Diamond v. Allison , 8 Cal. 3d 736 ( 1973 )

8 Cal.3d 736 (1973) 505 P.2d 205 106 Cal. Rptr. 13

ROGER JON DIAMOND, Petitioner,
v.
JAMES S. ALLISON, as Registrar of Voters, etc., et al., Respondents; LEGISLATURE OF THE STATE OF CALIFORNIA et al., Real Parties in Interest.

Docket No. L.A. 30050.

Supreme Court of California. In Bank.

January 26, 1973.

COUNSEL

Roger Jon Diamond, in pro. per., and Hecht, Diamond & Freis for Petitioner.

A.L. Wirin, Fred Okrand and Laurence R. Sperber as Amici Curiae on behalf of Petitioner.

Evelle J. Younger, Attorney General, Iver E. Skjeie, Assistant Attorney General, Henry G. Ullerich, Deputy Attorney General, John D. Maharg, County Counsel, Edward H. Gaylord, Chief Deputy County Counsel, and Joe Ben Hudgens, Deputy County Counsel, for Respondents.

George H. Murphy, Legislative Counsel, and Herman F. Selvin for Real Parties in Interest.

OPINION

THE COURT.

In this proceeding we issued an alternative writ of mandate on the basis of allegations that placing the name of an incumbent first on the ballot results in an unconstitutional preference in an election because a substantial number of electors vote for the first person listed on the ballot merely because his name is listed first. In their returns respondents have denied that any such preference based on ballot position exists.

(1) The existence of the alleged preference is not a fact which is either of such common knowledge or which is subject to such accurate determination by resort to sources of reasonably indisputable accuracy that it is not reasonably subject to dispute. Accordingly it is not a fact properly the subject of judicial notice. (Evid. Code, § 452, subds. (g) and (h).)

It therefore appears that we are confronted with a disputed question of fact the resolution of which may more appropriately be undertaken in the superior court. (Roma Macaroni Factory v. Giambastiani, 219 Cal. 435, 437 [27 P.2d 371].)

For the foregoing reasons the alternative writ of mandate heretofore issued is discharged and the petition for writ of mandate is denied without prejudice to any subsequent proceedings which may be initiated in the superior court.

TOBRINER, J.

I dissent for the reasons stated in my dissenting opinion in Mexican-American Political Association v. Brown (Sac. 7951) ante, page 733 [106 Cal. Rptr. 12, 505 P.2d 204].

Petitioner's application for a rehearing was denied March 8, 1973. Tobriner, J., was of the opinion that the petition should be granted.