In attacking both the summary judgments and the SLAPP rulings, the proponents argue they were not properly named defendants in the action, and the city clerk would have been a more appropriate and a more traditional defendant to have been named, based on other election challenge cases. (See, e.g., Senate of the State of Cal. v. Jones, supra, 21 Cal. 4th 1142; San Francisco Forty-Niners v. Nishioka, supra, 75 Cal. App. 4th 637.) The proponents base this argument both on traditional constitutional protections of the right to petition the government for redress, and on their reading of the SDMC. Neither of these arguments is well taken. First, their citation to City of Long Beach v. Bozek (1982) 31 Cal. 3d 527, 532, 183 Cal. Rptr. 86, 645 P.2d 137 (Bozek) is inapposite. That case dealt with whether governmental entities may sue private citizens for malicious prosecution. In holding this is not permissible, the Supreme Court discussed the paramount importance of protecting the constitutionally guaranteed right to petition the government for the redress of legitimate grievances. (Ibid., citing U.S. Const., 1st Amend.; Cal. Const., art. I, § 3.) The court also noted there were other available remedies for governmental entities to regain costs and expenses expended in defending baseless claims. (Bozek, supra, 31 Cal. 3d at p. 538.) Nothing in Bozek prevents a public or private entity from seeking in an otherwise authorized action a judicial declaration of the invalidity of a proposed ballot measure, even where private citizens are the proponents of same.

Nor is the proponents' citation to Smith v. Silvey (1983) 149 Cal. App. 3d 400, 406-408, 197 Cal. Rptr. 15 well taken. That case determined an injunction could not issue under section 527.6 where its effect was to prevent the person enjoined from contacting government agencies, and also interfered with his exercise of his rights to free speech and to petition for redress of grievances. This case is distinguishable because no injunctive relief was issued here and it was within the power of the court to consider the declaratory relief requests in ruling on these pre-election challenges of ballot measures. Election procedure is a highly regulated area and does not constitute pure expressive speech, which must be afforded a higher level of protection. (San Francisco Forty-Niners v. Nishioka, supra, 75 Cal. App. 4th at pp. 647-648.)

The proponents also claim that the only known California case which directly granted relief against proponents of an initiative, City of Atascadero v. Daly (1982) 135 Cal. App. 3d 466, 468, 185 Cal. Rptr. 228, should be distinguished from this case because there was a stipulation of the parties in that case that a controversy existed, by which they submitted the validity of the ordinance to determination by the trial court. The issue there was whether a proposed ordinance could properly require the City to submit any revenue-raising measure to the voters for their approval before the measure could be implemented. (Id. at p. 469.) The court thus had to decide whether the initiative process should be available for the purpose of enacting the ordinance, and decided it was not. (Ibid.) The proponents here are incorrect that the trial court in that case derived its power to decide the controversy between the parties from their stipulation. Rather, subject matter jurisdiction was already present in view of the authority that allows pre-election challenges to determine the validity of the proposed initiative. Also, the proper parties were before the court to enable it to afford appropriate relief. (§ 389, subd. (a).) [FN 5]

[FN 5] In another case involving an action against private proponents of a ballot measure, Lincoln Property Co. No. 41, Inc. v. Law (1975) 45 Cal. App. 3d 230, 119 Cal. Rptr. 292, the plaintiff taxpayer initiated the lawsuit seeking to enjoin the City and its officers from conducting an unlawful referendum election (first cause of action), and to restrain certain private individuals from circulating the referendum petition and making any misrepresentations concerning the effects of the proposed resolution (second cause of action). However, the plaintiff filed a request for dismissal of the second cause of action against the individuals, and relief was only granted by the trial court against the City and its employees. (Id. at p. 233.) The judgment was affirmed.

There are two additional reasons why these defendants were properly named parties in this action. First, section 8 of the proposed initiative states that these individuals shall be named as defendants in any judicial challenge to the measure, and that is what occurred. There is nothing in the proposed initiative to support the proponents' claim that this portion was only to go into effect if the proponents were successful in placing the measure on the ballot and in obtaining its approval from the voters. Rather, these defendants were properly named because they were the proponents of the measure and had the necessary interest in the subject matter to be named as parties, such that complete relief could be obtained by naming them as parties. (§ 389, subd. (a).)

Moreover, under the election procedure set forth in the SDMC, it would have been premature to name the city clerk as a defendant, because SDMC section 27.1021 only requires the city clerk to accept a petition to place an initiative on the ballot if it is in substantial compliance with the requirements for the appropriate number of signatures and format. Here, the proposed initiative never got to that point, and the duties of the city clerk to process it further were never implicated, such that the city clerk would have been a necessary or appropriate party. (SDMC, § 27.1001 et seq.) Under SDMC section 27.1002 and 27.1020, the proponents' role is to prepare the petition and then submit it to the city clerk, once the required number of signatures has been obtained. The proponents are appropriate defendants under these circumstances.

Next, the proponents complain that the City and the Padres are not proper plaintiffs in these actions, because SDMC section 27.1025 permits challenges to ballot measures to be made by voters, and the City and the Padres are not voters. This objection is meritless because a voter challenge under SDMC section 27.1025 is not the sole avenue of relief for a party who seeks to demonstrate that a proposed ballot measure is beyond the powers of the voters to adopt. Rather, such a question of law may be raised by a nonvoter seeking declaratory relief under section 1060 as to the respective rights and duties of the parties and the construction of a written instrument, where the validity of a ballot measure is concerned. (See, e.g., Senate of the State of California v. Jones, supra, 21 Cal. 4th at p. 1153.)

The proponents have raised two more procedural issues that warrant brief discussion before we address the merits. First, on appeal, they contend the City's and the Padres' actions should be held equitably barred for unreasonable delay, because the plaintiffs took no action to challenge the proposed initiative during the three-week period after the proponents published and filed their notice of intention to present the proposed initiative to the voters. Rather, this action was brought about six weeks after the signature-gathering period began, which the proponents claim was too late. There is no valid basis for such a claim. The 20-day period after filing and publication, until signatures may be gathered, is evidently intended to give the City an opportunity to enact a similar measure, and does not constitute any deadline for bringing suit. (SDMC, § 27.1007.) This application for pre-election review of the validity of the ordinance was brought with reasonable promptness, and there is no basis to bar it on terms of undue delay. Of course, at the same time, the proponents are arguing that the action was prematurely brought, and should have been delayed until after the matter was placed on the ballot and voted upon. However, there is no basis for that claim either, in view of the well-accepted availability of pre-election review under these specific circumstances.

Further, it is meaningless for the proponents to point to the severability clause in the proposed initiative and to claim that the superior court should have tried harder to save any valid portions of the initiative. (§ 6; American Federation of Labor v. Eu, supra, 36 Cal. 3d at p. 716, fn. 27.) The proponents have not pointed out how any such severability would be accomplished, nor could they, in view of the legal issues presented about the gist of the proposal, as we shall next discuss. (See Citizens for Responsible Behavior v. Superior Court, supra, 1 Cal. App. 4th at p. 1035.)

In conclusion, none of the procedural arguments raised by the proponents amounts to any successful challenge to either the SLAPP or summary judgment rulings.

The electorate has the power to initiate legislative acts, but not administrative ones: "While it has been generally said that the reserved power of initiative and referendum accorded by article IV, section 1, of the Constitution is to be liberally construed to uphold it whenever reasonable [citations], it is established beyond dispute that the power of referendum may be invoked only with respect to matters which are strictly legislative in character [citations]. Under an unbroken line of authorities, administrative or executive acts are not within the reach of the referendum process [citations]. The plausible rationale for this rule espoused in numerous cases is that to allow the referendum or initiative to be invoked to annul or delay the executive or administrative conduct would destroy the efficient administration of the business affairs of a city or municipality [citations]." (Lincoln Property Co. No. 41, Inc. v. Law, supra, 45 Cal. App. 3d at pp. 233-234.)

To decide whether a particular ballot measure constitutes a legislative or an administrative act, we must apply the test well set out and explained in Valentine v. Town of Ross (1974) 39 Cal. App. 3d 954, 957-958, 114 Cal. Rptr. 678:

"The acts, ordinances and resolutions of a municipal governing body may, of course, be legislative in nature or they may be of an administrative or executive character. (Hopping v. Council of City of Richmond, 170 Cal. 605, 610, 150 P. 977.) . . . [P] Also well settled is the distinction between the exercise of local legislative power, and acts of an administrative nature. [P] Following earlier authority, we said in Martin v. Smith, [1960], 184 Cal. App. 2d 571, 575, 7 Cal. Rptr. 725: "' "The power to be exercised is legislative in its nature if it prescribes a new policy or plan; whereas, it is administrative in its nature if it merely pursues a plan already adopted by the legislative body itself, or some power superior to it."'" [Citation]; we also said (184 Cal. App. 2d at p. 575): 'Acts constituting a declaration of public purpose, and making provisions for ways and means of its accomplishment, may be generally classified as calling for the exercise of legislative power. Acts which are to be deemed as acts of administration, and classed among those governmental powers properly assigned to the executive department, are those which are necessary to be done to carry out legislative policies and purposes already declared by the legislative body, or such as are devolved upon it by the organic law of its existence.' [Citations.]" (Emphasis added.)

To apply these tests here, we must construe on their face the terms of the three documents involved: Prop. C, the MOU, and the proposed initiative that follows them, to decide de novo what was the nature of the power sought to be exercised by the voters, in accord with the language of the proposed initiative as drafted by the proponents.

The proponents' basic position is that Prop. C impliedly provides for its own termination, because Prop. C authorized the city council to amend or modify the MOU, and to carry it out according to the best interests of the City, but only if such amendments or modifications do not materially decrease the City's rights, increase the City's obligations or financial commitments, or decrease City revenue. The MOU, as authorized by Prop. C also contains provisions allowing the City to find the required contingencies have not been met, in which case the project would not proceed. [FN 6]

[FN 6] The proponents contend, without authority, that the MOU authorized by Prop. C should be considered to be an ordinance itself. However, the plain language of both Prop. C and the MOU provide that pursuant to voter approval, Prop. C authorized the City entities to enter into the MOU, which constitutes an agreement or contract between the parties. The MOU is thus a separate document. We also note that the proponents' reliance on the MOU, section XLII, for the concept that the project might not ever proceed is not well taken. That section is not a termination section of the MOU, but rather deals with costs for negotiations and preparation of documents.

In order to evaluate these arguments, we examine the text of the relevant documents, Prop. C, the MOU, and the proposed initiative. In Prop. C, as approved by the voters, it is stated that the ordinance and the MOU it authorizes constitute the legislative acts establishing city policy on these matters, and also provide the ways and means for the implementation of the policy by such necessary and appropriate administrative and nonlegislative acts. Prop. C further authorizes the City to enter into amendments or modifications, or to carry out the necessary agreements as determined by the city council to be in the best interests of the City, subject to the criteria that the rights of the City shall not be decreased and its obligations not increased. The language of Prop. C gives the City the authority to determine its best interests by applying that criteria.

Under paragraph XXXIII of the MOU, there are a number of enumerated conditions subsequent, upon which the respective obligations of the parties, including the City, are contingent with respect to carrying out the purposes of the ordinance and the MOU. These include the City's and the redevelopment agency's ability to obtain reasonably acceptable and tax-exempt financing, and findings of feasibility of completing the necessary land acquisition, environmental approvals, and so forth. The City and its redevelopment agency are given the contractual power to waive these various conditions subsequent, and have done so with regard to some of the timing requirements. The city council's findings made March 31, 1999 confirmed that the deadlines could be met and no parties were in default, or any default was waived.

Turning to the proposed initiative, its section 3, subdivision (c) declares that its policy shall be established and implemented to carry out the purpose and intent of Prop. C and the MOU. The manner in which it does so is by deeming the named contingencies and conditions subsequent of Prop. C to have failed or be defeated by nonperformance. Specifically, section 2, subdivision (a) of the proposed initiative would declare that the various contingencies and conditions subsequent affecting the City's obligations "have failed, are unsatisfied, or are defeated by non-performance." The proposed initiative in section 3, subdivision (d) and section 4, subdivision (a) declares that the voters' approval of the proposal shall act as a replacement for the exercise of the discretion of the City as provided in the MOU.

In some cases, it can be difficult to distinguish between legislative proposals that both declare a public purpose, but that also make "provisions for ways and means of its accomplishment" (Valentine v. Town of Ross, supra, 39 Cal. App. 3d 954 at pp. 957-958), and their counterpart, "acts of administration" which are "those which are necessary to be done to carry out legislative policies and purposes already declared by the legislative body . . . ." (Ibid.) We are required to make such a distinction here.

Clearly, Prop. C declared certain legislative policy and directed that certain events take place to implement that policy, as ways and means of carrying out the policy. The proposed initiative does not seek to change this policy by its plain language, but rather to change the substance of the implementing decisions that were created by Prop. C. In other words, the proposed initiative seeks to substitute the proponents' judgment regarding compliance with the applicable conditions and the feasibility of financing, in place of that process created by Prop. C and the MOU, which confided such implementing decisions to City administration. In so doing, the proposed initiative is an effort to administratively negate the legislative purpose of Prop. C. There is no overt statement that the Prop. C policy will be changed, but the manner in which the proposed initiative would replace City administrative discretion with voter approval places the proposed initiative firmly within the administrative category of voter enactments, which are not permitted. As such, the proposed initiative is beyond the power of the voters to adopt. Accordingly, the summary judgments were correctly granted as a matter of law on the undisputed facts shown by this record. [FN 7]

[FN 7] Because we conclude the summary judgments were properly granted on the basis that the proposed initiative was beyond the power of the voters to adopt, we need not consider the Padres' alternative argument that the proposed initiative would have created an unconstitutional impairment of contract, or the claim that the proposed initiative was so misleading as to amount to a misrepresentation to the voters.

Because we have concluded the summary judgments were appropriately granted as a matter of law, the trial court was correct in determining there was nothing left for it to decide with regard to the pending SLAPP motions made by proponents, and in taking the motions off calendar as moot. Although under section 425.16, subdivision (b)(1), the court would have been authorized to strike a cause of action that fits within the SLAPP parameters, "unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim," there was no longer any doubt that the plaintiffs City and the Padres were entitled to prevail on their declaratory relief causes of action. The proponents put the cart before the horse when they claim they should have been entitled to further litigate the declaratory relief matter, simply because they originally pursued their constitutional right to petition the government for redress by proposing the initiative. In this procedural context of evaluating ballot measures for validity, once a final determination has been reached regarding the subject matter of the action, a proponent's right to continue to defend the proposed ballot measure is also necessarily resolved as a question of law. It serves no legitimate purpose to permit a measure whose invalidity can be determined as a matter of law to remain on the ballot after such a ruling has been made. (See San Francisco Forty-Niners v. Nishioka, supra, 75 Cal. App. 4th 637 at pp. 645-648.) Finally, there was no improper interference with the proponents' First Amendment rights in the manner in which this litigation was carried out and resolved. (See Citizens for Responsible Behavior v. Superior Court, supra, 1 Cal. App. 4th at pp. 1021-1022.)

The summary judgments and the underlying rulings are affirmed. Appellants to pay all costs on appeal.

HUFFMAN, J.

I CONCUR:

KREMER, P. J.
McDONALD, J.