Ferrara v. Belanger

MOSK, J.

I concur in denying the writ, but disagree with the opinion of the majority.

We are here called upon to construe a portion of section 4017 of the Elections Code, which provides for the manner and timing of filing ballot arguments for and against municipal initiative ordinances. Two issues are presented: first, whether the statute requires that any proposed ballot arguments in favor of a municipal initiative measure be filed simultaneously with the filing of the initiative petition; and secondly, *266whether only proponents of the measure are permitted to submit such arguments. I would answer each question in the affirmative.

On November. 7, 1975, an initiative petition signed by the required number of voters was filed by its five proponents with respondent City Clerk of Union City. If approved by the voters, the initiative would have permitted “card clubs” in which the gambling games of draw poker and panguingue could be played and wagered upon. The initiative was to be voted on at the March 2, 1976, municipal election."

On January 5, 1976, petitioner Ferrara, a proponent of the initiative, presented the city clerk with an argument in support of the measure for inclusion in the sample ballot, but the clerk, upon advice of the city attorney, refused to accept it. On January 8 petitioner Rand, not one of the five proponents, submitted an identical argument to the city clerk, who again rejected'it. Four days later the City Council of Union City approved an argument against the gambling initiative which respondent clerk was instructed to print and distribute.

Section 4017 provides in relevant part: “The persons filing an initiative petition pursuant to this article may file with the petition a written argument in favor of the ordinance, and the legislative body may submit an argument against the ordinance. Neither argument shall exceed 300 words in length . . . .” (Italics added.) Respondent city clerk construes section 4017 to require that an argument in support of an initiative petition be filed at the same time as the petition, and not later. Respondent also refused to accept petitioner Rand’s argument on the ground that only proponents—“persons filing an initiative petition”—are entitled to submit arguments supporting municipal initiative measures.

The majority rely upon section 5013 of the Elections Code, which requires that respondent “fix and determine a reasonable date prior to the election after which no arguments for or against any city measure may be submitted,” the deadline to be set by the city clerk and to be “Based on the time reasonably necessary to prepare and print the arguments and sample ballots for that particular election.”

Section 5013 does not control the present case. It is included in article 4 of chapter 3, division 4, of the Elections Code. Although article 4 deals with arguments concerning “city measures,” its application is limited by section 5011, which provides in pertinent part that “If a method is *267otherwise provided by general law ... for submitting arguments as to a particular kind of city measure, that method shall control.” Because section 4017 includes such a “method . . . otherwise provided by general law,” it manifestly prevails over section 5013.

The majority also assert that section 4017 imposes no specific time limit for the filing of ballot arguments. They emphasize that section 4017 is couched in the permissive “may" and not the mandatoiy “must”; from this they infer that the statutory language, “may file with the petition,” permits proponents to submit ballot arguments at the time of filing if they choose, but does not prohibit the filing of arguments at a later date. Finally, it is urged that in the absence of a specific deadline for filing arguments, the statute implies a reasonable time limitation consistent with ballot printing and distribution requirements.

In my view, section 4017 does set a specific time for the filing of arguments in favor of a municipal initiative measure. Though perhaps inartfully drafted, the statute means that the proponents of such a measure “may file”—or may not, as they choose—an argument in its favor; but that if they do choose to present an argument, they must file it “with the petition”—i.e., at the same time as the petition is filed. This construction giyes effect to all portions of the statute, and is consistent with the analysis of the Attorney General in a recent opinion construing Elections Code section 3715. (58 Ops.Cal.Atty.Gen. 471 (1975).) That section governs the filing of arguments for county initiative ordinances, and its language is identical to that of section 4017.

In addition, an examination of similar sections of the Elections Code demonstrates that when the Legislature chooses to extend the period of time for filing ballot arguments, it does so expressly. At least three other statutes regulating initiatives specifically provide that filing dates for submission, of arguments shall be fixed by appropriate officials with regard to the time reasonably necessary to print and distribute the ballots. As noted above, section 5013 requires the city clerk to fix such a date “Based on the time reasonably necessaiy to prepare and print the arguments and sample ballots for that particular election.” Section 3527.3, governing initiative measures proposed by the Legislature, declares that arguments must be submitted “no later than a date to be designated by the Secretary of State.” Similarly, section 3563 provides that arguments relating to state initiative measures may be submitted “at any time within the time limit [fixed by the Secretary of State].” The *268Legislature’s failure to specify a like extended time frame in section 4017 must be deemed deliberate and significant, as it is with regard to sections 3715 and 5157, which prescribe initiative procedures for elections in counties and special districts, in language virtually identical to section 4017.

The majority further hold that as a registered voter of Union City petitioner Rand, a nonproponent, was entitled to file an argument in his own right pursuant to a different provision of the code, section 5012. That section permits, inter alia, “any individual voter” to “file a written argument for or against any city measure.” It is asserted that Rand has the right to file under section 5012 because he is an “individual voter.”

In my view the provisions of article 1 of chapter 3, division 4, of the code (i.e., §§ 4000-4023) establish the exclusive method for filing arguments concerning municipal initiative measures in general law cities. The legislative intent that article 1 alone control this matter can reasonably be inferred from an examination of the statutory scheme as a whole. Indeed, Rand’s interpretation would hopelessly complicate the administration of the procedures here in issue. For example, the city clerk would be required to enforce two distinct filing dates for arguments favoring a measure; and nonproponents could change and withdraw their arguments until the deadline fixed by the city clerk (§ 5013), while proponents could not do so. Such an irrational result could not have been intended by the Legislature when it enacted section 5012. A comparison of article 1 of chapter 3, division 4, with article 4 thereof confirms this conclusion. Article 1 contains no provision directing the clerk to choose among several filed arguments. In contrast, section 5014 sets forth guidelines for the selection of one among the multiple arguments authorized by sections 5012 and 5013. The clear implication is that the Legislature intended that section 4017 permit only one argument favoring a municipal initiative measure. This argument is the one submitted by the proponents at the time they file their petition. Certainly it is more rational to permit the proponents to advance the argument for their initiative rather than an individual voter who is likely to be less familiar with its merits.

Though an addition was enacted in 1971, the substance of section 4017 has been unchanged by the Legislature since 1961, while the other cited sections have been amended several times. I interpret this to indicate an intent to retain the vitality of section 4017. However if, as the majority *269imply, an ambiguous legislative scheme is attributable to oversight, it is to be hoped that there will be future legislative clarification. The task of rewriting the statute is not ours.

I would conclude that section 4017 alone controls the present case, and that it extends the right to file ballot arguments supporting a measure only to proponents when they file their petition.

McComb, J., concurred.