1

Filed 12/1/16

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

DAVID C. EBLOVI,

Plaintiff and Appellant,

v.

JESSICA BLAIR, as City Clerk, etc.,

Defendant and Respondent;

ALLAN ALIFANO,

Real Party in Interest and Respondent.

A148275

(San Mateo County

Super. Ct. No. CIV538012)

By this appeal, David C. Eblovi seeks interpretation of Elections Code1section 

9282, subdivision (a), which reads, “For measures placed on the ballot by petition, the 

persons filing an initiative petition pursuant to this article may file a written argument in 

favor of the ordinance, and the legislative body may submit an argument against the 

ordinance.” He contends this provision prohibits anyone other than “the persons filing an 

initiative petition” from submitting arguments in favor of a municipal initiative measure 

and prohibits anyone other than “the legislative body” from submitting arguments in 

opposition to an initiative measure. The trial court rejected Eblovi’s restrictive reading of 

section 9282, subdivision (a) and concluded that the statute should be interpreted as

permissive, expressly authorizing participation by the identified parties but not restricting 

participation by other unnamed people or entities. In so doing, the court denied Eblovi’s 

petition seeking to compel removal from the ballot pamphlet of an argument submitted 

by real party in interest against a measure authored by Eblovi and placed on the local 

 

1 All statutory references are to the Elections Code. 
2

ballot by petition.2 We agree with the trial court’s interpretation and therefore shall affirm 

the judgment.

Background

Eblovi was a proponent of a citizen-sponsored initiative appearing on the City of 

Half Moon Bay June 7, 2016 ballot as Measure F. On April 1, 2016, Eblovi filed a 

petition for writ of mandate seeking an order directing Jessica Blair, as interim Clerk of 

the City of Half Moon Bay, “to strike Real Parties’ ‘Primary Argument Against Measure 

F’ and ‘Rebuttal to Argument in Favor of Measure F.’ ” The petition alleged that because 

Measure F was placed on the June 7, 2016 ballot by petition, under section 9282, 

subdivision (a), only the city council had authority to submit an argument against the 

ballot measure. He argued that the ballot arguments submitted by real parties, described 

in the petition as “an ad-hoc group of five electors,” should be stricken on the ground that 

their inclusion would violate section 9282, subdivision (a).

Following a hearing on April 14, 2016, the court denied Eblovi’s petition. With 

respect to the proper interpretation of section 9282, the court explained, “My reading of 

the cases and code would suggest that the law in this area should be interpreted liberally, 

not restrictively, because we are dealing with . . . constitutionally protected freedom of 

speech, and certainly a right to a fair election. . . . [¶] [T]he proper reading of 9282(a) . . . 

is one of permissive participation in the electoral process, not restrictive participation, 

and consequently I would read that section as being permissive, not restrictive, allowing a 

city to participate in an election in this context, if they chose to, not restricting the rights 

of private citizen to participate in the election.” 

Eblovi filed a timely notice of appeal. 

 

2

Eblovi’s petition for writ of mandate also alleged that statements made in the proposed 

ballot arguments were false and misleading and in the alternative sought to compel the 

deletion of those statements. These claims were rejected by the trial court and are not at 

issue on appeal.
3

Discussion

Initially, we note that although a writ of mandate would now provide no relief for 

Eblovi because the election has already occurred, “disputes concerning election 

procedures are properly reviewable by an appellate court even though the particular 

election in question has already taken place . . . since the issues raised are of general 

public interest, and are likely to occur in future elections in a manner evasive of timely 

appellate review.” (Gebert v. Patterson (1986) 186 Cal.App.3d 868, 872.)

Eblovi contends, “The plain language literal interpretation and ‘usual and 

ordinary’ meaning of the words found in section 9282 are not only unambiguous; they 

lead only to a single possible conclusion about the intent of the legislature.” He argues 

that there is “no possible legal or logical interpretation” of section 9282, subdivision (a) 

“that leads anywhere other than the obvious conclusion that the ‘persons filing the 

petition’ ‘may’ ‘file a written argument,’ and as a consequence no one else ‘may’ do so.”

We disagree. 

In Ferrara v. Belanger (1976) 18 Cal.3d 253 (Ferrara), the California Supreme 

Court rejected a similarly restrictive interpretation of the predecessor statute to 

section 9282. In Ferrara, the court interpreted “various provisions of the Elections Code 

pertaining to the filing of ‘pro’ and ‘con’ ballot arguments in municipal initiative 

elections.” (Ferrara, p. 256.) The three provisions of the Elections Code at issue were (as 

they read in 1976): Section 5012, which provided in relevant part that “ ‘[t]he legislative 

body, or any member or members of the legislative body authorized by that body, or any 

individual voter or bona fide association of citizens, or any combination of voters and 

associations, may file a written argument for or against any city measure’ ” (Ferrara, 

p. 261, fn. 4); section 5013 which set a deadline for the filing of ballot arguments for city 

measures (Ferrara, p. 261, fn. 5); and section 4017 which provided in relevant part that 

“ ‘[t]he persons filing an initiative petition pursuant to this article may file with the 
4

petition a written argument in favor of the ordinance, and the legislative body may submit 

an argument against the ordinance’ ”

3

(Ferrara, p. 262, fn. 8).

In Ferrara, the city clerk refused to accept arguments submitted in support of an 

initiative measure because he concluded that the general provisions of sections 5012 and 

5013 were superseded by section 4017, which in his interpretation provided a distinct, 

more restrictive procedure for the filing of ballot arguments as to initiative measures. The 

clerk construed section 4017 “to preclude anyone other than the proponents of an 

initiative from ever filing a ballot argument in favor of an initiative measure and also to 

preclude proponents from filing a ballot argument at any time subsequent to the filing of 

their initiative petition.” (Ferrara, supra, 18 Cal.3d at p. 256.) The court rejected this 

interpretation and concluded that the clerk erred in failing to follow the general 

procedural guidelines for ballot measures found in section 5012 and 5013.

With respect to the interpretation of section 4017, the court stated, “The flaw in 

the city clerk’s reasoning rests fundamentally in his misinterpretation of section 4017. As 

we explain, both the language and legislative history of section 4017 refute the city 

clerk’s interpretation. [¶] To begin with, the section is written entirely in permissive 

language, providing simply that ‘persons filing an initiative petition . . . may file with the 

petition a written argument.’ The section nowhere provides that a failure to file a ballot 

argument at the very outset of the initiative process necessarily precludes a proponent 

from thereafter filing a ballot argument. Similarly, the section contains no language 

prohibiting a nonproponent from filing a ballot argument in favor of the measure. 

Accordingly, from the statutory phraseology itself, the section appears simply to 

 

3

Section 4017 then provided in full: “ ‘The persons filing an initiative petition pursuant 

to this article may file with the petition a written argument in favor of the ordinance, and 

the legislative body may submit an argument against the ordinance. Neither argument 

shall exceed 300 words in length, and both arguments shall be printed upon the same 

sheet of paper and mailed to each voter with the sample ballot for the election. [¶] The 

following statement shall be printed on the front cover, or if none, on the heading of the 

first page, of the printed arguments: “Arguments in support or opposition of the proposed 

laws are the opinions of the authors.” ’ ” (Ferrara, supra, 18 Cal.3d at p. 262, fn. 8.)
5

constitute an authorizing provision, establishing the right of an initiative proponent to file 

a ballot argument in its favor. [¶] The legislative history of the provision confirms this 

reading. Section 4017 derives directly from the original initiative legislation of 1911 

(Stats. 1911, Ex. Sess., ch. 33, § 1, p. 133), legislation enacted as part of the broad 

Progressive reform movement which introduced direct legislation into California law. 

[Citation.] The 1911 legislation, of course, was not intended narrowly to circumscribe the 

initiative power by creating rigid procedural obstacles to its complete implementation, 

but rather was designed to establish a system under which the initiative process might 

have its fullest play. In this vein, the 1911 legislation specifically provided that: ‘All the 

provisions of this statute are to be liberally construed for the purpose of ascertaining and 

enforcing the will of the electors.’ (Stats. 1911, Ex. Sess., ch. 33, § 1, p. 133.)” (Ferrara, 

supra, 18 Cal.3d at pp. 262-263.)4

Contrary to Eblovi’s arguments, no amendment to the Elections Code has altered 

the permissive interpretation assigned to this language in 1976. In 1994, the Elections

Code was repealed and reorganized. (Stats. 1994, ch. 920, § 1, p. 4690.) With 

inconsequential changes, the language of section 5012 was reenacted as section 9282, 

which provided in relevant part as follows: “The legislative body, or any member or 

members of the legislative body authorized by that body, or any individual voter who is 

 

4

The court recognized the “serious constitutional questions” avoided by this 

interpretation. (Ferrara, supra, 18 Cal.3d at p. 264.) The court explained, “First, although 

the city clerk contends that by virtue of section 4017 the Legislature intended to provide 

two distinct procedures for the filing of ballot arguments in municipal elections—one 

applicable to initiative measures and another applicable to other city measures—the city 

clerk has proffered no rationale whatsoever to justify this disparate treatment of basically 

similar electoral matters. Because strict procedural restrictions on the filing of ballot 

arguments could frequently have a ‘real and appreciable impact on the equality, fairness 

and integrity of the electoral process’ [citation], the differential treatment urged by the 

city clerk would present very serious, perhaps fatal, equal protection problems. [Citation.]

Moreover, because under the city clerk’s interpretation of section 4017 rigid procedural 

limitations would be imposed upon proponents and supporters of an initiative measure 

but would not be imposed upon opponents of the measure, such a construction would 

raise the additional question of whether the state had violated its constitutional duty to 

maintain impartiality in electoral matters.” (Ferrara, pp. 264-265.)
6

eligible to vote on the measure, or bona fide association of citizens, or any combination 

of voters and associations, may file a written argument for or against any city measure.” 

(Stats. 1994, ch. 920, § 2, p. 4952.) Section 4017 was reenacted as Section 9219, which 

provided “The persons filing an initiative petition pursuant to this article may file a 

written argument in favor of the ordinance, and the legislative body may submit an 

argument against the ordinance.”

5

(Stats. 1994, ch. 920, § 2, p. 4945.) The Legislative 

Counsel’s Digest for the 1994 amendment states quite clearly that the bill was intended 

“to reorganize and clarify the Elections Code and thereby facilitate its administration” 

and reflects “the Legislature’s intent that the changes made to the Elections Code . . .

have only technical and nonsubstantive effect.” (Legis. Counsel’s Dig., Sen. Bill No. 

1547 (1993-1994 Reg. Sess.) Stats. 1994, Summary Dig.)

In 2006, the provisions of the Election Code pertaining to arguments for and 

against city ballot measures were amended again. (Stats. 2006, ch. 508, §§ 2-3, 4, 

p. 3707.) The Legislative Counsel’s Digest explains, “Existing law authorizes persons 

filing an initiative petition in a municipal election to file a written argument in favor of 

the ordinance and provides that the legislative body may submit an argument against the 

ordinance pursuant to specified procedures. Existing law also provides that the persons 

filing the initiative petition may prepare and submit a rebuttal argument not exceeding 

250 words and that the legislative body may prepare and submit a rebuttal to the 

argument in favor of the ordinance not exceeding 250 words pursuant to specified 

procedures. [¶] This bill would delete these provisions and recast them to provide that 

persons filing the initiative petition may file a written argument in favor of the ordinance, 

and the legislative body may submit an argument against the ordinance not exceeding 

300 words and that, for measures placed on the ballot by the legislative body, the 

 

5

Section 9220, also enacted in 1994, provided: “If the legislative body submits an 

argument against the ordinance, it shall immediately send copies of the argument to the 

persons filing the initiative petition. The persons filing the initiative petition may prepare 

and submit a rebuttal argument not exceeding 250 words. The legislative body may 

prepare and submit a rebuttal to the argument in favor of the ordinance not exceeding 250 

words.” (Stats. 1994, ch. 920, § 2, p. 4945.)
7

legislative body may file a written argument for or against any city measure.” (Legis. 

Counsel’s Dig., Assem. Bill No. 3062 (2005-2006 Reg. Sess.) Stats. 2006, Summary 

Dig.) According to the Senate committee report, the amendment merely “combines each 

set of two code sections into one section to reduce the potential for confusion and 

streamline the code.” (Sen. Com. on Elections, Reapportionment and Constitutional 

Amendments, Analysis of Assem. Bill No. 3062 (2005-2006 Reg. Sess.) June 21, 2006; 

see also Assem. Com. of Appropriations, Analysis of Assem. Bill No. 3062 (2005-2006 

Reg. Sess.) May 3, 2006 [describing the bill as containing “multiple minor and technical 

changes to the Elections Code.”].)

As noted, in 2006 former sections 9219 and 9220 were repealed (Stats. 2006, 

ch. 508, §§ 2-3, p. 3707) and section 9282 was amended to read, “(a) For measures 

placed on the ballot by petition, the persons filing an initiative petition pursuant to this 

article may file a written argument in favor of the ordinance, and the legislative body may 

submit an argument against the ordinance. [¶] (b) For measures placed on the ballot by 

the legislative body, the legislative body, or any member or members of the legislative 

body authorized by that body, or any individual voter who is eligible to vote on the 

measure, or bona fide association of citizens, or any combination of voters and 

associations, may file a written argument for or against any city measure.” (Stats. 2006, 

ch. 508, § 4, p. 3707.) The legislative history contains no suggestion that any amendment 

was intended to modify the permissive meaning of these provisions or to restrict the right 

of others to file arguments supporting or opposing a ballot measure.

Given the long standing interpretation of the permissive meaning of “may” in this 

context, we must conclude the Legislature intended to retain the interpretation of these 

provisions as permissive and not restrictive. As noted in Ferrara, this interpretation 

avoids serious constitutional issues that would arise with any other interpretation.

Disposition

The judgment is affirmed. 
8

_________________________

Pollak, Acting P.J.

We concur:

_________________________

Siggins, J.

_________________________

Jenkins, J.

A148275
9

Trial court: San Mateo County Superior Court

Trial judge: Honorable George Miram

Counsel for plaintiff and appellant: David C. Eblovi, in Propria Persona

Counsel defendant and respondent: ATCHISON, BARISON, CONDOTTI & 

KOVACEVICH. Anthony P. Condotti and Reed W. 

Gallogly

Counsel for real party in interest and 

respondent:

THE SUTTON LAW FIRM, PC, Bradley, W. 

Hertz, James R. Sutton, and Jonathan S. Mintzer

A148275