Superior Court Decisiona
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MIKE HONDA, et al.,
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SUPERIOR COURT OF CALIFORNL4,
COUNTY OF SA1VTA, CLARA
Petitioners,
VS.
KiMBEF,LY SMITH, et al.,
Respondents.
MSE DURAZO,
Real Party in Interest.
Case No.1-05-Cv-047535
STATEMENT OF DECISION ON
PETITION FOR PEREMPTORY WRIT
MANDATE
Argument was heard by the Honorable Kevin McKenney on August 29, 2005, in
Department 16. The matter having been submitted, the oourt finds and orders as follows -
BACKGROUND
Petitioners seek to reverse the decisior) of Respondent City Clerk of Cupertino
Kimberly Smith striking the signatures of Congressman Kke Houda, Santa Clara County Sheriff
Laurie Smith, and former State Assemblyman Jim Cuneen from the arguments submitted against
Measures A, B, and C. Respondent opposes this petition arguing that the three signatures may
not be included in the ballot argument because they do not meet the criteria for inclusion.
ORDER RE! MOTION
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Rich Robinson, an eligible voter in Cupertino, filed arguments in opposition to the
11 three measures. 'nlose arguments included the signatures of Honda; Smith, and Cuneen as
11 authors. He filed these arguments on the form provided by Real Party in Interest, the Santa Clar,
I! County Registrar of Voters. Respondent struck these signatures explaining in a letter dated
August 11, 2005 (Exhibit 13 to the petition.), that none of the three were Cupertino City Council
members or qualified to vote on the measures. She further commented that none of the
signatures were accompanied by the name of the organizations each may represent. She cited
Election Code § 9283 and invited different signatures or. "proper declarations that establish
which bona fide organizations they represent and were principal officers thereof." (August 11,
2005, letter.)
POSITIONS OF THE PARTIES
Petitioners argue that Respondent's interpretation of Election Code §§ 9282 and
9283 are restrictive and incorrect. Essentially, they assert that §§ 9282 and 9283 must be read
separately and interpreted liberally (Ferrara v. Belanger (1976) 18 Ca1.3d 253, 263) in order to
provide the voters with more complete ballot information. Among the authorities they cited are
the guides of three other counties which allow anyone without restriction to sign arguments as
authors. They also cited the example of Rosa Parks' signature on the'argument against State
Proposition 209.
Respondent argues that the two statutes mast be read together, equating "filing"
with "submitting," and that the City Clerk correctly interpreted the statutes. In support of her
position, Respondent cited excerpts from the legislative history to show the legislative intent.
Real Party in Interest Registrar of Voters' position was aligned with Respondent.
However, the Registrar did not argue for either position, but submitted the matter to the court for
decision. The Registrar did file the current District Measure Packet which is more supportive of
Respondent's posilien.
All agreed that this is an issue of first impression and they were unable to cite any
specific authority that would bind the courfs decision.
THE STATUTES
Election § 9282 identifies who may file an argument for or against a city treasure
and imposes requirements on the election officials on how to administer the arguments. In
ORDER RE: MOTION 2
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relevant part, § 9282 states that 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_"
Section 9282 also requires that this statement be printed with the arguments:
"Arguments in support or opposition of the proposed laws are the opinions of the authors,"
Section 9283 specifies requirements of ballot arguments. In relevant part, it states: "A ballot
argument may not be accepted under this article unless accompanied by the printed name and
signature or printed names and signatures of the author or authors submitting it or, if submitted
on behalf of an organization, the name of the organization and the printed name and signature of
at least one of its principal officers who is the author of the argument"
DISCUSSION
This dispute is focused on the relationship between these two statutes. Petitioners
ask the court to interpret them broadly and independently. Respondent seeks a more restrictive
and conjunctive interpretation, i.e., § 9283 requirements must be read with § 92$2. After
countless reviews and comparisons, the court concludes that these statutes must be read as they
are written and each has its own meaning. There is nothing in the language of § 9283 that
requires the author of an argument to meet the same criteria as § 9282.
In reaching this decision, the court was persuaded by the following considerations
in descending order of influence: "plain language" interpretation of the statutes, a more
expansive rather than restrictive philosophy of providing the best ballot information for the
voters, that the Election Code allows non -locals to author ballot arguments, that non -locals may
actually enjoy greater priority in having their arguments on the ballot, and that the election
officials of Sacramento, Santa Cruz, and Solano Counties have not placed restrictions on who
way sign arguments as authors.
There is nothing in the language of either statute that requires that they be read in
the conjunctive. The legislature imposed curtain requirements on those who may file arguments.,
They include the city council (or tnembors of it), individual voters who may vote on these
measures, and bona fide associations of citizens (or a combination of voters and associations).
Authoring an argument is different from filing it. Clearly, one person can author an argument
and another may file it. Respondent's August 11, 2005, letter is consistent with this proposition.
ORDER RE: MOTION
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Although Robinson filed the arguments, the signatures in dispute would have been accepted had
they represented bona fide organizations and they were principal officers.
The more persuasive view of interpreting these statutes is the less restrictive. The
inclusion of information, iticluding signatories, in the ballot arguments rather than limiting the
information is more important. This court believes that it is more important and consistent with
the requirements of the election codes to provide the voters with the most valuable information
available in order for them to make an informed decision. Among this information is who
supports or opposes a particular treasure. (Myers v. Patterson (1987) Cal.App.3d 130, 139.)
Obviously, the better informed electorate is able to make better decisions.
Resides arguing for her interpretation of the statutes, Respondent expressed concern I
that non -local people would have access to ballot arguments. However, as Respondent conceded
at the hearing, non -locals may author (and file) ballot arguments if they are principal officers of
bona fide associations of citizens. Although Respondent characterized this as an anomaly, this is I
a reasonable interpretation of § 9283. Respondent's concern about non -locals filing or
submitting ballot arguments may be understandable, but there appear to be several safeguards in
the statutes. First, the side arguing in favor of the measures has the opportunity to rebut (§ 9285)
the opposition and may point out the outsider status of the filer and/or author. Second, the
priority of whose arguments are priuted and distributed to the voters provide some safeguard
because the city council has first priority, the sponsor(s) has second priority, bona fide
organizations of citizens (again there may be non -locals involved) have third priority and finally,
as in our case, an individual voter who is eligible to vote on the measures has the lowest priority.
An additional comment: While it is understood that the concern of Respondent is
that someone outside the City may author ballot arguments (points and Authorities in
to Petition pp. 12:11-13:10), the.15lection Code does mot support her position. As noted by
Respondent, principal officers of an organization may author arguments every if they are not loca
to the City and a non-Iocal author may enjoy a higher priority by law over an eligible voter in
acceptance of an argument for printing and distribution (§ 9287.) The Election Code appears to
compromise a substantial portion of respondent's opposition.
While the guides of Sacramento, Santa Cruz and Solano Counties have not
determined this decision, they are supportive. It is doubtful that the election officials who
prepared these guides did not consider this same issue in preparing their guides.
ORDER RE: MOTION
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ONCLUSION
As noted above, considering all of the factors presented to the court, this petition
mast be granted. The court would like to thank all for thoir extensive efforts addressing this
issue within this very compressed time frame.
IT IS ORDERED that the petition for peremptory, writ Of mandate is GRANTED.
The court has signed the [Proposed] Judgment & Order submitted by petitioners.
Dated: ��,ys�•
)RDEk E: MOTION
K in B. McKeQn
Judge of the Superior Court
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NMLSI iN, MERKsAMER.'FARkMLLO,
UMUR & NAYLOR, LLP '
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Atrorn s or PetitionerrlPlainti s
END.A,RaBpN,
FOR BIBxIi ER NZiU . and ADVOCATES
I L. E
SEA 0 Z 2095 1)
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BY odor dun me b.
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DEPUTY
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IN THE SUPERIOR COURT OF'TRZSTATE OF CALFORMA
IN AND FOR THE COUNTY OF SANTA CLAM
MIKE HON% P.AT,HY RO$INSOM
RICHARD P,0 INSON. ADVOCATE'S Fol
A BETT'FR CUPERTIK6, an organized
political committee,
Petitioners,
Y.
KIMBERLY SMITH, City Clerk of the City
Of Cupertino; DOES I-X
r,FSSE DU1tAZ0 RegiVOWStrar of VOWS of the
county of Santa Gtlara,
Mead Party in Interest.
Case No- 105-Cy-04753S _
ftm,*R T)NGN'� &
PERF,MpTORY WRIT OF
MANbATE/WjTTjU CTIVE &
DECLARATORY RELIEF
DATE: August 29, 2005
TI : 10:00 4xi.
DEPT; .16
This matter came for hearing before this court at14� a.�. on August 29, 2005,
s 1�epaxtrnent 16 of the Superior Comt, the Honorable Kevin Mckemey, Judge of the
uperior Court of Santa Clara Countyprosiding, p�uant to the verified petition of Mike
tondo, Kathy Robinson, Richard Robinson, and Advocates for a better Cupetino,
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organized political committee. Cbzistopher E, SkinnelI of Nielsen, lVMerksamer,
Parrineilo, Mueller & Nayloz, representeA'the petixioner, Respondent Kimberly Smith,
City Clerk of Cupertino, was represented by Cupertino City Attorney Charles T. Kilian,
Esq. Real party in interest Jesse Duraao, Registrar of Voters of Santa Clara Coimly, was
represented by Deputy County Counsel Li8a Hetrick, Esq. The Court considered the
dacurnentary evidence and the arguments of counsel. The matter having been submitted
for decision,
1T iS ADJUDGED AND ORDERED that:
1. Respondem City Clerk's decision to exclude the names of congress,,,,
Mike Honda, Santa Clara County Sheriff Laurie Smith, and former State Assemblyman
Jun Cunneen from certain ballot-arguznents and rebuttals with respect to Measures A, B
& C, to be presented to the voters of Cupertino at the November 8, 2005 special election
to be beld in that City was based upon am incorrect interpretation of Elections Code §§
9282, 9283 & 9285, cad those three individuals _were entitled to sign the arguments and
rebuttals in question. Respondmt's refusal to ermit the
P aigumeuts and rebuttals to be
Printed with the names as Specified in Paragraph 2 is therefore a violation of
Respondent's ministerial duty under the Elections Code and C(imstitution, and is
therefore subject to a writ of mandate and injunctive relief under )3leetions Code § § 9295
and 13314.
2. The Petition for a Writ Of Mandate Is therefore GRANTED. Respondent
and Respondent's officers, agents, employees, service providers, and all others acting at
Respondent's direction, including Real Party in Interest, are cornmandod to cause to be
printed with the Ballot Azguments Against Measures A, B & C, to be voted on by the
voters of the City of Cupertino on Nov. 8, 2005, and with, the Rebuttals to Ballot
krguments in Favor of Measures A, B & C, the following names and titles:
IU71675 .tif-e12arml2: na n
A->-'GTUM'VT AGAINST MEASURE A And REBU'>t"TAL -F0
AROUM21"T IN ]S"Op- Or MEASURE A: N UGhacl M. Honda.
Congressman; and Laurie Smith, Sheriff of Santa Clara County.
2
C'roPQ=q AMOMENr & ORDER GRAMM, PEREUMPY WRrr oFvAINDATEnN7t1NCTIVb
& 1)ECIARA'r0XY RfiL1EF; CAE NO. I05-(V•047535
09i0:in, 0R.3a PAX. 4088822490
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CAWNDAR DTE OOA/OOiI
ni.ti +uaupafs I- (29 P_027/027
F-164
ARGUMENT AGAINST MEASURE B aad REBUTTAX, TO
ARGUMENT IN FAVOR OF IVMA.SUU B: Michael M. Honda, Congressman; and -Jim Ci=een, Former State Assennblyman.
ARGUMENT AGAINST ASU><tE C and REBIJTTAi, TO
ARGUMENT IN FAVOROF MEASURE C. Nliokael M.
Honda,
Congressman.
3, A peremptory writ of mandate thereon shall issue under seal of this Court,
The writ may be served upon the parties by personal delivery, fax ar ovemight delivery to
the parties' ocuusel. Respondent City Clerk and Real party, in Interest izegistrar of Voters
are ordered t4 file returns to the writ certifying cvmplianOe by September 2, 2005 at +
p.m.71
4. Respondent and Respondent's off eeKs, agents, employees, service
Providers and all.others actlZg at Respondent's dixection, in iucludiOg Real patty In
Interest are peInanently F'NrOMD Pursuant from printing and distributinga ballot
pamphlet for the November S, 2005
special municipal elects in Cupertino that contains
copies of the Arguments Opposing Meastues A, B & C and the Rebuttals to Argurrients In
F$vor of Measures A, B & C, that are not amended is accordance with the changes
speciBcd in Paragraph 2 above.
Dated: August 5/ 2005
Judge of the Superior Court
KE VIN l=. P4McKENNEY
3
M11Rposed] JUDMMMJT i ORD M G1iA" G P1kMpTORY WET Or MANDATE/WjUNCME
& DECLARATORY I.W. CASE NO- 105-CV4W7335
10115i5 If- WOOS 12.9.13 AM