Starr v. Chaparro

Filed 1/18/22; on rehearing
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
AARON STARR, 2d Civ. No. B307585
(Super. Ct. No. 56-2020-
Plaintiff and Appellant, 00541757-CU-WM-VTA)
(Ventura County)
v.
OPINION ON REHEARING
ROSE CHAPARRO, as City
Clerk, etc., et al.,
Defendants and
Respondents.
A city ordinance adopted by the voters may be repealed or
amended only by a vote of the people. (Elec. Code, § 9217.)1 A
city council enacted an ordinance that served to deny voters their
rights guaranteed by the Election Code. Here, we restore their
rights.
Plaintiff presented a valid initiative petition adopted by the
voters to amend a city ordinance to add term limits for council
members. The city adopted the amended ordinance as its own
instead of placing it on the ballot. But it did so in a manner that
All statutory references are to the Elections Code unless
1
otherwise stated.
rendered the ordinance a nullity, depriving the voters of the
opportunity to decide the issue of term limits. The trial court
denied plaintiff’s request for a writ of mandate to compel the city
to place the initiative on the ballot. We reverse.
FACTS
1973 Ordinance
Prior to 1973, the mayor of the City of Oxnard (City) was
appointed by the city council. In June 1973, the city council
received an initiative petition seeking to place before the voters
the questions whether the mayor should be directly elected and,
if so, whether the term should be two or four years.
After the city council received the petition, the city attorney
ruled the petition invalid because it did not attach an ordinance.
Instead of proceeding on the initiative petition, the City, on its
own, pursuant to its authority under Government Code section
34900, ordered the questions placed on the ballot. In a November
1973 election, the majority of voters voted to have an elected
mayor with a two-year term of office.
Measure B
In October 2019, the city council adopted a resolution
placing Measure B on the ballot for an election to be held in
March 2020. Measure B sought to amend section 2-3 of the
Oxnard City Code to extend the mayor’s term to four years and to
add section 2-4 to establish a limit of three terms for city council
members.
Starr’s Initiative Petition
Two weeks after the city council resolution placing Measure
B on the ballot, Aaron Starr delivered an initiative petition to the
city council. Like Measure B, the initiative would amend section
2-3 to extend the mayor’s term to four years. Unlike Measure B,
2.
however, Starr’s initiative would not allow a person to
indefinitely alternate between mayor and council member
without a break. Starr’s initiative would establish a combined
two-term limit for mayor and council member. Thus, a person
who served two terms as mayor could not immediately run for
council member. Instead, a person who served two terms as
mayor or council member or a combination of the two would be
required to wait two years before running again. The Ventura
County Elections Division certified the signatures on Starr’s
initiative petition.
Instead of placing Starr’s initiative on the ballot, in
January 2020, the City exercised its option under section 9215,
subdivision (a) to adopt the initiative as an ordinance without
alteration.2 As we shall explain, this action is a nullity under
section 9217. The City did not, however, remove Measure B from
2 Section 9215 reads as follows: “If the initiative petition is
signed by not less than 10 percent of the voters of the city,
according to the last report of registration by the county elections
official to the Secretary of State pursuant to Section 2187,
effective at the time the notice specified in Section 9202 was
published, or, in a city with 1,000 or less registered voters, by 25
percent of the voters or 100 voters of the city, whichever is the
lesser number, the legislative body shall do one of the following:
[¶] (a) Adopt the ordinance, without alteration, at the regular
meeting at which the certification of the petition is presented, or
within 10 days after it is presented. [¶] (b) Submit the ordinance,
without alteration, to the voters pursuant to Section 1405. [¶] (c)
Order a report pursuant to Section 9212 at the regular meeting
at which the certification of the petition is presented. When the
report is presented to the legislative body, the legislative body
shall either adopt the ordinance within 10 days or order an
election pursuant to subdivision (b).”
3.
the ballot. The voters adopted Measure B in the March 3, 2020,
election. Thus, the terms of Measure B prevailed over the terms
of Starr’s initiative previously adopted as an ordinance, and the
term limits provided in Starr’s initiative did not take effect.
Starr’s Writ Petition
On June 9, 2020, Starr filed the instant petition for writ of
mandate seeking to order the city clerk to place his term limits
initiative on the November 3, 2020, ballot. The trial court denied
the petition. The court rejected Starr’s argument that section
9217 requires his initiative to be placed on the ballot. The court
also denied Starr leave to amend his petition to allege breach of
Government Code section 34900 because it was raised for the
first time in his reply brief.
DISCUSSION
I
The City Erred in Failing to Place
Starr’s Initiative on the Ballot
Section 9215 provides in part that when a city receives an
initiative petition with a sufficient number of signatures, the city
must do one of the following: (a) Adopt the ordinance, without
alteration, at the regular meeting at which the certification of the
petition is presented, or within 10 days after it is presented; (b)
submit the ordinance, without alteration, to the voters pursuant
to section 1405.
The City argues that when it adopted the ordinance in
Starr’s petition without amendment, the City gave him the entire
remedy to which he is entitled. It did the opposite. The City
deprived Starr and the citizens who signed his initiative of the
remedy they sought and to which they were entitled, term limits
for council members.
4.
Starr relies on section 9217. That section provides in part:
“No ordinance that is either proposed by initiative petition and
adopted by the vote of the legislative body of the city without
submission to the voters, or adopted by the voters, shall be
repealed or amended except by a vote of the people, unless
provision is otherwise made in the original ordinance.”
Starr points out that section 9217 prohibits repeal or
amendment of an ordinance adopted by the voters except by a
vote of the people. He argues that because the 1973 ordinance
was adopted by the voters, the city council’s adoption of his
initiative ordinance rendered his initiative nugatory. He
concludes the City was required to place his initiative on the
ballot. Not doing so defeats the initiative.
The City replies that section 9217 only applies to
ordinances adopted by the voters through the initiative process
and that the 1973 ordinance was not adopted through the
initiative process. Instead, it was placed on the ballot by the City
pursuant to Government Code section 34900.
It is true that section 9217 is found in the part of the
Elections Code governing initiatives and it certainly applies to
initiatives. The City overlooks that the plain language of section
9217 is not limited to adoption by the voters through the
initiative process. It simply governs ordinances “adopted by the
voters.” That applies to all such ordinances, including the 1973
ordinance.
The City argues that the phrase “proposed by initiative”
found in section 9217 also governs “adopted by the voters.” But
the section reads: “No ordinance that is either proposed by
initiative . . . or adopted by the voters . . . . ” (Ibid.) “[A]dopted by
5.
the voters” follows the disjunctive “or.” It states a separate
category from “proposed by initiative.”
The City cites recent cases it claims confirm that measures
placed on the ballot by a city and measures placed on the ballot
by initiative are frequently subject to different standards. (City
& County of San Francisco v. All Persons Interested in Matter of
Proposition C (2020) 51 Cal.App.5th 703, 723-724; City of Fresno
v. Fresno Building Healthy Communities (2020) 59 Cal.App.5th
220, 239.) Those cases hold specific constitutional provisions
requiring a two-thirds vote to approve taxes proposed by the City
do not apply to such taxes proposed by initiative.
The City points to no such specific constitutional provisions
applicable here. Had the Legislature in enacting section 9217
intended to distinguish between ordinances adopted by the voters
through the initiative process and ordinances adopted by the
voters following some other process, it would have said so. It did
not. In fact, the City fails to suggest any reason why the
Legislature would make such a distinction.
The City’s action in adopting Starr’s initiative ordinance
could not have amended the 1973 ordinance. Only a vote by the
people could accomplish this. Section 9215 requires the City to
place Starr’s initiative on the ballot.
II
Remedy
We asked the parties for further briefing on the appropriate
remedy for the City’s failure to place Starr’s initiative on the
ballot. The parties conferred and stipulated that the City will
place the initiative on the November 8, 2022, ballot without
alteration. That will be the order.
6.
DISPOSITION
The judgment is reversed. The City is ordered to place
Starr’s initiative on the November 8, 2022, ballot. Costs are
awarded to appellant.
CERTIFIED FOR PUBLICATION.
GILBERT, P. J.
We concur:
PERREN, J.
TANGEMAN, J.
7.
Henry J. Walsh, Judge
Superior Court County of Ventura
______________________________
Law Office of Chad D. Morgan and Chad D. Morgan for
Plaintiff and Appellant Aaron Starr.
Colantuono, Highsmith & Whatley, Holly O. Whatley, and
Liliane M. Wyckoff for Defendants and Respondents Rose
Chaparro and City of Oxnard.
8.