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A County’s Registrar Of Voters Is Immune From Liability For Conveying Incorrect Information
In August 2019, the Red Brennan Group (Group) approached the County of San Bernardino’s registrar of voters for information about how many signatures would be required for the Group’s initiative to qualify for the ballot in a future election. The registrar told the Group that they would need 26,183 signatures. In February 2020 the Group submitted their initiative with the required number of signatures, only to be told that the actual number of signatures required was only 8,110. The Group filed a lawsuit against the County claiming that the County breached its duty to provide the correct information to the Group, forcing the Group to spend more than $250,000 to obtain unnecessary signatures.
The County filed a demurrer to the lawsuit, alleging that the County owed no duty to the Group and that even if it did, the County could not be liable because of governmental immunity. The trial court denied the demurrer. The County filed a petition for writ of mandate with the California Court of Appeal. A writ of mandate is an order from a higher court to a lower court. In this instance, the County requested the Court of Appeal to order the trial court to grant the demurrer. The Court of Appeal ordered that the County’s demurrer should be sustained, thus dismissing the Group’s lawsuit.
In making this decision, the Court of Appeal first laid out the framework for governmental immunity.
Under the Government Claims Act (Government Code 810, et seq.), all governmental tort liability must be based on statute. Thus, in the absence of a constitutional requirement, public entities can be held liable for their actions only if a statute declares them to be liable. The Court of Appeal found that nothing in the law or the California Constitution made the County liable for incorrectly informing a proponent of a ballot initiative about the number of signatures required.
Next, the Court of Appeal noted that a public entity could be liable for failing to perform a mandatory duty. However, nothing in the law required the County to tell the proponents of a ballot initiative how many signatures were required before proponents submit a petition. Moreover, the County never rejected the petition for lack of sufficient signatures, but ultimately processed it.
Finally, even if the County had a mandatory duty to provide the proponent of a ballot initiative of the number of signatures required, the Court found that Government Code Sections 818.8 and 822.2 protect public entities and their employees from liability for making misrepresentations unless the employees are guilty of actual fraud, corruption, or malice.
The court noted that previous cases have held that when a public employee takes preliminary steps to ascertain information, and negligently obtains false information that is then represented to a member of the public, this is merely a negligent misrepresentation for which a public entity and its employees cannot be held liable.
Here, the Court of Appeal concluded that, because the County took preliminary steps to ascertain how many voters participated in a previous election, calculated the total based on that negligently acquired sum, and then conveyed the incorrect figure to the Group, the County and the registrar had immunity. The Court of Appeal then granted the writ of mandate and ordered the trial court to dismiss the Group’s claim.
County of San Bernardino v. Superior Ct. & Red Brennan Group, 77 Cal.App.5th 1100 (2022).
This case illustrates the expansive protections to which all public entities and their employees are entitled. Public officials who are performing their duties faithfully, without fraud, corruption, or malice, can rely on the Government Claims Act to shield them from immunity.