The opinion
Filed 5/29/25
CERTIFIED FOR PUBLICATION
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
SAN DIEGO PUBLIC LIBRARY D084135
FOUNDATION et al.,
Plaintiffs and Appellants,
(Super. Ct. No. 37-2023-
v. 00014954-CW-WM-CTL)
DIANA FUENTES, as City Clerk, etc.,
et al.,
Defendants and Respondents.
APPEAL from an order of the Superior Court of San Diego County,
Marcella O. McLaughlin, Judge. Reversed and remanded.
Rutan & Tucker, James R. Sutton, Peter J. Howell and Erik C. Leggio,
for Plaintiffs and Appellants.
Mara W. Elliott, City Attorney, M. Travis Phelps, Assistant City
Attorney, and Benjamin P. Syz, Deputy City Attorney, for Defendant and
Respondent Diana Fuentes, in her capacity as San Diego Interim City Clerk.
Office of the County Counsel, County of San Diego, Katie A.
Richardson, Joshua M. Heinlein and Michael P. Masterson, for Defendant
and Respondent Cynthia Paes, in her official capacity as San Diego County
Registrar of Voters.
I. INTRODUCTION
The California Constitution’s 1911 amendment, which established the
initiative and referendum, reflects the belief that the people hold the
ultimate authority in government. (Associated Home Builders etc., Inc. v.
City of Livermore (1976) 18 Cal.3d 582, 591 (Associated Home Builders).)
These mechanisms are not government-bestowed privileges but powers the
people have deliberately retained. (Ibid.) Courts have consistently
underscored the importance of protecting this right, recognizing it as a vital
element of democracy. (Ibid.) Judicial precedent favors interpreting this
power broadly to prevent undue limitations, and when legal uncertainties
arise, courts resolve them in favor of maintaining the people’s direct
legislative influence. (Ibid.)
Here, we evaluate the procedures employed by election officials to
validate signatures on an initiative petition to determine whether the
initiative qualifies for placement on the ballot.1 Election officials invalidated
certain signatures on an initiative petition for reasons such as incorrect
dates, address misspellings, illegibility, and nonstandard abbreviations. We
conclude election officials reasonably excluded signatures dated outside the
stated circulation period described under penalty of perjury in the circulator’s
affidavit, or circulator date ranges which did not include the dates written by
the voters next to their signatures.
Election officials, however, acted arbitrarily in rejecting signatures due
to some misspellings, illegibility, or nonstandard abbreviations. Such
irregularities will not automatically disqualify a signature if the signer’s
1 Although this controversy is technically moot, we exercise our
discretion to address the merits because it addresses issues of broad public
interest and errors of law that are likely to recur.
2
voter registration record can be located and their identity as a registered
voter is verifiable by comparing the information in the petition with the
information in the voter registration record.
We also address an ambiguity in San Diego Municipal Code
section 27.1020, subdivision (c) regarding which general election to use in
determining the number of signatures required for an initiative petition to
qualify for the ballot. As we will explain, election officials correctly based the
number of signatures required on the general election preceding the filing of
appellants’ notice of intent to circulate an initiative petition.
Accordingly, the judgment is reversed and the matter is remanded for
further proceedings consistent with this opinion.
II. FACTUAL AND PROCEDURAL BACKGROUND
In July 2022, the San Diego Public Library Foundation and the
San Diego Parks Foundation (appellants) began circulating a petition in
support of their proposed “Libraries and Parks Improvement Act” initiative
(the Initiative) to provide funding to libraries and parks in the City of
San Diego (the City). Appellants sought to have the Initiative placed on the
November 2024 ballot. Appellants submitted more than 111,000 signatures
to San Diego City Clerk Diana Fuentes (the City Clerk) for verification.
Pursuant to an agreement with the San Diego County Registrar of Voters,
Cynthia Paes (Registrar; together with the City Clerk, respondents), the City
Clerk forwarded the petition to the Registrar to verify the signatures by
random sampling procedures established by the Elections Code.
The Registrar reviewed the petition signatures against voter
registration records, using a random sample of three percent of the total
signatures to verify whether they belonged to registered voters. (San Diego
Mun. Code, § 27.1031.) The signature verification process is carried out by
3
trained workers who use a “[n]otes sheet” containing codes to flag different
types of issues. The Registrar aims to administer the initiative process fairly
by applying “bright line rules” and minimizing subjective judgment in
signature reviews. Before a signature is invalidated, it goes through up to
four layers of examination. If at any point in this process, the next level of
analysis determines a signature is valid, the signature is accepted.
The Registrar determined that out of the 3,336 randomly selected
signatures, 2,201 belonged to registered City voters. Based on this sample,
the total number of valid signers was estimated at 72,285—fewer than
required to qualify the Initiative for the ballot or to trigger a full count under
Elections Code2 section 9115, subdivision (b). The City Clerk informed
appellants that, because the number of valid signatures did not meet the
qualification criteria, the Initiative did not qualify for submission to the
voters. After reviewing the rejected signatures under Government Code
section 7924.110, appellants concluded that the Registrar improperly
disqualified numerous signers for legally unsupported reasons, violating the
First Amendment rights of both the signers and the Initiative’s proponents.
Appellants filed a verified petition for writ of mandate and complaint
for injunctive and declaratory relief seeking a finding that the Initiative was
signed by enough validly registered City voters to proceed to a full count of all
signers as contemplated by the Elections Code and the San Diego Municipal
Code. Appellants also claimed the City used the wrong election date of
November 2020 when calculating the number of signers needed to qualify the
Initiative for the City ballot.
2 Undesignated statutory references are to the Elections Code.
4
While the trial court found appellants’ interpretation of the ordinance
on signature calculations to be “reasonable,” it also concluded that the
ordinance allowed for more than one reasonable interpretation. Giving “great
weight” to the City’s contrary view, the court concluded the City did not have
to use the November 2022 election as the baseline election. The trial court
found appellants needed an additional “185 signatures to be deemed valid in
order to trigger a full count.” The court discussed some of the categories of
signers which the Registrar had rejected, before concluding it was not
required to address appellants’ remaining contentions because appellants
could not achieve the 185 signers which they needed.
On appeal, appellants claim respondents infringed on voters’ First
Amendment right to participate in the initiative process by unreasonably
invalidating hundreds of signers based on minor discrepancies or obvious
errors. They request that the matter be remanded and respondents ordered
to conduct a full count of all the signatures in a manner consistent with the
law. Specifically, they challenged respondents’ decisions regarding 267
signers, in five separate categories: (1) street name misspelling or
handwriting (98 signers); (2) street name improper abbreviation (10 signers);
(3) admitted registrar errors (5 signers); (4) obvious errors in voter dating (13
signers); and (5) circulator dating errors (141 signers).3 They also sought to
confirm that the proper baseline election for calculating the required
numbers of signers is November 2022, not November 2020, and that the
required number of signers to qualify the Initiative for the ballot is therefore
80,020, not 82,566.
3 Appellants do not challenge the Registrar’s decisions about whether a
signature on the initiative petition matches the signature on that person’s
voter registration card.
5
III. DISCUSSION
A. GENERAL LEGAL PRINCIPLES
A writ of mandate under Code of Civil Procedure section 1085 is used to
compel the performance of a legally mandated duty arising “from an office,
trust, or station.” (Morris v. Harper (2001) 94 Cal.App.4th 52, 58.) This type
of mandate applies when there is a definite, existing duty—typically
ministerial—and the “petitioner has a clear, present and beneficial right to
performance of that duty.” (Ibid.) In reviewing the trial court’s decision on a
writ of mandate under Code of Civil Procedure section 1085, we generally
assess whether its findings and judgment are supported by substantial
evidence. (Ibid.) Nevertheless, when the case involves legal issues rather
than factual disputes, we make our own determination about the law. (Ibid.)
“Judicial review is limited to determining whether the local agency’s
action ‘ “was arbitrary, capricious or entirely lacking in evidentiary support,
or whether it failed to conform to procedures required by law.” ’ ” (Walker v.
City of San Clemente (2015) 239 Cal.App.4th 1350, 1362.) An agency’s
decision will be upheld if it properly considered all pertinent factors and
establishes a reasonable connection between those factors, its decision, and
the intent of the enabling statute. This presents a legal issue. On appeal, we
independently review the agency’s determination, applying the same
standard of review as the trial court. (Ibid.)
“The legislative power of this State is vested in the California
Legislature . . . but the people reserve to themselves the powers of initiative
and referendum.” (Cal. Const., art. IV, § 1.) The initiative power gives voters
the power to enact new state laws. If the measure is approved by popular
vote, it becomes law. (Cal. Const., art. II, § 8; id., § 10, subd. (a).) The
initiative power is liberally construed and any doubts are to be
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“ ‘reasonably . . . resolved in favor of ’ ” that power. (Associated Home
Builders, supra, 18 Cal.3d at p. 591.)
As a charter city, San Diego has the authority to regulate city elections
and the procedures that apply to initiative petitions.4 (Cal. Const., art. XI,
§§ 2, 3, 5, subd (a).) Under this authority, the City adopted an election code
ordinance establishing procedures which apply to initiative petitions.
(San Diego Mun. Code, Chpt. 2, Art. 7, Div. 10.) “To determine the
sufficiency or insufficiency of an initiative petition, the Clerk shall only count
valid signatures.” (Id., § 27.1022, subd. (c), italics omitted.)
B. MOOTNESS
Appellate courts are limited to deciding ongoing legal controversies,
and an appeal can become moot if circumstances change after it is filed.
(Daily Journal Corp. v. County of Los Angeles (2009) 172 Cal.App.4th 1550,
1557.) We do not render opinions on issues that no longer affect the outcome
of the case or on abstract legal principles without practical implications.
(Ibid.) A case is considered moot if the court is unable to offer the plaintiff
any practical or effective remedy. (Wilson & Wilson v. City Council of
Redwood City (2011) 191 Cal.App.4th 1559, 1574.) When a case no longer
matters due to outside events, courts typically dismiss it. (Ibid.) Despite the
mootness doctrine, there are three discretionary exceptions where courts can
still decide a case: (1) if it involves a significant public issue that is likely to
happen again, (2) if the same dispute could arise again between the same
parties, and (3) if there is an important unresolved question for the court to
4 “[C]harter cities [have] the power and authority to legislate in four
‘core’ areas ‘that are by definition, “municipal affairs.” ’ [citation.]” (Cobb v.
O’Connell (2005) 134 Cal.App.4th 91, 96.) Elections are one such core area.
(Id. at p. 97.)
7
address. (Cucamongans United for Reasonable Expansion v. City of Rancho
Cucamonga (2000) 82 Cal.App.4th 473, 479.)
Additionally, a “court may excuse mootness and reach the merits of an
issue that is ‘capable of repetition yet evading review.’ [Citation.] Case law
recognizes the need to address such issues, particularly in ‘matters of broad
public interest that are likely to recur.’ ” (Bracher v. Superior Court (2012)
205 Cal.App.4th 1445, 1455.) “This exception is often applied in election
cases.” (Kunde v. Seiler (2011) 197 Cal.App.4th 518, 527.) “ ‘Under certain
conditions, disputes concerning election procedures are properly reviewable
by an appellate court even though the particular election in question has
already taken place.’ [Citation.] Even though the relief requested is no
longer available, review may be appropriate if the contentions raised are of
general public interest ‘and are likely to occur in future elections in a manner
evasive of timely appellate review.’ ” (Huening v. Eu (1991) 231 Cal.App.3d
766, 770.)
Respondents highlight that appellants’ sole request in the trial court
was review of the signatures in compliance with the law to assess the
Initiative’s eligibility for the November 2024 ballot. Respondents contend
this appeal must be dismissed as moot because the deadline for the Initiative
to qualify for the November 2024 ballot passed in August 2024, the election
has taken place and appellants never sought to expedite the appeal.
Accordingly, they claim we cannot not grant appellants effective relief.
Respondents also argue the public interest exception to the mootness doctrine
does not apply because the election has passed and the issue whether the
Registrar properly verified the signatures is highly factual and not likely to
recur.
8
Appellants argue we can grant the requested relief since the Initiative
may be placed on a future ballot. Even assuming the matter is moot,
appellants argue this case addresses an issue of broad public interest and
errors of law that are likely to recur.
Although appellants planned to have the Initiative on the November
2024 ballot, they are not seeking an order requiring respondents to place the
Initiative on the ballot since the election is over. Rather, they seek an order
requiring respondents to re-count signatures in a matter consistent with the
law. Case authority suggests the matter is not moot because the Initiative
could be placed on the next ballot should we determine respondents
invalidated signatures in error. (Loeber v. Lakeside Joint School Dist. (2024)
103 Cal.App.5th 552, 575 [initiative could be placed on a future ballot despite
passing of election deadlines]; We Care-Santa Paula v. Herrera (2006)
139 Cal.App.4th 387, 391 [effective relief exists where initiative may be
placed on some future ballot].)
The San Diego Municipal Code, however, contains contrary authority.
San Diego Municipal Code section 27.0114, addressing the invalidity of
petitions, provides: “No petition is valid for use in connection with any
election held after the election for which the petition was circulated.” (Italics
omitted.) Here, the petition was circulated for the November 2024 election.
Additionally, San Diego Municipal Code section 27.0101 provides in relevant
part: “If there is any ambiguity or contradiction between the provisions of
general law and the provisions of this article, the provisions of this article
shall govern.” Under the maxim that “[p]articular expressions qualify those
which are general,” these San Diego Municipal Code sections take
precedence. (Civ. Code, § 3534; Code. Civ. Proc., § 1859 [when a general
provision is inconsistent with a particular provision, the particular provision
9
controls].) Therefore, the municipal code renders the matter moot because it
does not allow the Initiative to appear on a future ballot.
The next issue is whether an exception to the mootness doctrine should
apply, a decision within our discretion. Notably, the matter is likely to recur,
as appellants may submit a new petition in the future. (§ 9115, subd. (e) [“If
the petition is found insufficient, no action shall be taken on the petition.
However, the failure to secure sufficient signatures does not preclude the
filing later of an entirely new petition to the same effect.”].) Moreover, this
case presents an issue of public interest on matters requiring uniform
application of the law throughout the state. It is also an issue that is likely to
recur but by its nature will evade review.
Respondents argue the public interest exception to the mootness
doctrine does not apply because the issues are highly factual and not likely to
reoccur. The City, however, is limited to the ministerial function of
ascertaining whether the procedural requirements for submitting a petition
are met. (Farley v. Healey (1967) 67 Cal.2d 325, 327.) Thus, resolution of
this matter turns on the ministerial function of whether respondents properly
rejected the Initiative petition due to signatures not complying with legal
requirements. Where, as here, the issue involves statutory interpretation
and the facts are undisputed, “we exercise our independent judgment and
review the matter de novo.” (Alliance for a Better Downtown Millbrae v.
Wade (2003) 108 Cal.App.4th 123, 129.) Accordingly, we exercise our
discretion to consider the merits.
C. GENERAL ELECTION DATE USED
1. Additional Background
San Diego Municipal Code section 27.1020, subdivision (c) provides:
“(c) When submitting the initiative petition, the proponent
of the initiative, or any individual authorized in writing by
10
the proponent, shall specify whether the Clerk is being
requested to verify the validity of signatures of three
percent, or of ten percent, of the registered voters of the
City as of the last general City election. The Clerk shall
issue a certification based upon the percentage requested,
as follows:
“(1) Three percent of the registered voters of the City at the
last general City election, which would be sufficient to
present an initiative petition for the initiation of an
ordinance to the Council for the Council’s discretionary
consideration; or
“(2) Ten percent of the registered voters of the City at the
last general City election, which would be sufficient to
qualify the initiative petition to be directly submitted to a
vote of the people.” (Italics omitted.)
On June 27, 2022, appellants filed their notice of intent to circulate
materials with the City Clerk’s office, and thereafter began circulating their
proposed Initiative. The most recent election before filing the notice of intent
was the November 2020 general City election. At that election there were a
total of 825,660 registered voters.5 The City Clerk informed appellants they
had until December 15, 2022, to collect at least 82,566 valid signatures to
qualify the Initiative for the November 5, 2024, ballot. This number equaled
10 percent of the total registered City voters as of November 3, 2020.
(San Diego Mun. Code, § 27.1020, subd. (c).) Appellants did not challenge the
number of required valid signatures and confirmed the numbers in
5 Subdivision (a) of section 324 defines the term “ ‘[g]eneral election’ ” as
either: “(1) The election held throughout the state on the first Tuesday after
the first Monday of November in each even-numbered year. [¶] (2) Any
statewide election held on a regular election date as specified in Section
1000.”
11
correspondence with the City Clerk’s office. Another general City election
occurred on November 8, 2022.
On December 15, 2022, appellants submitted 111,189 signatures to the
City Clerk. In early January 2023, appellants sent a letter to the City Clerk
seeking clarification regarding the number of required signatures, claiming
the “last general City election” would be the November 2022 election.6 The
City Clerk responded, explaining that after consulting with the San Diego
City Attorney she could not revise her decision on which election to use.
The Registrar determined that only 2,201 of the 3,336 randomly
sampled signatures were valid, while 1,135 were invalid. Based on this
projection, the Initiative petition was estimated to have 72,285 valid
signatures, falling short of the required number to qualify for the ballot.
Since the Initiative did not meet the threshold of 78,438 valid signatures, it
also did not qualify for a full count of signatures to determine if it in fact
contained the required number of valid signatures.
2. Analysis
At issue is the proper interpretation of San Diego Municipal Code
section 27.1020, subdivision (c). In considering this issue, we apply the
ordinary rules applicable to the interpretation of statutes. (Rodriguez v. Solis
(1991) 1 Cal.App.4th 495, 502 [“the rules of statutory construction applicable
to statutes are also applicable to local ordinances”].) We first consider the
words of the enactment, and if those words, plainly read, are unambiguous,
we go no further. (People ex rel. Feuer v. FXS Management, Inc. (2016)
6 For the November 8, 2022, election the number of registered voters in
the City decreased by roughly 5,000 voters to 800,192. Use of this date would
have decreased the number of valid signatures appellants needed to present
by 2,500 people, or to 80,020.
12
2 Cal.App.5th 1154, 1159.) If the enactment is susceptible to more than one
interpretation, we may consider various extrinsic aids, such as its history,
public policy concerns, and the scheme of which the enactment is a part.
(People v. Cornett (2012) 53 Cal.4th 1261, 1265.) Nonetheless, even if an
enactment is unambiguous on its face, it must be interpreted to avoid an
absurd result that does not advance its purpose. (California School
Employees Assn. v. Governing Board (1994) 8 Cal.4th 333, 340.)
Additionally, respondents’ interpretation of its municipal code “is
entitled to deference” in our independent review of the meaning or
application of the law. (MHC Operating Limited Partnership v. City of
San Jose (2003) 106 Cal.App.4th 204, 219.) The degree of deference accorded
an agency’s interpretation is “ ‘ “not susceptible of precise formulation, but
lies somewhere along a continuum,” ’ ” or, in other words, is
“situational.” (Yamaha Corp. of America v. State Bd. of Equalization (1998)
19 Cal.4th 1, 7 & 12 (Yamaha).) Greater deference should be given to an
agency’s interpretation where “ ‘the agency has expertise and technical
knowledge, especially where the legal text to be interpreted is technical,
obscure, complex, open-ended, or entwined with issues of fact, policy, and
discretion.’ ” (Id. at p. 12.)
Courts are “ ‘more likely to defer to an agency’s interpretation of its
own regulation than to its interpretation of a statute, since the agency is
likely to be intimately familiar with regulations it authored and sensitive to
the practical implications of one interpretation over another.’ ” (Yamaha,
supra, 19 Cal.4th at p. 12.) Other factors supporting an agency’s
interpretation include careful consideration by senior officials, a consistent
and long-standing interpretation, and an interpretation that aligns with the
regulation’s enactment. (Id. at p. 13.)
13
Appellants argue the unambiguous language of San Diego Municipal
Code section 27.1020, subdivision (c) provides that the number of signatures
needed to qualify a City initiative for the ballot is based on the number of
registered voters in the City at the election occurring most recently before the
date a proponent submits the final signed petition to the City Clerk. They
contend the phrase “when submitting the initiative petition” in San Diego
Municipal Code section 27.1020, subdivision (c) cannot be read as referring to
the actions taken when proponents begin the initiative process. Instead, it
can only be read to refer to the end of the signature gathering process.
They argue that this division of the San Diego Municipal Code follows a
chronological sequence, beginning with the required notices to initiate the
process, followed by guidelines on petition formatting and circulation, and
concluding with later sections—including San Diego Municipal Code section
27.1020—that govern the process’s final stages. Accordingly, they claim the
City Clerk erred as a matter of law by using the voter registration numbers
from the November 2020 general election (when they started the initiative
process), not the numbers from the November 2022 general election (when
they submitted the signed petition), to calculate the number of signatures
required to qualify the Initiative for the ballot.
Respondents disagree with appellants’ reading of San Diego Municipal
Code section 27.1020, subdivision (c). As the title to this section indicates
(“Submitting Initiative Petition to Clerk”), they contend this section is
intended to establish certain requirements that the proponent must follow
when submitting an initiative petition to the City Clerk. This section
requires the proponent to notify the City Clerk of the percentage of registered
voter signatures to be verified, ensuring the City Clerk can certify their
validity if the required number is met. This section does not establish the
14
election to use to determine the necessary number of registered voters or that
the “last general City election” shall be the one prior to a proponent’s
submission of an initiative petition.
Respondents reasonably argue the purpose of this section is for the
proponent of an initiative petition to alert the City Clerk whether three or 10
percent of the signatures require verification so that the City Clerk knows
the number of signatures it is being asked to verify after receipt of the
petition. Stated differently, this section establishes certain requirements a
proponent must follow when submitting an initiative petition to the City
Clerk, not to dictate to the City Clerk which election to use to determine the
necessary number of registered voters. Because the interpretations tendered
by both parties are reasonable, we conclude San Diego Municipal Code
section 27.1020, subdivision (c) is ambiguous and turn to other factors to
discern its intended meaning.
The San Diego City Charter provides that an initiative directly
submitted to the voters “shall require a petition signed by ten percent of the
registered voters of the City at the last general City election.” (San Diego City
Charter, art. III, § 23, italics added.) The current City Clerk submitted a
declaration stating her office follows a long-standing policy of using the
general election preceding the filing of a notice of intent to circulate an
initiative petition to determine the required number of valid signatures for
ballot qualification.
According to the City Clerk, her office has consistently enforced this
policy for all initiative petitions, regardless of whether voter registration
numbers rise or fall between general elections. Additionally, this policy
applies not only to initiative petitions but also to municipal referendums and
recall petitions, which require proponents to collect and submit valid
15
signatures from a specific percentage of registered voters in the City. By
maintaining this approach, the policy provides clarity and consistency for the
City Clerk, the Registrar, petition proponents, and the public regarding the
required number of valid signatures before the signature collection process
begins.
In March 2019, the City Clerk proposed amending the San Diego
Municipal Code to add subdivision (c) to section 27.1020 regulating initiative
petitions. In a staff report to the City Council, the City Clerk proposed this
amendment because “the Clerk must be made aware of what threshold the
proponent(s) is [sic] seeking to meet.” The report says nothing about
changing the City Clerk’s existing policy of using the general election
preceding the filing of a notice of intent to determine the required number of
valid signatures for ballot qualification. Moreover, the fact respondents have
“ ‘consistently maintained the interpretation in question’ ” before and after
adding subdivision (c) to section 27.1020, suggests respondents’
interpretation is likely to be correct. (Yamaha, supra, 19 Cal.4th at p. 13.)
Using the last general City election prior to filing the notice of intent to
circulate an initiative petition is supported by public policy considerations.
This approach creates certainty before a proponent begins collecting
signatures. As the court in Coalition for Fair Rent v. Abdelnour (1980) 107
Cal.App.3d 97 (Coalition for Fair Rent) explained, “proponents of an initiative
measure [need] to know how many signatures are required before they begin
to collect them” because such knowledge “helps them to determine the
feasibility of circulating the petition and also to decide how many extra
signatures should be obtained to protect against the possibility of
16
disqualification.” (Id. at p. 112.)7 Subdivision (a) of section 9210 provides
additional support for respondents’ interpretation because it requires cities to
“[a]scertain the number of registered voters of the city . . . effective at the
time the [notice of intent] is published.”
In summary, we conclude respondents correctly based the number of
signatures required on the general election preceding the filing of appellants’
a notice of intent to circulate an initiative petition.
D. DISQUALIFICATION DUE TO DATE ERRORS, MISSPELLING,
HANDWRITING, AND NON-STANDARD ADDRESS ABBREVIATIONS
1. Legal Principles
“Notwithstanding any other provision of law,” initiative petitions may
be signed only by persons who are “eligible registered voter[s]” at the time of
signing. (§ 100, subd. (a).) When signing, voters must “personally affix” their
signature, printed name, and place of residence (including street name and
number) to the petition. (Id., subd. (b), § 9020 [reiterating same
requirements].)8 The elections official must verify that the address on the
petition matches the address on the voter’s registration affidavit. If the
addresses are not the same, the signature will be invalid. (§ 105,
7 Coalition for Fair Rent, supra, 107 Cal.App.3d 97 addressed the
amendment of a city charter by initiative. (Id. at p. 101.) Appellants’
attempt to distinguish this case on this ground is a distinction without a
difference because the same public policy considerations exist.
8 Disabled voters who cannot write the required information on a
petition or paper can ask someone else to write their name and address in the
correct spaces. However, the voter must personally sign or make a mark, and
a witness must sign to confirm it. (§ 100.5.)
17
subd. (a)(1).) The elections official must still count a signature even if the
signer’s apartment or unit number is incomplete or inaccurate. (Id., subd.
(a)(2).) The San Diego Municipal Code similarly requires that voters sign
initiative petitions in their own handwriting and provide their printed name
and residence address, including the street and house number or another
clear location identifier. (Id., § 27.1011, subd. (a).) Unlike state law, voters
must also date their signature. (Ibid.)
Every petition submitted to elections officials must be accompanied by
a declaration under penalty of perjury, signed and dated by the circulator of
the petition.9 (§ 104, subds. (a), (c).) The declaration must state that the
declarant circulated the petition, witnessed each of the signatures “being
written,” and believes each signature to be the genuine signature of the
person whose name it purports to be. (Id., subd. (b).) The petition must also
include, “in the circulator’s own hand,” the circulator’s printed name and
address and the dates between which the signatures to the petition were
obtained. (Id., subd. (a).) The San Diego Municipal Code similarly requires
circulators to attach to every initiative petition an affidavit of authenticity of
circulator, signed and dated by the circulator, with the circulator’s printed
name, the place of signing and the beginning and final date of circulation.
(San Diego Mun. Code, § 27.1013.) “The City Clerk shall not accept an
initiative petition that is not in substantial compliance with this division.”
(Id., § 27.1021, subd. (a), italics omitted.)
9 Appellants hired a petition circulation company to obtain signatures at
retail establishments and events, where voters signed the petition on a
clipboard or at a table.
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2. Additional Background Regarding Date Errors
The Registrar disqualified 154 signers due to errors relating to voter
signature dates or dates written by the petition circulator. It disqualified 13
signers because the signer wrote a date on the petition which was outside the
stated circulation period (signer dating errors). The 13 rejected signers are in
the chart below, with appellants’ comments in parenthesis.
Voter Signature Circulator
Date Affidavit Dates
of Circulation
6/10 9/10
4/9/1998 (presumably 12/9
voter’s birthday)
9/6 8/5 – 8/7
9/25 8/25 – 8/26
1/31/1992 (presumably 8/18 – 8/21
voter’s birthday)
7/21 (or maybe 7/28) 7/28 – 7/31
9/8/22 or 8/8/22 8/15–8/18
1/27 11/27 – 12/3
12/8 (hard to read) 12/7 – 12/8
2/28 (could be 9/28) 9/28 – 10/4
2/18/22 or 2/16/22 9/15 - 9/17
4/17 7/10 – 7/22
12/4 OR 12/14 12/13 – 12/14
The Registrar disqualified another 141 signers because the circulators
wrote date ranges on the circulator affidavits at the bottom of the petition
which did not include the dates written by the voters next to their signatures
(circulator dating errors). All the signatures were signed within the legally
permissible circulation period.
3. Date Errors Analysis
Appellants note the disqualified signers were all qualified City voters
on the erroneous date they entered and none signed outside the 180-day
circulation period. Instead, the Registrar rejected the 13 voters because
19
either the dates provided by the voters were a few days before or after the
dates of circulation listed in the circulator affidavit, or because the voter
made an obvious error, such as listing his or her birthday rather than the
signing date in the date field on the petition. Appellants contend that neither
reason relates to the legitimate goal of confirming signers’ voter registration
status, and disqualifying voters over minor dating errors unfairly prevents
bona fide City voters from exercising their First Amendment rights.
Appellants argue that the San Diego Municipal Code and San Diego
City Clerk’s Administrative Guidelines identify only one reason for
invalidating a petition entry due to a circulator affidavit issue: the
circulator’s failure to sign. (San Diego Mun. Code, § 27.1022, subd. (d).) A
mismatch between the voter date and the circulator’s date is not grounds for
disqualification. Had the City Council wished to mandate disqualification for
such mismatches, it could have enacted a law to that effect.
Respondents argued the 154 invalidated signer and circulator dating
errors categories involve a voter signature date outside the circulation period
attested to under the penalty of perjury in the circulator’s affidavit.10 In
each of these petitions, the circulator signed the affidavit of authenticity
verifying under penalty of perjury that the signatures “were made in [the
circulator’s] presence and were observed by [the circulator]” as required by
10 In their appellate briefing respondents note the trial court did not
address this category of challenged signatures and argue we should not
address it for the first time on appeal. They also contend this category will
make no difference to the resolution of this appeal because appellants would
still fall short of the 185 signatures needed for a now-moot full count.
Because we are addressing this appeal to provide future guidance and not
addressing whether appellants have enough valid signatures, we summarized
the arguments respondents made in the trial court on this issue.
20
San Diego Municipal Code section 27.1013. If the date of the signature does
not fall within the circulation period attested to by the circulator, the
circulator cannot truthfully attest that the initiative petition was signed in
the circulator’s presence or observed by them and cannot verify the
authenticity of any signatures dated outside the circulation period. As a
result, these signatures cannot be valid under the San Diego Municipal Code.
The rejection of signatures that do not comply with San Diego
Municipal Code requirements cannot be characterized as a clerical error. The
signature dating requirement furthers the public policy goals of ensuring that
the signer is a registered voter at the time of signing. By requiring a voter to
date their signature, an examination of the voter rolls can easily confirm
whether the voter was a registered voter at the time the petition was signed.
Disregarding this requirement would be contrary to the express intent of the
City’s legislative body, and amounts to amending the municipal code, which
is beyond the judicial competence.
We agree with respondents that the signature dating requirement
furthers the public policy goals of ensuring that the signer is a registered
voter at the time of signing. While the Registrar can review its voter
registration database to confirm that on the erroneous date listed in the
petition the signer was a registered voter, this does not change the fact the
154 invalidated signatures involved either a voter signature date outside the
stated circulation period attested to under the penalty of perjury in the
circulator’s affidavit, or circulator date ranges which did not include the dates
written by the voters next to their signatures. Accordingly, we cannot
conclude respondents acted arbitrarily by invalidating signatures that were
21
not in substantial compliance with San Diego Municipal Code
requirements.11
4. Additional Background Regarding Misspelling, Handwriting and
Nonstandard Address Abbreviations
The Registrar rejected 98 signatures because the signer misspelled his
or her address, each individual letter of a street address was not legible, or
letters in the street address were deleted or transposed. For example, the
Registrar’s office invalidated a signer who wrote: “Creeekwood” rather than
“Creekwood”; “Wunder line Ave.” rather than “Wunderlin Ave.”; and “Kellog
St.” rather than “Kellogg St.” In each case, the street number, city, and zip
code matched the information on the signer’s voter registration form. Thus,
the Registrar was able to locate the voter registration information associated
with each petition entry.
The Registrar also rejected 10 signers because the voters abbreviated
their street name or used an abbreviation for an address or address suffix
which does not appear on the United States Postal Service’s (USPS) list of
standard abbreviations (improper street abbreviation). The rejected
abbreviations are set forth in the charts below:
USPS Other USPS
Address Address as Standard Commonly
Listed on Registered Suffix Used
Petition Abbreviation Abbreviations
Black Mt. Black Mtn Mtain, Mtntn,
Mountain Mountin, Mtin
PCH Pacific Hwy Highwy,
Coast Hiway, Hiwy,
Highway Hway
Clmt Mesa Clairemont N/A N/A
Mesa
11 Improper dating issues are a circulator training issue.
22
Clairemt Clairemont N/A N/A
Mesa Mesa
Ct Playa Corte Playa Ct (for N/A
Las Brisas Las Brisas “Court”)
C.P. Camino N/A N/A
Acapulco Playa
Acapulco
USPS Other USPS
Address Address as Standard Commonly
Listed on Registered Suffix Used
Petition Abbreviation Abbreviations
Calle Mar Calle Mar N/A N/A
de Arm de Armonia
Spectrum Spectrum Ctr Cen, Cent,
Cntr Blvd Center Centr, Centre,
Boulevard Cntr, Cnter,
Ctr
S. Set Sunset N/A N/A
Cliffs Blvd Cliffs
Boulevard
Caminto E Camino N/A N/A
Espino
5. Analysis Regarding Misspelling, Handwriting and Non-standard Address
Abbreviations
Appellants assert the 98 rejected signatures because of misspelling or
illegible writing is hyper-technical and should be overturned. They argue the
trial court likewise erred in analyzing the Registrar’s rejection of these
signers as involving “factual” determinations and deferring to the Registrar’s
decision. They assert the policy of disqualifying signers who use irregular
abbreviations for their addresses is also not supported by any law or
regulation. The Registrar’s job is to ascertain whether the person who signed
the petition is registered to vote in the given jurisdiction.
Respondents contend section 105 provides that the residence address
written on the petition must be “the same” as the address in the signer’s
23
voter registration record for it to count as a valid signature. Therefore, any
difference in street name spelling invalidates the signature.
Section 105 provides the residence address written on the petition must
be “the same” as the address in the signer’s voter registration record.
Respondents’ strict approach, however, fails to account for natural variations
in a person’s handwriting due to age, illness, or the hurried circumstances
under which petitions are often signed—such as in front of a store or on a
street corner—compared to writing done in a more controlled setting. This
approach would also disenfranchise less educated voters who might spell a
street address phonetically. Further, this overly technical approach could
exclude legally registered voters with certain disabilities such as dyslexia, or
individuals with poor handwriting.
Moreover, the purpose of comparing information written on a petition
with that contained in voter registration records is to determine whether
signers were registered voters on the date they signed the petition. (See
§§ 100, subd. (b), 105, subd. (a)(1) & 9020, subd. (a); San Diego Mun. Code,
§ 27.1011(a); Cal. Code of Regs., tit. 2, § 20931(a)(2).) The central issue is
whether this purpose can be accomplished without letter-for-letter and word-
for-word matches between information written on a petition with that
contained in voter registration records.
While there is limited case law on this issue, existing precedents do not
support the strict interpretation urged by respondents. In Wheelright v.
County of Marin (1970) 2 Cal.3d 448, 456 (Wheelright), the California
Supreme Court considered whether the trial court erred in accepting a county
clerk’s determination regarding the invalidity of 94 signatures on a
referendum petition. (Id. at pp. 451, 456.) The trial court had found the
clerk’s original reasons for disqualification improper. (Id. at p. 453.) At a
24
hearing the clerk testified he would have rejected the signatures anyway,
based on his belief that the handwriting on the petition did not match the
voter’s registration affidavit. (Ibid.) After examining the signatures, the
court found sufficient similarities to suggest they were signed by the same
person. (Ibid.) It noted that if it had the authority to overrule the clerk, it
would err on the side of validating the signatures. (Ibid.) However, the court
concluded that it could only override the clerk’s decision if the similarities
were undeniable or the rejection was clearly arbitrary. (Ibid.)
The trial court noted that this was a judgment roll appeal, meaning it
had to assume the evidence supported the finding that the 94 signatures
lacked sufficient similarity, and the differences were significant enough that
the clerk’s rejection was neither unreasonable nor arbitrary. (Wheelright,
supra, 2 Cal.3d at p. 454.) The Supreme Court found no error, explaining
that a clerk must reject obviously fraudulent signatures that do not match a
voter’s registration affidavit. (Id. at p. 456.) However, if the differences are
so minor that rejecting the signature would be unreasonable or arbitrary, the
court cannot uphold the clerk’s decision. (Ibid.) When the dissimilarities
“and other indicia” are significant enough that the validity of the signature is
uncertain, and the clerk’s determination was neither unreasonable nor
arbitrary, the court must accept the clerk’s judgment. (Ibid.)
Stated differently, Wheelwright, supra, 2 Cal.3d 448, establishes that
where the signature dissimilarities are so minor as to make the clerk’s
rejection of the signatures an unreasonable or arbitrary act, a court may
reject the clerk’s determination. (Id. at p. 456.) The Wheelwright court
acknowledged that while the clerk’s duties are ministerial, they are not
purely mechanical. (Id. at p. 455.) The clerk must visually compare each
handwritten signature with the voter’s registration affidavit and assess
25
whether the similarities are enough to certify the signature as valid. (Id. at
pp. 455–456.)
Also instructive is Malick v. Athenour (1995) 37 Cal.App.4th 1120
(Malick). There the Court of Appeal considered whether an elections official
had improperly disqualified petition signers who either illegibly printed their
names or wrote them in cursive in the space designated for a printed name.
(Id. at p. 1124.) The court ruled that the validity of these disqualifications
was a legal issue for the courts to decide and the trial court was not bound by
the “election department’s interpretation of the law or the election
department’s adoption of a policy contrary to law.” (Id. at p. 1128.) Rejecting
the claim that failing to print a name automatically invalidated a signature,
the court explained that the purpose of requiring printed names was to assist
in verifying voter registration. (Id. at p. 1126.) It concluded that insisting on
perfectly separated printed letters did not further that goal and conflicted
with the judicial policy of favoring the exercise of referendum rights. (Ibid.)
The court ultimately ruled that the automatic invalidation of such
signatures, without any verification effort, was arbitrary as a matter of law.
(Id. at p. 1127.)
The parties dispute whether the misspellings, illegible handwriting,
and use of nonstandard abbreviations at issue here are more like Wheelright,
requiring the use of judgment in assessing signature validity, or Malick
where no such judgment was required. Both opinions inform our decision.
Here, one of appellants’ attorneys reviewed the signatures rejected by
the Registrar during the random sample review of the initiative petition
signatures. She viewed the signatures either on the actual petitions or using
a computer to view PDF copies of the signatures. When appropriate, she and
Registrar personnel would also inspect the Registrar’s electronic database to
26
compare a voter’s information as written on the petition to the information
written in the Registrar’s electronic database. Review of this declaration
shows it is undisputed that all the challenged signatures either contained
misspelled addresses, illegible handwriting, or nonstandard abbreviations. It
is also undisputed that despite these issues, the Registrar was able to locate
the signer’s voter registration record.
Thus, like Malick, the question before us is the impact of these issues
and whether the Registrar acted arbitrarily in rejecting these signatures.
The Registrar’s elections manager submitted a declaration explaining that
after the computer system selects the random sample of signatures to verify,
the Registrar’s office begins the process of signature verification. Trained
workers are provided a “[n]otes sheet” with a summary of how to treat
different signatures. Workers also have guidelines periodically published by
the California Association of Clerks and Election Officials to guide elections
officials in the signature verification process.
Because the San Diego Municipal Code requires petition signers to date
their signatures, the Registrar first checks to determine whether the
signature dates fall within the petition’s circulation dates as written by the
circulators. If the signature date falls outside the circulation dates, the
signature is invalid. If the date written by the signer is within the circulation
dates, the Registrar then reviews the signer’s residence address. Because
section 105 requires the address written on the petition be “the same” as the
address on the signer’s voter records, if an address is illegible or spelled
differently than what appears in the voter records, the signature is
invalidated. If a signature contains proper dates, printed name, and
residence address, the Registrar then verifies the signature itself. The
signature on the petition is compared to the signatures the Registrar has on
27
file for the voter. A petition signature is deemed invalid “only if it does not
compare to any signature” the Registrar has on file for the voter.
As Wheelright instructs, the duty of election officials is ministerial not
“mechanical.” (Wheelwright, supra, 2 Cal.3d at p. 455.) When determining
the validity of a signature, election officials must look at “other indicia” to
determine signature validity. (Id. at p. 456.) Here, the Registrar uses a
mechanical approach to signature validation. If an address is misspelled,
illegible, or contains nonstandard abbreviations, the signatures are not even
reviewed, but instead are automatically invalidated.
The Registrar’s policy of looking at addresses in isolation without even
considering the key issue of whether the signature on the petition matches
the voter registration form is arbitrary and contrary to law because the
Registrar’s ministerial duty is to verify the petition signatures by comparing
the handwriting of the signatures in the petition with those on file for the
voter. (Malick, supra, 37 Cal.App.4th at pp. 1126–1127.) Where, as here, the
Registrar can locate the signer’s voter registration record, requiring
letter-for-letter and word-for-word matches between information written on a
petition with that contained in voter registration records does not further the
strong judicial policy of resolving all doubts in favor of the exercise of the
power of initiative. (Associated Home Builders, supra, 18 Cal.3d at p. 591.)
Accordingly, here the trial court erred by deferring to respondents’
interpretation of the law.
In sum, misspelled addresses, illegible handwriting, or using
nonstandard abbreviations does not automatically invalidate a signature
where the signer’s voter registration record can be located and the identity of
the signer as a registered voter can be established by comparing the
signature on the petition with the signatures the Registrar has on file for the
28
voter. Although it is possible that, even after reviewing both the petition and
the affidavit of registration, an election official may be unable to validate a
signature due to factors such as illegibility, misspellings, or nonstandard
abbreviations, that specific question is not before us.
Considering San Diego Municipal Code section 27.0114 bars the
Initiative from appearing on a later ballot, it appears there is no relief the
trial court can provide appellants on remand. Nonetheless, we decline to
order the trial court to dismiss the petition as moot and express no opinion on
how the trial court should rule. On remand, the parties may address whether
the trial court can grant any effective relief, and if so, what kind.12
IV. DISPOSITION
The judgment is reversed and the matter is remanded to the trial court for
further hearing consistent with this opinion. The parties shall bear their own
costs on appeal. (Cal. Rules of Court, rule 8.278(a)(5).)
RUBIN, J.
I CONCUR:
DO, J.
12 Respondents admitted to mistakenly disqualifying five signatures and
appellants argue we should instruct the Registrar to count these admitted
errors. The trial court did not address this category, nor did respondents
address this category in the trial court or on appeal. Appellants may raise
this issue on remand.
29
O’Rourke, J., Concurring and dissenting
I concur with the majority’s conclusions concerning the proper general
election date and the disqualification of 154 signatures due to date errors.
However, I respectfully dissent with the majority’s holding concerning the
decision to reject signatures due to nonmatching residence addresses.
“[T]he duties and powers of the city clerk in reference to his
examination of referendum petitions . . . are purely ministerial.” (Ley v.
Dominguez (1931) 212 Cal. 587, 602.) The law is settled that elections
officials may not examine extrinsic evidence or go beyond the petitions and
affidavits of registration in comparing information from those documents.
(Assembly of State of Cal. v. Deukmejian (1982) 30 Cal.3d 638, 648, fn. 8;
Wheelright v. County of Marin (1970) 2 Cal.3d 448, 456 (Wheelright); Ley v.
Dominguez, at p. 602; Mapstead v. Anchundo (1998) 63 Cal.App.4th 246, 267
(Mapstead).) “A ministerial office may not add or subtract language to an
unambiguous statute.” (Boyer v. County of Ventura (2019) 33 Cal.App.5th 49,
54.)
In my view, the Registrar’s decision to invalidate signatures for
nonmatching residence addresses is entirely consistent with sections 100,
105, and 9020 of the Elections Code (undesignated statutory references are to
that law), and thus was not arbitrary or capricious. As the majority
recognize, sections 100 and 9020 require a petition signer to personally affix
his or her “residence address, giving street and number . . . .” (§§ 100, subd.
(b), 9020, subd. (a)(3).) “Section 105 directs election officials regarding how to
determine whether the ‘residence address’ requirement has been satisfied:
‘[T]he election official shall determine that the residence address on the
petition . . . is the same as the residence address on the affidavit of
registration. If the addresses are different . . . the affected signature shall not
be counted as valid . . . .’ ” (Mapstead, supra, 63 Cal.App.4th at pp. 262, 265,
italics added, quoting § 105.) Section 9020 specifies a single exception to
section 105: “An incomplete or inaccurate apartment or unit number in the
signer’s residence address shall not invalidate their signature pursuant to
section 105.” These requirements “serve to safeguard the integrity of the
electoral process, and to provide elections officials with orderly and clear
procedures for determining whether a measure is qualified for the local
ballot.” (Mapstead, at p. 257.)
Mapstead involved the Registrar’s invalidation of signatures due to
incomplete residence addresses, including 34 addresses that showed a street
name and city, but no home number; a house number and street name, but no
city; and only a city, but no house number or street. (Mapstead, supra, 63
Cal.App.4th at pp. 266-267.) The Court of Appeal held the law did not permit
the Registrar to “assume or guess” whether a signer’s address remained the
same. (Id. at p. 268.) The court pointed out that section 105 required
residence addresses to match, and the Registrar could not assume that a
signer who omitted a house number lived at the same address, because they
may have moved to a different house on the same street. (Id. at p. 268.) The
court emphasized that the Registrar has only 30 days business days to verify
the signatures and may not consider extrinsic evidence. (Ibid.) It held,
“consistent with the statutes, the statutory purposes for the residence
address requirement and the time constraints upon elections officials, the
Registrar simply should not investigate or speculate about the location of a
residence” and thus his action invalidating the 34 signatures was not
arbitrary, capricious, or an abuse of discretion. (Ibid.) “[T]he responsibility
for providing a complete residence address . . . rests with the signers, not
with the Registrar.” (Ibid.)
2
Here, the majority is reading out section 150’s procedures from the
scheme. The statute is unambiguous: The word “same” means “identical.”
(Oxford English Dict. (2018)
https://www.oed.com/dictionary/same_adj?tab=meaning_and_use #24447591
[as of May 29, 2025], archived at <https://perma.cc/SY87-YHUX.) While the
discrepancies in residence addresses are not of the same character as in
Mapstead, they implicate the same concerns. I would conclude, for example,
that an election official may not assume that an address written on a petition
as “Caminto E” is a match of “Camino Espino,” even though all other
information, including house number, may be identical. This is not a
standard abbreviation from which the elections official can simply determine
the address without using extrinsic evidence to confirm the match. (See, e.g.,
Cal. Code Regs., tit. 2, § 20931(a)(2) [petition signature may be included in
raw count where “[t]he signer provides the correct house number but
abbreviates the street name or uses another name for the street, and the
elections official can determine the address”; giving example of a signer
writing 132 Hollywood Bl. on the petition when the street is Hollywood
Boulevard].) The majority criticizes the Registrar’s approach to comparing
information on the petition with a signer’s registration record as overly strict
or technical, and failing to account for how individuals typically sign
petitions. (Maj. opn., ante, at p. 24.) But the record is devoid of any evidence
of how any of these 98 signatures were collected or signed, or the
circumstances of the individuals whose signatures were rejected. The
majority’s reasoning rests on speculation as to these matters.
The majority also rely on Wheelright, supra, 2 Cal.3d 448 and Malick v.
Athenour (1995) 37 Cal.App.4th 1120, but there, the appellate courts dealt
with a very different task: the duty of election officials to determine the
3
validity of signatures on a referendum petition. In assessing these duties, the
court in Wheelright acknowledged “[s]ome judgment on the part of the
[election official] is required.” (Wheelright, at pp. 455-456.) “Each signature
on the petition must be handwritten and [the election official] must compare
this handwriting with that on the registration affidavit to determine if it is
the handwriting of the voter. [The official] must use . . . eyesight and critical
faculties to determine whether sufficient similarities exist . . . to certify that
this is a valid signature. . . . Where there are dissimilarities which are so
minor as to make . . . rejection of the signature an unreasonable or arbitrary
act, the court may not accept the [official’s] determination. Where . . . the
dissimilarities are not so minor and the similarities are not so great that only
one conclusion can be made as to the validity or invalidity of the signature,
and where the court finds that in acting upon these dissimilarities and other
indicia the [official] was not acting unreasonably or arbitrarily . . . , the court
must accept the [official’s] determination.” (Id. at pp. 455-456.) It was in
that context that the Wheelright court stated the duties “are ministerial but
they are not mechanical” as “[t]hey involved more than a computation of the
number of signatures.” (Id. at p. 455; accord, Malick, supra, 37 Cal.App.4th
at pp. 1126-1127 [refusing to interpret section 105 to require signers to
separately print each letter of his or her full name]; see also Capo for Better
Representation v. Kelley (2008) 158 Cal.App.4th 1455, 1466 [discussing
Malick: “The fact that some letters in the printed name box put there by
some signers might have been touching each other (transforming a ‘printed’
name into a ‘written’ name) of course makes no difference when the name is
otherwise legible”].)
Ascertaining whether residence addresses match is different. By their
decision, the majority is putting a burden on election officials to go beyond
4
their ministerial duty and the law, and either make assumptions or conduct
research outside the relevant documents. Accordingly, I dissent from the
majority’s conclusions in this regard.
O’ROURKE, Acting P. J.
5