opposition to write of mandate, flynn vs. vinson

7/31/2019 Opposition to write of mandate, Flynn Vs. Vinson

http://slidepdf.com/reader/full/opposition-to-write-of-mandate-flynn-vs-vinson 1/43



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REAL PARTIES IN INTEREST DIANA SERAFIN AND ROBIN NIELSON’S MEMORANDUM OF

POINTS AND AUTHORITIES IN OPPOSITION TO VERIFIED PETITION FOR WRIT OF MANDATE

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TABLE OF CONTENTS

Page

TABLE OF CONTENTS ………………………………………………………………………….. i

TABLE OF AUTHORITIES ……………………………………...………………………………iii

I. SUMMARY OF ARGUMENT ………………………………………………….………...1

II. THE COURT SHOULD ABSTAIN FROM ISSUING A PRE-ELECTION

RULING ON THE INITIATIVE’S SUBSTANTIVE LAW SO AS TO NOT

INTERFERE WITH OR DEPRIVE THE ELECTORATE OF THEOPPORTUNITY TO EXERCISE THEIR INHERENT

CONSTITUTIONAL POWER TO APPROVE OR DISAPPROVE

A DULY QUALIFIED INITIATIVE ………………...……………………………………4

III. THE PETITION DOES NOT IDENTIFY ANY MINISTERIALOR MANDATORY DUTY RESPONDENTS HAVE FAILED TO

PERFORM, WHICH CONSTRAINS THE COURT TO DENY THEPETITION AND DISMISS THE CASE …………………………………………………10

A. CITY CLERK’S DUTIES UNDER THE MURRIETA MUNICIPAL CODE …...……………10

B. CITY CLERK AND REGISTRAR’S DUTIES UNDER THE ELECTIONS CODE …….……..11

C. CITY COUNCIL’S DUTIES UNDER THE ELECTIONS CODE ………….……………….13

D. RESPONDENTS HAVE PERFORMED ALL MINISTERIAL AND

MANDATORY DUTIES ……………………………..……………………………….13

IV. ARGUMENT.………………………………………..……………………………………13

A. NEITHER THE CITY CLERK, THE REGISTRAR, THE CITY

COUNCIL, NOR THE COUNTY HAS A MINISTERIAL OR

MANDATORY DUTY TO CONDUCT A P RE -ELECTION

INVESTIGATION AND DETERMINATION AS TO WHETHER THE

INITIATIVE IS LAWFUL OR CONSTITUTIONAL ……………………………..………..14

B. ELECTIONS CODE SECTION 13314 IS LIMITED TO COMPELLING

AN ELECTION OFFICIAL TO CARRY OUT A MINISTERIAL OR

MANDATORY DUTY NOT AS LEGAL DEVICE FOR ASSERTING

P RE -ELECTION CHALLENGE TO THE S UBSTANTIVE LAW

OF AN INITIATIVE …………………………………………………………………..15



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TABLE OF CONTENTS—Continued

Page

C. THE COURT DOES NOT HAVE SUBJECT MATTER

JURISDICTION BECAUSE THE PETITION REQUESTS THE COURTTO ISSUE A WRIT OF MANDATE TO PREVENT THE INITIATIVE

FROM APPEARING “O N T HE B ALLOT F OR ANY E LECTION ”………………………….16

D. THE PETITION MUST BE DENIED BECAUSE PETITIONER HAS AN

ADEQUATE REMEDY AT LAW, AS HE CAN FILE A

POST-ELECTION CHALLENGE TO THE INITIATIVE’S

SUBSTANTIVE LAW.…………………………………………………….………….16

E. THE PETITION REQUESTS THIS COURT TO ISSUE AN

UNPERMITTED ADVISORY OPINION..……………………………………………….17

F. BY WAITING UNTIL THIS LATE DATE TO SEEK RELIEF,PETITIONER’S CLAIMS ARE BARRED BY THE DOCTRINE OF LACHES ………….……17

G. PETITIONER’S P RE -ELECTION CHALLENGE TO THE INITIATIVE AT

THIS LATE DATE WILL SUBSTANTIALLY INTERFERE WITH THE

ELECTION PROCESS AND IS UNNECESSARY BECAUSE

PETITIONER’S CHALLENGE TO THE S UBSTANTIVE LAW OF

THE INITIATIVE CAN BE PURSUED POST -ELECTION ……………………...................18

H. PETITIONER’S RELIANCE ON ELECTIONS CODE § 13314 AND

Kunde v. Seiler IS MISPLACED BECAUSE NEITHER SUPPORTS A

P RE -ELECTION CHALLENGE TO THE INITIATIVE’S S UBSTANTIVE LAW ………….….19

I. THE PETITIONER’S P RE -ELECTION ATTACK ON THE S UBSTANTIVE

LAW OF THE INITIATIVE IS WITHOUT MERIT ………………………………………20

V. CONCLUSION ……………………………………………………………………...……25



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TABLE OF AUTHORITIES

Page

CASES:

Amador Valley Joint Union High School District v. State Board of Equalization,

22 Cal.3d 208 (1978) ……………………………………………………………...………..8

Associated Home Builders v. City of Livermore,

18 Cal.3d 582 (1976) …………………………………………………………………..8, 17

Barnes v. Wong,

33 Cal.App.4th 390 (1995) ……………………………………………...………….2, 10, 13

Barratt American, Inc. v City of Rancho Cucamonga,

37 Cal.4

th

685 (2005) ……………………………………………...……………………3, 17

Blotter v. Farrell,

42 Cal.2d 804 (1954) ……………………………………...………………………………..1

Brosnahan v. Eu,

31 Cal.3d 1 (1982) ……………………………………………………………………...5, 19

Buckley v. American Constitutional Law Foundation,525 U.S. 182 (1999) …………………………………………………...……………………10

Buckley v. Valeo,424 U.S. 1 (1976) ……………………………………………………..…………………….10

California Association for Health Services at Home v. Department

of Health Services,

148 Cal.App.4th 696 (2007) ……………………………………………………………….14

California Water & Tel. Co. v. County of Los Angeles,253 Cal.App.2d 16 (1967) …………………………...…………………………………4, 17

Carsten v. Psychology Examining Committee,27 Cal.3d 793 (1980) ……………………………………………………………………...17

Costa v. Superior Court ,37 Cal.4th 986 (2006) …………………………………………...………………………8, 17

Farley v. Healy,67 Cal.2d 325 (1967) ……………………………………………………………………...15



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TABLE OF AUTHORITIES—Continued

PageGayle v Hamm,

25 Cal.App.3d 250 (1972) ………………………………...……………………………6, 17

H.D. Arnaiz, Ltd. v. County of San Joaquin,96 Cal.App.4th

1357 (2002) ……………………………………………………………….17

Ibara v. City of Carson,

214 Cal.App.3d 90 (1989) …………………………………..……………………………..1

Independent Energy Producers Association v. McPherson,

38 Cal.App.4th 1020 (2006) ……………………………………………………………….22

Kavanaugh v. West Sonoma County Union High School District ,29 Cal.4th 911 (2003) ……………………………...……………………………………...14

Kunde v. Seiler ,197 Cal.App.4th 518 (2011) ……………………………………..…………………….19, 20

Legislature of the State of California v. Deukmejian,34 Cal.3d 658 (1983) ………………………………………………………….………15, 19

Ley v. Dominguez,

212 Cal. 587 (1931) ……………………………………………………….………………..8

Loder v. Municipal Court ,

17 Cal.3d 859 (1976) ………………………………………………..…………………….14

Martin v. Smith,

176 Cal.App.2d 115 (1959) …………………………………….…………………………..8

Meyer v. Grant ,

486 U.S. 414 (1988) …………………………………..…………………………………….10

Mulkey v. Reitman,

64 Cal.2d 529 (1966) …………………….………………………………5, 6, 10, 19, 21, 23

People ex rel. Fund American Companies v. California

Insurance Company,

43 Cal.App.3d 423 (1974) …………………………….………………………………14, 15

Roth v. United States,

354 U.S. 476 (1957) …………………………………………...……………………………10

http://www.westlaw.com/Link/Document/FullText?findType=Y&pubNum=220&cite=212CAL587&originationContext=document&vr=3.0&rs=cblt1.0&transitionType=DocumentItem&contextData=(sc.UserEnteredCitation)#co_pp_sp_220_593







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PageSands v. Morongo,

53 Cal.3d 863 (1991) …………………………………...…………………………………21

San Francisco Forty-Niners v. Nishioka,75 Cal.App.4th

637 (1999) …………………………………………...……………………23

Stocks v. City of Irvine,

114 Cal.App.3d 520 (1981) ……………………………………………………………….17

Wind v. Hite,

58 Cal.2d 415 (1962) ………………………………...…………………………………6, 21

CONSTITUTIONS:

CAL. CONST. ART. 2, §1 ………………………………………………….…………………7, 17, 20

CAL. CONST. ART. 2, § 8 …………………………………………………………………………7, 8

CAL. CONST. ART. 2, §10 ………………………………………..………………………………….9

CAL. CONST. ART. 2, § 11 ………………………………………………………………………1, 20

CAL. CONST., ART. 3, § 1 ……………………………………………………………..……….20, 21

CAL. CONST. ART. 3, § 3.3 …………………………………………………………………………...9

U.S. CONST., AMEND I ………………………………………………………………….…………..9

CALIFORNIA CODES AND RULES:

Civil Code, § 51 ………………………………………………..…………………………………..5

Civil Code, § 52 …………………………………………………………………………………....5

Code of Civil Procedure, § 430.10 ……………………………………………………………..3, 16

Code of Civil Procedure, § 1085 …………………………….……………………….2-4, 10, 13-16

Code of Civil Procedure, § 1086 ……………………………………………………………….3, 17

Code of Civil Procedure, § 1102 ……………………………………………………..…………….3

Code of Civil Procedure, § 1103 ………………………………………………………..………….3

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Page

Code of Civil Procedure, § 1104 ……………………………..…………………………………….3

Code of Civil Procedure, § 1105 …………………………………………………………………...3

Elections Code, § 307 ……………………………………………………………………………..11

Elections Code, §§ 9200-9259 ……………………………………………………………………..1

Elections Code, § 9201 ………………………………………………………..……………………1

Elections Code, § 9202 …………………………………………………………………………1, 11

Elections Code, § 9203 ……………………………………………………………………………12

Elections Code, § 9205 …………………………………………………………………………1, 12

Elections Code, § 9206 …………………………………………………………………………1, 12

Elections Code, § 9207 ………………………………………..……………………………………1

Elections Code, § 9208 ……………………………………………..………………………………1

Elections Code, § 9209 ………………………………………………..……………………………1

Elections Code, § 9210 …………………………………………………………………………1, 12

Elections Code, § 9211 …………………………………………………………………………1, 12

Elections Code, § 9212 …………………………………………………………..……………12, 13

Elections Code, § 9213 ……………………………………………………………………………12

Elections Code, § 9214 ………………………………………..……………………………1, 12, 13

Elections Code, § 9215 …………………………………………………………………………1, 12

Elections Code, § 9223 ……………………………………………………………………………13

Elections Code, §13314 …………………………………………………………………….. passim

Government Code, § 26802 ……………………………………………………...……………….11



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I. SUMMARY OF ARGUMENT

The Legislature has enacted a comprehensive statutory scheme, Elections Code, §§ 9200-

9259,1 governing municipal elections, including the approval of initiative measures submitted to

the electorate, §§ 9200-9226 and CAL. CONST., ART. 2, § 11. A city initiative measure is a

proposed ordinance filed by petition and signed by a specified number of voters of the city within

a definite period of time. § 9201; see, also, Blotter v. Farrell, 42 Cal.2d 804, 810-812 (1954)

Prior to circulating any initiative petition, the proponent must file with the election officials of the

municipality a notice of intent to circulate petition. § 9202. The initiative petition “shall be

accompanied by the written text of the initiative and may be accompanied by a written statement

not in excess of 500 words, setting for the reasons for the proposed petition.” § 9202(a) and

§§ 9205-9207; see, also, Ibara v. City of Carson, 214 Cal.App.3d 90, 94-97 (1989). Then, after all

signatures are gathered during the collection period, the initiative petition along with all the

signatures is filed with the election officials of the municipality. Upon receipt, the election

officials must verify the validity of the signatures and certify that the required number of valid

signatures has been collected to place the initiative on the ballot. §§ 9207-9211, § 9215. Finally

within ten (10) days of receiving the certified initiative, the municipality must either approve

the initiative or refer it to the electorate by way of a general or special election. § 9214(a)-(c).

As evinced by Petitioner Stephen Flynn’s Verified Petition for Writ of Mandate

(“Petition”) and exhibits thereto, it is undisputed that the Real Parties, Diana Serafin and Robin

Nielson, and the Respondents, the Murrieta City Council (“City Council”), the Murrieta City

Clerk (“City Clerk”), the Riverside County Registrar of Voters (“Registrar”), and the Riverside

1Hereinafter all references to “section” or “§” shall refer to the California Elections Code.



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County Board of Supervisors (“County”), have complied with all of the foregoing procedures

thereby satisfying all of the Election Code requirements for placing the subject initiative

“ Murrieta Prohibition of Automated Traffic Enforcement Systems Act ” (the “Initiative”), on the

November 2012, Ballot. See, Exhs. A, B, C, and D to the Petition (copies of which are attached

hereto for the Court’s convenience).

As the record further evinces, Petitioner’s alleged gravamen is not that the Real Parties and

Respondents have failed to perform any ministerial or mandatory duty under the Elections Code or

the Murrieta Municipal Code, but rather the Initiative is unlawful and/or unconstitutional

However, Respondents have no duty under the Elections Code or Murrieta Municipal Code to

assess or determine whether or not any proposed initiative is lawful or constitutional. In particular

a writ of mandate will issue “to compel the performance of an act which the law specially enjoins,

as a duty resulting from an office, trust, or station, or to compel the admission of a party to the use

and enjoyment of a right or office to which the party is entitled....” Code of Civil Procedure

(“CCP”), § 1085. Stated more succinctly, a petition for writ of mandate must present evidence that

proves the existence of “a clear, present and usually ministerial duty on the part of the

respondent.” Barnes v. Wong, 33 Cal.App.4th 390, 394–395 (1995) (“ Barnes”) (emphasis added)

As the record demonstrates, Respondents have not failed to fully perform any of their ministerial

or mandatory duties under the Elections Code or the Murrieta Municipal Code, and, therefore, no

legal basis exists for the issuance of a writ of mandate. Id .; CCP § 1085.

The remedies sought by Petitioner are effectively for declaratory and injunctive relief. In

particular, the Petition alleges: “[T]he taxpayers of the City of Murrieta will suffer severe and

irreparable injury if the Court does not enjoin…” Petition, ¶ 20, p. 5, ll. 14-16 and ¶ 25, p. 6, ll.

6-8 (emphasis added). This type of phrasing is required for properly alleging causes of action



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sounding in in unctive and declaratory relief , not for a writ of mandate. As the relief requested

by Petitioner is not within the legal scope of a writ of mandate to compel Respondents

compliance with a ministerial or mandatory duty, this Court is without subject matter

urisdiction to entertain any of the causes of action alleged in the Petition. See, e.g., CCP §

430.10(a) (legal basis for sustaining a demurrer).

Assuming, arguendo, the Initiative were to be approved by the electorate, Petitioner still

has the post-election ability to challenge the ordinance as unlawful and/or unconstitutional

through a complaint seeking declaratory and/or injunctive relief. This, of course, means tha

Petitioner has an adequate remedy at law, which deprives this Court of jurisdiction to issue a writ

of mandate. CCP, § 1086; see, e.g., Barratt American, Inc. v City of Rancho Cucamonga, 37

Cal.4th

685, 705 (2005).

Another important legal deficiency in the Petition is that it does not actually request relief

that is permitted by a writ of mandate, but rather the type sought by way of a writ of prohibition

as Petitioner requests the Court to “enjoin Respondent City Clerk and Respondent County

Registrar of Voters from submitting the measure to the [electorate]…,” Petition, ¶ 20, p. 5, ll. 14-

18, and to “enjoin Respondent City Clerk from submitting the measure to the [electorate]…

Petition, ¶ 25, p. 6, ll. 6-8. A writ of mandate may issue to compel performance of a ministerial or

mandatory duty when there is a clear legal right in the person seeking relief, a corresponding duty

in the respondent, and a lack of an adequate remedy at law. CCP 1085(a) and §13314

Contrariwise, a writ of prohibition may issue to prevent an inferior court or tribunal possessing

judicial or quasi-judicial powers from exercising its jurisdiction in matters over which it lacks

sufficient jurisdiction. CCP §§ 1102-1105. For this reason alone the Court is, as a matter of law

constrained to deny the Petition.



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A writ of mandate commands a person, board, etc., to perform a ministerial act or

mandatory duty, CCP 1085(a) and §13314, whereas a writ of prohibition serves to preven

udicial acts from being taken. The unequivocal distinction between these two remedies is

addressed in Witkin, California Procedure:

“The differences [between mandate and prohibition] are fundamental:

(a) Prohibition deals with judicial acts; mandamus deals with ministerial

acts.(b) Prohibition restrains or prevents action; mandamus compels action.

(c) Prohibition issues only where jurisdictional defects are shown; this is

seldom the basis for mandamus.”

8 WITKIN, CAL. PROC. 5th (2008) Writs, § 19, p. 900 (emphasis added).

Finally, as the Initiative has not been passed by the electorate, the causes of action alleged

in the Petition (which are essentially declaratory and injunctive) are not justiciable because they

are premature (i.e., not ripe). If the Initiate were to be approved by the electorate, then Petitioner’s

challenge to the Initiative’s substantive law would have “reached, but [had] not passed, the point

that the facts have sufficiently congealed to permit an intelligent and useful decision to be made.”

California Water & Tel. Co. v. County of Los Angeles, 253 Cal.App.2d 16, 22-27 and n. 9 (1967)

(“California Water ”).

Based on the foregoing, and as well as additional legal reasons set forth below, the Court

must, as a matter of law, deny the Petition and dismiss this case.

II. THE COURT SHOULD ABSTAIN FROM ISSUING A PRE-ELECTION RULING

ON THE INITIATIVE’S SUBSTANTIVE LAW SO AS TO NOT INTERFERE

WITH OR DEPRIVE THE ELECTORATE OF THE OPPORTUNITY TO

EXERCISE THEIR INHERENT CONSTITUTIONAL POWER TO APPROVE OR

DISAPPROVE A DULY QUALIFIED INITIATIVE

This Court should exercise judicial restraint by not conducting a pre-election review of

Petitioner’s challenge to the substantive law of the Initiative. In addition to the principles set forth

in this section, the exercise of such restraint against pre-election review is based on the principle



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that an initiative is not yet within the purview of either the executive, legislative, or udicial

branches, as it has not yet transformed from an initiative into an actual law. The California

Supreme Court has made this point clear:

“As we have frequently observed, it is usually more appropriate to review

constitutional and other challenges to ballot propositions or initiative measures

after an election rather than to disrupt the electoral process by preventing the

exercise of the people’s franchise...”

Brosnahan v. Eu, 31 Cal.3d 1, 4 (1982) (“ Eu”) (emphasis added).

The California Supreme Court’s decision in Mulkey v. Reitman, 64 Cal.2d 529 (1966)

(“ Reitman”), provides an instructive example of how California courts jealously guard the

initiative process by being loathe to pre-empt the electorate’s prerogative by entertaining pre-

election challenges to the substantive law of any initiative. Reitman concerned Proposition 14

which related to the right of private sellers and lessors to discriminate, and to forestall future state

action that might circumscribe this right. In particular, Proposition 14 proposed nullifying both

the Rumford Fair Housing Act, Health & Safety Code, §§ 35700-35744, and the Unruh Civil

Rights Act, Civ. Code, §§ 51 and 52, as they applied to the housing market. The California

Supreme Court rejected a pre-election challenge to the substance of Proposition 14 (i.e.

challenge under the Fourteenth Amendment):

“Prior to its enactment the unconstitutionality of Proposition 14 was urged to this

court in Lewis v. Jordan, Sac. 7549 (June 3, 1964). In rejecting the petition formandamus to keep that proposition off the ballot we stated in our minute order ‘that

it would be more appropriate to pass on those questions after the election ...

than to interfere with the power of the people to propose laws and amendmentsto the Constitution and to adopt or reject the same at the polls. ...’ But we further

noted in the order that ‘there are grave questions whether the proposed amendment

to the California Constitution is valid under the Fourteenth Amendment to the

United States Constitution. ...’ We are now confronted with those questions.”

Id . at 534-535 (emphasis added). In this post-election decision, the California Supreme Court

went on to declare Proposition 14 unconstitutional under both the California and the United States

constitutions:











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“For the foregoing reasons the severability clause is ineffective in the instant case,

and the whole of the constitutional amendment [Proposition 14] must be struck down. Article I, section 26, of the California Constitution thus denied to plaintiffs

and all those similarly situated the equal protection of the laws as guaranteed by the

Fourteenth Amendment to the federal Constitution, and is void in its general

application.”

Id . at 545. Accordingly, in Reitman the California Supreme Court protected the initiative process

and substantive constitutional law and fundamental civil rights. Certainly, if the California

Supreme Court will deny a pre-election challenge in a civil rights case, then the red-light camera

initiative at issue in this case can wait for post-election review of the substantive law as well

Moreover, this Court should exercise such judicial restraint, which will serve the electoral process,

by protecting the electorate’s exercise of their will, and preserve Petitioner’s substantive

challenges (which he can make post-election).

The same result was reached by the California Supreme Court in Wind v. Hite, 58 Cal.2d

415 (1962) (“ Hite”), where a pre-election challenge to the constitutionality of a proposed

initiative (concerning a penal law) was twice rejected:

“Moreover, it should be noted that on August 10, 1962, application was madedirectly to this court in Jensen v. Hite, L.A. 26956, for mandamus to compel the

Registrar of Voters to omit from the ballot the proposition now before us. That

petition, which challenged the constitutionality of section 337s of the Penal Code,was unanimously denied by this court on August 15, and the present proceeding

was instituted in the Superior Court of Los Angeles County thereafter. We are still

of the view that we should not interfere with the exercise of the electorate’s

franchise for the purpose of determining the question of constitutionality, a

matter which can, if necessary, be more appropriately passed upon after theelection.”

Id . at 417 (emphasis added).

Unlike the Petition in the case at Bar, Gayle v Hamm, 25 Cal.App.3d 250 (1972)

(“ Hamm”) provides a clear example on the proper use of a writ of mandate. In Hamm, the county

counsel informed the clerk that the proposed initiative was invalid because it was





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unconstitutional and unlawful (i.e., under the Fourteenth Amendment’s Equal Protection

Clause). Based on this finding, the clerk refused to process the initiative. The proponents filed a

petition for writ of mandate to compel the clerk to process the initiative. The superior court held

that the clerk’s duty was ministerial under 3706, and, therefore, issued a writ of mandate

commanding the clerk to process the initiative. Id . at 252. In affirming the superior court’s

decision, the court of appeal held:

“The exercise of initiative and referendum is one of the most precious rights of

our democratic process. Since under our theory of government all the power of

government resides in the people, the power of initiative is commonly referred to asa ‘reserve’ power and it has long been our judicial policy to apply a liberal

construction to this power wherever it is challenged in order that the right benot improperly annulled. If doubts can reasonably be resolved in favor of the useof this reserve power, courts will preserve it.

A premature interposition of the judiciary constitutes an unwarranted

limitation upon this reserve power. To accept the position espoused by

defendants in this case, namely, that the court must determine the validity of the

initiative ordinance at the processing juncture represented by this case and the

showing made by defendants would be tantamount, in our opinion, to requiring

every proponent of an initiative measure to first seek the advisory opinion of the courts as to its validity before getting the measure to the electorate.”

Id . at 258 (internal citations omitted; emphasis added).

The foregoing is the judiciary’s interpretation and enforcement of what California’s

Constitution makes clear: that all political power is vested with the People, that the purpose of

government is to serve them, and that they may alter or reform government as they choose:

“All political power is inherent in the people. Government is instituted for their

protection, security, and benefit, and they have the right to alter or reform it whenthe public good may require.”

CAL. CONST. ART. 2, §1 (emphasis). Consistent with this power, Article 2, section 8 vests the

people with power to directly enact laws:

“The initiative power is the power of the electors to propose statutes and

amendments to the Constitution and to adopt or reject them.”



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CAL. CONST. ART. 2, § 8(a). In several decisions, the California Supreme Court has described this

inherent power as “one of the most precious rights of our democratic process,” and that “the

sovereign people’s initiative power” is clearly a “fundamental right.” Associated Home Builders v.

City of Livermore, 18 Cal.3d 582, 591 (1976) (“ Livermore”); Brosnahan v. Brown, 32 Cal.3d 236

241 (1982) (“ Brosnahan”); Costa v. Superior Court , 37 Cal.4th 986, 1007-1008 (2006) (“Costa”)

California courts have recognized that they have a “solemn duty to jealously guard” this right,

Amador Valley Joint Union High School District v. State Board of Equalization, 22 Cal.3d 208

248 (1978) (“ Amador ”), and “to prevent any action which would improperly annul that right,”

Martin v. Smith, 176 Cal.App.2d 115, 117 (1959). What is of the utmost importance in the case at

Bar is for this Court to recognize and apply the principle underlying the initiative power:

“It is well settled that the power of initiative and referendum, as exercised in this

state, is the exercise by the people of a power reserved to them, and not the exercise

of a right granted to them.”

Ley v. Dominguez, 212 Cal. 587, 593 (1931) (emphasis in original). The California Supreme

Court has explained this principle:

“(I)t has long been our judicial policy to apply a liberal construction to this power

wherever it is challenged in order that the right be not improperly annulled. If doubts can reasonably be resolved in favor of the use of this reserve power, courts

will preserve it.”

Livermore, supra,18 Cal.3d at 591 (internal citations omitted).

In addition to numerous other reasons set forth below, this constitutional command is

precisely why this Court should not intervene pre-election in this matter. Adhering to this dictate

is also consistent with California’s Doctrine of Separation of Powers. This bedrock principle was

incorporated into the California Constitution:






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“The powers of state government are legislative, executive, and judicial. Persons

charged with the exercise of one power may not exercise either of the others exceptas permitted by this Constitution.”

CAL. CONST. ART. 3, § 3.3 (emphasis added). This is precisely what the Petition requests by

attempting to entice this Court to circumvent the initiative process by depriving the electorate from

exercising their inherent political power of directly enacting laws. Although a subtle legal point, this

violates not only the initiative process but also the doctrine of separation of powers because it would

be the Court (rather than the electorate) deciding whether or not to exercise this legislative power

which is prohibited by Article 3, § 3.3 of the California Constitution.

Another salient principle is that the California Constitution also expressly divests the

Legislature from overruling an initiative approved by the electorate unless the electorate provides

their consent:

“[The Legislature] may amend or repeal an initiative statute by another statute that

becomes effective only when approved by the electors unless the initiative statute

permits amendment or repeal without their approval.”

CAL. CONST. ART. 2, §10(c) (emphasis added). This constitutional provision should give this Court

great pause before inserting itself in order to prevent the Initiative from being placed on the

November 6, 2012, ballot. The California Constitution and case law provide a more judicious

approach of non-intervention at the pre-election stage because Petitioner will still have his rights

preserved to launch a post-election challenge, assuming the Initiative is approved by the electorate.

Furthermore, Petitioner’s pre-election challenge to the Initiative fares no better under the U.S

Constitution. The First Amendment’s Speech and Petition Clauses2 afford the broadest protection to

political expression “to assure [the] unfettered interchange of ideas” concerning issues of political and

2U.S. CONST., AMEND I: “Congress shall make no law…abridging the freedom of speech, or…to petition the

government for redress of grievances.”



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2. Keep all ordinances and resolutions of the council in such a manner that the

information contained therein will be readily accessible and open to the public…;3. Keep all records of the council and of the office of the city clerk in such

manner that the information contained therein will be readily accessible and open to

the public...;

4. Serve as the official custodian of all city records;5. Be the custodian of the seal of the city;

6. Prepare the council agendas, in conjunction with and under the direction of thecity manager;

7. Perform the duties prescribed by the Elections Code of the state in

conducting municipal elections;8. Perform the duties imposed upon city clerks by the California Political Reform

Act, being California Government Code Sections 81000 - 81016;

9. Be responsible for the publication of all the official advertising of the city;

10. Be responsible for the maintenance and distribution of the municipal code;11. Process and refer to the city manager all claims filed against the city and its

officers, agents, or employees…; and12. Perform such other duties consistent with this code as may be required of thecity clerk, by the city council.”

(City Code, Title 2, § 2.12.020(B) (emphasis added).

B. CITY CLERK AND REGISTRAR’S DUTIES UNDER THE ELECTIONS CODE:

The Elections Code provides a broad definition of the term “Clerk” to include both the

City Clerk and the Registrar: "‘Clerk’ means the county elections official, registrar of voters, city

clerk, or other officer or board charged with the duty of conducting any election.” § 307

(emphasis added). In the context of this case, the duties of the City Clerk and Registrar are further

defined in Government Code § 26802 as discharging “all duties vested by law in the county clerk

that relate to and are part of election procedure.” Government Code § 26802.5 specifically directs

the Registrar to discharge all duties vested by law in the county elections official that relate to and

are a part of the election procedure. In this regard, the City Clerk and the Registrar have the

following duties under Elections Code:

1. Receive an initiative petition and notice of intent, as well as the required fees

§§ 9201 & 9202(a) & (b).



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2. Receive a filed copy of the proposed measure with request that ballot title and

summary be prepared and transmit a copy of the proposed measure to the city attorney. § 9203(a).

3. Receive a ballot title from city attorney and summary of the proposed measure and

furnish a copy of the ballot title and summary to the proponent. § 9203(b).

4. Receive declarations and verify that the proponent properly published a notice of

intention and the title summary of the proposed measure. §§ 9205 and 9206.

5. Receive filed petitions and sections during normal office hours and upon

presentation of petition for filing:

a. Ascertain number of registered voters of the city last reported by the countyelections official to the Secretary of State, § 9210(a); and

b. Determine total number of signatures affixed to petition and if the minimum is

met, accept petition for filing. § 9210(b).

6. Examine the petition in the same manner as county petitions in accordance with

§§ 9214 and 9215. § 9211.

7. Pursuant to § 9213, file a report with the Secretary of State containing the

following:

a. The number of municipal initiative petitions circulated during the preceding

two calendar years which did not qualify for the ballot, and the number of theseproposed initiatives for which reports were prepared pursuant to Section 9212

§ 9213(a);

b. With respect to municipal initiative measures that qualified for the ballot in thepreceding two calendar years, the number that were approved by the voters, and

the number of these ballot measures for which reports were prepared pursuant

to Section 9212, § 9213(b); and

c. With respect to municipal initiative measures that qualified for the ballot in the

preceding two calendar years, the number that were not approved by the votersand the number of these ballot measures for which reports were prepared

pursuant to Section 9212, § 9213(c).

https://1.next.westlaw.com/Link/Document/FullText?findType=L&pubNum=1000206&cite=CAELS9212&originatingDoc=N283A4E2082B911D89519D072D6F011FF&refType=LQ&originationContext=document&transitionType=DocumentItem&contextData=(sc.Document)

https://1.next.westlaw.com/Link/Document/FullText?findType=L&pubNum=1000206&cite=CAELS9212&originatingDoc=N283A4E2082B911D89519D072D6F011FF&refType=LQ&originationContext=document&transitionType=DocumentItem&contextData=(sc.Document)



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8. Whenever any ordinance or measure is submitted to the voters of the city, official

shall cause ordinance or measure to be printed. § 9223.

C. CITY COUNCIL’S DUTIES UNDER THE ELECTIONS CODE:

Pursuant to the Elections Code, the City Council has the following duties once an initiative

is certified by the City Clerk and the Registrar as a valid ballot measure to be presented to the

electorate at the next election or special election:

1. Adopt the ordinance, without alteration, at the regular meeting at which the

certification of the petition is presented, or within 10 days after it is presented;

2. Immediately order a special election and present the initiative to the electorate of the

City for a vote; or

3. Order a report pursuant to Section 9212 and when the report is subsequently

presented to the City Council, the City Council shall either adopt the ordinance within 10 days or

order an election pursuant to Section 9214(b). § 9214(a)-(c).

D. RESPONDENTS HAVE PERFORMED ALL MINISTERIAL AND MANDATORY DUTIES:

As mentioned in Section I, supra, Respondents have performed all required ministerial and

mandatory duties under the City Code and Elections Code. See, Exhs. A, B, C, and D. Nowhere in

the Petition is it alleged that either the City Clerk, Registrar, City Council, or County failed to

perform any of the foregoing duties outlined in the preceding sub-sections. Accordingly, the

Petition must be denied and the case dismissed because, as a matter of law, there is no

unperformed duty for this Court to compel by way of a writ of mandate. CCP § 1085; Barnes

supra, 33 Cal.App.4th

at 394-395.

IV. ARGUMENT

The Petition requests issuance of a writ of mandate under § 13314 (pp. 3-5) and CCP 1085

(pp. 5-6) for the express purpose of preventing the Initiative from appearing on the November 6,



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2012, general election ballot. (Petition, pp. 3-6.) As is has already been discussed in great detail in

Sections I through III, supra, and as will be further discussed in this section, neither § 13314

nor CCP § 1085 supports the issuance of a writ of mandate in this pre-election challenge to the

substantive law of the Initiative.

A. NEITHER THE CITY CLERK, THE REGISTRAR, THE CITY COUNCIL, NOR THE COUNTY

HAS A MINISTERIAL OR MANDATORY DUTY TO CONDUCT A P RE-ELECTION

INVESTIGATION AND DETERMINATION AS TO WHETHER THE INITIATIVE IS LAWFUL OR

CONSTITUTIONAL

To be entitled to a writ of mandate, Petitioner must show that (1) the City Clerk, the

Registrar, the City Council, or the County has a duty to act and (2) Petitioner has a beneficial right

to performance of that duty. Kavanaugh v. West Sonoma County Union High School District , 29

Cal.4th 911, 916 (2003) (“Kavanaugh”); Loder v. Municipal Court , 17 Cal.3d 859, 863 (1976)

see, also, CCP 1085(a): “[a] writ of mandate may be issued by any court to any inferior tribunal,

corporation, board, or person, to compel performance of any act which the law specially enjoins

as a duty resulting from an office, trust, or station …” To justify the issuance of a writ of mandate,

a petitioner must prove that the public official had a ministerial duty to perform, that is, a duty

required to be performed in a prescribed manner without any exercise of judgment, discretion, or

opinion concerning the propriety of the act. California Association for Health Services at Home v

Department of Health Services, 148 Cal.App.4th

696, 704 (2007).

For purposes of determining whether a writ of mandate should issue, the superior court

must first determine from the evidence whether a ministerial duty exists, which the California

Supreme Court has defined as “an act that a public officer is required to perform in a prescribed

manner in obedience to the mandate of legal authority and without regard to his own judgment or

opinion…” Kavanaugh, supra, 29 Cal.4th

at p. 916. More succinctly, “where a statute requires an

officer to do a prescribed act on a prescribed contingency, his functions are ministerial.” People ex



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rel. Fund American Companies v. California Insurance Company, 43 Cal.App.3d 423, 431-432

(1974).

As evinced by the allegations in the Petition and the exhibits thereto, Respondents do not

possess the legal authority or discretion to take the actions Petitioner seeks to require, that is, to

determine whether or not the Initiative is lawful or constitutional before placing it on the ballot. In

Legislature of the State of California v. Deukmejian, 34 Cal.3d 658 (1983) (“ Deukmejian”), the

California Supreme Court held that an election official “has no discretion to refuse to submit a

properly qualified initiative measure to voters.” Id . at p. 679 (citing, Farley v. Healy, 67 Cal.2d

325, 327 (1967)). Accordingly, the Court is constrained to deny the Petition.

B. ELECTIONS CODE SECTION 13314 IS LIMITED TO COMPELLING AN ELECTION OFFICIAL

TO CARRY OUT A MINISTERIAL OR MANDATORY DUTY NOT AS LEGAL DEVICE FOR

ASSERTING P RE-ELECTION CHALLENGE TO THE SUBSTANTIVE LAW OF AN INITIATIVE

Petitioner is attempting to invoke § 13314 in an improper manner. That section provides

that “[a]n elector may seek a writ of mandate alleging that an error or omission has occurred, or is

about to occur, in the placing of a name on, or in the printing of, a ballot, sample ballot, voter

pamphlet, or other official matter, or that any neglect of duty has occurred, or is about to occur.”

§ 13314(a)(1) (emphasis added). That section concerns the placing of a name on and printing of a

ballot, and an election official’s unperformed ministerial duties, it does not provide a remedy for

substantive law deficiencies such as the ones alleged by Petitioner. Consequently, for a writ of

mandate to issue under § 13314, there must be a “neglect of duty” or other “violation of law” by

an election official, as is the case under CCP 1085. Accordingly, this Court is without subject

matter jurisdiction to issue a pre-election writ of mandate based on any alleged substantive law

problems with the Initiative.



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C. THE COURT DOES NOT HAVE SUBJECT MATTER JURISDICTION BECAUSE THE PETITION

REQUESTS THE COURT TO ISSUE A WRIT OF MANDATE TO PREVENT THE INITIATIVE

FROM APPEARING “O N T HE B ALLOT FOR ANY E LECTION ”

The Petition requests the Court to issue an order that would clearly exceed its subject

matter jurisdiction. In particular, the Petition requests issuance of a writ of mandate to prevent the

Initiative from being placed “on the ballot for any election.” Clearly, this relief is prospective, and

is nothing more than a request for a permanent injunction as to all future elections, including

the November 6, 2012, general election. As the Petition requests a writ of mandate under § 13314

and CCP § 1085, any other prospective relief sought or granted would not only be constitutionally

suspect as overbroad but also exceed this Court’s subject matter jurisdiction. CCP § 430.10(a).

Furthermore, as mentioned in Section I, supra, the remedies sought by Petitioner are

effectively for declaratory and injunctive relief. In particular, the Petition alleges: “[T]he taxpayers

of the City of Murrieta will suffer severe and irreparable injury if the Court does not enjoin…”

Petition, ¶ 20, p. 5, ll. 14-16 and ¶ 25, p. 6, ll. 6-8 (emphasis added). Accordingly, as the relief

requested by Petitioner is not within the legal scope of a writ of mandate to compel Respondents’

compliance with a ministerial or mandatory duty (see, Section III, supra), this Court is without

subject matter jurisdiction to entertain any of the causes of action alleged in the Petition. Id.

D. THE PETITION MUST BE DENIED BECAUSE PETITIONER HAS AN ADEQUATE REMEDY AT

LAW, AS HE CAN FILE A POST-ELECTION CHALLENGE TO THE INITIATIVE’S

SUBSTANTIVE LAW

Assuming, arguendo, the Initiative were to be approved by the electorate, Petitioner still

has the post-election ability to challenge the ordinance as unlawful and/or unconstitutional

through a complaint seeking declaratory and/or injunctive relief. Accordingly, Petitioner has an

adequate remedy at law, thereby prohibiting this Court from issuing a pre-election writ of



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mandate to prevent the electorate from exercising their franchise on whether or not to approve the

Initiative. CCP, § 1086; see, e.g., Barratt, supra, 37 Cal.4th at 705.

E. THE PETITION REQUESTS THIS COURT TO ISSUE AN UNPERMITTED ADVISORY OPINION

California decisions, like those of the federal courts, preclude the courts of this state to

issue advisory opinions, as courts are not vested by the California Constitution with this type of

power. See, e.g., Stocks v. City of Irvine, 114 Cal.App.3d 520, 531 (1981); Carsten v. Psychology

Examining Committee, 27 Cal.3d 793, 798 (1980); California Water , supra, 253 Cal.App.2d at 22-

23. Furthermore, permitting Petitioner’s pre-election challenge to the Initiative’s substantive law

would usurp and do violence to the people’s inherent political power employed through the

initiative process. CAL. CONST. ART. 2, §1; Livermore, supra, 18 Cal.3d at 591; Brosnahan , supra

32 Cal.3d at 241; Costa, supra, 37 Cal.4th at1007-1008. Consequently, Petitioner’s pre-election

challenge attempts to enlist this Court into providing an unpermitted advisory opinion:

“A premature interposition of the judiciary constitutes an unwarranted

limitation upon this reserve power. To accept the position espoused by

defendants in this case, namely, that the court must determine the validity of theinitiative ordinance at the processing juncture represented by this case and the

showing made by defendants would be tantamount, in our opinion, to requiringevery proponent of an initiative measure to first seek the advisory opinion of

the courts as to its validity before getting the measure to the electorate.”

Hamm, supra, 25 Cal.App.3d at 258 (emphasis added).

Based on the foregoing, the Court should not issue a pre-election advisory opinion

regarding the Initiative’s substantive law.

F. BY WAITING UNTIL THIS LATE DATE TO SEEK RELIEF, PETITIONER’S CLAIMS ARE

BARRED BY THE DOCTRINE OF LACHES

Petitioner’s eight month delay in filing the Petition in this matter is fatal to his case:

“Under the doctrine of laches a writ may be denied where a party unreasonablydelays in filing the petition and there is prejudice to the real party in interest.”

H.D. Arnaiz, Ltd. v. County of San Joaquin, 96 Cal.App.4th

1357, 1368 (2002).



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In the case at bar, on October 18, 2011, the City Clerk certified the Initiative in accordance

with the County Registrar’s issuance of the Certificate of Sufficiency that the Initiative had the

required number of valid signatures to place it on the ballot for the November 2012 election. ( See

Exhs. B and C.)

On November 1, 2011, the Murrieta City Counsel, by unanimous vote cleared the way to

place the Initiative on the ballot for the November 6, 2012, general election, which is more than a

year before the election. (See, Exh. D, p. 5, Action Section.) However, Petitioner waited until June

5, 2012, to file the Petition. As represented by the Registrar’s legal counsel, Sunshine Sykes,

during the June 20, 2012, ex parte hearing, the date the ballot for the November 6, 2012, election

goes to print is August 15, 2012. Because Petitioner inexplicably delayed for eight months before

filing this action, leaving the Court only fifteen days between the hearing on August 1st

and the

printing of the ballot on August 15th, not to mention virtually no time for review by the court of

appeal or the California Supreme Court, the Real Parties will suffer great prejudice and violation

of their state and federal substantive and procedural due process rights. 3 Accordingly, the Petition

is barred by the doctrine of laches. Id .

G. PETITIONER’S P RE-ELECTION CHALLENGE TO THE INITIATIVE AT THIS LATE DATE

WILL SUBSTANTIALLY INTERFERE WITH THE ELECTION PROCESS AND IS UNNECESSARY

BECAUSE PETITIONER’S CHALLENGE TO THE SUBSTANTIVE LAW OF THE INITIATIVE CAN

BE PURSUED POST -ELECTION

The Elections Code strictly prohibits a writ of mandate from issuing where it wil

“substantially interfere with the conduct of the election.” § 13314(a)(2)(B). The California

Supreme Court has held where, as in the case at Bar, “any challenge based on a claim that the

3A minor part of this delay was due to the Real Parties’ legal counsel’s previously scheduled trip (July 17-25)

However, the unjustified and inexplicable eight months d elay in filing the Petitioner is solely attributable to the

Petitioner.



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measure is one that may not be presented to the voters must be promptly made and determined

by a petition for writ of mandate.” Deukmejian, supra, 34 Cal.3d at 679 (emphasis added).

As set forth in detail in the preceding sub-section, Petitioner waited eight months before

filing the Petition requesting the Court to intervene pre-election to prevent the Initiative from

being placed on the ballot thereby unconstitutionally disenfranchising the electorate. Eu, supra, 31

Cal.3d at 4; Reitman, supra, 64 Cal.2d at 534-535. Clearly, under Deukmejian and

§13314(a)(2)(B), the Petition was not “promptly made” and is “substantially interfering” with the

election process. On the other hand, Petitioner’s substantive challenges to the Initiative can be

made post-election, assuming the Initiative is approved by the electorate. Accordingly, the

Petition should be denied and the case should be dismissed.

H. PETITIONER’S RELIANCE ON ELECTIONS CODE § 13314 AND Kunde v. Seiler IS

MISPLACED BECAUSE NEITHER SUPPORTS A P RE-ELECTION CHALLENGE TO THE

INITIATIVE’S SUBSTANTIVE LAW

As mentioned in greater detail in Section IV.B, supra, § 13314 does not support a pre-

election challenge to the Initiative’s substantive law. It is noteworthy that Petitioner cited a

Fourth District Court of Appeal’s case, Kunde v. Seiler , 197 Cal.App.4th 518 (2011) (“Kunde”), in

conjunction with § 13314 to support that such pre-election challenges are permitted. (Memo of

P&A in Supp. of Ex Parte Application, p. 1, ll.7-21.) However, careful review of Kunde reveals

that it fails to support such a proposition.

Kunde related to inclusion of electioneering materials in the sample ballot provided to the

electorate. In contradistinction to the case at Bar, Kunde did not address a pre-election challenge

to the substantive law of a proposed initiative. A voter challenged the inclusion of these materials

by way of a petition for writ of mandate, contending that the registrar of voters committed an error



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in printing the ballot. Thus, Kunde did not authorize or relate to a pre-election challenge to the

substantive law of a proposed initiative, but rather whether the “Registrar ha[d] neglected her

duty” by including the materials with the ballot. Id . at 528-529. It is undeniable that § 13314 was

designed to remedy printing errors in any ballot, not as a vehicle by which to make a pre-election

challenge to the substantive law of an initiative. In Kunde, the Fourth District concluded that the

materials were proper for inclusion in the ballot, and, therefore, Kunde did not relate to a pre-

election challenge to the substantive law of a proposed initiative. Accordingly, Kunde is

inapposite to the case at Bar.

I. THE PETITIONER’S P RE-ELECTION ATTACK ON THE SUBSTANTIVE LAW OF THEINITIATIVE IS WITHOUT MERIT

Even assuming, arguendo, this Court were to ignore long established principles embodied

in the California and U.S. constitutions regarding the people’s inherent power to directly enac

laws, as well as ignore that § 13314 does not apply because respondents have performed all of

their required duties, the Petitioner’s pre-election attack on the substantive law of the initiative is

without merit.

1. The Petition seeks a writ of mandate to prevent the Initiative from appearing on the

ballot for the November 6, 2012, election because Petitioner alleges that the electorate is no

permitted to vote on this subject matter. (Petition, pp. 4-5.) However, Petitioner is requesting the

Court to interpret and apply Vehicle Code (“VC”) § 21100 in a manner that would violate Article

2, sections 1 and 11 and Article 3, section 1 of the California Constitution. Specifically

Petitioner argues that VC § 21100’s language that “[l]ocal authorities may adopt rules and

regulations…” serves to prohibit the electorate from exercising their inherent power to directly

enact laws by way of the initiative power. First, as a general matter, that section uses the

permissive term “may” rather than the mandatory “shall.” Consequently, there is no mandatory



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duty imposed upon local authorities to adopt laws relating to red-light cameras, and there is no

corresponding pre-emption of the electorate’s inherent power to propose and approve the

Initiative. CAL. CONST., ART. 2, §§ 1 and 11.

Second, there is no legislative intent or expression in any of the VC sections cited by

Petitioner or any other statute indicating the Legislature pre-empted the people’s initiative power

to prohibit local authorities from employing red-light camera systems.

Third, the VC sections cited by Petitioner merely outline the proper procedures and

standards to be utilized and followed if a red-light camera system is adopted. Absent from any of

the cited sections is a command that municipalities must employ a red-light camera system

Accordingly, the City Council may or may not employ red-light camera systems. Similarly, the

electorate may—through the initiative process—employ, not employ, or prohibit red-light camera

systems.

Fourth, even assuming, arguendo, the Legislature had written the VC sections cited by

Petitioner in a manner that seemed to pre-empt the electorate’s initiative power, such sections

would not survive constitutional muster. Specifically, such interpretation and application would

serve to abrogate the electorate’s initiative power under the California Constitution, placing

preemption in conflict with the California Constitution. However, where a state statute conflicts

with the California Constitution, the latter prevails. CAL. CONST., ART. 3, § 1; see, e.g., Sands v

Morongo, 53 Cal.3d 863, 902 (1991) (“The California Constitution is the supreme law of our

state.”).

Finally, the California Supreme Court has made it abundantly clear that such pre-election

inquiry into the constitutionality of various VC sections and the Initiative should not (and may not

under § 31314) be made until after the election. Reitman, supra, 64 Cal.2d at 534-535; see, also

Hite, supra, 58 Cal.2d at 417 (emphasis added):



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“We are still of the view that we should not interfere with the exercise of the

electorate’s franchise for the purpose of determining the question of constitutionality, a matter which can, if necessary, be more appropriately passed

upon after the election.”

2. The pre-election review requested by Petitioner should be deferred to post-election

because Section 4 of the Initiative is a severability clause:

“If any provision of this measure or the application thereof to any person or

circumstance is held invalid, that invalidity shall not affect the other provisions or

application, and to this end the provisions of this measure are severable.”

(Exhibit A, Text of The Initiative, Sec. 4.) As the Petitioner challenges only Section 2 of the

Initiative (Petition, pp. 4-5), a court would be required to make a more exacting inquiry as to the

entire Initiative, the interplay between the separate sections of the Initiative, and an analysis of the

separate sections of the Initiative and each section’s relation to the stated purpose of the Initiative.

For example, if Section 2 were determined to be improper, then Section 4 would serve to

sever that section from the Initiative, thereby leaving the remaining portions of the Initiative in full

force and effect. Another possibility is that Section 2 can be upheld by reasonably interpreting and

applying it in a manner that is consistent with the Initiative. For example, a court would have the

discretion and power to uphold and give effect to Section 2 in a way that is consistent with the

entire purpose of the Initiative by interpreting and applying that section to prohibit red-light

camera systems in the City of Murrieta. After all, that is the express purpose of the Initiative

Another important point is that “because this type of challenge is one that can be raised and

resolved after an election, deferring judicial resolution until after the election—when there will

be more time for full briefing and deliberation—often will be the wiser course.” Independent

Energy Producers Association v. McPherson, 38 Cal.App.4th

1020, 1030 (2006) (“ McPherson”)

(emphasis added).

The foregoing notwithstanding, a court should not employ this comprehensive inquiry



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analysis, and application in a pre-election challenge because to do so would interfere with and

jeopardize the people’s inherent power to directly enact laws:

“The arena of the entire initiative process, through the final tabulation of yes or no,

is the appropriate ring in which voters rightfully determine the winner. Opponentsshould not look to the court to stop the bell before round one.”

San Francisco Forty-Niners v. Nishioka, 75 Cal.App.4th 637, 649 (1999) (“Forty-Niners”)

(emphasis added).

As mentioned in greater detail in this memorandum in Section 2, supra, in Reitman, the

California Supreme Court protected both the initiative process and substantive constitutional law

and fundamental civil rights by deferring substantive review of Proposition 14 until post-election

It bears repeating: if the California Supreme Court will deny a pre-election challenge in a civi

rights case, then the red-light camera initiative in this case can wait until after the election for

substantive review of the Initiativel. Moreover, this Court should exercise judicial restraint, which

will serve the electoral process, by protecting the electorate’s exercise of their will, and by

preserving the Petitioner’s substantive challenges, which he can make post-election.

Based on the foregoing long established principles, this Court should defer to the initiative

process in this case, especially in Petitioner’s pre-election challenge to preempt the electorate’s

exercise of this power. Accordingly, this Court should follow Reitman by deferring review of the

Initiative’s substantive law until after the November 6, 2012, general election. Reitman, supra

64 Cal.2d at 534-535.

3. For the reasons cited by Petitioner, the Washington and South Carolina cases are

inapposite to the case at Bar. In Mukilteo Citizens for Simple Government v. City of Mukilteo

2012 Wash. LEXIS 174 (Wash. March 12, 2012) (“ Mukilteo”), the Washington Supreme Court

considered a post-election challenge to a voter proposed initiative. However, as argued by



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Petitioner, Mukilteo is inapposite to the case at Bar. First, the initial pre-election challenge to the

substantive law of the initiate was rejected as premature by the trial court and the Washington

Supreme Court. Id . at *2. Second, the challenge was post-election, as the election had already

occurred and the initiative was approved. Third, before the case reached the Washington Supreme

Court the approval of the initiative caused the Mukilteo City Council to repeal the red-light

camera system. Fourth, the relief sought was for declaratory and injunctive relief, unlike the writ

of mandate sought under §13314 in the case at Bar. Finally, as the dissent correctly identified, the

case had been mooted before it reached the Washington Supreme Court because the alleged

offending initiative had already been repealed by the City Council. Id . at 5. This Court should

decline to consider Mukilteo persuasive as argued by Petitioner, as Petitioner’s application of the

facts and the legal relief sought are inapposite to the case at Bar. However, the fact that the pre-

election challenge to the substantive law of the initiative was denied as premature by both the

trial court and the Washington Supreme Court, Mukilteo actually serves to support the Real

Parties’ positions argued in this brief.

As in Mukilteo, in Joytime Distributors v. State, 528 S.E.2d 647 (S.C. 1999) (“ Joytime”)

the South Carolina Supreme Court reviewed the constitutionality of a statute passed by the South

Carolina Legislature. In particular, the Legislature passed a state law that submitted a question to

the electorate by way of a referendum. Id . at 649. Consequently, Joytime is not actually about a

pre-election challenge to a voter originated initiative, but simply deals with the constitutionality

of a state law passed by the Legislature. What was at issue in Joytime was not the initiative but the

enabling statute, which was passed by the Legislature not the electorate. Id . Again, the relief

sought in the South Carolina Supreme Court was injunctive relief not a writ of mandate. Of

course, the reason is that a writ of mandate compels an official to perform a ministerial or



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mandatory duty; whereas in Joytime, the injunction was sought to enjoin employment of an

existing law. Finally, similar to the suggestion made by Real Parties in this memorandum, the

South Carolina Supreme Court employed a severability clause to save those portions of the state

law that did not violate the state’s constitution. Id . at 654-655. Again, this is the type of inquiry

that should be deferred to post-election review of the substantive law of the Initiative, as it

requires significant briefing by the parties and analysis by the Court.

V. CONCLUSION

Based on the foregoing arguments and authorities, Real Parties in Interest respectfully

request the Court to deny the Petition and hereby move to dismiss this case.

Dated: July 16, 2012. LEPISCOPO & ASSOCIATES LAW FIRM

By: ___________________________________

Peter D. Lepiscopo, Esq.,Attorneys for Real Parties in Interest

DIANA SERAFIN and ROBIN NIELSON



LEPISCOPO&ASSOCIATESSAN DIEGO—ORANGECOUNTY—SACRAMENTO

www.LepiscopoLawFirm.com_____________________________________________________________________________________________

SANDIEGO OFFICE

EXHIBIT A

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EXHIBIT B

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EXHIBIT C

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EXHIBIT D

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opposition to write of mandate, flynn vs. vinson

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