The opinion
Filed 2/28/17
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
JAMES P. WILSON et al.,
Plaintiffs and Appellants,
A149153
v.
COUNTY OF NAPA et al., (Napa County
Super. Ct. No. 16CV000457)
Defendants and Respondents.
James P. Wilson and Michael Hackett (proponents) appeal the denial of their
petition for a writ of mandate seeking to compel respondents, the County of Napa and
John Tuteur in his official capacity as Registrar of Voters for the County of Napa
(collectively, the registrar), to place on the county ballot their proposed initiative measure
entitled “Water, Forest and Oak Woodland Protection Initiative of 2016.” The registrar
refused to do so as he was advised by county counsel that the measure does not comply
with the “full text” requirement of Elections Code section 91011 because the measure
includes a permit requirement for removing certain oak trees requiring compliance with
the best management practices set forth in appendix D, sections 1 and 3 of the “Napa
County Voluntary Oak Woodland Management Plan (2010)” without including the text
of those best management practices. We conclude that the trial court correctly held the
proposed initiative does not comply with the full text requirement. The measure does not
simply cross-reference another provision of law but would enact as binding conditions for
permission to remove certain oak trees what are now only recommended measures for
voluntary compliance.
1
Unless otherwise indicated, all statutory references are to the Elections Code.
1
Background
In February 2016 proponents submitted to the registrar their initiative petition
containing the requisite number of signatures for “submission of the measure to the
voters of the County of Napa at the earliest special or general election for which it
qualifies.” After initially certifying that the initiative qualified for placement on the
ballot, the registrar rejected the petition based on advice from county counsel that the
measure did not comply with the full text requirement of section 9101.
The initiative measure consists of 10 sections filling 18 pages. Its purpose is stated
to be “to protect the water quality, biological productivity and economic and
environmental value of Napa County’s streams, watersheds, wetlands and forests, and to
safeguard the public health, safety and welfare of the county’s residents.” By various
amendments to the county’s general plan and the county code, the measure would, among
other things, amend the goals and policies of the general plan, require additional water
quality buffer zones to be established along streams and wetlands, and increase the
minimum ratio for replacing lost oak woodlands in an agricultural watershed zoning
district from a 2:1 ratio to a 3:1 ratio. The measure would also add to title 18 of the Napa
County Code a new section 18.20.060, establishing an “Oak Removal Permit Program,”
which contains the provisions found to be in noncompliance with section 9101.
Section 18.20.060 would require one to obtain an “Oak Removal Permit” to
remove from a single parcel of five or more acres within an agricultural watershed district
during a calendar year any valley oak tree (of a specified minimum size) or 10 or more
oak trees of any species (of a specified minimum size). The section specifies the
information that must be included in an application for an oak removal permit, which
must include a proposed oak removal plan prepared and signed by a registered
professional forester or certified arborist. The plan must include, among other
information, “remediation measures,” and a permit may not be approved if “[p]roposed
remediation measures are not adequate under subsection (E).” Subsection (E) in turn
provides, among other things, “At a minimum, adequate remediation . . . shall include:
[¶] 1. Compliance with the best management practices for tree protection during
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construction activities set forth in Appendix D, Section 1 of the Napa County Voluntary
Oak Woodland Management Plan (2010); and [¶] 2. Replacement of removed oak trees
or oak woodlands at a 3:1 ratio or permanent preservation of comparable oak trees or oak
woodlands at a 3:1 ratio by: [¶] a. Permanently preserving comparable oak trees or oak
woodlands on-site through dedications, conservation easements, or similar measures; or
[¶] b. Replanting and monitoring of replacement oak trees on-site pursuant to a plan that
ensures replacement of failed plantings and complies with the best management practices
for Maintenance, Restoration, and Rehabilitation of Oak Woodlands set forth in
Appendix D, Section 3 of the Napa County Voluntary Woodland Management Plan
(2010).” (Italics added.)
When the registrar rejected the petition because the initiative does not include or
attach the provisions of the “Napa County Voluntary Woodland Management Plan” (the
management plan) specifying the best management practices referred to in section (E),
the proponents sought a writ of mandate directing the registrar to place the initiative on
the ballot. Following a hearing, the superior court denied the petition for a writ of
mandate, reasoning as follows: “The initiative, in referencing sections 1 and 3 and
deeming them mandatory, will enact them into binding legal requirements under
proposed County Code section 18.20.060. [Proponents’] argument that the [best
management practices] are not being enacted or adopted is belied by the plain and
specific language of the initiative. . . . [¶] . . . [B]ecause the text of sections 1 and 3 in
Appendix D of the Napa County Voluntary Oak Woodland Management Plan (2010) was
omitted from the initiative petition that was circulated for signatures, the initiative does
not contain ‘the full and complete text of everything that will be enacted if the voters
approve it’ as is required by Elections Code section 9201,” citing We Care—Santa Paula
v. Herrera (2006) 139 Cal.App.4th 387, 390 (We Care).
Proponents promptly filed an “emergency petition” in this court for issuance of an
extraordinary writ, which this court denied summarily without reaching the merits, as did
the Supreme Court with respect to an emergency petition filed in that court. Proponents
3
then filed a notice of appeal, and this court granted an application for expedited review so
that the matter may be resolved before the next local election.
Discussion
Because there is no dispute as to the facts and the issue presented is solely one of
statutory interpretation, we review the matter de novo. (Alliance for a Better Downtown
Millbrae v. Wade (2003) 108 Cal.App.4th 123, 129.)
Section 9101 of the Elections Code requires an initiative petition to contain the
full text of the measure that the initiative proposes to enact.2 In reviewing compliance
with this requirement, immaterial deviations may be excused so long as there is
substantial compliance. “[T]he governing California decisions consistently have applied a
‘substantial compliance’ rule in this context, realistically evaluating whether the
particular defect in question frustrates the purposes of the applicable election
requirement.” (Costa v. Superior Court (2006) 37 Cal.4th 986, 1027.) “[I]n determining
whether a departure from statutory requirements imposed on initiative or referendum
petitions by election-law provisions should be viewed as invalidating a circulated
petition, past California decisions have been most concerned with departures that affect
the integrity of the process by misleading (or withholding vital information from) those
persons whose signatures are solicited.” (Id. at p. 1016.) “[T]he type of defect that most
often has been found fatal is the failure of an initiative or referendum petition to comply
2
The registrar correctly cited and respondents have defended his actions based on this
requirement as it appears in section 9101, which applies to county ordinances. In its
decision upholding the registrar’s action, the superior court relied on section 9201, the
section that applies to municipal ordinances and is discussed in the principal cases relied
on by the parties. Both sections require the petition to contain the text of the proposed
initiative. Section 9101 refers to “the full text of the proposed ordinance” and
section 9201 refers to “the text of the measure.” No party attaches any significance to this
difference in terminology. A similar requirement applies to petitions for state initiatives.
Article II, section 8, subdivision (b) of the California Constitution provides that a petition
for such a measure must set forth “the text of the proposed statute or amendment to the
Constitution.” Section 9012, which applies to state initiatives, requires each section of the
petition to contain “a full and correct copy of the circulating title and summary and text
of the proposed measure.”
4
with the statutory requirement of setting forth in sufficient detail the text of the proposed
initiative measure or the legislative act against which the referendum is brought ‘so that
registered voters can intelligently evaluate whether to sign the initiative petition and to
avoid confusion.’ ” (Id. at p. 1016, fn. 22.)
The initiative petition in this case sets forth in full all of the provisions that the
initiative proposes to enact. However, because the measure incorporates provisions of the
management plan without stating or attaching those provisions, the registrar contends the
petition does not comply with the full text requirement for the same reasons that the
petition was held not to comply in Mervyn’s v. Reyes (1998) 69 Cal.App.4th 93
(Mervyn’s). In Mervyn’s, the initiative petition “referred to, but did not actually contain,
the various provisions” that the initiative would have enacted. (Id. at p. 99.) In that case,
the proposed initiative read: “ ‘The people hereby re-enact the open space land use
designations (Parks and Recreation, Baylands, Limited Open Space) of the General
Policies Plan Map and the supporting policies in Chapter VII: Open Space, Parks and
Recreation, Chapter VIII: Environmental Concerns and Chapter IX: Urban Design of the
General Policies Plan of the City of Hayward in effect on January 1, 1996.’ ” (Mervyn’s,
pp. 96-97.) The actual text of the referenced policies was not included in or attached to
the petition. The court held that “The purpose of the full text requirement is to provide
sufficient information so that registered voters can intelligently evaluate whether to sign
the initiative petition and to avoid confusion.” (Id. at p. 99.) “[I]t is imperative that
persons evaluating whether to sign the petition be advised which laws are being
challenged and which will remain the same. Only inclusion of the existing general plan
will accomplish such purpose.” (Id. at p. 104.) Although the text of the initiative petition
contained reference to the policies that the measure would enact, because the petition
omitted the text of those policies which the court considered “the key element of the
initiative,” the petition did not comply with the full text requirement and the city council
had the ministerial duty to reject the petition. (Id. at pp. 104-105.)
Proponents, on the other hand, place heavy reliance on We Care, supra, 139
Cal.App.4th 387, in which the court held that the failure to include in an initiative petition
5
the text of the land use element of the city’s general plan, to which reference was made in
the petition, did not cause the petition to violate the full text requirement. In We Care, the
proposed initiative read in part: “ ‘This initiative hereby Amends the General Plan Land
Use Element adopted on or about April 13, 1998, and as amended thereafter, to require
any future amendment to the general plan land use element involving a development,
proposed development, or land use designation, which would have the effect of
increasing the density as currently reflected in the land use element on a gross of 81 or
more acres, to be approved by a majority of the voters at a general or special election.’ ”
(Id. at pp. 388-389.) The Court of Appeal held that although the petition sought to amend
the general plan, “the amendment does not change any land use or density designated in
the general plan. Nor does it even purport to prohibit any change in land use or density. It
simply adds a provision to the general plan requiring that any increase in density for
projects involving 81 or more acres be approved by popular vote. The petition contains
the full text of the measure. There is no need to include any portion of the general plan.
Certainly, the passage of We Care’s initiative will affect the general plan. But [the
statute] does not require that a petition include the text of every plan, law or ordinance
the measure might affect.” (Id. at p. 390.)
The court in We Care distinguished the petition in Mervyn’s and in other cases
finding petitions not to comply with the full text rule. “We Care’s petition does not seek
to amend the general plan by nothing more than reference to headings, titles or numbers.
Unlike [several other cases], We Care’s petition does not omit the text of an incorporated
exhibit or any other portion of the proposed enactment. Instead, the petition contains the
full and complete text of everything that will be enacted if the voters approve it.” (We
Care, supra, 139 Cal.App.4th at p. 390.)
The distinction drawn in We Care is dispositive and confirms that the proposed
initiative in this case does not comply with the full text rule. The initiative in We Care,
which complied with the statutory requirement, set forth “the full and complete text of
everything that will be enacted if the voters approve it.” (We Care, supra, 139
Cal.App.4th at p. 390.) The proposed initiative in Mervyn’s, which did not comply,
6
merely “referred to, but did not actually contain, the various provisions” that the initiative
would have enacted. (Mervyn’s, supra, 69 Cal.App.4th at p. 99.) The latter is the case
here. Without stating or attaching the content of the best management practices included
in the management plan, to which the measure refers, the proposed initiative would
convert what are now recommended voluntary practices into mandatory practices with
which an applicant would be required to comply in order to obtain a removal permit. A
person presented with the petition could not ascertain from the petition itself the content
of the best management practices to which the proposed initiative refers but would be
required to do extraneous research to learn what practices the measure would require of a
permit applicant. “The purpose of the full text requirement is to provide sufficient
information so that registered voters can intelligently evaluate whether to sign the
initiative petition and to avoid confusion.” (Ibid.) As is true of the full text requirement
applicable to referendum petitions (§ 4052), “the statute’s underlying purpose [is]
minimizing the possibility prospective signers may misunderstand the purpose of a
petition.” (Nelson v. Carlson (1993) 17 Cal.App.4th 732, 740.) Although technical
deficiencies in a petition will not invalidate the petition if there is substantial compliance
with the statutory requirements, there is no substantial compliance if the defect frustrates
the purpose of the requirement. (Id. at p. 737, accord Billig v. Voges (1990) 223
Cal.App.3d 962, 968.) The omission of the best management practices with which the
proposed initiative would compel compliance frustrates the purpose of the full text rule
and therefore invalidates the petition.
Proponents’ principal argument is that “the initiative on its face clearly does not
enact best management practices, either expressly or otherwise.” But as the trial court
correctly observed, this contention is belied by the terms of the measure, set out above. In
order for a holder of five or more acres to obtain a permit to remove oak trees in the area
to which the measure would apply, it would be necessary to comply with management
practices that are not at present mandatory. The initiative would impose legal obligations
7
on permit applicants that do not presently exist and in that sense the best management
practices would clearly be “enacted.”3
Proponents overstate the consequences of this conclusion. We do not imply that
cross-references may never be included in an initiative petition. Cross-references are
commonly and permissibly used in both initiatives and referendums. Their inclusion
presents no problem so long as the reference does not create or impose new legal
obligations that are not otherwise specified in the measure. That not all cross-references
impose new legal obligations invalidating a petition is exemplified by the several
propositions in the 2016 statewide ballot to which proponents refer in their argument.4
These initiatives did not purport to enact cross-referenced provisions by making
previously voluntary practices mandatory, as does the initiative before us. The first
initiative cited by the proponents merely relates to the manner of amending the cross-
referenced statute, much like the initiative in We Care, supra, 139 Cal.App.4th 387.5 In
most of the others the cross-referenced provisions had previously been enacted and the
initiative merely required compliance with pre-existing obligations.6 Thus, there is no
3
Webster’s Third New International Dictionary defines “enact” to mean, inter alia, “to
establish by legal and authoritative act: make into a law.”
4
Proponents’ initial request for judicial notice is granted. Proponents supplemental
request for judicial notice is denied.
5
Proposition 52 on the 2016 ballot amended the Medi-Cal Hospital Reimbursement
Improvement Act of 2013 as follows: “Sec. 3.5. (a) No statute amending or adding to the
provisions of the Medi-Cal Hospital Reimbursement Improvement Act of 2013 shall
become effective unless approved by the electors in the same manner as statutes
amending initiative statutes pursuant to subdivision (c) of Section 10 of Article II, except
that the Legislature may, by statute passed in each house by roll call vote entered into the
journal, two-thirds of the membership concurring, amend or add provisions that further
the purposes of the act.”
6
Proposition 63 on the 2016 ballot, proponent’s second example, included this
amendment to the Penal Code: “Commencing January 1, 2018, a firearms dealer licensed
pursuant to Sections 26700 to 26915, inclusive, shall automatically be deemed a licensed
ammunition vendor, provided the dealer complies with the requirements of Articles 2
(commencing with Section 30300) and 3 (commencing with Section 30342) of Chapter I
of Division 10 of Title 4.” Proposition 64 on the 2016 ballot, the “marijuana initiative,”
8
merit to proponents’ argument that “the trial court’s expansive new ‘full text’
requirement would render all of these propositions invalid for failing to include the
language of the referenced policies as part of their ‘text.’ ” The interpretation of the full
text requirement adopted by the trial court which we affirm is neither new nor would it
invalidate all other initiatives containing a cross reference.
Nor is there any inconsistency between this conclusion and the decision in Lin v.
City of Pleasanton (2009) 176 Cal.App.4th 408, on which proponents also rely. Lin
upheld the sufficiency of a referendum petition that sought to rescind an ordinance
approving a 51-unit residential development. The petition contained the text of the
ordinance, the exhibits attached to and incorporated by reference into the ordinance and
an exhibit to one of those exhibits. “No documents that were attached or specifically
incorporated into the ordinance were omitted.” (Id. at p. 417.) The petition did not
include a copy of the development plan that the ordinance had adopted. The Court of
Appeal acknowledged that an informed voter might wish to review portions of the plan
provides: “The Department of Pesticide Regulation, in consultation with the State Water
Resources Control Board, shall promulgate regulations that require that the application of
pesticides or other pest control in connection with the indoor, outdoor, or mixed light
cultivation of marijuana meets standards equivalent to Division 6 (commencing with
Section 11401) of the Food and Agricultural Code and its implementing regulations.”
The initiative also requires all marijuana product labels and inserts to include “a list of all
ingredients and disclosure of nutritional information in the same manner as the federal
nutritional labeling requirements in Section 101.9 of Title 21 of the Code of Federal
Regulations.” The initiative contains numerous additional cross-references, none of
which enact the provisions to which they refer. For example, “a licensee that is also a
dispensary under Chapter 3.5 (commencing with Section 19300) of Division 8 may:
[¶] (1) Allow on the premises any person 18 years of age or older who possesses a valid
identification card under Section 11362.71 of the Health and Safety Code and a valid
government-issued identification card.”
Proposition 67 on the 2016 ballot, relating to reusable grocery bags, proponent’s
final example, contained a provision exempting bags meeting another standard from its
provisions: “A reusable grocery bag made from plastic film that meets the specifications
of the American Society of Testing and Materials (ASTM) International Standard
Specification for Compostable Plastics D6400, as updated, is not required to meet the
requirements of subparagraph (A) or (B) of paragraph (1), but shall be labeled in
accordance with the applicable state law regarding compostable plastics”
9
before deciding whether to sign the petition, but the development plan was not part of the
text of the ordinance. More importantly, it was significant that unlike the initiative
petition involved in Mervyn’s, supra, 69 Cal.App.4th 93, the court was reviewing a
referendum petition and “[a]n initiative is drafted by its proponents and is the very law
whose enactment is sought, whereas a referendum seeks to set aside a law that has been
drafted by others. [Citations.] [¶] . . . [T]he proponents of a referendum petition are
required by statute to include the text of the ordinance being challenged and are thus
constrained by language drafted by others.” (Lin, supra, at p. 419.) Moreover, the text of
the referendum petition was not misleading since it advised voters that the project at issue
was a 51-unit residential development on 562 acres. (Ibid.)
Respondents also seek to minimize the significance of the best management
practices incorporated into the petition. They argue that the initiative “simply uses the
County’s existing best management practices as a reference point to provide minimum
standards for the Planning Director’s discretionary review of oak removal plans and
permits” and that these practices “come into play only in the limited circumstances where
an oak removal plan is required—and then only where the applicant proposes to
undertake construction or proposes replanting as a form of remediation.” An amicus brief
in support of the proponents’ position argues that “The cross-referenced provisions are
neither controversial nor central to the measure itself. Instead, they are just what their
name implies: best management practices for ensuring that trees are not harmed during
construction and that replacement trees will grow.”
Nonetheless, despite the discretion that the measure would confer on the director
to issue a permit and under certain circumstances to waive compliance with the specified
practices, the best management practices are stated to be minimum standards with which
permit applicants will normally be expected to comply. While some of the practices may
be “common sense measures,” as amici argue, they are in many respects quite detailed
10
and specific.7 However commonsensical or onerous the practices may be, the point is that
a voter presented with the initiative petition cannot make that evaluation from the face of
the petition. Proponents argue that it is unrealistic to expect that a voter would study the
management practices if they were attached to the petition, and that adding the three
pages of sections 1 and 3 of appendix D of the management plan to the 18-page initiative
would as a practical matter decrease the readability and understanding of the measure. In
Nelson v. Carlson (1993) 17 Cal.App.4th 732, a referendum petition challenging the
adoption of a general plan and a local coastal program land use plan amendment was
invalidated for noncompliance with the full text requirement in section 4052, which
applies to referendum petitions. The general plan in that case was “several hundred pages
long and roughly two and one-half inches thick” (Nelson, p. 739), yet the Court of Appeal
held that the proponents “were required to attach the plan to their referendum petition”
(id. at p. 740). That conclusion “enforce[d] the express requirements” of the “text”
directive in section 4052, to which the Legislature had delineated no exception “for bulky
ordinances or resolutions.” (Nelson, p. 740.) The decision also “enforce[d] the statute’s
underlying purpose of minimizing the possibility of prospective signers may
misunderstand the purpose of a petition.” (Ibid.) The same must be said, a fortiori, in the
present case. (See also, e.g., Mervyn’s, supra, 69 Cal.App.4th at pp. 103-104; Billig v.
Voges, supra, 223 Cal.App.3d at p. 968.)
7
The “general guidelines or best management practices for tree protection during
construction activities,” for example, include establishing a root protection zone roughly
one-third larger than the outermost edge of the foliage based on the longest branch,
installing high visibility fencing (four feet high and bright orange with steel t-posts
spaced eight feet apart) around the zone “or any tree cluster of trees with overlapping
canopy that are identified on an approved grading plan as needing protection,” and
several prohibitions. The specified practices for maintenance, restoration and
rehabilitation of oak woodlands include two and one-half pages of specific practices
covering “Acorn Collection and Storage Procedures,” “Methods for Sowing Acorns of
Rangeland Oaks in the Field,” “Procedures for Planting Rangeland Oaks,” “Weed
Control Procedures,” “Methods of Protecting Trees from Animals,” “Procedures for
Tree-shelter Installation,” “Tree-shelter Maintenance Procedures,” and “Fertilization,
Irrigation and Top Pruning.”
11
Moreover, the registrar has the ministerial task of placing on the ballot measures
submitted in compliance with the statutory requirements. Whether a petition complies is
to be determined by the registrar based only on the face of the petition presented.
(Alliance for a Better Downtown Millbrae v. Wade, supra, 108 Cal.App.4th at pp. 132-
133; Billig v. Voges, supra, 223 Cal.App.3d at pp. 968-969.) From the face of the petition
in this case, it is apparent that the proposed measure would require permit applicants to
comply with requirements specified in a document that is referenced but not attached or
otherwise articulated in the petition. Noncompliance therefore appears on the face of the
petition. It would be inconsistent with the ministerial nature of the registrar’s
responsibilities to hold that he is obligated to evaluate the length or significance of the
omitted materials in determining whether the petition complies with the full text
requirement. Mandate lies only to enforce ministerial duties. Here, the registrar did not
fail to perform a ministerial duty when he determined that the proposed initiative, on its
face, does not comply with the full text requirement of section 9101. Proponents’ petition
for a writ of mandate was properly denied.
Disposition
The judgment is affirmed.
_________________________
Pollak, Acting P.J.
We concur:
_________________________
Siggins, J.
_________________________
Jenkins, J.
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Trial Court: Napa County Superior Court
Trial Judge: Hon. Diane M. Price
SHUTE, MIHALY & WEINBERGER, Rachel B. Hooper, Robert S. Perlmutter,
Susannah T. French for Plaintiffs and Appellants
COTA COLE LLP, Derek P. Cole for League of California Cities and California State
Association of Counties and REMCHO, JOHANSEN & PURCELL, Robin B. Johansen,
Margaret R. Prinzing for California Wildlife Foundation, California Native Plant Society,
Corporate Ethics International, Environmental Defense Center, Forests Forever, Forest
Unlimited, Friends of Harbors, Beaches and Parks, Greenbelt Alliance, Planning &
Conservation League, and Save the Bay as Amicus Curiae on behalf of Plaintiffs and
Appellants
MILLER STARR REGALIA, Arthur F. Coon and OFFICE OF COUNTY COUNSEL,
Minh C. Tran for Defendants and Respondents
A149143
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