Judge Mary H. Strobel, Case 22STCP02942 2022-08-25 Tentative Ruling

Petitioner Monica Gonzalez (“Petitioner”), a resident and registered voter of the City of Monterey Park, petitions for a writ of ordinary mandate directing Respondents City of Monterey Park (“City”), City Council of the City of Monterey Park (“City Council”), and Monterey Park City Clerk Vincent D. Chang (“City Clerk”; collectively “Respondents”) to place on the next ballot and submit to the voters of City an initiative petition titled “Initiative Petition For Health Care Worker Minimum Wage Ordinance” (hereafter “Initiative Petition”). Respondents filed a notice of non-opposition and do “not take any position here either supporting or opposing the instant writ.” (Notice at 2.)

On February 11, 2022, City Council received a Notice of Intent to Circulate A Petition and a Request For Title and Summary for an initiative petition. The Notice was published in the Monterey Park Progress and the proponents of the measure began circulation of the petition. (Verified Petition (“Pet”) ¶ 2.)

On May 11, 2022, the Initiative Petition was filed with the City Clerk, who then forwarded it to the Los Angeles County Registrar-Recorder/County Clerk for verification of the signatures. On June 10, 2022, the Los Angeles County Registrar-Recorder/County Clerk advised the Monterey Park City Clerk that of 4,216 signatures filed, 3,272 were verified as sufficient. (Pet. ¶ 3.)

Pursuant to Elections Code section 9215, if an initiative petition “is signed by not less than 10 percent of the voters of the city, according to the last report of registration by the county elections official to the Secretary of State pursuant to Section 2187 … the legislative body shall do one of the following: (a) Adopt the ordinance, without alteration, at the regular meeting at which the certification of the petition is presented, or within 10 days after it is presented. (b) Submit the ordinance, without alteration, to the voters pursuant to Section 1405.”

It is undisputed that the 10% threshold from section 9215 for City, “according to the last report of registration by the county elections official to the Secretary of State” was 3,181 signatures. (Pet. ¶ 3.) Accordingly, the Initiative Petition “was qualified” either for adoption by the City Council or submission to the voters pursuant to section 9215. (Ibid.)

On August 1, 2022, pursuant to Elections Code section 9215, City Council held a special meeting at which it considered whether to adopt the Initiative Petition as an ordinance or submit it to the voters. At that meeting, City Council voted to adopt the Initiative Petition as Ordinance No. 2223 (“Ordinance”). The Ordinance was adopted by a vote of 2-1, with Councilmember Yiu marked as “absent.” (Pet. ¶ 5, Exh. A; Hiltachk Decl. ¶ 2, Exh. A.)

Councilmember Yiu recused herself based on an objection made to her participation by Service Employees International Union, one of the proponents of the Initiative Petition. (Pet. ¶ 11; see generally Gov. Code § 87105 [recusal for financial interest].) In the verified petition, Petitioner also states that “[t]here is currently one vacancy on the Monterey Park City Council due to the recent death of a city council member.” (Id. ¶ 11.) Thus, City has five seats on its City Council, with one seat presently vacant. (See Pet. ¶ 11 and Exh. A.)

Government Code section 36936 states: “Resolutions, orders for the payment of money, and all ordinances require a recorded majority vote of the total membership of the city council.”

In legal correspondence with the City Attorney’s office starting August 2, 2022, Petitioner’s counsel asserted that section 36936 required City Council to pass the Ordinance with three votes because there are five city council seats in the City. Alternatively, Petitioner’s counsel argued that even if the total membership of the City Council is considered four seats, due to the recent death of one member and resulting vacancy, then City Council still needed three votes to pass the Ordinance by a “majority vote.” (See Hiltachk Decl. Exh. D-F.) Petitioner’s counsel asserted that “absent a valid motion to adopt the ordinance, the only choice for the Council was to place the initiative on the ballot per the Elections Code.” (Id. Exh. F.) The City Attorney’s office indicated that City would take a “neutral position” on the issue and would decline to take any action to either adopt the Ordinance by three votes or place it on the ballot, as requested by Petitioner’s counsel. (Id. Exh. G-J.)

On August 8, 2022, Petitioner filed the instant verified petition for writ of mandate. Respondents have not filed an answer. The petition was set for hearing on August 25, 2022.

On August 12, 2022, Petitioner filed her opening brief in support of the petition and supporting declaration.

On August 18, 2022, Respondents filed a notice of non-opposition, which states in pertinent part: “while the City Council maintains that its vote on August 1, 2022 to adopt Ordinance No. 2223 was compliant with applicable California election laws, the City does not take any position here either supporting or opposing the instant writ and stands ready to comply with any legal order issued by the court.” (Notice at 2.)

On August 22, 2022, Petitioner filed and served a reply, a proposed judgment, and a proposed writ of mandate.

The petition for writ of mandate is brought pursuant to CCP section 1085. There are two essential requirements to the issuance of an ordinary writ of mandate under Code of Civil Procedure section 1085: (1) a clear, present, and ministerial duty on the part of the respondent, and (2) a clear, present, and beneficial right on the part of the petitioner to the performance of that duty. (California Ass’n for Health Services at Home v. Department of Health Services (2007) 148 Cal.App.4th 696, 704.) “An action in ordinary mandamus is proper where … the claim is that an agency has failed to act as required by law.” (Id. at 705.)

“‘On questions of law arising in mandate proceedings, [the court] exercise[s] independent judgment’…. Interpretation of a statute or regulation is a question of law subject to independent review.” (Christensen v. Lightbourne (2017) 15 Cal.App.5th 1239, 1251.)

Petitioner bears the burden of proof and persuasion in a mandate proceeding brought under CCP section 1085. (California Correctional Peace Officers Assn. v. State Personnel Bd. (1995) 10 Cal.4th 1133, 1154.)

Petitioner contends that Elections Code section 9215 required City Council to either adopt the Ordinance or submit the Initiative Petition to the voters; that City Council did not properly pass the Ordinance with three votes, as required by Government Code section 36936; and that Respondents therefore have a ministerial duty to submit the Initiative Petition to the voters. (Opening Brief (“OB”) 4-9.) Petitioner’s arguments are persuasive and have not been opposed by Respondents. (See Sehulster Tunnels/Pre-Con v. Traylor Brothers, Inc. (2003) 111 Cal.App.4th 1328, 1345, fn. 16 [failure to address point is “equivalent to a concession”].)

Since the Initiative Petition received the required signatures, Elections Code section 9215 mandated City Council to either “(a) Adopt the ordinance, without alteration … [or] (b) Submit the ordinance, without alteration, to the voters pursuant to Section 1405.” (§ 9215.) “A city's duty to adopt a qualified voter-sponsored initiative, or place it on the ballot, is ministerial and mandatory.” (Native American Sacred Site and Environmental Protection Association v. City of San Juan Capistrano (2004) 120 Cal.App.4th 961, 966.)

City Council voted to adopt the Ordinance at its special meeting on August 1, 2022. (Pet. Exh. A.) Since three members were present, the City Council had a quorum. (Gov. Code § 36810 [“A majority of the council constitutes a quorum”].) Petitioner argues, however, that City Council did not have the votes to pass the Ordinance. Government Code section 36936 states: “Resolutions, orders for the payment of money, and all ordinances require a recorded majority vote of the total membership of the city council.” Based on the plain language of this statute, Petitioner makes a strong argument the ordinance was not adopted by a majority of Council members. The “total membership” of the council plainly refers to all (i.e. “total”) members, not only those present and making up a quorum. Because there are five seats on the City Council, at least three votes in favor of the Ordinance were required for a “recorded majority vote” and for passage of the Ordinance. Here, two councilmembers voted for the Ordinance; one against; and one was absent. Because the Ordinance received only two votes in favor, not the three required by law, the ordinance was arguably not properly adopted.

Respondents have not opposed the petition and have not argued for any alternative interpretation of section 36936.

A necessary premise of Petitioner’s arguments is that Ordinance No. 2223 is void because of non-compliance with section 36936. However, Petitioner has not asked in its Petition or in its moving papers for an order invalidating the ordinance. Instead, the only relief requested is an order to the Council to place the initiative on the ballot.

Petitioner contends that “[h]aving failed to adopt the INITIATIVE PETITION as an ordinance by a majority vote, the only remaining ministerial act for the City Council is found in Elections Code Section 9215(b) and that is to submit the ordinance, without alteration, to the voters pursuant to Elections Code Section 1405.” (OB 6.) The court agrees City Council had a ministerial duty to either adopt the initiative or place it on the ballot. (Native American Sacred Site, supra, 120 Cal.App.4th at 966.) Here, the City Council voted to adopt the ordinance rather than place it on the ballot. Until there is a court order declaring the ordinance void or unenforceable, the court does not agree that the Council has a present ministerial duty to place the initiative on the ballot.

Petitioner may ask to amend its Petition to seek the additional relief of declaring the ordinance void, and the court would be inclined to grant that request. The parties should address this issue at the hearing. Further, it preliminarily appears to the court that the proponents of the initiative may be indispensable parties to any action to declare the ordinance adopting the initiative invalid. The parties should also address this issue at the hearing.

Finally, Petitioner contends that Respondents erred “by allowing the Ordinance to take effect 10 days from enactment instead of 30 days from enactment,” depriving voters of the right to qualify a referendum on the decision to adopt the Ordinance. (OB 7-8.) Given the court’s tentative it need not address that issue at this time.

In the proposed judgment and writ, Petitioner seeks an order directing Respondents “to submit the ordinance entitled ‘Initiative Petition for Health Care Worker Minimum Wage Ordinance,’ without alteration, to the voters pursuant to Elections Code Section 1405.”[1] In their legal briefs, the parties do not address the timeline for the election at which the Initiative Petition must be submitted to the voters. The parties should address this issue, especially in light of any proposed amendment to the petition.

The petition is denied as presently pled, but the court is inclined to grant leave to amend to add a request for declaring the ordinance void. The parties should address whether the initiative proponents would be an indispensable party to any amended pleading. The parties should also address the timing of when the initiative could be placed on the ballot.

[1] According to Ordinance No. 2223, the full title of the initiative was “AN INITIATIVE REQUIRING PERSONS EMPLOYING PART-TIME AND FULL-TIME HEALTHCARE WORKERS INCLUDING, WITHOUT LIMITATION, CLINICIANS, NURSES, CERTIFIED NURSING ASSISTANTS, AIDES, TECHNICIANS, MAINTENANCE WORKERS, JANITORIAL OR HOUSEKEEPING STAFF PERSONS, GROUNDSKEEPERS, GUARDS, FOOD SERVICE WORKERS, LAUNDRY WORKERS, PHARMACISTS, NONMANAGERIAL ADMINISTRATIVE WORKERS, AND BUSINESS CLERICAL WORKERS (BUT NOT MANAGERS OR SUPERVISORS) TO PAY A MINIMUM HOURLY WAGE OF $25 TO BE INCREASED ON AN ANNUAL BASIS. ” (Pet. Exh. A.) The short title reflected in Exhibit A to Ordinance No. 2223 was “Healthcare Workers Minimum Wage Ordinance.” (Id. at Exh. A.) While the short title in Petitioner’s proposed order is not identical, it seems clear that Petitioner seeks a writ directing this same initiative to be placed on the ballot.