QUESTION: When owners sign a petition to have a board member recalled, does he have the right to see this petition? The board member has a history of harassment and some people are afraid he will retaliate if he knows who wants to recall him.
ANSWER: Yes, the director may see the petition. But there is a difference of opinion in the legal community on publication to members.
Opinion #1. Members have a right to know who signed the petition. The United States Supreme Court heard a case that originated in the State of Washington where petitioners sought to preserve the traditional definition of marriage. Signers of the petition did not want their names released because they feared retaliation. Writing for the majority in Doe v. Reed, The Court concluded:
The State’s interest in preserving the integrity of the electoral process suffices to defeat the argument that the PRA [Public Records Act] is unconstitutional with respect to referendum petitions in general. That interest is particularly strong with respect to efforts to root out fraud. But the State’s interest is not limited to combating fraud; it extends to efforts to ferret out invalid signatures caused not by fraud but by simple mistake, such as duplicate signatures or signatures of individuals who are not registered to vote in the State. The State’s interest also extends more generally to promoting transparency and accountability in the electoral process.
... Disclosure also helps prevent difficult-to-detect fraud such as outright forgery and “bait and switch” fraud, in which an individual signs the petition based on a misrepresentation of the underlying issue. And disclosure promotes transparency and accountability in the electoral process to an extent other measures cannot.
Opinion #2. The Reed decision applies only to Washington, because California does not have a statute similar to Washington’s public access law cited in the case. More importantly, California’s state constitution codifies a right to privacy. This means, one’s right to privacy in California is afforded a high degree of deference. For instance, California Election Code Sec. 18650, which governs public referendums in petitions (so, it’s not automatically applicable to an association’s recall election) protects signatories’ privacy and makes it a misdemeanor to permit the list be used for anything other than validation purposes. This statute applies to the people submitting the petition.
Other laws not applicable to common interest developments expressly exclude public referendum petitions from being classified as a public record that makes it subject to inspection. (See, Govt. Code Sec. 6253.5.) The only case on point, Bilofksy v Deukmejian (1981) 124 Cal. App. 3d 825, upheld the statute and precluded the use of signatures on a referendum petition for anything other than validation purposes. Further, the State of California’s own recall process (see, https://www.sos.ca.gov/elections/recalls/procedure-recalling-state-and-local-officials/) makes it clear that only people who sign the recall petition are permitted to inspect it pursuant to California Elections Code Sec. 11301. Because the general public is not permitted to inspect a state recall petition, this presents an argument against publishing the names of petition signatories in association recalls.
Recommendation: Because the matter is unsettled as it relates to California's homeowners associations, boards should consult legal counsel on how to respond to a request for inspection or publication of petition signatures.
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