Huening v. March Fong Eu

231 Cal. App. 3d 766, 282 Cal. Rptr. 664, 91 Cal. Daily Op. Serv. 4952, 91 Daily Journal DAR 7768, 1991 Cal. App. LEXIS 718
CourtCalifornia Court of Appeal
DecidedJune 25, 1991
DocketC008543
StatusPublished
Cited by23 cases

This text of 231 Cal. App. 3d 766 (Huening v. March Fong Eu) is published on Counsel Stack Legal Research, covering California Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Huening v. March Fong Eu, 231 Cal. App. 3d 766, 282 Cal. Rptr. 664, 91 Cal. Daily Op. Serv. 4952, 91 Daily Journal DAR 7768, 1991 Cal. App. LEXIS 718 (Cal. Ct. App. 1991).

Opinions

Opinion

PUGLIA, P. J.

Elections Code section 3564.1 (hereafter section 3564.1), deals with arguments concerning measures submitted to the voters. It prohibits the use in a ballot argument of the name of anyone represented to be for or against a ballot measure without that person’s consent. In this appeal we decide that section 3564.1 is invalid and of no force or effect because its enactment did not comply with the procedure specified in the Political Reform Act of 1974 (Gov. Code, § 81000 et seq., hereafter the Political Reform Act) for the amendment of that act. (See Gov. Code, § 81012.)

[769]*769I

Section 3564.1 was added to the Elections Code in 1978 as part of an act adding several sections to that code and one section to the Education Code, all of which apply virtually identical restrictions to different types of elections. (See Stats. 1978, ch. 172, pp. 401-402.) Section 3564.1 provides: “A ballot argument or a rebuttal argument which includes in its text the name or title of a person, other than the author of the argument, who is represented as being for or against a measure, shall not be accepted unless the argument is accompanied by a signed consent of that person. The consent of a person, other than an individual, shall be signed by an officer or other duly authorrized representative. ‘Person’ as used in this section means any individual, partnership, corporation, association, committee, labor organization, and any other organization or group of persons.”

Proposition 119 was an initiative measure on the June 5, 1990, primary election ballot. Its official title was “Reapportionment by Commission. Initiative Constitutional Amendment and Statute.” On or about February 16, 1990, the Secretary of State made available to the public the ballot pamphlet for this and other ballot measures, including arguments for and against the measures and rebuttal arguments. (See Elec. Code, § 3567.5 et seq.) The rebuttal to the argument in favor of Proposition 119, drafted by real parties in interest Tom Noble, Ed Foglia, and Dr. Regene L. Mitchell (hereafter collectively opponents), included the following passage: “119 means coastal areas will get the fewest possible seats, [f] (Is this why Chevron contributed $25,000.00 to 119?)”

According to documents filed with the Secretary of State and available for public inspection, Chevron Corporation contributed $25,000 in late 1989 to the committee supporting Proposition 119. However, because opponents had not obtained written consent to use Chevron Corporation’s name in their rebuttal argument, the proponent and chairman of the committee supporting Proposition 119, Tom Huening (petitioner), initiated this mandamus proceeding to require the Secretary of State to delete the above passage. The trial court granted the requested relief and the challenged portion of the rebuttal argument was deleted from the ballot pamphlet as distributed.1 Opponents appeal.

[770]*770II

Opponents challenge the validity and application of section 3564.1 and assert it violates the First Amendment to the federal Constitution on a number of grounds. They contend it does not apply where the argument refers to a person as a contributor instead of being “for or against” the measure or where the person identified opposes the position of the argument drafter. Opponents further contend section 3564.1 amends the Political Reform Act without having been enacted as required by that act.

On June 5, 1990, Proposition 119 was defeated by the voters. We address first the question of mootness. Despite defeat of Proposition 119, opponents and the Attorney General, on behalf of respondent Secretary of State and real party in interest Donald Male, the State Printer, request we decide the issues raised on the merits because of their importance and the likelihood of recurrence in connection with future ballot measures. “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.” (Gebert v. Patterson (1986) 186 Cal.App.3d 868, 872 [231 Cal.Rptr. 150].) 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.” (Ibid.; Unger v. Superior Court (1984) 37 Cal.3d 612, 614 [209 Cal.Rptr. 474, 692 P.2d 238]; Ferrara v. Belanger (1976) 18 Cal.3d 253, 259 [133 Cal.Rptr. 849, 555 P.2d 1089].)

This is such a case. Opponents’ chief contentions relate to the scope and validity of section 3564.1, issues which are likely to recur in future elections. Because of the short period between the publication of ballot pamphlets and the election, it is unlikely such contentions can be reviewed before the election. Therefore, we shall consider opponents’ challenge. However, our conclusion section 3564.1 is an amendment to the Political Reform Act whose enactment was not in compliance with the provisions of that act renders it unnecessary to consider opponents’ other contentions.

III

The Political Reform Act was adopted by initiative measure approved by the electorate in 1974. It appears in title 9 of the Government Code and consists of 11 chapters. The Political Reform Act covers a wide variety of topics relating to elections. It creates and empowers the Fair Political Practices Commission (Gov. Code, § 83100 et seq.), and deals with organization of committees concerned with election matters (Gov. Code, § 84100 et seq.), filing of campaign statements and reports and disclosure of [771]*771campaign financing (Gov. Code, § 84200 et seq.), limits on campaign contributions (Gov. Code, § 84300 et seq.), registration and reporting of lobbyists (Gov. Code, § 86100 et seq.), conflicts of interest of public officials (Gov. Code, § 87100 et seq.), auditing of lobbyists and candidates (Gov. Code, § 90000 et seq.), enforcement (Gov. Code, § 91000 et seq.), and other more general matters. Chapter 8 of title 9 (Gov. Code, § 88000 et seq.) covers the content, inspection, and printing of ballot pamphlets.

The general purposes sought to be accomplished by the Political Reform Act are found in Government Code section 81002: “The people enact this title to accomplish the following purposes:

“(a) Receipts and expenditures in election campaigns should be fully and truthfiilly disclosed in order that the voters may be fully informed and improper practices may be inhibited.
“(b) The activities of lobbyists should be regulated and their finances disclosed in order that improper influences will not be directed at public officials.
“(c) Assets and income of public officials which may be materially affected by their official actions should be disclosed and in appropriate circumstances the officials should be disqualified from acting in order that conflicts of interest may be avoided.
“(d) The state ballot pamphlet should be converted into a useful document so that voters will not be entirely dependent on paid advertising for information regarding state measures.

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Huening v. March Fong Eu
231 Cal. App. 3d 766 (California Court of Appeal, 1991)

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Bluebook (online)
231 Cal. App. 3d 766, 282 Cal. Rptr. 664, 91 Cal. Daily Op. Serv. 4952, 91 Daily Journal DAR 7768, 1991 Cal. App. LEXIS 718, Counsel Stack Legal Research, https://law.counselstack.com/opinion/huening-v-march-fong-eu-calctapp-1991.