Opinion
NOT TO BE PUBLISHED
San Mateo County Super. Ct. No. 461855
Jones, P.J.
Appellants in this action are voters who contend the Half Moon Bay Fire Protection District (the Fire District) erred when it declined to hold a referendum on a resolution adopted by the Fire District’s Board. We agree with the trial court and conclude no referendum was required because the underlying petition for a referendum election was invalid.
I. FACTUAL AND PROCEDURAL BACKGROUND
The Fire District provides fire protection services to those within its boundaries and to those in the adjoining Point Montara Fire Protection District.
In the Spring of 2006, the Fire District was experiencing serious personnel problems. The acting Fire Chief anticipated that as many as 40 percent of the firefighters in the district would be probationary employees who had no experience. According to the Chief, many of the fire captains had “very little real experience” and “[f]irefighters with little experience” were operating fire apparatus. The Fire Chief feared that “someday something serious will occur, either a life-threatening injury or large fire loss due to the lack of experience in the Fire Department.” Bluntly framing the issue as “How long is the organization going to bleed before we say enough?” the Chief stated that, “contracting out the Department would cost less and provide a higher level of service.”
The local grand jury came to a similar conclusion. Called upon to investigate “What can the Boards of Directors of the Half Moon Bay and Point Montara Fire Protection Districts do to provide San Mateo County Coastside residents with adequate, long-term fire protection and life-safety services?”, the grand jury made two recommendations: “Consolidate the two districts into a single fire protection district” and “Contract out all fire services to another fire protection agency . . . .”
Consistent with these recommendations, the Fire District’s governing board held a public meeting to discuss whether it should contract out for service. A request for proposals was formulated and distributed and additional public meetings were held to discuss the responses that were received. In August 2006, at a public meeting, the Fire District identified the California Department of Forestry and Fire Protection (CDF) as the agency with which it would negotiate. Additional public meetings to discuss the ongoing negotiations between the Fire District and CDF were held on September 14, 2006, September 27, 2006, December 5, 2006, and January 16, 2007. Finally, on January 30, 2007, the Fire District’s board passed a resolution approving a contract with CDF. The resolution stated as follows:
“RESOLUTION OF THE HALF MOON BAY FIRE PROTECTION DISTRICT BOARD APPROVING A CONTRACT WITH THE CALIFORNIA DEPARTMENT OF FORESTRY
“WHEREAS, the Half Moon Bay Fire Protection District provides fire services to citizens and properties within its jurisdiction and to citizens and properties within the jurisdiction of the Point Montara Fire Protection District through a contract for service; and
“WHEREAS, the Half Moon Bay Fire Protection District and the Point Montara Fire Protection District have filed an application with Local Agency Formation Commission (LAFCO) to consolidate the Districts, and
“WHEREAS, the Half Moon Bay Fire Protection District and Point Montara Fire Protection District have, while consolidation proceedings are pending, received and reviewed proposals from the California Department of Forestry for delivery of fire services within their jurisdictions; and
“WHEREAS, the Boards of Half Moon Bay Fire Protection District and Point Montara Fire Protection District have held public meetings to obtain and consider public input regarding the California Department of Forestry’s proposal, and
“WHEREAS, the Boards of Half Moon Bay Fire Protection District and Point Montara Fire Protection District have considered the public input received regarding the California Department of Forestry proposal and completed their inquiry into the scope of services and costs of the proposal, and
“WHEREAS, the Half Moon Bay Fire Protection District Board and the Point Montara Fire Protection District Board have determined that the California Department of Forestry proposal is the most cost effective and prudent way within which to provide fire services to the citizens and properties within their respective jurisdictions; and
“WHEREAS, the delivery of fire services through the California Department of Forestry will provide needed financial and organizational stability, leadership and training;
“NOW, THEREFORE, BE IT RESOLVED the Board of the Half Moon Bay Fire Protection District approves the terms and conditions of a contract with the California Department of Forestry for provision of fire services as shown in Exhibit 1 and authorizes the Chair of the Half Moon Bay Fire Protection District to execute the contract.”
Some of the Fire District’s employees apparently opposed the District’s decision to contract with CDF. Their union started a referendum election petition campaign to overturn the Fire District’s decision. As is relevant, the circulated petition stated as follows:
“Referendum Against a Motion Adopted by the Half Moon Bay Fire Protection District Board of Directors
“To the Board of Directors of the Half Moon Bay Fire Protection District:
“We, the Undersigned, registered and qualified voters of the State of California, residents of the Half Moon Bay Fire Protection District, pursuant to Division 9, Chapter 4, Article 2, Section 9340 of the Elections Code of the State of California present to the Board of Directors of the Half Moon Bay Fire Protection District this petition and request that the following legislative action be repealed or be submitted to the registered and qualified voters of the Half Moon Bay Fire Protection District immediately for their rejection or adoption.
“The legislative action taken by [the] Board of Directors of the Half Moon Bay Fire Protection District on January 30, 2007, was the adoption of a Resolution which is titled as follows: ‘Resolution of the Half Moon Bay Fire Protection District Board Approving A Contract With The California Department of Forestry.’
“The Resolution adopted by the Half Moon Bay Fire Protection District Board provides as follows: ‘NOW, THEREFORE, BE IT RESOLVED the Board of the Half Moon Bay Fire Protection District approves the terms and conditions of a contract with the California Department of Forestry for provision of fire services as shown in Exhibit 1 and authorizes the Chair of the Half Moon Bay Fire Protection District to execute the contract.’
“The undersigned signatories to this petition believe that the Half Moon Bay Fire Department should be preserved. The Fire Department and the fire fighters are an essential resource to the residents of Half Moon Bay and are critical to the safety of the residents of our community. The undersigned also believe that the Half Moon Bay Fire Protection District should not contract out fire services to the California Department of Forestry (‘CDF’). There are hidden costs to the residents of the community with a contracting out of services to ‘CDF.’ We believe in local control of our fire protection and emergency medical services. ‘CDF’ reports to Governor Schwarzenegger and a state bureaucracy. The majority of our Half Moon Bay fire fighters live on the coastside and care about our community.
“The undersigned signatories to this petition also believe that if consolidation with other fire departments becomes necessary in the coastside communities, that the consolidation should occur with municipal fire departments which perform the same type of high quality fire suppression, emergency medical and paramedic services that are available from municipalities in our County.”
On February 20, 2007, referendum proponents submitted 138 petitions containing 1,541 signatures to the Fire District at a regularly scheduled public meeting. The Fire District, on the advice of counsel, declined to take any action. It believed the petitions were invalid because, inter alia, they did not include the full text of the resolution that was challenged, did not include the contract that was attached as an exhibit to the resolution, and they contained misleading statements.
Appellants in this action are six persons who supported the referendum petition. On March 29, 2007, they filed a petition for writ of mandate that asked the superior court to order the Fire District to either repeal the January 30, 2007 resolution approving the contract with CDF, or to submit the issue to the voters at the next regularly scheduled election.
The trial court declined to issue the writ. It ruled the petitions were invalid because they omitted the “whereas” clauses of the challenged resolution and thus failed to comply with the statutes that govern referendum elections.
II. DISCUSSION
Appellants contend the trial court erred when it ruled the referendum proponents’ petitions were invalid because the petitions failed to comply with the statutes that govern referendum elections. The parties agree that the Fire District is a public entity whose decisions are subject to referendum. The parties also agree that the interpretation of the controlling statutes presents a question of law that this court must decide de novo on appeal. We therefore turn to the applicable statutes. Two separate but related bodies of law are implicated. The first sets forth the rules that apply when voters seek to challenge the legislative acts of a local district. The second describes the rules that apply when voters seek to challenge an ordinance that has been enacted by a county.
The legislative acts of a local district such as the Fire District are subject to referendum under Elections Code section 9340. At the time these proceedings were held, section 9340 stated, “The voters of any district that is a local public entity . . . shall have the right to petition for referendum on legislative acts of the district in the same manner and subject to the same rules as are set forth in Sections 9141, 9142, 9143, 9144, 9145, and 9146 . . . .”
Unless otherwise indicated, all further section references will be to the Elections Code.
As we will discuss infra, section 9340 has been amended.
The sections of the Elections Code that were listed in section 9340 describe the rules under which voters may challenge a county ordinance by referendum. One of the sections listed, section 9146, describes the form that a referendum petition to a county ordinance must take. It states, “The provisions of this code relating to the form of petitions . . . when an ordinance is proposed by initiative petition, govern the procedure on ordinances against which a protest is filed.”
As directed by the language of section 9146, we turn to “the provisions of this code relating to the form of petitions . . . when an ordinance is proposed by initiative.” The form a petition must take when proposing a county ordinance by initiative is set forth in section 9101. It states, “Any proposed ordinance may be submitted to the board of supervisors by filing an initiative petition with the county elections official, signed by not less than the number of voters specified in this article. [¶] Each petition section shall . . . contain a full and correct copy of the notice of intention and accompanying statement including the full text of the proposed ordinance.” (Italics added.)
Following this statutory chain from former section 9340, to section 9146, to section 9101, we conclude that a referendum petition that challenges a decision of a district such as the Fire District must include the “full text” of the legislative decision that is being challenged. The petitions at issue here did not include the “full text” of the resolution that was being challenged. They omitted all the “whereas” clauses and thus failed to include the vast majority of the resolution at issue. We conclude the trial court correctly ruled the underlying petitions were invalid.
The result we reach is fully consistent with prior law. An unbroken line of cases holds that a petition challenging a legislative act by referendum must set forth the complete text of the act that is being challenged. For example, Creighton v. Reviczky (1985) 171 Cal.App.3d 1225 (Creighton), involved a petition for a referendum on a municipal ordinance that regulated the pace of development in a city. The court found the petition to be invalid because it failed to set forth the text of the challenged ordinance and therefore “failed to provide the electors with the information which they needed in order to exercise intelligently their rights under the referendum law.” (Id. at p. 1232.)
Billig v. Voges (1990) 223 Cal.App.3d 962 (Billig), involved a challenge to a city rezoning ordinance. The referendum petition included a summary of the challenged measure rather than the entire 22-page text. The Billig court found the omission to be fatal to the referendum, “It is obvious . . . that the Legislature intended referendum petitions must contain the exact wording of the challenged measure. Appellants’ summary is a mere several-paragraph description or restatement of the main points of the 22-page ordinance. It does not constitute the text of the ordinance because it does not contain the measure’s actual words.” (Id. at p. 967, fn. omitted.)
More recently, in Nelson v. Carlson (1993) 17 Cal.App.4th 732 (Nelson), the court invalidated a referendum petition that challenged a city’s general plan because the several hundred page plan itself was not attached. The Nelson court said that result was justified because the referendum statute at issue “delineates no exception to the requirement that the petition contain the text of the challenged legislation. If the Legislature had wanted to allow an exception for bulky ordinances or resolutions it could have provided for that situation. So far the Legislature has not done so.” (Id. at p. 740.)
Here, as in Creighton, Billig, and Nelson, we conclude the petitions were invalid because they failed to set forth the full text of the challenged resolution.
Appellants contend the trial court erred. Their first and primary argument is based on the fact that section 9340 has been amended. To put this argument into context, we must provide some background.
When the referendum petitions at issue were circulated, and when the trial court ruled, section 9340 stated: “The voters of any district that is a local public entity . . . shall have the right to petition for referendum on legislative acts of the district in the same manner and subject to the same rules as are set forth in Sections 9141, 9142, 9143, 9144, 9145, and 9146 . . . .” Subsequently in 2007, the Legislature amended section 9340. Effective January 1, 2008, the section now reads in part, “The voters of any district that is a local public entity . . . shall have the right to petition for referendum on legislative acts of the district in the same manner and subject to the same rules as are set forth in Sections 9141, 9142, 9143, 9144, 9145, 9146, and 9147 . . . .” (Italics added.) The change makes clear that district referenda petitions, like county referenda petitions, must include the “title and text of the ordinance” that is being challenged. (§ 9147, subd. (b).)
Section 9147 states:
We invited supplemental briefs to permit the parties to address the effect of the January 1, 2008 amendments to section 9340.
The legislative history giving rise to the 2007 amendments of section 9340 describes the background of the amendment. “Section 9340 of the Elections [C]ode governs referenda for special district ordinances. That section actually cross references Section[s] 9141-9146 which governs county referenda regarding procedures and other requirements. When the code was amended in 1985 to require county referenda petitions to include the title and text of the targeted ordinance that additional cross reference was not picked up in the section governing special districts. Hence, all other jurisdictions’ referenda petitions are now required to include the statute or ordinance text while district referenda petitions are not. This bill corrects that missing cross reference.” (Sen. Com. on Elections, Reapportionment and Const. Amends., Analysis of Sen. Bill No. 513, (2007-2008 Reg. Sess.) as amended Apr. 9, 2007, par. 5.)
Other documents from the statute’s legislative history contain similar statements. (See, e.g., Sen. Rules Com., Off. of Sen. Floor Analyses, Analysis of Sen. Bill No. 513, (2007-2008 Reg. Sess.) as amended Apr. 9, 2007, par. 5.)
All parties to this appeal agree that the amended version of 9340 cannot be applied in this case because the Legislature did not indicate that it intended those amendments to be retroactive. (Cf. Western Security Bank v. Superior Court (1997) 15 Cal.4th 232, 243.) Nevertheless, appellants focus on the language from the legislative history that we have italicized to support their argument that prior to those recent amendments, “there was no statute in effect requiring that a special district referendum election petition contain the text of the legislative act that is the subject of the referendum.” We are unpersuaded.
While legislative analysts did state in 2007 that district referenda petitions were not then required to include the text of the ordinance being challenged, we are not bound by those statements. The Legislature “has no authority to interpret a statute. That is a judicial task.” (Del Costello v. State of California (1982) 135 Cal.App.3d 887, 893, fn. 8.) “Indeed, there is little logic and some incongruity in the notion that one Legislature may speak authoritatively on the intent of an earlier Legislature’s enactment when a gulf of decades separates the two bodies. [Citation.]” (Western Security Bank v. Superior Court, supra, 15 Cal.4th at p. 244.) However, the Legislature’s views on the import of its prior statutes is entitled to due consideration. (Ibid.)
Here, the legislative history in question does indicate the Legislature believed that section 9340 was flawed because it failed to state specifically that district referenda petitions must include the text of the ordinance being challenged. The history also indicates the Legislature wanted to fix that flaw and to bring section 9340 in line with the rules that govern all other referenda petitions. But the legislative history does not purport to be a definitive analysis of that area of the law. It does not discuss nor does it attempt to determine whether some other statute or combination of statutes might require that referenda petitions challenging the legislative acts of a district must set forth the full text of the law being challenged. As we have explained, by following the statutory language from former section 9340, to section 9146, to section 9101, it is clear that a referendum petition challenging a decision of a district must include the “full text” of the legislative decision that is being challenged. The legislative history of section 9340 that appellants cite does not convince us that our interpretation of the other applicable statutes is incorrect.
We may address the remaining arguments appellants advance more briefly. Appellants argued in their original briefing that a petition challenging a decision of a district is governed by section 9147. They argued that under section 9147, subdivision (b), a petition need only set forth the “portion of the ordinance which is the subject of the referendum” and the only portion of the January 30, 2007 resolution that they challenge was set forth in the petitions they circulated. We need not decide whether appellant’s interpretation of section 9147 is correct because it is clear that section does not apply. Former section 9340 stated that the voters of a local public entity such as the Fire District may challenge the entity’s legislative acts “in the same manner and subject to the same rules as are set forth in Sections 9141, 9142, 9143, 9144, 9145, and 9146 . . . .” Notably absent from this express grant of authority was section 9147. As appellants conceded in another portion of their brief, “courts may not rewrite the Elections Code to conform to an assumed intention that does not appear from the statutory language.” (See also Estate of Tkachuk (1977) 73 Cal.App.3d 14, 18.)
Next, appellants attack one link in the statutory chain that we have set forth above. They argue section 9146 “cannot reasonably be interpreted as specifying the form that a referendum petition for a county ordinance must take because the form that a referendum petition for a county ordinance must take is expressly specified in section 9147.” This argument founders on the express language of section 9146 that states, “The provisions of this code relating to the form of petitions . . . when an ordinance is proposed by initiative petition, govern the procedure on ordinances against which a protest is filed.” Furthermore, while one aspect of a referendum challenging a county ordinance might well be governed by section 9147, other aspects of a referendum petition such as its formatting and how it must be signed are governed by other laws. (See § 9101 stating that “[e]ach petition section shall comply with Sections 100 and 9020 . . . .”) Harmonizing both statutes as we are required to do, (Dyna-Med, Inc. v. Fair Employment & Housing Com. (1987) 43 Cal.3d 1379, 1387) we conclude section 9146 does describe and govern the form of a referendum petition on a county ordinance.
Next, appellants argue it is “unreasonable to interpret . . . [former] section 9340 as incorporating section 9101 because it is impossible for the circulators of [a] referendum petition to meet the requirement of section 9101 that a petition contain a full and correct copy of the ‘notice of intention . . . .’” Appellants are correct that a referendum petition to a county ordinance will not include a “notice of intention” because such a notice only applies to an initiative petition. (See §§ 9103, 9104.) However, this is simply the result of the Legislature’s decision to use the rules that govern an initiative to govern a referendum also. (See § 9340.) The fact that some aspects of those rules inevitably will not apply does not mean we can ignore those portions of the rules that do.
Next, appellants argue that an initiative petition in a district need not set forth the full text of the law that is proposed; therefore, appellants reason, it would be illogical to require to require a referendum petition to set forth the full text. Appellant suggest that principles of symmetry compel this result. However, legislative symmetry is not required where the policies between two code sections are different. (Milligan v. City of Laguna Beach (1983) 34 Cal.3d 829, 835.) Here, there are significant differences between an initiative and a referendum. As another court observed when faced with a similar argument, “a summary [of a proposed ordinance] does not ask electors to vote against the adoption of a particular ordinance, but is a mere notification of a prospective law which gives voters the opportunity to inquire further. On the other hand, because a referendum petition asks electors to make a decision about their acceptance or nonacceptance of a proposed ordinance, it requires that voters be fully informed of the substance of the challenged measure so that the petition reflects the actual, informed will of the people.” (Billig, supra, 223 Cal.App.3d at p. 967.)
Finally, appellants note that courts traditionally have interpreted the powers of referendum and initiative liberally and have upheld those rights whenever possible. (Assembly v. Deukmejian (1982) 30 Cal.3d 638, 652.) Appellants argue that when a liberal construction is applied, their petitions were valid because the “whereas” clauses were “superfluous” and “did not cause or require any action to be taken by the district.”
Technical deficiencies will not invalidate a petition if it is in “substantial compliance” with statutory and constitutional mandates. (Assembly v. Deukmejian, supra, 30 Cal.3d at p. 652 .) When determining whether a petition is in substantial compliance the “paramount concern . . . is whether the purpose of the technical requirement is frustrated by the defective form of the petition.” (Ibid.)
Here, the purpose of the full text requirement is to ensure that voters understand the law being challenged so they can exercise their right to referendum intelligently. (Creighton, supra, 171 Cal.App.3d at p. 1232.) The petitions here did not fulfill that requirement. The full text of the January 30, 2007 resolution states that the Fire District held public hearings, considered public input, and evaluated the consequences of its decision. It states the Fire District’s belief that the contract with CDF was “the most cost effective and prudent way within which to provide fire services.” Read as a whole, the resolution presents a picture of a public agency acting carefully and prudently. The truncated version of the resolution set forth in the petitions, by contrast, paints an entirely different picture. It states the Fire District approved a contract with CDF, but nothing more. A voter reading the truncated version might well question whether the Fire District had considered its decision fully, and whether that decision had been publically vetted. On this record, we do not hesitate to conclude the version of the law in the petitions did not substantially comply with the applicable law.
We conclude the trial court correctly declined to issue the writ because the underlying petitions failed to set forth the complete text of the law being challenged.
Having reached this conclusion, we need not decide whether the petition also was invalid because it failed to include the contract with CDF that was attached as an exhibit to the resolution, or whether it was invalid because it included arguments that were misleading.
III. DISPOSITION
The order is affirmed.
The previously issued writ of supersedeas shall be dissolved upon the finality of this decision as to this court. (Cal. Rules of Court, rule 8.264(b).)
We concur: Simons, J., Needham, J.
“(a) The heading of a proposed referendum measure shall be in substantially the following form:
“Referendum Against an Ordinance Passed by the Board of Supervisors.
“(b) Each section of the referendum petition shall contain the title and text of the ordinance or the portion of the ordinance which is the subject of the referendum.”