Ruiz v. Sylva

officers [Ruvalcaba, Moriel, Benavides, and Robles] you must also comply with Elections Code 11041 as to the form of recall petition and Elections Code 11042 filing copies of proposed petition.”

On November 21, 2001, Avalos wrote Ruiz three separate letters approving the Petitions for recall of Moriel, Benavides, and Robles. Each letter provided as follows: “We find the proposed form to be in compliance with all of the pertinent requirements of the Elections Code and hereby find that the petition may be circulated and signatures gathered from the registered voters in the City of South Gate.”

Avalos, however, rejected the petition to recall Ruvalcaba, stating “I must reject your petition due to the missing words in your submitted petition. It is not uniform with what was indicated in the filed Notice of Intention or the proof of publication submitted to our office.” The Proponents then submitted a revised petition to recall Ruvalcaba. The revised petition was rejected because “[t]here are smudges of ink on one of the petitions.” On November 27, 2001, in a letter to Antonio Mendez, a resident of South Gate, Avalos approved a petition to recall Ruvalcaba, indicating the petition was in compliance with the Elections Code requirements.

On December 10, 2001, Avalos wrote Ruiz that the Petitions were “flawed.” According to Avalos’s letter, “[t]he error consists of a failure to comply with California Elections Code Section 11040(a), which requires that ‘the Petition may consist of any number of separate sections, which shall be duplicates except as to signatures and matters required to be affixed by signers and circulators.’ This means that all pages that require the signatures of the voters ‘shall be duplicates.’ ” Avalos further informed Ruiz that the recall effort must be started anew. The Proponents of the recall continued to gather signatures despite Avalos’s letter withdrawing approval.

Procedural Background

On January 22, 2002, the Proponents filed a verified petition for writ of mandate requesting that the trial court declare Avalos’s December 10, 2001 letter invalid and requiring the South Gate City Clerk to accept the Petitions if filed by the statutory deadline. Avalos, Julia Sylva, the elections official who replaced Avalos, and Salvador Alva, the South Gate City Attorney, were named as respondents, and the Target Officials were named as the real parties in interest. The Target Officials filed a separate petition for writ of mandate.

During a hearing on both Ruiz’s and the Target Officials’ Petitions for writ of mandate, the trial court indicated that the use of bold and underlining

petition. (Hebard v. Bybee (1998) 65 Cal.App.4th 1331 , 1335 [ 77 Cal.Rptr.2d 352 ] [defining section as copy]; Myers v. Patterson (1987) 196 Cal.App.3d 130 [ 241 Cal.Rptr. 751 ] [using the term section to mean copy].) Thus, according to the plain language of the statute, all “copies” must have “uniform size and darkness.”

While the strength of Ruiz’s interpretation is that it defines “section” as the term is commonly used in the Elections Code, the weakness is that the statutory language, as he interprets it, is duplicative. Section 11040, subdivision (a) states that “[t]he petition may consist of any number of separate sections, which shall be duplicates except as to signatures and matters required to be affixed by signers and circulators.” Thus, under section 11040, subdivision (a) each copy of the petition must be a duplicate of all other copies. A duplicate is “exactly the same as one or more others of its kind” and would, therefore necessarily have identical size, darkness, and spacing. (Webster’s 3d New Intemat. Diet. (1993) p. 702 [defining duplicate as “consisting of or existing in two corresponding or identical parts or examples; being exactly the same as one or more others of its kind . . . .”].) The meaning Ruiz ascribes to section 11041, subdivision (b) is no different from the meaning of section 11040, subdivision (a).

In contrast to Ruiz, Sylva argues that “the typeface on any and every section of the petition that is circulated for signatures must be uniform in size, darkness, and spacing.” She further contends that the “plain meaning of section 11041, subdivision (b), is that, on a recall petition, the recall proponents’ statement of reasons for recall and the target official’s answer must be printed in the same typeface.” Although Sylva expressly states that a section, as used in the statute, is a copy of the petition, her interpretation requires defining section as paragraph. If the term “section” means paragraph, then all petition paragraphs shall be printed in uniform size and darkness. But, if the term “section” means copy, as Sylva claims, only the copies must be uniform, not each paragraph of the petition.

The Target Officials concur in Sylva’s interpretation of the statute, stating “the recall proponent’s statement of reasons for recall and the target official’s answer must be printed in the same typeface.” Like Sylva, the Target Officials explicitly define section as copy, but implicitly reject a literal construction of the statute because they eschew the claim that only copies of the Petitions must be uniform.

The Secretary of State rejects both parties’ interpretations and argues that “the Notice of intention and the Answer [must] be printed in the same type size. However, this does not preclude the parties from utilizing bolding,

Assemblymember David Elder in 1983. According to a memorandum of support from the office of Secretary Eu, the new legislation was necessary because “There is no provision that prohibits proponents from printing a recall petition in different type sizes. For example, the notice of intention (including grounds for recall) in ten-point type size and the officer’s answer in a small six-point type size.” The same memorandum explained that the bill would “impose a requirement for uniformity throughout the petition.” Significantly, Assemblymember Elder’s analysis, contained in a letter to the Governor requesting his approval of the bill, also indicated that the amendment would require “recall petitions to be printed in uniform type and size.” (See People v. Pena (1999) 74 Cal.App.4th 1078 , 1083 [ 88 Cal.Rptr.2d 656 ] [considering letter from author to governor urging passage of legislation when ascertaining legislative intent].)

Based on the legislative history stressing the need for equal emphasis, we conclude that section 11041, subdivision (b) requires that the statement and answer be printed in uniform size and darkness. This interpretation, advanced by Sylva and the Target Officials, is most consistent with the legislative intent. (People v. Thomas (1992) 4 Cal.4th 206 , 210 [ 14 Cal.Rptr.2d 174 , 841 P.2d 159 ] [“ ‘The fundamental purpose of statutory construction is to ascertain the intent of the lawmakers so as to effectuate the purpose of the law’ ”].)

While one canon of statutory construction calls for liberal construction of recall statutes in favor of the right to recall elected officials (Gage v. Jordan (1944) 23 Cal.2d 794 , 799 [ 147 P.2d 387 ]), a court cannot “enlarge the scope of a procedural statute where the statutory provisions are clear.” (Wilcox v. Enstad (1981) 122 Cal.App.3d 641 , 651 [ 176 Cal.Rptr. 560 ].) The legislative intent, as reflected in the legislative history indicates that section 11041, subdivision (b) requires that the statement and answer be printed in uniform size and darkness with uniform spacing. This construction is the only one confirmed by the legislative purpose.

The practical consequence of this holding is that the Proponents, who control the recall process, will select the typeface for both the statement and the answer. The Proponents, however, will not derive any special benefit from their ability to select the typeface precisely because of the uniformity requirement. If granting the recall Proponents an opportunity to select the typeface is deemed to be undesirable, the Legislature may amend the statute to specify a particular typeface as it has done in other situations. (See, e.g., §§ 9008, 9160.)

Ruiz and the Secretary of State surmise that other deleterious consequences will flow from this holding. The Secretary of State argues the

“target officials could, in every instance, thwart the entire recall process simply by choosing a type size and darkness different from that selected by the proponents.” If the Target Officials choose a typeface different from that employed by the proponents, the Proponents, in order to actually comply with section 11041, subdivision (b), must print the answer in the same typeface as the statement even if that requires alteration of the typeface used in the original answer.

Ruiz claims that construing section 11041, subdivision (b) to require a uniform typeface in the statement and answer would enable the recall election proponents to “edit” the answer. The term edit connotes an alteration of the content of the answer. However, permission to alter the typeface used in the answer, where it is inconsistent with the typeface used in the statement, is not tantamount to sanctioning the alteration of the content of the answer, which is neither required nor permitted under section 11041, subdivision (b).

There is no dispute that the Petitions do not actually comply with section 11041, subdivision (b), as we have construed it. The statements and answers were printed in disparate typefaces, which lack the uniformity required by the statute.

II. The Petitions Substantially Comply with Purpose of Section 11041, Subdivision (b)

The next issue is whether, under the doctrine of substantial compliance, the Petitions are valid despite the fact the entire statement was printed in bold type and the answer was printed in a combination of typefaces, including plain type, bold type, and underlined type.

“ ‘[Substantial compliance . . . means actual compliance in respect to the substance essential to every reasonable objective of the statute.’” (Assembly v. Deukmejian (1982) 30 Cal.3d 638 , 649 [ 180 Cal.Rptr. 297 , 639 P.2d 939 ], quoting Stasher v. Harger-Haldeman (1962) 58 Cal.2d 23 , 29 [ 22 Cal.Rptr. 657 , 372 P.2d 649 ].) The doctrine of substantial compliance, however, cannot save a petition that misinforms the voters or fails to inform the voters of information necessary to “exercise intelligently their rights . . . .” (Creighton v. Reviczky (1985) 171 Cal.App.3d 1225 , 1232 [ 217 Cal.Rptr. 834 ].) Nor may it be “relied upon to save carelessly or negligently prepared petitions.” (California Teachers Assn. v. Collins (1934) 1 Cal.2d 202 , 205 [ 34 P.2d 134 ].) “[Statutes passed for the purpose of protecting electors from confusing or misleading situations should be

enforced.” (Clark v. Jordan (1936) 7 Cal.2d 248 , 252 [ 60 P.2d 457 , 106 A.L.R. 549 ].)

Even though the doctrine of substantial compliance is narrowly applied in the election context, our Supreme Court “has stressed that technical deficiencies in referendum and initiative petitions will not invalidate the petitions if they are in ‘substantial compliance’ with statutory and constitutional requirements.” (As sembly v. Deukmejian, supra, 30 Cal.3d 638 , 652.) The same rules have been applied to recall petitions. (See, e.g., Othmer v. City Council of Long Beach (1929) 207 Cal. 263 , 275 [ 277 P. 857 ]; Tilden v. Blood (1936) 14 Cal.App.2d 407 , 414 [ 58 P.2d 381 ].)

We conclude the Petitions substantially complied with the purpose of section 11041, subdivision (b). Although the Petitions do not actually comply with the literal language of section 11041, subdivision (b), they comply with the substance essential to every reasonable objective of the statute.

A. The Purpose of Section 11041, Subdivision (b) Is to Assure Equal Emphasis of the Notice of Intention and the Answer

The purpose of section 11041, subdivision (b), as indicated in the legislative history, is to ensure equal emphasis of the statement and the answer. The legislative history reflects the understanding that “[Requiring all petition sections to be printed in uniform size and darkness would ensure that both the notice of intention (which includes the recall statement) and the officer’s answer are given equal emphasis on the petition.” (Off. of Sec. of State, Analysis of Assem. Bill No. 1455 (1983-1984 Reg. Sess.) June 9, 1983, p. 3, italics added.) The author of the legislation described the changes as “technical and procedural” and numerous other analyses similarly reflect that the legislation was technical and procedural. (See, e.g., Sen. Com. Elections & Reapportionment, Analysis of Assem. Bill No. 1455 (1983-1984 Reg. Sess.) as amended May 11, 1983 [bill provides for technical, clarifying, and procedural changes]; 3d reading analysis of Assem. Bill No. 1455 (1983-1984 Reg. Sess.) June 21, 1983, as amended May 11, 1983 [same].)

Because the legislative purpose to ensure equal emphasis of the statement and answer, the premise of Sylva’s argument that “[t]he lack of actual compliance with the statute in this case defeats the statute’s essential pur pose—to provide fair and balanced information to the voters” is inaccurate. (Italics in original.) Simply put, section 11041, subdivision (b) does not govern the information provided to the voters, but governs only the emphasis that information receives in the petition.

The distinction between equal emphasis—the purpose of section 11041, subdivision (b) and balanced information—the purpose as characterized by Sylva—is critical. The failure to provide information or the communication of misinformation threaten the proper operation and the integrity of the election process. (San Francisco Forty-Niners v. Nishioka (1999) 75 Cal.App.4th 637 , 642 [ 89 Cal.Rptr.2d 388 ].) No court has applied the doctrine of substantial compliance to save a petition that provides confusing or misleading information. (Clark v. Jordan, supra, 7 Cal.2d 248 [finding no substantial compliance where short title does not reveal initiative measure would affect taxes]; Mervyn’s v. Reyes (1998) 69 Cal.App.4th 93 , 104 [ 81 Cal.Rptr.2d 148 ] [omitting 17 pages of general plan section did not constitute substantial compliance]; Hebard v. Bybee, supra, 65 Cal.App.4th 1331 [no substantial compliance where title of ordinance in referendum petition was inaccurate]; Ibarra v. City of Carson (1989) 214 Cal.App.3d 90 , 99 [ 262 Cal.Rptr. 485 ] [“[w]here the purpose of the statutory requirement is to give information to the public to assist the voters in deciding whether to sign or oppose the petition, the substantial compliance argument is often rejected and strict compliance held essential”]; Creighton v. Reviczky, supra, 171 Cal.App.3d 1225 , 1231, 1338 [finding no substantial compliance where proponents increased confusion by excluding test of protested legislation].)

In contrast, the doctrine of substantial compliance has been applied where only the emphasis of the information presented is at issue. For example, in California Teachers Assn. v. Collins (1934) 1 Cal.2d 202 [ 34 P.2d 134 ], the registrar of voters refused to accept a petition because, in part, the short title was printed in 12-point instead of 18-point type, when section 1197b of the Political Code required that “ ‘across the top of each page after the first page of every initiative . . . petition or section thereof. . . there shall be printed in eighteen-point gothic type a short title . . . .’” (California Teachers Assn., at pp. 203-304.) The Supreme Court found “[i]n actual size there is a difference of but six-seventy-seconds of an inch. Only one with very poor eyesight would be unable to read a line printed in twelve-point type as readily as one printed in eighteen-point type.” (Id. at p. 204.) “[W]e are of the view there has been a sufficiently substantial compliance with the statute to require him to accept and file the petition.” (Ibid.; see also Othmer v. City Council of Long Beach (1929) 207 Cal. 263 , 270 [ 277 P. 857 ] [finding substantial compliance where “there was nothing in the duplicate copies of the petition to mislead the electors, and there can be no doubt that each signer fully understood that he was signing a petition for the recall of the four councilmen”]; Chase v. Brooks (1986) 187 Cal.App.3d 657 , 664 [ 232 Cal.Rptr. 65 ] [finding caption to be in substantial compliance with requirements].)

One reason to distinguish between information and emphasis when applying the substantial compliance doctrine is that only the latter is necessarily

content neutral. Where the information is mischaracterized the electorate is misled, and the voter is unable to intelligently exercise his or her right to vote, the “sword of democracy.” (San Francisco Forty-Niners v. Nishioka, supra, 75 Cal.App.4th at p. 643.) On the other hand, where the only defect is that the typeface is not in strict compliance with the Elections Code, the voter may still be able to intelligently exercise his or her right to vote. (See California Teachers Assn. v. Collins, supra, 1 Cal.2d 202 .) “The law is clear that election officials have a ministerial duty to reject initiative petitions which suffer from a substantial, as opposed to a technical, statutory defect which directly affects the quality of information provided to the voters.” (San Francisco Forty-Niners v. Nishioka, supra, 75 Cal.App.4th at p. 644.)

A review for content is antithetical to analyzing substantial compliance in this case because the issue is emphasis, not information. Nevertheless, reviewing the content of the Target Officials’ answers demonstrates a second fallacy of Sylva’s argument. Sylva argues that actual compliance is necessary to ensure the communication of balanced information. That argument assumes that the answer presents information, i.e. a position informing the voters of the desirability of a recall election.

Contrary to Sylva’s assumption, the answers contain no information regarding the desirability or merits of a recall election. Consequently, as the Secretary of State points out, “[i]n the particular circumstances of this case . . . where the Answers do not address the merits of the Notice of Intention, the type size and darkness are totally irrelevant.” Even if the purpose of section 11041, subdivision (b) were as Sylva characterized it—to provide fair and balanced information—she cannot demonstrate that the information presented was imbalanced because the Target Officials provided no competing position vis-á-vis the merits of the recall election.

B. The Proponents Substantially Complied with the Essence of Section 11041, Subdivision (b)

The real issue is whether the use of disparate typeface created an undue emphasis of the Proponents’ statement compared to the Target Officials’ answers. The Target Officials argue that “ ‘Substantial compliance’ cannot achieve the equality required by the Legislature.” The trial court, in contrast, found the bold print in the statement “balance[s] out” with the combination of plain, bold, and underlining used in the answers.

We have reviewed independently the copies of the Petitions included in the record and agree with the trial court’s analysis. (See Hernandez v. City of

Encinitas (1994) 28 Cal.App.4th 1048 , 1058 [ 33 Cal.Rptr.2d 875 ] [substantial compliance is a question of law].) The typeface used in the statement appears to be substantially the same as that used in the answers. While the statement is slightly darker, the difference is minute. Despite the slight discrepancy, the use of selective emphasis in the answers including the use of bold type, underline type, and plain type, “balance [s] out” the use of bold type in the statement. Stated otherwise, the statements and answers appear equally emphasized; neither is minimized in comparison to the other.

The Target Officials argue “the statement of grounds for the recalls . . . were printed entirely in boldface type, which increased the physical size of the print, as compared to the answers of the officials sought to be recalled . . . which were printed almost entirely in ordinary type and darkness.” To better evaluate the Target Officials’ claim that the typeface used for the statement was larger and therefore more prominent, we measured the word “You” contained in both the statement and in the answers was measured. While there was a difference in size between the bold type in the statement and the plain type in the answers, the difference was less than one millimeter in length. This difference is de minimis. The essence of the statutory requirement—equal emphasis—has been satisfied, notwithstanding the slight variation in color and the insubstantial variation in size. There is no evidence that a voter reviewing the petition would be drawn to the statement because of the typeface used. Although the Petitions did not actually comply with the requirements of section 11041, subdivision (b), the petitions substantially complied with that statute.

Substantial compliance is sufficient. It is the test reaffirmed in Assembly v. Deukmejian, supra, 30 Cal.3d 638 , and routinely applied in the election context. (See, e.g., Hebard v. Bybee, supra, 65 Cal.App.4th at p. 1339; Ibarra v. City of Carson, supra, 214 Cal.App.3d at p. 99; Myers v. Patterson, supra, 196 Cal.App.3d at pp. 137-139.) In addition, it is consistent with the approach employed by the Secretary of State to permit, on rare occasions, the proponents of a recall election to alter the presentation of the answer without altering the content of the answer. Actual compliance with the literal language of the statute is not necessary to save the petitions.

While the doctrine of substantial compliance remains viable, its application requires caution. “ ‘Substantial compliance’ may be carried too far, in which case its application may not be relied upon to save carelessly or negligently prepared petitions.” (California Teachers Assn. v. Collins, supra, 1 Cal.2d at p. 205.) The circumstances of this case warrant application of the doctrine because the technical violations are de minimis, and no evidence reveals the Proponents sought to manipulate the process in order to obtain an

unfair advantage by deemphasizing the answers. Instead, the Proponents printed the answers exactly as they were drafted and neither the statements nor the answers were unduly emphasized.

III. Avalos’s Purported Rescission Letter Does Not Render Signatures Collected on the Petitions After December 10, 2001, Invalid

Sylva argues that this court should hold the signatures collected after December 10, 2001, are invalid because, on that date, Avalos informed the Proponents that the petitions were invalid. There is no basis to reach the conclusion requested by Sylva. The signatures were collected on valid Petitions after the Petitions were approved by the election official. The Elections Code requires nothing more. (§ 11042, subd. (d).)

First, the Petitions were valid because they substantially comply with section 11041, subdivision (b). The Target Officials implicitly recognized this when they prepared their answers because, at that time, they had been personally served with copies of the Petitions that included the statements, which were printed in bold. The Target Officials could have chosen to print their answers in the same bold type. Instead, they chose to emphasize selectively only certain words.

Second, Avalos recognized that the Petitions substantially complied with section 11041, subdivision (b) when she approved the Petitions. (§ 11042, subd. (a).) An election official has a “ministerial duty to reject initiative petitions which suffer from a substantial, as opposed to a technical, statutory defect.” (San Francisco Forty-Niners v. Nishioka, supra, 75 Cal.App.4th at p. 644.) Avalos was not required to reject the petitions because the defect was a minor technical defect, not a substantial statutory defect. The technical violation did not result in the presentation of confusing or misleading information.

Finally, once Avalos approved the Petitions, the Proponents were authorized under the Elections Code to collect signatures. (§ 11042, subd. (d).) Accordingly, we reject Sylva’s request that this court invalidate any portion of those signatures.

Disposition

The grant of the Proponents’ petition for mandate is affirmed (No. B157433). The denial of the Target Officials’ petition for mandate is likewise affirmed (No. B157803). The approval of the form and the wording of the Petitions is final. The Petitions are deemed to have been timely filed. The

“intermediate steps in the recall” as codified in section 11101 et seq. shall commence immediately upon the issuance of this court’s remittitur.

Rubin, J., and Boland, J., concurred.

The petition of appellant Julia Sylva for review by the Supreme Court was denied November 26, 2002.