Serafin v. Super. Ct.
Filed 9/18/12 Serafin v. Super. Ct. CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF
FOURTH APPELLATE DISTRICT
DIVISION TWO
DIANA SERAFIN
et al.,
Petitioners,
v.
THE SUPERIOR COURT OF
RIVERSIDE COUNTY,
Respondent;
STEPHEN FLYNN,
Real
Party in Interest.
E056868
(Super.Ct.No.
RIC1208403)
OPINION
ORIGINAL
PROCEEDINGS; petition for writ of mandate. Daniel A. Ottolia, Judge. Petition granted.
Lepiscopo
& Associates Law Firm, Peter D. Lepiscopo, William P. Morrow, James M.
Griffiths and Michael W. Healy for Petitioners.
No
appearance for Respondent.
Bell,
McAndrews & Hiltachk, Charles H. Bell, Thomas W. Hiltachk and Paul Gough
for Real Party in Interest.
The
court has read and considered the record in this proceeding and has concluded
that issuance of a peremptory writ in the first instance is required to resolve
this matter as expeditiously as possible.
(Code Civ. Proc., § 1088; Palma
v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 178-179;
Cal.4th 1218, 1222-1223, disapproved on another ground in Hassan v. Mercy American
River Hospital (2003) 31 Cal.4th 709, 724, fn. 4.)
The
Supreme Court has stated that “it is usually more appropriate to review
constitutional and other challenges to ballot propositions or initiative
measures after an election rather than to disrupt the electoral process by
preventing the exercise of the people’s franchise, in the absence of some clear
showing of invalidity.” (
The
Supreme Court later explained, “preelection review of an initiative measure may
be appropriate when the challenge is not based on a claim that the substantive
provisions of the measure are unconstitutional, but rests instead on a
contention that the measure is not one that properly may be enacted by
initiative. (See, e.g.,
36 Cal.3d 687 [initiative may not be used to apply for the convening of a
federal constitutional convention]; McFadden
v. Jordan (1948) 32 Cal.2d 330 [initiative may not be used to revise,
rather than to amend, California Constitution].)” (Independent
Energy Producers Assn. v. McPherson (2006) 38 Cal.4th 1020, 1029 (
initiative measure that conferred additional regulatory authority upon the
Public Utilities Commission. It was
challenged on the basis that the California Constitution permits only the
Legislature, and not the people through the initiative process, to confer
additional authority upon that agency.
The Supreme Court determined that “preelection review of such a claim is
not necessarily or presumptively improper.”
(Independent Energy,
cautioned that courts presented with such a preelection challenge should bear in
mind that this type of challenge could also be made after the election. This was unlike procedural challenges, such
as those relating to the petition-circulating process, which could be remedied
only prior to an election and that usually will become moot after an
election. “[B]ecause this type of
challenge is one that can be raised and resolved after an election, deferring
judicial resolution until after the election—when there will be more time for
full briefing and deliberation—often will be the wiser course.” (Ibid.)
In
fact, in Independent Energy, the
Court of Appeal had intervened prior to the election and directed that the
initiative measure be removed from the ballot.
At the time of the Court of Appeal’s decision, the period for public
inspection of the material to be included in the ballot pamphlet was about to
commence. The Supreme Court granted an emergency petition and voted to grant
review, ordering the ballot measure back on the ballot. The measure was defeated at the election, but
the Supreme Court issued its opinion elucidating the rules regarding
preelection review. It opined that the
Court of Appeal’s intervention was understandable because it believed that the
measure was unquestionably invalid, but the Supreme Court granted review and
ordered the measure be restored to the ballot because it was not convinced that
it was invalid.
As in
Independent Energy, it was not
improper for the trial court to grant preelection review of this challenge, but
we must conclude that it was unwise. We
acknowledge that courts have intervened in similar circumstances and ordered
removal of an initiative measure from the ballot, such as in
Court (1988) 45 Cal.3d 491. However,
these rulings occurred somewhat earlier in the ballot process. In addition, the trial court may not have
addressed all issues arising from this matter, including the effect of the
severability clause. Even if the
severability clause is ultimately determined not to have any impact on the overall
validity of the initiative, the failure to address the issue demonstrates that
it was ill-advised for the trial court to entertain the challenge. Real party in interest delayed several months
before bringing a legal action to remove the proposal from the ballot, and this
delay, combined with the fact that the measure can be challenged after the
election if it is approved, are decisive factors in persuading this court to
order that the proposal remain on the ballot.
DISPOSITION
Let a
peremptory writ of mandate issue directing the Superior Court of Riverside
County to set aside its order granting real party in interest’s petition for
writ of mandate and the writ of mandate issued on August 6, 2012, and to issue
a new and different order denying the petition.
Petitioner
is directed to prepare and have the peremptory writ of mandate issued, copies
served, and the original filed with the clerk of this court, together with
proof of service on all parties.
Real
party in interest’s request for judicial notice is granted.
Petitioners
are to recover their costs.
NOT
TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
Acting P. J.
We concur:
KING
J.
CODRINGTON
J.
