Citizens Against a New Jail v. Board of Supervisors

Respondent board has refused to submit an initiative petition to vote of the people on the ground that the subject-matter is beyond the scope of the initiative process. The proposed initiative would require renovation of the present Santa Cruz County jail, rather than construction of a new jail. Petitions were filed with the county clerk who certified the signatures of the required number of electors. This certification was filed with the board of supervisors July 13, 1976. Thereafter, apparently on August 10, the board, on advice of the county counsel, refused to place the issue on the ballot for the next general election and has refused to adopt the proposed ordinance.

Statute (Elec. Code, § 3711) requires that upon the filing of such an initiative petition so signed, the board may adopt the proposed ordinance without change or, if it does not, “the ordinance, without alteration, shall be submitted by the board to the voters at the next general election.” This duty to submit the issue is mandatoiy and ministerial (see Blotter v. Farrell, 42 Cal.2d 804 , 812-813 [ 270 P.2d 481 ] [statute governing city councils]; 19 Ops.Cal.Atty.Gen. 94). Like the county clerk’s duty of ascertaining procedural compliance, it must be performed unless “directed to do otherwise by. a court on a compelling showing that a proper case has been established for interfering with the initiative power.” (Farley v. Healey, 67 Cal.2d 325 , 327 [ 62 Cal.Rptr. 26 , 431 P.2d 650 ]; McFadden v. Jordan, 32 Cal.2d 330 , 332 [ 196 P.2d 787 ]; Gayle v. Hamm, 25 Cal.App.3d 250 , 255 [ 101 Cal.Rptr. 628 ]). We therefore consider the claim that the proposed initiative would be invalid if enacted by the voters.

“The right of initiative is precious to the people and is one which the courts are zealous to preserve to the fullest tenable measure of spirit as well as letter.” (McFadden v. Jordan, supra, 32 Cal.2d 330 , 332.) A court will deny submission of an initiative measure to the voters only “on a compelling showing that a proper case has been established for interfering . . ..” (Farley v. Healey, supra, p. 327.)

Respondent supervisors rely principally upon two decisions holding that the location of county facilities for superior and municipal courts cannot be fixed by initiative (Simpson v. Hite, 36 Cal.2d 125 [ 222 P.2d 225 ]; Mueller v. Brown, 221 Cal.App.2d 319 [ 34 Cal.Rptr. 474 ]). But those decisions turn upon state legislation (Simpson, supra, at pp. 129-130)

The proposed initiative now before us, however, does not deal with quarters for the courts. It concerns only a jail. Respondents concede that no statute of this state requires the county to provide a jail. Thus the establishment of such a facility, and necessarily the issues of its nature and site, are matters of legislative decision. It has long been established that the location and nature of municipal buildings generally is a legislative matter (e.g., Hopping v. Council of City of Richmond, 170 Cal. 605 [ 150 P. 977 ]; Hill v. Board of Supervisors, 176 Cal. 84 [ 167 P. 514 ] [overruled on other grounds in Simpson v. Hite, supra, at pp. 132-133]; see Burdick v. City of San Diego, 29 Cal.App.2d 565 [ 84 P.2d 1064 ]) and is subject to the initiative and referendum power.

Respondents point to an order of the United States District Court finding the present jail to be substandard. But that order in no way restricts county choice between renovation and new construction. They also point to their contract for construction of a security facility on the second floor of the existing jail. This, however, is consistent with the direction of the proposed ordinance requiring renovation of the existing jail rather than a new one.

Respondents also urge invalidity of section 3 of the proposed ordinance. It reads: “Any decisions ... to build a new . . . jail, made by the . . . Board . . . prior to the adoption of this ordinance, are hereby nullified . . . .” They argue that this amounts to a late referendum petition. We recognize that a belated referendum petition is not justified by disguising itas.an initiative. (See Burdick v. City of San Diego, supra.) But respondents point to no ordinance or resolution adopted by them, before the initiative petition was filed, which amounts to a legislative declaration that a new jail be constructed. The questioned section obviously is intended only to meet post-petition efforts by the supervisors to bolster opposition.