Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 06CS01217
NICHOLSON, Acting P.J.
The plaintiffs are proponents of various proposed ballot initiatives to amend the California Constitution with respect to marriage. They sought a writ of mandate in the superior court to require the Attorney General to change the titles and summaries he had provided for the proposed initiatives. The superior court denied the petition.
On appeal, the plaintiffs contend that the superior court erred by not granting the petition because (1) the titles and summaries provided by the Attorney General were misleading and (2) the Attorney General’s use of a number to identify each proposed initiative in its title and summary violated the Elections Code. We affirm.
The Attorney General states that this case is moot because the time for collecting signatures on the three proposed initiatives has expired and the plaintiffs have not collected the required number of signatures. The Attorney General does not, however, assert that we should dismiss the appeal. We therefore consider this appeal on the merits because, even if it is moot, it raises issues that are capable of repetition but likely to evade review. (Conservatorship of Wendland (2001) 26 Cal.4th 519, 524, fn. 1.)
The “factual background” section of the plaintiffs’ opening brief is deficient. As it appears the deficiencies do not preclude our full consideration of the merits of the appeal, we elect to disregard the deficiencies. (Cal. Rules of Court, rule 8.204(e)(2)(C).)
The plaintiffs, on separate dates, filed three proposed initiatives with the Secretary of State, triggering the Attorney General’s duty, in each instance, to prepare a title and summary. The proposed initiatives each (1) provided for an amendment to the California Constitution to declare that only marriage between one man and one woman is valid and recognized in California and (2) prohibited the government from altering the definition or its effect. The Attorney General assigned the tracking numbers 06-0027, 06-0028, and 06-0029 to the proposed initiatives. As submitted by the plaintiffs, the text of 06-0027 and 06-0028 was identical. The text of 06-0029 was identical except that it added a clause prohibiting the government from decreasing the rights of married people.
The Attorney General wrote titles and summaries for the three proposed initiatives to be included in the petitions circulated for voter signatures.
The titles and summaries for 06-0027 and 06-0028 were identical and read: “MARRIAGE. ELIMINATION OF DOMESTIC PARTNERSHIP RIGHTS. INITIATIVE CONSTITUTIONAL AMENDMENT. Amends the California Constitution to provide that only marriage between one man and one woman is valid or recognized in California, whether contracted in this state or elsewhere. Voids or makes unenforceable certain rights and obligations conferred by California law on same-sex and heterosexual couples registered as domestic partners, concerning subject areas including, but not limited to, community property, intestate succession, stepparent adoption, child custody, child support, hospital visitation, health care decisions for an incapacitated partner, insurance benefits, death benefits, and recovery for wrongful death. Summary of estimate by Legislative Analyst and Director of Finance of fiscal impact on state and local governments: Unknown, but potentially some savings for state and local governments. The impact would depend in large part on future court interpretations. ([06-0027 or 06-0028].)”
The title and summary for 06-0029 differed slightly and read as follows, with the difference in wording italicized: “MARRIAGE. ELIMINATION OF DOMESTIC PARTNERSHIP RIGHTS. INITIATIVE CONSTITUTIONAL AMENDMENT. Amends the California Constitution to provide that only marriage between one man and one woman is valid or recognized in California. Prohibits decreasing marriage rights shared by one man and one woman. Voids or makes unenforceable certain rights and obligations conferred by California law on same-sex and heterosexual couples registered as domestic partners, concerning subject areas including, but not limited to, community property, intestate succession, stepparent adoption, child custody, child support, hospital visitation, health care decisions for an incapacitated partner, insurance benefits, death benefits, and recovery for wrongful death. Summary of estimate by Legislative Analyst and Director of Finance of fiscal impact on state and local governments: Unknown, but potential increased costs for state and local governments. The impact would depend in large part on future court interpretations. (06-0029.)” (Italics added.)
As shown, each title and summary, though identical or almost identical in the text, includes the unique number assigned by the Attorney General.
The plaintiffs filed a petition for writ of mandate in the superior court. They sought a writ “commanding [the Attorney General] to amend the Titles to reflect each initiative’s unique identity so that potential signatories and circulators and election officials are not misled . . . and . . . to issue visually different titles for all active initiatives in the future . . . .” The plaintiffs did not then and do not now contend that the titles and summaries prepared by the Attorney General were substantively misleading or improper in any other way.
The Attorney General answered, and the court held a hearing on the petition.
After the hearing, the court entered judgment denying the petition. It concluded that the Attorney General complied with the relevant statutes.
The Attorney General filed requests for judicial notice on August 3, 2007, and December 19, 2007. The requests for judicial notice are granted. (Evid. Code, §§ 452, 459.)
DISCUSSION
I
Attorney General’s Duty
The plaintiffs assert that providing titles and summaries that are not “visually different” for the three proposed initiatives violated the Attorney General’s duty to provide titles and summaries that are not misleading. We conclude that the plaintiffs’ assertion is without merit.
“Any person who is interested in any proposed measure may at any time, prior to 150 days before the election at which the measure is to be voted upon, file a copy of it with the Secretary of State, together with a request that a ballot title be prepared for it. This request shall be accompanied by the address of the person or association of person's proposing the measure. The Secretary of State shall immediately transmit a copy of the measure to the Attorney General. Within 10 days after it is filed, the Attorney General shall provide and return to the Secretary of State a ballot title for the measure. The ballot title may differ from the legislative or other title of the measure and shall express in not exceeding 100 words the purpose of the measure. In providing the ballot title, the Attorney General shall give a true and impartial statement of the purpose of the measure in such language that the ballot title shall neither be an argument, nor be likely to create prejudice, for or against the proposed measure.” (Elec. Code, § 9051; see also Elec. Code, § 9050.) “Upon receipt of a draft of a petition, the Attorney General shall prepare a summary of the chief purposes and points in the proposed measure.” (Elec. Code, § 9004.)
“The Attorney General’s statement must be true and impartial, and not argumentative or likely to create prejudice for or against the measure. (Elec. Code, § 3531.) The main purpose of these requirements is to avoid misleading the public with inaccurate information. [Citations.] [The Supreme Court has] said, however, that the title and summary need not contain a complete catalogue or index of all of the measure’s provisions and ‘if reasonable minds may differ as to the sufficiency of the title, the title should be held sufficient.’ [Citation.] As a general rule, the title and summary prepared by the Attorney General are presumed accurate, and substantial compliance with the ‘chief purpose and points’ provision is sufficient. [Citation.]” (Amador Valley Joint Union High Sch. Dist. v. State Bd. of Equalization (1978) 22 Cal.3d 208, 243.)
The plaintiffs argue: “By failing to provide visually different titles to active initiatives, the Attorney General causes disorder and confusion among potential signatories and volunteer circulators. . . . A citizen asked to sign a petition will not have the time nor take the time to read the complete text of the proposals to determine whether they are actually the same.” The plaintiffs offer no authority for this argument, except to contend that the Attorney General’s practice of using the same wording violates his duty not to mislead. Given that we must first presume a title and summary is accurate and not misleading, we see nothing in the plaintiffs’ argument to overcome the presumption. Each title and summary includes the unique number to set it apart from the others. Beyond that, the similarities in the titles and summaries are attributable to the similarities in the proposed initiatives.
The Attorney General surmises that the plaintiffs are shopping for the most favorable title and summary. We need not engage in speculation concerning the plaintiffs’ motives. The issue is whether the Attorney General violated his duty under the Elections Code.
The plaintiffs claim that the Attorney General’s approach to preparing the titles and summaries for the three proposed initiatives in this case represents a change in policy. In September 2004, the Attorney General submitted an answer to a petition in an unrelated Elections Code case in which the Attorney General stated: “This proponent has a virtually identical initiative currently circulating . . . . In order to not to [sic] mislead possible signatories, it was necessary to provide this proposed initiative with a visually different title. Therefore, it was a reasonable exercise of the Attorney General’s discretion to switch two of the main points so that potential signatories would be able to know that the two measures were in fact different.”
While we doubt this is sufficient to establish that the Attorney General had a specific policy concerning the drafting of titles and summaries, it makes no difference. The Attorney General’s policies are irrelevant, as long as he produces titles and summaries consistent with his duty under the Elections Code.
Having applied a unique number to distinguish between proposed initiatives that are identical or almost identical, the Attorney General has provided a way for prospective signatories to know which proposed initiative is being presented. We therefore reject the plaintiffs’ assertion that the titles and summaries were misleading.
II
Identifying Number
The plaintiffs also assert that including the Attorney General’s unique identifying number in the title and summary violates Election Code section 9051. It does not.
Section 9051 of the Elections Code requires the Attorney General to provide a title and summary “not exceeding 100 words,” which is “a true and impartial statement of the purpose of the measure . . . .” The plaintiffs contend that including the unique identifying number in the word count of the title and summary “violates both the limited- word-count [sic] clause, and the statement-of-purpose clause” because the number “conveys nothing of the purpose of any measure to the public.”
We disagree that including the unique identifying number in the title and summary is an abuse of the Attorney General’s broad discretion. The 100-word limit is just that, a limit. If the title and summary sufficiently describes the purpose of the proposed initiative, then the Attorney General has complied with the statute, even if he includes the identifying number.
DISPOSITION
The judgment is affirmed. The Attorney General shall recover his costs on appeal. (Cal. Rules of Court, rule 8.278(a).)
We concur: HULL , J., ROBIE , J.
The main deficiency is the plaintiffs’ failure to support factual and procedural assertions with proper citations to the record. The brief must “[s]upport any reference to a matter in the record by a citation to the volume and page number of the record where the matter appears.” (Cal. Rules of Court, rule 8.204(a)(1)(C).)
In the plaintiffs’ “factual background,” in which they make many assertions of fact and procedure, they provide only two references to the record, and one of them is incorrect. They state that the Attorney General’s policy concerning preparation of titles and summaries for proposed initiatives was confusing to the Secretary of State’s staff. The record citation, however, is to a certification by a transcriber that a transcript was correct.
As noted, we will disregard the deficiencies in the brief and consider the merits.