HomeMy WebLinkAbout10/20/2004 - STAFF REPORTS (21) . ALES1TIRI:. �z
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.INTER-OFFICE MEMORANDUM
TO: DAVID J.ALESHIRE,CITY ATTORNEY
)E'RO1VI: DOUGLAS P. HAUB!✓RT,DEPUTY CITY ATTORNEY
DATE: OCTOBER 18,2004
FILE: 01003-0001
RE: SCHEDULING OP ELECTIONS
You asked me to research and analyze what options the Pahn Springs City Council has
regarding Ore placement of following three matters on the ballot: a) Mountain Region Initiative,
b) the Palm Hills Referendum, and c) the Wastewater Treatment Plant Measure. On November
2, 2004, City voters will be considering two measures: 1) the Section 14 Referendum, which was
placed on the ballot by petition, and 2) the Utility Users Tax increase, which was placed on the
ballot by the City Council.
I. LEGAL ANALYSIS
A. Palm S rin s City Charter.
Charter cities, like Palm Springs, may enact their own laws with regard to "municipal
affairs" and, as a result, such laws will prevail over general state laws. (Cal. Const. art. XI, § 5,
relating to "home rule" powers of charter cities. There is no doubt that the conduct of elections
is a municipal affair and subject to the municipal control. (Johnson v. Bradley (1992) 4 Cal.4°i
389, 401; Socialist Parly v. Uhl(1909) 155 Cal.776, 788.)
Section 800 of the Palm Springs City Charter provides that the City shall hold its
"general municipal elections" on the first Tuesday in November in each odd numbered year. All
other elections are deemed "special elections." (P.S. City Charter section 801.) As for the
procedure for calling or conducting "special elections,"the Charter provides:
"Section 802. Procedure for Holding Elections.
Unless otherwise provided by ordinance, all elections shall be held in accordance
with the provisions of the Elections Code of the State of California, as the same
now exist or hereafter may be amended, for the holding of municipal elections, so
far as the same are not in conflict with this Charter."
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David J. Aleshire
September 21, 2004
Page 2
In addition, Section 803 of the City Charter specifically addresses initiatives and
referenda. This section provides:
"Section 803. Initiative, Referendum and Recall.
There are hereby reserved to the electors of the City the powers of the initiative
and referendtun and of the recall of municipal elective officers. The provisions of
the Elections Code of the State of California, as the same now exist or hereafter
may be amended, governing the initiative and referendum and the recall of
municipal officers, shall apply to the use thereof in the City so far as such
provisions of the Elections Code are not in conflict with the provisions of this
Charter."
Therefore, in connection with calling and conducting any "special election," the City
Charter adopts the procedures in the California Elections Code. The provisions of state law shall
apply, unless they conflict in some way with Ore City Charter.
This memorandum discusses "special elections" to consider initiatives and referenda only
and does not discuss the procedure for considering charter amendments, as it is my
understanding none of the measures submitted or being circulated are charter amendments. (The
time for calling special elections to consider charter amendments is found in Elections Code §
1415.)
B. Signature Requirement for Initiatives and Referenda.
There are essentially three ways a measure may be placed on the ballot for consideration
by City voters at a special election. The first way is when the City Council on its own chooses to
call a special election to place a matter before the electors of the City. The other two ways, by
initiative or referendtun, are based on petitions submitted to the City's elections official.
To connection with an initiative measure under Elections Code 9214, the City Council
must call a special election to place the measure on the ballot (or adopt the measure) if the
initiative petition is signed by 15% or more of the City's registered voters. In connection with a
referendum measure under Elections Code § 9237, the City Council must call a special election
to reconsider a measure (or repeal the subject ordinance) if the referendum petition is signed by
10% of more of the City's registered voters.
C. Prohibition Aizainst Two Initiatives Within Year.
State law prohibits the bringing of two initiative petitions on the same subject matter
within any 12 month period. Specifically, Elections Code § 9218 (formerly Elections Code §
4014)provides:
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David J. Aleshire
September 21, 2004
Page 3
"Any number of proposed ordinances may be voted upon at the same election, but
the same subject matter shall not be voted upon twice within any 12-month period
at a special election under the provisions of this article."
This limitation applies only to initiatives, and does not affect the power of citizens to
institute a referendtun. For example, in Referendum Committee of Hermosa Beach v. City of
Hermosa Beach (1986) 184 Cal.App.3d 152, the City of Hermosa Beach enacted an ordinance
authorizing a lease of City property to a developer to construct a hotel on the property. A
referendum petition was qualified and the voters rejected the lease. A few months later, an
initiative petition was qualified to require the City to put any lease of the subject property to a
vote of the people. When the City refused to place the initiative on the ballot, the proponents
sued and won. In its holding, the Court noted that "referenda do not enact law and may not
address certain subjects." In contrast, initiatives are not limited the way referenda are limited,
and found that Elections Code § 4014 (now Elections Code § 9218) unambiguously applies to
initiatives, but not referenda.
D. Calling Special Election to Consider Initiative.
Once the City elections official verifies that an initiative petition is signed by 15% or
more of the City's registered voters, the petition must be considered by the City Council. The
Council, at its next meeting, may: 1) adopt the ordinance without alteration, 2) submit the
ordinance for a vote of the people in accordance with subdivision (a) of Elections Code § 1405,
or 3) order City staff to prepare a report on the effects of the initiative, pursuant to Elections
Code § 9212,and place the ihutiative back on the Council agenda to be heard no more than 30
days later. (Elections Code § 9215.)
If the City requests a report pursuant to Elections Code § 9212, the City must act to either
adopt the ordinance or submit it to a vote of the people when the report is heard. Often, this 30
day period also affords the press and other residents the opportunity to review the initiative so
they can comment on whether it should be adopted or put to a vote of the people.
Subdivision (a) of Elections Code § 1405, which governs the calling of a special election
to consider an initiative measure, provides that the special election roust be held "not less than 88
days nor more than 103 days" from the date the election was called. There are four exceptions to
the rule that the special election must be held within 88 and 103 days:
a. Within 180 days prior to.another election. When it is legally possible to
hold a special election within 180 days prior to another regular or special election
wholly or partially within the same territory, the election may be held on the same date at
that regular or special election. (Elections Code § 1405(a)(1).)
0100310001/35106.01
David I Aleshire
September 21, 2004
Page 4
b. Between statewide primary and general. When it is legally possible to
hold a special election on a date between regularly scheduled statewide primary and
general election, the special election may be consolidated with the statewide general
election. (Elections Code § 1405(a)(2).)
C. Avoid two special elections within 180 days. To avoid holding one or
more special elections within any 180 day period, the date of the special election of an
initiative measure may be fixed later than 103 days, but "as early a date as practicable"
after the expiration of the 180 days from the last special election. (Elections Code §
1405(a)(3).)
d. Not more than one special election for an initiative measure that qualifies
for a special election may be held by a jurisdiction during any period of 180 days.
(Elections Code § 1405(a)(4).)
As to the last "exception," it prohibits "more than one special election for an initiative
measure . . ."to be held within any 180 day period. There are no cases interpreting this section,
however, it appears this section probably only applies to two initiatives on the same subject. As
discussed above, Elections Code § 9218 already prohibits two initiative petitions on the same
subject matter twice within any 12 month period. Therefore, since there is already a one-year
prohibition on the same initiative, it is unclear what, if any, effect this last exception would have
on scheduling initiative elections.
Perhaps the most important "exception" to the rule that a measure which qualifies for a
special election must be voted upon with 88 to 103 days, is the exception which permits setting
the election to avoid two special elections within 180 days. This exception, found in Elections
Code § 1405(a)(3), was added by Assembly Bill 1200 in 1996 as part of a non-controversial,
omnibus .Election Code revision, and has never been interpreted in any case or Attorney General
opinion.
According to the committee analyses written by legislative staff, there is no specific
mention of the legislative intent behind this provision. However, common sense suggests that
legislature did not want to impose a financial burden on cities that frequently see initiative
measures. With this exception, the City has the choice of calling another special election within
the 180 day period, or holding off its next special election until after the 180 day period is over.
After the 180 day period is over, however, the election for the initiative must be held "at
as early a date as practicable." Since this provision has never been interpreted by the Courts, it is
not clear if the City could wait until November 2005 to combine these measures with the regular
city election, as this would be about 365 days after the last "special election." There is an
argument that the requirement the election be held as soon as "practicable" could mean within
weeks of the expiration of the 180-day period, and waiting until November 2005 could result in a
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David J. Aleshire
September 21, 2004
Page 5
lawsuit. The outcome of such a lawsuit would be unknown as a court would be interpreting this
statute for the first time.
I caution that, if the City holds a special election in March 2005 to put any measures to a
vote of the people, the City should probably put all qualified measures on the ballot at that time.
The exception in Elections Code § 1405(a)(3) is for the stated purpose "to avoid holding more
than one special election within any 180-day period." If the City is having a special election in
March 2005 to consider one measure, then the "purpose" for holding off on other measures is
probably non-existent.
E. Calling Special Election to Consider Referendum.
Once a referendum qualifies for a vote by submission of petitions signed by 10% or more
of the City's registered voters, the City Council must repeal the challenged ordinance or put it to
a vote of the people. (Elections Code § 9241.) Unlike with initiatives, there is no 30-day report
that may be requested. However, also unlike with initiatives, there is no general rule that the
election should be held within 103 days, unless an exception applies and the election to consider
the referendum can often be put off for a longer period of time.
As to the calling of an election when a municipal referendum qualifies pursuant to
Elections Code § 9237, it appears the rules are somewhat more simple. The election to consider
the referendum:
11
. . . shall be held at the jurisdictions next regular election occurring not less than
88 days after the date of the order of the election or at a special election called for
that purpose not less than 88 days after the date of the order of election."
(Elections Code § 1410.)
In the case of referenda, the City may not put the question to the voters at any election
to be held in 88 days or less. However, the question is not required to be put to a vote of the
people tmtil the next regular election (in the case of Palm Springs, that is until November 2005)
or it can be put to a vote of the people at a special election to be held sooner than next
November.
III:. CONCLUSION
State law permits the City to wait 180-days from its last special election before holding
another special election. Since the City will hold a special election on November 2, 2004, to
consider the Section 14 referendum and a utility users tax increase, it may put off holding
another special election for at least 180 days (i.e., until after May 2, 2005). After the expiration
of the 180-day period, the City must present the measures to the voters as soon as "practicable."
0100310001135106.01
David J. Aleshire
September 21, 2004
Page 6
It is not clear whether the City may wait until November 2005 to hold an election on
other initiatives that qualify for special elections. Arguable, the election should be within weeks
of the expiration of the 180-day period.
As to referenda, the rules appear more simple. The City may not put the question to the
voters at any election to be held in 88 days or less. However, the City must put the question to
the voters at the next regular election (in the case of Palm Springs, that is until November 2005)
or earlier, if it wishes to hold a special election.
Please let me laiow if you have any questions regarding this or any other matter.
[END OF MEMORANDUM]
01003/0001/35106,01
RESOLUTION NO
OF THE CITY COUNCIL OF THE CITY OF PALM SPRINGS,
CALIFORNIA, CALLING AND GIVING NOTICE OF HOLDING OF A
SPECIAL ELECTION TO BE HELD ON , 2005 FOR
THE SUBMISSION TO THE VOTERS OF A MEASURE (CITIZEN
PETITION REFERENDUM) RELATING TO PALM HILLS PLAN AREA.
--------- - --
WHEREAS, a referendum petition related to Resolution 20994 regarding General Plan Text with
respect to Policies 5.4.1, 5.4.4(B) and (C), and Palm Hills Area Plan Elements #6 and #7, and
adding an additional element #8 for the Palm Hills Plan Area was submitted to the City Clerk on
August 4, 2004; and
WHEREAS, the City Council has determined to place said matter before the qualified voters of the
City of Palm Springs; and
NOW THEREFORE BE IT RESOLVED by the City Council of the City of Palm Springs, as
follows:
Section 1. That there shall be and there is hereby ordered a special election, to be held on
, 2005, for the purpose of submitting to the qualified electors
of said City, the following measures, to wit:
MEASURE
Shall Resolution 20994 approving amendments to the YES
General Plan Use and Circulation Plan for Palm Hills NO
area be adopted?
Section 2. That the proposed measure submitted to the voters is attached as Exhibit A.
Section 3. That the City Clerk is hereby directed to transmit a copy of the measure set forth in
Section 1 above to the City Attorney, who shall prepare an impartial analysis of the
measure in accordance with Section 9280 of the California Elections Code.
Section 4. That such measure shall be designated on the ballot by a letter printed on the left
margin of the square containing a description of the measure, as provided by
Section 13116 of the Elections Code.
In the event the measure receives a greater number of YES votes than NO votes,
the measure shall be deemed supported by the voters.
In the event the measure receives a greater number of NO votes than YES votes,
the measure shall be deemed unsupported by the voters.
Section 5. The ballots to be used at said election shall be, both as to form and matter
contained therein, such as may be required by law to be used there at.
�04
0 1�
Resolution
Page 2
Section 6. The City Clerk of said City is hereby authorized, instructed and directed to procure
and furnish, through the Registrar of Voters for the County of Riverside or other
resource as necessary, any and all official ballots, notices, printed material and all
supplies, equipment and paraphernalia that may be necessary in order to properly
and lawfully conduct said election_
Section 7. The polls for said election shall be open at seven o'clock a.m. on the day of said
election and shall remain open continuously from said time until eight o'clock p.m.
of the same day when said polls shall be closed, except as provided in Section
14401 of the Elections Code of the State of California.
Section 8. In all particulars not recited in this Resolution, said election shall be held and
conducted as provided by law for holding consolidated municipal elections in said
City.
Section 9. Notice of time and place of holding said election is hereby given and the City Clerk
is hereby authorized, instructed and directed to give such further or additional
notice of said election, in time, form and manner as required by law.
Section 10. That the City Clerk shall reimburse said County, or other resource, for services
performed when the work is completed and upon presentation to the City of a
properly approved bill.
Section 11. Pursuant to Section 10263 of the Elections Code of the State of California, the
canvass of the Special Municipal Election to be held in said City is hereby ordered
to be made by the City Clerk.
Section 12. The City Clerk of said City shall cause to be complete the canvass of said election
and shall certify the results to the City Council on December 6, 2005,
ADOPTED this day of October, 2004.
AYES:
NOES:
ABSENT:
ATTEST:
CITY OF PALM SPRINGS, CALIFORNIA
By
City Clerk City Manager
REVIEWED &APPROVED:
RESOLUTION NO.
OF THE CITY COUNCIL OF THE CITY OF PALM
SPRINGS, CALIFORNIA, AUTHORIZING
CERTAIN OF ITS MEMBERS TO FILE WRITTEN
ARGUMENTS REGARDING CITY MEASURE.
WHEREAS a Special Election is to be held in the City of Palm Springs, California,
November 8, 2005 at which there will be submitted to the qualified electors of said City, the
following measure:
Measure [ ]
Shall Resolution 20994 approving amendments to the General Plan Use and
Circulation Plan for Palm Hills area be adopted?
NOW THEREFORE BE IT RESOLVED by the City Council of the City of Palm
Springs, that the City Council, being the legislative body of said City, hereby authorizes:
members of said body, to file written arguements in support of the City measure set forth in the
recitals hereof in accordance with Article 4, Chapter 3, Division 9 of the Elections Code of the
State of California, and to change said arguments until and including the date fixed by the City
Clerk after which no arguments for or against said City measure may be submitted to the City
Clerk.
ADOPTED this day of October 2004.
AYES:
NOES:
ABSENT:
ATTEST: CITY OF PALM SPRINGS, CALIFORNIA
By
City Clerk City Manager
REVIEWED &APPROVED:
Oct 19 04 12: 38p Bill yeates 9166085001 p. 2
7..\W OFIZICI;: DI-
J. 'WILLIAM YEATES
3400 COTTAGE WAY, SUITE $
SACIiAMENTO,CALIFORNIA-9582.5
TELEPHONE: (916) 609.5000
FACSIMILE: (916) 609-5001 X&RV U.AKENS
J wu.c.ux 1'HJl�'g5 www.cnVxroqualirylaw-com MTH G.WAGNER
October 19, 2004
Sent Via Facsimile
David H. Ready,
Cite Manager
Fax No: (760) 323-3207
Patricia A. Sanders,
City Clerk
ATTN: Kathie Hart
Fax No: (760) 322-8332
Re: .Palm Hills Referendum
Dear Mr- Ready and Ms Sanders:
After I faxed my earlier lctler_ it was pointed out to me that I had inadvertently put the wrong
year for the March 8, 2005 municipal election in two places on the second page. Attached is a
revised letter with the corrected dates- Please discard the prior letter. I apologize for any
confusion in sending multiple letters.
Sincerely.
e
Bill Yet s
Attachment
1. %%V OF1�IC1 OF
r- WILLIAM YEATES
3400 COTTAGE WAY, SUITE XC
SACRAMENTO,CA.I.IrOMIZA 95925
TELEPHONZ: (916) 609.5000
FACSIMILE: (916) 609-5001 }IAgy ll_AKENS
I.W1LLWd YE&TES w IN,w-e n V1 r0qu 1i [y 1:I tv, um IMITI4 G.WAGNER
October 19, 2004
Sent Via Fax and U. S. Mail
David H. Ready,
City Manager
Fax No: (760) 323-8207
Patricia A. Sanders,
City Clerk
ATTN: Kalhie Hart, Chief Deputy City Clerk
Fax No: (760) 322-8332
City of Palm Springs
Palm Springs City Hall
3200 E- Tallquitz Canyon Way
Palm Springs, CA 92262
Re_ Palm Hrlls Referendum
Dear Mr_Ready and Ms Sanders:
I am writing on behalf of my client, Citizens For Responsible Development, who provided me
with a copy of your joint October 20, 2004 memorandum to the City Council regarding niy
client's referendum petition against Resolution 20994. (lVls. Hart signed the memorandum on
behalf of the City Clerk.) In reviewing this memorandum and the attached resolutions, l noticed
what I believe to be two fundamental errors in what is being proposed and recommended to the
City Council.
First, the foram of the question to be placed on the ballot is incorrect_ Unless the City Council
entirely repeals challenged Resolution 20994, the matter is turned over to the voters to decide
whether to approve Resolution 20994.1 The operative language of section 9241 of the Elections
Code, which applies to a municipal referendum, states:
The ordinance shall not become effective until a majority of the voters voting an
Lhe ordinance vote in favor of it.2
See Elec. Code, §9241.
z Because the City approved the general plan changes by resolution,rather than by ordinance, the term"ms-olution"
Will substitute for the term"ordinance" in This situation. Midway Orchards v. Count))ofButle(1990) 220
Cal.App.3d 765,7S0-7S2.
Z -d T005609916 Saa,eaA llzg d94 =Zi 10 B1 a00
David H. Ready and Patricia A. Sanders
October 19, 2004
Page 2 of 2
Therefore, the ballot question must be framed so that the voters arc approving Resolution 20994.
The ballot questions should read,
Shall Resolution 20994 regarding various amendments to the General Plan Land
Use and Circulation Elements for the Palm Hills Area Plan be adopted?
The second issue is the selection of the date to hold the election. I do not believe the City has the
option to select either the March 8, 2004 Special Municipal Election, or the November S, 2005
Special Municipal General Election. Again, the operative language of section 9241 of the
Elections Code states,
. . . the legislative body shall submit the ordinance to the voters, either at the next
regular municipal election occurring not less than_ 88 days after the order of the
legislative, or at a special election called for the purpose, not less than 88 days
after the order of the legislative body.
Since the City has a municipal election scheduled for March 8, 2004, even though i1 is titled
"Special Municipal klection," I believe that the vote on Resolution 20994 must be scheduled for
that election. It would, therefore, be inappropriate for the City Council to skip over the
scheduled March 8,2005 municipal election and set the measure for the "Special Municipal
General Election"to be held on November 8, 2005.
If you have any questions, I am available to discuss my opinions on these two issues at your
convenience_
Sincerely,
Bill Xea� s
cc: Joan Taylor, Citizens for Responsible Development.
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