The Registrar-Recorder, County Clerk, and Board of Supervisors of the County of Los Angeles (collectively referred to as County), appeal from the granting of a preliminary mandatory injunction requiring them to deputize as voting registrars certain county employees who have frequent contact with low-income and minority citizens. The Court of Appeal affirmed the trial court's order. We reverse.
County operates a "voter outreach program" which includes various measures designed to encourage eligible citizens to register to vote. It distributes registration-by-mail forms in several thousand locations throughout the county, including libraries, post offices, fire stations, state and local public services offices, and state Department of Motor Vehicles branches. It mails such forms to registered voters to encourage them to keep their registrations current. County also maintains a toll-free telephone information service, uses news bulletins and public service announcements to promote registration, conducts an educational program at local high schools, and provides a van to volunteer organizations conducting community
Plaintiffs, a Los Angeles County taxpayer and several organizations concerned with voting rights, brought the present action in superior court,
Simultaneously with the filing of this action, plaintiffs moved for a preliminary injunction requiring County to implement an employee deputization program. In support of their motion, plaintiffs produced a statistical analysis demonstrating disparities based on race and income in voter registration rates in the county, and declarations of various prominent political scientists to the effect that voter registration requirements greatly depress actual voter turnout. County, in response, produced a statistical analysis concluding that age and education are more important factors than race or income in predicting voter registration patterns.
After a hearing, the trial court granted a preliminary injunction.
County has not challenged the propriety, as a procedural matter, of awarding interim mandamus relief that neither preserves the status quo nor restores a status quo that previously existed. (Cf. People ex rel. S.F. Bay etc. Com. v. Town of Emeryville (1968) 69 Cal.2d 533, 536-539 [72 Cal.Rptr. 790, 446 P.2d 790].) Because any error would not be jurisdictional, we do not address the issue. Rather, we conclude there is no likelihood that plaintiffs could prevail on the merits at trial. Thus, the Court of Appeal erred in upholding issuance of the preliminary injunction.
County offers three reasons why plaintiffs lack standing to bring this action. First, it argues taxpayers have no standing under Code of Civil Procedure section 526a to force a municipality to expend funds to adopt a new program in the absence of any illegal expenditure by that municipality for an existing program. Second, County ascribes to the Attorney General exclusive standing to enforce the relevant provisions of the Elections Code. Third, County asserts plaintiffs failed to exhaust their administrative remedies before filing suit.
1. Taxpayer Standing
Plaintiff Mark Ridley-Thomas is a Los Angeles County taxpayer. The other plaintiffs are organizations whose members include Los Angeles County taxpayers. They assert standing to seek an injunction under Code of Civil Procedure section 526a, which provides taxpayers with standing to bring "An action to obtain a judgment, restraining and preventing any illegal expenditure of ... funds ... of a county...." County contends that plaintiffs lack standing under section 526a because the object of their suit is not to halt any existing or threatened illegal expenditure, but to require County to expend funds to incorporate a new feature into its existing voter outreach program.
We find it unnecessary to reach the question whether plaintiffs have standing to seek an injunction under Code of Civil Procedure section 526a, because there is an independent basis for permitting them to proceed. The ultimate relief sought in this action includes a writ of mandate compelling adoption of the employee deputization program.
Given that plaintiffs have standing as citizens to seek the relief granted here at a trial on the merits, they have standing to seek the same relief on a provisional basis, if such relief is otherwise proper.
2. Exclusive Enforcement
We disagree. First, the plain language of section 304 contains no limitation on the right of private citizens to sue to enforce the section.
Second, plaintiffs' action is not based solely on section 304. To the contrary, they rely principally on section 302, which authorizes county clerks to deputize citizens as deputy registrars. It cannot reasonably be maintained that, by enacting and providing for the enforcement of section 304 — which mandates the adoption of outreach programs — the Legislature intended to preclude citizens from bringing actions to enforce the provisions of section 302, a preexisting statute that governs counties' deputization of voting registrars. Were we to accept County's contention, courts would be required to consider claims alleging violations of section 302 in isolation from closely related claims alleging violations of section 304 and its accompanying regulations. Considerations of judicial efficiency militate strongly against such a result.
3. Exhaustion of Administrative Remedies
Amicus curiae argues on County's behalf that the suit is barred by the doctrine of exhaustion of administrative remedies, because the Secretary of State has power to remedy violations of the Elections Code through approval of outreach programs and review of their implementation.
B. Issuance of the Injunction
1. Standard of Review
The ultimate relief sought in plaintiffs' complaint includes an injunction and a writ of mandate to compel County to fulfill its duties under the Elections Code. Mandamus, rather than mandatory injunction, is the traditional remedy for the failure of a public official to perform a legal duty. (See authorities cited in 42 Am.Jur.2d, Injunctions, § 19, p. 750, § 43, p. 783, and 43 C.J.S. (rev. 1978) Injunctions, § 3, pp. 742-743.) Thus, the legal principles governing judicial compulsion of official acts have developed under the rubric of mandamus rather than injunction.
Applying these principles to the trial court's order of employee deputization, we find the relief granted is unavailable under either theory expounded by the Court of Appeal. As will appear, we conclude that the Elections Code does not require the deputization of county employees as voting registrars, even if such deputization would substantially further the statutory goal of maximum registration. Assuming arguendo that County's outreach program violates sections 302 or 304 and the accompanying administrative regulations, we also conclude the Court of Appeal erred in affirming the trial court's order requiring deputization as a remedial device.
Because, as a matter of law, there is no possibility that the relief sought could be properly awarded after a trial on the merits, such relief may not be awarded on a provisional basis. Accordingly, the Court of Appeal's affirmance of the preliminary injunction must be reversed.
2. Deputization as a Statutory Requirement
Section 302, subdivision (b), states that "county clerks ... shall deputize as registrars qualified citizens in such a way as to reach most effectively every resident of the county." (Italics added.) In contrast, section 302, subdivision (e), provides that "the governing board of any county ... or other public agency, may authorize and assign any of its officers or employees to become deputy registrars of voters...." (Italics added.)
The Court of Appeal held that section 302, subdivision (b), imposes on counties a mandatory duty to deputize employees if such deputization is necessary to reach most effectively every resident of the county. It is an elementary principle that specific provisions of a statutory scheme modify more general provisions of the same scheme. (Code Civ. Proc., § 1859; Long Beach City School District v. Payne (1933) 219 Cal. 598, 605 [28 P.2d 663];
In concluding that an employee deputization program is mandated if it can be shown that deputization will maximize voter registration, the Court of Appeal also relied on the Legislature's declaration, in section 304, of its intent that "voter registration be maintained at the highest possible level." Unlike section 302, subdivisions (b) and (e), however, section 304 imposes a duty on the Secretary of State to devise regulations and monitor the counties' compliance with the regulations, rather than imposing a duty directly on counties. The counties' duties under section 304 are governed by the Secretary of State's administrative regulations.
We conclude that neither section 302 nor section 304 requires County to adopt the employee deputization program sought by plaintiffs. The Court of Appeal's conclusion that the two statutes "read together" create such a duty if it can be shown that such a program will maximize voter registration is unsupportable. Although the Legislature has made clear its desire to maximize registration (in its statements of intent and in various substantive provisions of the Elections Code), it also has made clear in the plain language of section 302, subdivision (e), that the decision whether to adopt an employee deputization program rests in the discretion of the individual counties.
3. Deputization as a Remedial Device
As noted above, it is well settled that although a court may issue a writ of mandate requiring legislative or executive action to conform to the law, it may not substitute its discretion for that of legislative or executive bodies in matters committed to the discretion of those branches. In Serrano v. Priest (1976) 18 Cal.3d 728 [135 Cal.Rptr. 345, 557 P.2d 929], we noted that "the courts may not order the Legislature or its members to enact or not to enact, or the Governor to sign or not to sign, specific legislation...." (Id. at p. 751.) Similarly, although a court may order a local legislative body to perform a nondiscretionary ministerial act, it may not control a local board's discretion. (Glendale City Employees' Assn., Inc. v. City of Glendale (1975) 15 Cal.3d 328, 344 [124 Cal.Rptr. 513, 540 P.2d 609].)
Serrano is instructive regarding the proper role of a court in providing remedies for violations of law by other branches of government. In that case we rejected a claim that the trial court had exceeded its jurisdiction by issuing an order requiring the Legislature and the Governor to adopt a plan for school financing in conformity with state constitutional guaranties of equal protection. We noted with approval that the trial court "explicitly and properly refrained from issuing directives to the lawmakers and the chief executive, stating in its judgment: `... [T]his judgment is not intended to require, and is not to be construed as requiring, the adoption of any
Unlike the court in Serrano, the trial court in this case did not limit its order to requiring governmental defendants to take action in conformity with the law. Its order required County to take a particular course of action — deputization of public employees — specifically committed to County's discretion by statute. (§ 302, subd. (e).)
In Legislature v. Reinecke (1973) 10 Cal.3d 396 [110 Cal.Rptr. 718, 516 P.2d 6], we selected a reapportionment plan for the state (ordinarily a legislative act) to remedy the failure of the other branches to effect a plan conforming to the constitutional requirement of equal protection. Our decision in Reinecke, however, was issued only after the Legislature was given a reasonable opportunity to formulate a constitutionally valid plan. (Id. at p. 400.) We declined in that case to issue an order to the Legislature, relying on the parties to accede to our stated holdings. (Id. at p. 407; see also Young v. Gnoss (1972) 7 Cal.3d 18, 29 [101 Cal.Rptr. 533, 496 P.2d 445] [declining to issue order to county clerks, relying on them to accede to holding].) Procedures that give other branches of government a reasonable opportunity to devise plans to correct violations of law in matters involving the exercise of their discretion are required by the well-settled rule that mandamus generally will not issue to control discretion. A court seeking to remedy a violation of law should not require a particular remedy unless the respective governmental entity has no discretion to exercise (as when the particular duty is made ministerial either by statute or by constitutional compulsion)
Accordingly, the Court of Appeal erred in upholding the issuance of the preliminary injunction. The statutory scheme does not require implementation of an employee deputization program. Even assuming arguendo that County's present outreach program is inadequate to fulfill the requirements of the Elections Code or violates equal protection principles, the trial court's order requiring an employee deputization program over County's objection was not an available remedy for the alleged violation.
In view of the foregoing conclusions, we need not decide whether the Court of Appeal erred in its balance-of-harm analysis. The likelihood of
Accordingly, we reverse the decision of the Court of Appeal affirming the issuance of the injunction and order the matter remanded to the Court of Appeal. The Court of Appeal is directed to remand this matter to the trial court with directions to vacate the preliminary injunction and for further proceedings in accordance with this decision. On remand, plaintiffs remain free to renew their contentions that County has refused to deputize qualified citizens as registrars in accordance with the requirements of section 302, subdivision (b), and that its voter registration program violates equal protection guaranties, and they may seek other appropriate relief not inconsistent with this opinion.
Panelli, J., Eagleson, J., Kaufman, J., and Arguelles, J.,
I respectfully dissent. The right to vote is fundamental because in a democracy it is "preservative of all rights." (Yick Wo v. Hopkins (1886) 118 U.S. 356, 370 [30 L.Ed. 220, 226, 6 S.Ct. 1064].) Requirements burdening the right to vote are subject to the strictest of scrutiny. (Dunn v. Blumstein (1972) 405 U.S. 330, 336, 342 [31 L.Ed.2d 274, 280-281, 284, 92 S.Ct. 995]; Young v. Gnoss (1972) 7 Cal.3d 18, 22 [101 Cal.Rptr. 533, 496 P.2d 445]; Castro v. State of California (1970) 2 Cal.3d 223, 234 [85 Cal.Rptr. 20, 466 P.2d 244]; Otsuka v. Hite (1966) 64 Cal.2d 596, 602-603 [51 Cal.Rptr. 284, 414 P.2d 412]; Keane v. Mihaly (1970) 11 Cal.App.3d 1037, 1041 [90 Cal.Rptr. 263].) The record in the instant case makes clear that the preelection registration requirement in California, although neutral on its face and seemingly innocuous, has the practical effect, at least in Los Angeles County, of resulting in a denial of the right to vote to many citizens who want to vote on election day and that this practical effect impacts most seriously upon the poor and minorities.
Based on overwhelming evidence, the trial court found a significant class of underregistered, eligible low-income and non-White citizens. In some of the towns and cities where the population was predominantly poor or non-White as many as 70 percent of the eligible voters were unregistered, whereas in wealthy White communities it was shown that only 10 to 15 percent of the eligible voters were not registered. Based on this showing, the trial court issued a preliminary injunction requiring the county to deputize as deputy registrars appropriate county employees having daily contact with eligible but unregistered voters. In short, the court said to the county that you cannot stonewall and temporarily, pending further proceedings, the county shall engage in a program to reduce the number of unregistered, qualified electors. There is nothing in the court's order to prevent the county from mending the error of its ways, investigating to determine which electors are effectively deprived of the franchise by the preelection registration requirement, and developing programs to increase registration.
The majority tell us that courts cannot compel the county to deputize its employees as registrars because the Legislature in section 302, subdivision (e) gave it discretion to determine whether to deputize its employees and that section 304 is applicable to the Secretary of State and does not impose a direct duty on the county. (Maj. opn. at pp. 443-445.) The majority also argue that the preliminary injunction was improper even if the county was acting unlawfully, and that the court should not act until it has given the county an opportunity to remedy the situation. (Maj. opn. at pp. 445-446.)
However, it is clear that the Legislature has established the legislative policy and imposed an administrative duty on the county, that while the county is given discretion in appointing its employees as deputy registrars,
Nor was the court required to delay attempts to remedy the situation. As shown by the main authority cited by the majority, the proper function of the court in matters as important as elections is to take temporary action to assure that they are conducted in accordance with law, while leaving the authorized agency free to devise a permanent solution in accordance with law. The preliminary injunction does not preclude the county from devising its own plan in accordance with the law and obviously is only a temporary measure.
The election process is so important to the maintenance of our democracy that abuses, whether they take the form of fraud or abuse of legislatively conferred discretion, must be addressed immediately. Although the record in the instant case of practical disenfranchisement of large numbers of poor and minorities by the preelection registration requirement draws into question the validity of the requirement itself, the trial court did not invalidate the process but sought to enforce the legislative attempts to square preelection registration requirements with the citizens' right to vote without economic or racial discrimination. Attempts ordained by the Legislature to modify the economic and racial effects of the preelection registration system must be enforced to maintain the integrity of the system.
It has long been recognized that county boards of supervisors exercise both administrative powers and duties and legislative powers. (E.g., Horn v. County of Ventura (1979) 24 Cal.3d 605, 612-615 [156 Cal.Rptr. 718, 596 P.2d 1134]; Simpson v. Hite (1950) 36 Cal.2d 125, 129 et seq. [222 P.2d 225].) As a generalization, matters which affect numerous people are legislative in character. However, where the general policy is established by the Legislature, the county board's function in carrying out the policy by performing its duty is an administrative function delegated by the state. The determination whether the board's function is legislative or administrative may not always be easy, and one of the factors that is usually considered is the procedures established by the Legislature for the board. (Ibid.)
The statutory pattern is clear. In the area of elections, including registration of voters, probably more than any other area in the law and in recognition that our dedication to a democratic form of government is involved, the Legislature has acted comprehensively dotting the i's, crossing the t's and
The policy judgment as to whether a program shall be adopted has been made by the Legislature. The Legislature has required the Secretary of State to adopt regulations prescribing the minimum requirements, obviously an administrative function, since the Secretary of State is not given legislative powers. Although conceivably a county board of supervisors may be acting in a legislative capacity in adopting a program which goes beyond the Secretary of State's minimum requirements, a board is acting in an administrative capacity when it attempts to meet the minimum requirements. Moreover, the Legislature has provided that if a county fails to meet the minimum requirements, the Secretary of State may design a program for the county. Again, the Secretary of State is not a legislature.
The Secretary of State has adopted extensive regulations. (Cal. Code Regs., tit. 2, §§ 20000-20005.) California Code of Regulations, title 2, section 20000 provides that "all counties shall design and implement programs intended to identify qualified electors who are not registered voters, and to register such persons to vote, hereinafter referred to as outreach programs." California Code of Regulations, title 2, section 20001, subdivision (f) provides that each county voter outreach program shall provide for the solicitation of assistance from local government offices, including the incidental use of their premises and/or personnel for the purpose of outreach, and the offices to be solicited include those which in the opinion of the county clerk come into frequent contact with unregistered electors. And California Code of Regulations, title 2, section 20002 mandates each outreach program to "stress" the solicitation of voter registrations by persons whose activities place them in frequent contact with potential registrants. The Secretary of State's regulations specifies that affirmative and positive steps must be taken to attain the Legislature's goal. These provisions significantly directing the particular steps to be taken and providing discretion for the county clerk
The fact that section 302, subdivision (e) provides that counties "may" assign any of its officers and employees to become deputy registrars does not show that the county's power is a legislative one or that the Secretary of State or the courts may not require some employees to act as deputy registrars. The fact that the board of supervisors may exercise substantial discretion does not mean that it is not acting in an administrative capacity. For example, subdivision map approvals, variances and conditional use permits involve considerable discretion in applying the state established standards to the particular application but all are administrative determinations. (Horn v. County of Ventura, supra, 24 Cal.3d 605, 612-615; Topanga Assn. for a Scenic Community v. County of Los Angeles (1974) 11 Cal.3d 506, 513-514 [113 Cal.Rptr. 836, 522 P.2d 12]; Johnston v. Board of Supervisors (1947) 31 Cal.2d 66, 74 [187 P.2d 686].) Whether acting under subdivision (e) of section 302 or any other provision in sections 302 and 304, the board of supervisors acts in administrative and not in a legislative or quasi-legislative capacity.
Legislative history makes it clear that the "may" in subdivision (e) of section 302 should not be read as a limitation on the county's duty to adopt an outreach program under section 304. The provisions of subdivision (e) of section 302 were first added in 1965. (Stats. 1965, ch. 1866, § 1.) Obviously, they were found insufficient to fully accomplish the legislative purpose, and in 1975 the Legislature established the outreach program of section 304 (Stats. 1975, ch. 704, § 3.5), an additional program to accomplish the same purpose. Since subdivision (e) of section 302 and section 304 are both designed to increase voter registration and section 304 is designed to go beyond section 302, it would frustrate rather than further legislative intent to read subdivision (e) of section 302 as imposing an implied limitation on the duty imposed by section 304.
It has long been settled that while mandamus will not lie to control the discretion of administrative officials, it will lie to correct abuse of discretion of those officials. (E.g., Glendale City Employees' Assn., Inc. v. City of Glendale (1975) 15 Cal.3d 328, 344, fn. 24 [124 Cal.Rptr. 513, 540 P.2d 609]; Griffin v. Board of Supervisors (1963) 60 Cal.2d 318, 322 [33 Cal.Rptr. 101, 384 P.2d 421]; Baldwin-Lima-Hamilton Corp. v. Superior Court (1962) 208 Cal.App.2d 803, 823 [25 Cal.Rptr. 798]; Munns v. Stenman (1957) 152 Cal.App.2d 543, 555-557 [314 P.2d 67]; see Robbins v. Superior Court
I conclude that the provision in section 302 providing that the county "may" deputize governmental employees does not establish an absolute right to refuse to deputize any, does not establish that the duty imposed by section 304 and the Secretary of State's regulation to establish an outreach program may not include a duty to deputize in the exercise of discretion, and does not preclude a court order requiring deputizing some county employees.
In concluding that courts may not compel counties to deputize any employees, the majority ignore the numerous cases which have recognized that courts may correct abuses of discretion of administrators.
The majority's reliance on Serrano v. Priest (1976) 18 Cal.3d 728 [135 Cal.Rptr. 345, 557 P.2d 929] and Legislature v. Reinecke (1973) 10 Cal.3d 396 [110 Cal.Rptr. 718, 516 P.2d 6] is misplaced because those cases do not involve administrator's duties but legislative powers to establish a system of public school financing and to reapportion legislative and congressional districts. Moreover, the latter case makes clear that, even as to the exercise of legislative powers, courts may adopt temporary solutions when the Legislature has failed to act. Thus, when the Legislature failed to reapportion the congressional districts, this court proceeded to do so itself for the 1972 election providing that the Legislature could adopt its own redistricting plan for the 1974 election and that if it did not do so, the court would adopt a plan. (10 Cal.3d at p. 400; Legislature v. Reinecke (1972) 6 Cal.3d 595, 601 et seq. [99 Cal.Rptr. 481, 492 P.2d 385].) Similar procedure was
At the trial, plaintiffs established that the proposed preliminary injunction would not impose great burdens on the county and that it would significantly reduce the imbalances in voter registration existing in the county. Although the county claimed that there were significant burdens, it was unable to establish the claim. When the hearing comes on for the permanent injunction, the county, of course, will be able to show how burdensome the preliminary injunction is and whether it is effective.
I would affirm the judgment of the Court of Appeal.
Mosk, J., concurred.