a discreticnary, legislative decision. Not
surprisingly, no cases are cited which support this proposition.
If Petitioners are correct, then any public official who is able
to paint a semi -colorable legal argument against the validity of a
law would be permitted to disregard the mandatory provisions of
that law, despite the fact that it has not been judicially
invalidated. This is obviously not the case. It is axiomatic
that the mandatory provisions of a current law must be followed
until that law is either repealed, amended, or invalidated.
Therefore, since the Tustin election is by law scheduled to occur
-18-
on April 10, Real Parties are bound by Section 22050 to appoint
precinct boards for each precinct prior to that date.
Prescott and Kelly continually cite the recent case of
Spallone v. United States (1990) 110 U.S. 625, 107 L.Ed.2d 644, in
support of their arguments. This citation is misplaced, as it
does nothing to advance their case. The single issue considered
in Spallone was the propriety of the District Court's order
imposing personal monetary sanctions against city councilmembers
who violated a previous order to enact a constitutionally adequate
public housing ordinance. The Supreme Court's narrow holding was
that the District Court "should have proceeded with such contempt
sanctions first against the city alone in order to secure
compliance with the remedial orders." (110 S.Ct. at 634.) if
those sanctions failed to secure compliance, the opinion stated,
then the District Court could consider the question of whether the
councilmembers should be personally sanctioned. The District
Court's previous order, which was to compel the City Council to
perform its mandatory duty to enact an adequate public housing
ordinance, withstood appellate challenge and the Supreme Court
refused certiorari. (Id. at 631.) Thus, Spallone does not stand
for the proposition espoused by Kelly and Prescott.
VI
GRANT OF PETITIONER'S WRIT PETITION WOULD
VALIDATE THE STATUS OF THE APRIL 10 ELECTION AND
PREVENT TWO POSSIBLE ADDITIONAL COURT ACTIONS
In the light of the Superior Court's denial of the underlying
petition, the Tustin Election Board has not taken the action
mandated by Elections Code Section 22050. Nonetheless, on March
-19-
9, Petitioner complied with her mandatory duty imposed by
Elections Code Section 1638 and unilaterally issued an order
appointing the members of the precinct boards and designating the
polling places. Section 1638 states:
The clerk, not less than 29 days prior to an
election, shall issue an order appointing the
members of the several precinct boards and
designating the polling places.
Although the plain language of Section 1638 seems to permit
Petitioner's action, Kelly and Prescott will undoubtedly contend
that such action is void due to the lack of previous Election
Board action under Section 22050. Thus, there is a high
likelihood that Kelly and Prescott will attempt to enjoin holding
of the- election on this ground. Appellate Court grant of the
instant Petition will eliminate the possibility of such an
injunctive action.
Additionally, if relief is denied, and the election is
conducted with the precinct board members appointed by the
Petitioner, Kelly and Prescott wculd likely file an election
contest action based upon allegations of improper election
procedure. A grant of the instant Petition would eliminate this
ground for challenge as well.
As previously mentioned, the day before the underlying writ
hearing Kelly and Prescott filed a declaratory relief action
challenging Ordinance No. 1032. The declaratory action will not
be eliminated no matter what decision is rendered by the Court on
the instant Petition, since Kelly and Prescott desire to
judicially invalidate the ordinance itself. Thus, denial of
Petitioner's requested relief will not promote judicial economy.
-20-
,
VII
CONCLUSION
Petitioner's requested relief is clearly mandated by
Elections Code Section 22050. Kelly and Prescott cannot choose to
violate existing law, especially existing laws relating to the
fundamental right to vote. "The right of suffrage, protected by
the Constitution, is a fundamental right' preservative of other
basic civil and political rights' Every reasonable
presumption and interpretation is to be indulged in favor of the
right of the people to exercise the elective process." (Stanton
v. Panish (1980) 28 Ca1.3d 107, 115.) All Petitioner asks for is
that the Real Parties comply with the law. Wherefore, Petitioner
prays that her Petition for Peremptory Writ of Mandate be granted.
DATED: March 13, 1990. Respectfully submitted,
RUTAN & TUCKER
LEONARD A. HAMPEL
ROBERT OWEN
8/290/013757-0001/001a
ROBERT OWEN
Attorneys for Petitioner, MARY
WYNN, City Clerk of the City of
Tustin
-21-
3/MASTERS/106/FORMS/001
VERIFICATION
-STATE OF CALIFORNIA, COUNTY OF
I have read the foregoing
and know its contents.
IXI CHECK APPLICABLE PARAGRAPH
I am a party to this action. The matters stated in it are true of my own knowledge except as to those matters
which are stated on information and belief, and as to those matters I believe them to be true.
I am 1_1 an Officer 1_1 a partner 1_1 a of
a party to this action, and am authorized to make this verification for and on its behalf, and I make this verifica-
tion for that reason. I have read the foregoing document and know its contents. I am informed and believe and on
that ground allege that the matters stated in it are true.
I am one of the attorneys for
a party to this action. Such party is absent from the county of aforesaid where such attorneys have their offices,
and I make this verification for and on behalf of that party for that reason. I have read the foregoing document
and know its contents. I am informed and believe and on that ground allege that the matters stated in it are true.
Executed on 19 , at , California.
I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.
PROOF OF SERVICE BY MAIL
STATE OF CALIFORNIA, COUNTY OF ORANGE
Signature
I am employed by the law offices of Rutan & Tucker in the County of Orange, State of California. I am over the
age of 18 and not a party to the above -captioned action. My business address is 611 Anton Boulevard, Suite 1400,
Costa Mesa, California 92626.
In the course of my employment with Rutan & Tucker, I have, through first-hand personal observation, become
readily familiar with Rutan & Tucker's practice for collection and processing of correspondence for mailing with
United States Postal Service.
On March 13, , 1990, I placed copies of the attached documents entitled: ETI'.'ION FOR
PEREMPTORY WRIT OF MANDATE; SUPPORTING MEMORANDUM OF POINTS AND AUTHORITIES
AND EXHIBITS TO PETITION FOR PEREMPTORY WRIT OF MANDATE
in envelope(s) addressed as set forth below. I then sealed those envelope(s) and placed them in an out -box for
collection by other personnel of Rutan & Tucker and for ultimate posting and placement in the United States mail
later that same day. If the customary business practices of Rutan & Tucker with regard to collection and processing
of correspondence and mailing were followed, and I am confident that they were, those envelopes were posted and
placed in the United States mail at Costa Mesa, California that same day.
See Exhibit "A" attached hereto
I X1 (State)
1_ 7ederal)
Executed on March 13 , 1990, at Costa Mesa, California.
I declare under penalty of perjury under the laws of the State of California that the foregoing is true
and correct.
I declare that I am employed in the office of a member of the bar of this court at whose direction the
service was made.
JUNE LAZICH
EXHIBIT "A"
The Honorable Eileen C. Moore
Judge of the Orange County Superior Court
700 Civic Center Drive West
Santa Ana, California 92701
For Mayor Richard B. Edgar:
Jeffrey A. Robinson, Esq.
GIBSON, DUNN & CRUTCHER
800 Newport Center Drive Center
Suite 600
Newport Beach, California 92660-6395
13622 Loretta Avenue
Tustin, CA 92680
For Mayor Pro Tem Ursula E. Kennedy:
VerLyn Jensen, Esq.
NOSSAMAN, GUTHNER, KNOX & ELLIOT
650 Town Center Drive, Suite 1250
Costa Mesa, California 92626
For City of Tustin:
James -G. Rourke, Esq.
City Attorney, City of Tustin
Rourke & Woodruff
701 South Parker Street, Suite 7000
Orange, California 92668
For Earl Prescott:
Anthony C. Duffy, Esq.
McDermott, Will & Emery
1301 Dove Street, Suite 500
Newport Beach, California 92660
For John Kelly:
Robert Desto, Esq.
Columbia School of Law
Catholic University of America
Washington, D.C. 20064
8/290/13757-0001/000