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Millbrae Zoning Initiative Cleared For Ballot

A city clerk did not have authority to throw out a zoning initiative petition based on evidence she received that the petition had been improperly circulated, the First District Court of Appeal has ruled. The city clerk's role was ministerial, and she did not have the authority to consider extrinsic evidence about how the initiative's backers circulated the measure, the court held. Only the courts can weigh such evidence and make discretionary decisions, the court ruled. The case involved the Downtown Zoning Initiative in the City of Millbrae, about 10 miles south of San Francisco. The initiative sought to amend the city's zoning ordinance by restricting the density of restaurants, adult businesses and certain other establishments in a specific part of downtown Millbrae. In June 2001, initiative supporters submitted about 1,500 petition signatures to City Clerk Cheryl Wade. However, Wade refused to certify the petition and she returned it to the proponents. She said that the petition violated state law because it did not include the initiative title and summary on every page, and because she believed the "notice of intention to circulate" the petition and the full text had not been included with every petition signature sheet. The Alliance for a Better Downtown Millbrae sued. San Mateo County Superior Court Judge Robert Foiles ruled that the group had substantially complied with state election law and ordered Wade to process the petition. Wade complied and the San Mateo County clerk later certified that the petitions contained enough signatures to qualify the initiative for the ballot. But Wade also appealed Judge Foiles's ruling. The downtown alliance argued that Wade's willingness to comply with the lower court mooted the case. But the First District rejected that contention, in part because the initiative has never been presented to the City Council or placed on the ballot. "This case presents a live, actual controversy," Justice Linda Gemello wrote for the unanimous three-judge panel. The First District then went on to upheld the lower court. Two separate interpretations were at issue. The first concerned Elections Code 9203, subdivision (b), which governs the placement of the title and impartial summary on an initiative petition. The statute requires the title and summary to appear "across the top of each page of the petition." The Millbrae group placed the title and summary on the front of each petition page, but not on the back. Wade said the title and summary needed to be on every page front and back. The appellate court disagreed, noting that a summary can be up to 500 words long and even in fine print could fill nearly an entire letter-sized page by itself. Having the title and summary on only the front of a page still protects voters from being misled and prevents signatures from being collected in support of a measure different than the initiative for which they were procured, the court held. The second issue was the interpretation of Elections Code 9201 and 9207. The former section requires that each section of a petition be circulated with the full text of the measure attached. The latter section requires that each petition include a copy of the notice of intention to circulate. Wade concluded that the initiative proponents violated those sections of the elections code based on four pieces of evidence: some signature pages showed greater wear than the full text page; unidentified third parties tipped her off; a folder containing signature pages without the notice of intention or full text attached was found in the council chambers; the clerk believed the proponents had violated the Election Code in the past regarding unrelated matters. The appellate court did not rule on whether the proponents violated 9201 and 9207. Instead, the court held that Wade did not have authority to make her determination. Past cases interpreting the Election Code "only authorize local elections officials to review a petition as submitted for compliance with procedural requirements, absent an express grant of broader powers," Justice Gemello wrote. "They foreclose elections officials decisions that are discretionary or go beyond a straightforward comparison of the submitted petition with the statutory requirements for petitions. Here, the petition as submitted to the city clerk complied with 9201 and 9207. The city clerk went beyond the face of the petition and concluded that the full text and notice of intention had been added only after circulation, and that the sections had not been circulated in compliance with the requirements of 9201 and 9207." "The city clerk's decision involves the sort of discretionary, adjudicatory decisionmaking reserved for judges and juries," Gemello continued. "Nothing in 9201 or 9207 authorizes elections officials to engage in discretionary factfinding or to consider extrinsic evidence. In the absence of explicit legislative authorization, we conclude that such powers are not granted to elections officials." The court rejected Wade's argument that she was authorized even required to engage in factfinding before certifying an initiative petition. Such inquiries and enforcement of the Election Code belong in the courts, the First District ruled. The Case: Alliance for a Better Downtown Millbrae v. Wade, No. A099453, 2003 DJDAR 4511. Filed April 25, 2003. The Lawyers: For the Alliance: Dennis Scott Zell, Fogarty & Watson, (650) 652-5912. For Wade: Michael Duncheon, Hanson, Bridgett, Marcus, Vlahos & Rudy, (415) 777-3200.
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