times of san diego - local news and opinion for …...judgment of the honorable kenneth j. mendel,...
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COURT OF APPEAL, STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT, DIVISION ONE
DAVE SOUTHCOTT, et al. ) No. ____________
)
Petitioners, )
)
L. MICHAEL VU, SAN DIEGO )
COUNTY, REGISTRAR OF VOTERS, )
)
Respondent, )
)
JULIAN-CUYAMACA FIRE )
PROTECTION DISTRICT, et al. )
)
Respondent, )
)
COUNTY OF SAN DIEGO; COUNTY )
OF SAN DIEGO LOCAL AGENCY )
FORMATION COMMISSION, )
)
Respondent. )
)
_________________________________________________________
PETITION FOR WRIT OF MANDATE,
EMERGENCY STAY ORDER,
OR OTHER EXTRAORDINARY RELIEF
ELECTION MATTER
Stay Requested and Emergency Orders Requested by August 10, 2018
__________________________________________________________
San Diego Super. Ct., Case No. 37-2018-23393-CU-WM-CTL
Honorable Kenneth J. Medel, Dept. 66, (619) 450-7066
Related Appeal filed July 11, 2018 (unnumbered)
________________________________________________________
Craig A. Sherman, Esq. State Bar No. 171224
CRAIG A. SHERMAN, A PROFESSIONAL LAW CORPORATION
1901 First Avenue, Suite 219, San Diego, CA 92101
Tel: (619) 702-7892; Fax: (619) 702-9291
Attorney for Petitioners
TO BE FILED IN THE COURT OF APPEAL APP-008 COURT OF APPEAL CASE NUMBER:
COURT OF APPEAL FOURTH APPELLATE DISTRICT, DIVISION ONE
ATTORNEY OR PARTY WITHOUT ATTORNEY: STATE BAR NO. 171,224 SUPERIOR COURT CASE NUMBER:
NAME Craig A . Sherman 37-2018-23393-CU-WM-CTL FIRM NAME CRAIG A. SHERMAN , APC STREET ADDRESS: 1901 First Avenue, Suite 219 c ITY San Diego STATE: CA ZIP CODE 92101 TELEPHONE NO .. 619-702-7892 FAX NO. 619-702-9291 E-MAIL ADDRE SS [email protected] ATTORNEY FOR (name): Appellants , DAVE SOUTHCOTT, et al.
APPELLANT/ DAVE SOUTHCOTT, et al. PETITIONER:
RESPONDENT/ Julian-Cuyamaca Fire Protection District, et al. REAL PARTY IN INTEREST:
CERTIFICATE OF INTERESTED ENTITIES OR PERSONS
(Check one) : IT] INITIAL CERTIFICATE D SUPPLEMENTAL CERTIFICATE
Notice: Please read rules 8.208 and 8.488 before completing this form. You may use this form for the initial certificate in an appeal when you file your brief or a prebriefing motion, application, or opposition to such a motion or application in the Court of Appeal, and when you file a petition for an extraordinary writ. You may also use this form as a supplemental certificate when you learn of changed or additional information that must be disclosed.
1. This form is being submitted on behalf of the following party (name): Appellants DAVE SOUTHCOTT, et al.
2. a. IT] There are no interested entities or persons that must be listed in this certificate under rule 8.208.
b. CJ Interested entities or persons required to be listed under rule 8.208 are as follows :
(1)
(2)
(3)
(4)
(5)
Full name of interested entity or person
CJ Continued on attachment 2.
Nature of interest (Explain):
The undersigned certifies that the above-listed persons or entities (corporations, partnerships, firms, or any other association, but n_ot including government entities or their agencies) have either (1) an ownership interest of 10 percent or more in the party if it is an entity; or (2) a financial or other interest in the outcome of the proceeding that the justices should consider in determining whether to disqualify themselves, as defined in rule 8.208(e)(2).
Date: July 17, 2018
CRAIG A. SHERMAN (TYPE OR PRINT NAME)
Form Approved for Optional Use Judicial Council of California APP-008 [Rev. January 1, 2017]
• (SIGNATURE OF APPELLANT OR ATTORNEY)
CERTIFICATE OF INTERESTED ENTITIES OR PERSONS Page 1 of 1
Cal. Rules of Court, rules 8.208, 8.488 www.courts.ca.gov
2
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TABLE OF CONTENTS
Page
I. INTRODUCTION AND NECESSITY OF PETITION
WRIT OF MANDATE, IMMEDIATE STAY ORDER, OR
OTHER EXTRAORDINARY RELIEF FOR A TIME SENSITIVE
NOVEMBER 6, 2018 BALLOT AND ELECTION MATTER . . . . . . . . .8
A. Nature of the Emergency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11
1. Petitioners have no other plain, speedy and adequate remedy
in the ordinary course of law . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11
2. Petitioners Will Suffer Irreparable Injury if Such Relief is Not
Granted. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11
B. Nature of the Action. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .13
1. This Proceeding Does Not Raise Any Factual Issues, But
Presents Solely a Question of Law. . . . . . . . . . . . . . . . . . . . . . . . . .13
2. This Case Directly Involves the Public Interest. . . . . . . . . . . . . . . .16
C. Summary of the Parties and the Claims and Issues Presented . . . . . . .16
II. PETITION FOR WRIT OF MANDATE AND REQUEST FOR AN
IMMEDIATE STAY ORDER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .18
III. PRAYER FOR RELIEF. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .22
IV. VERIFICATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .24
V. MEMORANDUM OF POINTS AND AUTHORITIES . . . . . . . . . . . . . .25
A. THE JULIAN CUYAMACA FIRE PROTECTION DISTRICT IS A
LOCAL DISTRICT, UNDER LOCAL CONTROL, WITH A VOTER
ELECTED BOARD; A DECISION WHETHER OR NOT TO
REMAIN UNDER LOCAL CONTROL (OR DISSOLVE) IS A
LOCAL POLICY OR LEGISLATIVE DECISION - NOT A
MATTER OF STATEWIDE CONCERN . . . . . . . . . . . . . . . . . . . . . .25
4
TABLE OF CONTENTS (continued)
Page
1. There is a Critical Difference Between a Local Agency
Resolution Making a Decision to Proceed with Dissolution
and the Proceedings Involved with LAFCO Regarding
Whether and How it Might Allow Dissolution . . . . . . . . . . . . . . . . .27
2. The Trial Court Did Not Follow the Standard of “Extraordinary
Deference” Accorded to the Public’s Right of Referendum. . . . . . .29
3. Initial Local Fire District Decision Whether or Not to Dissolve
are Legislative and Policy Decisions; The Trial Court Relied on
Respondents’ and Real Parties’ Clearly Distinguishable and
Inapplicable Cases. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .31
4. Further Cases Argued by Respondents are Inapplicable to the
Present Case. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .34
5. The Trial Court Did Not Resolve All Doubts in Favor of the
Right of Voters to Referendum . . . . . . . . . . . . . . . . . . . . . . . . . . . . .36
B. THE REGISTRAR OF VOTERS MAY NOT SUBSTITUTE ITS
JUDGMENT FOR THAT OF THE COURTS; THE REGISTRAR FAILED TO FOLLOW THE LAW BY RESCINDING ITS QUALIFICATION OF THE REFERENDUM PETITION AND NEEDS TO HEED TO FURTHER RULINGS OF THIS COURT
BY WAY OF MANDATE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .38
VI. CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .40
VII. CERTIFICATION OF WORD COUNT COMPLIANCE . . . . . . . . . . . .41
DECLARATION OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .42
5
TABLE OF AUTHORITIES
California Case Law Page
Andal v. Miller,
(1994) 28 Cal.App.4th 358, 360-361 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10
Associated Home Builders etc., Inc. v. City of Livermore,
(1976) 18 Cal.3d 582, 591. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .30, 36
Citizens for East Shore Parks v. State Lands Commission,
(2011), 202 Cal.App.4th 549, 573. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .30
Farley v. Healey,
(1967) 67 Cal.2d 325, 326-327. . . . . . . . . . . . . . . . . . . . . . . . . . . . .10, 15, 38
Ferrini v. City of San Luis Obispo,
(1983) 150 Cal.App.3d 239, 242-243, 245. . . . . . . . . . . . . . . . . . . .31, 32, 33
Friends of Mount Diablo v. County of Contra Costa,
(1977) 72 Cal.App.3d 1006, 1009-1010, 1011-1013 . . . . . . . . .31, 33, 34, 35
Fry v. Saenz,
(2002) 98 Cal.App.4th 256, 262 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .30
Gayle v. Hamm,
(1972) 25 Cal.App.3d 250, 258. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .30, 36
Hill v. Superior Court of County of Sacramento,
(1911) 15 Cal.App. 307, 313. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11, 16
Independent Energy Producers Assn. v. McPherson,
(2006) 38 Cal.4th 1020, 1024-1025 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9
L.I.F.E. Comm. v. City of Lodi,
(1989) 213 Cal. App. 3d 1139, 1145-1146. . . . . . . . . . . . . . . . . . . . . . .34, 35
Las Tunas Beach Geologic Hazard Abatement Dist. v. Superior Court,
(1995) 38 Cal.App.4th 1002, 1010, 1012 . . . . . . . . . . . . . . . . . . . . . . . .34, 35
6
TABLE OF AUTHORITIES (continued)
California Case Law (continued) Page
Ley v. Dominguez,
(1931) 212 Cal. 587, 593. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .31
Lippman v. City of Oakland,
(2017) 19 Cal.App.5th 750, 756 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .39
Martin v. Smith,
(1959) 176 Cal.App.2d 115, 117. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .16, 30
Pala Band of Mission Indians v. Bd. of Supervisors,
(1997) 54 Cal.App.4th 565, 573-574 . . . . . . . . . . . . . . . . . . . . . . . . . . .30, 36
Palmer/Sixth Street Properties, L.P. v. City of Los Angeles,
(2009) 175 Cal.App.4th 1396, 1405 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .30
Simpson v. Hite,
(1950) 36 Cal.2d 125, 130. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .37
Weinstein v. County of Los Angeles,
(2015) 237 Cal.App.4th 944, 965 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .16
California Statutes Page
Cal. Code of Civil Procedure § 35 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10
Cal. Code of Civil Procedure § 1085 . . . . . . . . . . . . . . . . . . . . . . . . . . .29, 39
Cal. Elections Code § 9340. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .13
Cal. Elections Code §§ 9340, 9144. . . . . . . . . . . . . . . . . . . . . . . . . .25, 36, 37
Cal. Elections Code § 9144. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .13, 19
Cal. Elections Code §§ 9144-9145 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6, 27
Cal. Elections Code § 13314, subd. (a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . .10
Cal. Elections Code § 13314, subd. (a)(3) . . . . . . . . . . . . . . . . . . . . . . . . . .10
Cal. Government Code § 56611, subd. (a) . . . . . . . . . . . . . . . . . . . . . . . . . .28
Cal. Government Code § 56650 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .27, 37
7
TABLE OF AUTHORITIES (continued)
California Statutes (continued) Page
Cal. Government Code § 56651 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .28
Cal. Government Code § 56652 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .29
Cal. Government Code § 56654, subd. (a) . . . . . . . . . . . . . . . . . . . . . . . . . .27
Cal. Government Code § 56654, subds. (a), (b) & (c) . . . . . . . . . . . . . . . . .27
Cal. Government Code § 56658, subd. (a) . . . . . . . . . . . . . . . . . . . . . . . . . .28
Cal. Government Code §§ 56700-56711 . . . . . . . . . . . . . . . . . . . . . . . . . . .28
Cal. Health and Safety Code § 13801. . . . . . . . . . . . . . . . . .25, 31, 35, 36, 37
8
I.
INTRODUCTION AND NECESSITY OF PETITION
WRIT OF MANDATE, IMMEDIATE STAY ORDER, OR
OTHER EXTRAORDINARY RELIEF FOR A TIME SENSITIVE
NOVEMBER 6, 2018 BALLOT AND ELECTION MATTER
Dave Southcott, Brian Crouch, Mike Hatch, Eva Hatch, and Julian
Volunteer Fire Company Association (collectively “Petitioners”) file this
emergency request to this Court of Appeal to grant a writ of mandamus directing
the County of San Diego Registrar of Voters (“Registrar”) to place the duly
qualified, and legally proper, voter-signed referendum petition to revoke or
endorse the April 10, 2018 Resolution 2018-03 (“Referendum Petition”) made by
the Julian-Cuyamaca Fire Protection District (“JCFPD”) to dissolve the local Fire
District.1
Petitioners also seek an immediate stay order of the Decision and
Judgment of the Honorable Kenneth J. Mendel, rendered in the San Diego
Superior Court, Case No. 37-2018-0023393-CU-WM-CTL, during the time that
Petitioners and this Court are provided the opportunity properly and fully
1 The Registrar has certified that the Referendum Petition contains the
necessary amount of verified signatures to qualify for the November
general election ballot, but the Registrar has refused to follow itsS
ministerial duty to place the Referendum Petition on the ballot because
Judge Kenneth Medel erroneously ruled in Case No. 37-2018-0023393-
CU-WM-CTL that the Resolution NO. 2018-03 is not subject to a
referendum.
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adjudicate the legal question, efficacy, and practical effect of the Referendum
Petition.
Lastly, Petitioners also seek appropriate writs of mandate and/or
extraordinary relief against the JCFPD, San Diego County, and San Diego Local
Agency Formation Commission to immediately suspend all actions in
furtherance of the dissolution of the JCFPD based on a timely May 8, 2018
presentation and filing of the Referendum Petition with the JCFPD.
With an apparent and current stated August 10, 2018 deadline that a
formal request or court order must be obtained to ensure the Referendum Petition
is placed on the November 6, 2018 general election ballot, time is of the essence
for an immediate stay order and for this writ to be decided to prevent Petitioners’
loss of rights before a full appeal and decision can be heard.
Case law supports that courts should allow items to appear on ballots, and
let the voters decide, prior to adjudging and legal efficacy of the matter – which
can be maintained and decided later. (See Independent Energy Producers Assn. v.
McPherson, (2006) 38 Cal.4th 1020, 1024-1025 [finding that a challenge to
whether a measure is the type that may be adopted through the initiative process
has a preference to be included on the ballot because the issue will not become
moot by an election].) As stated in Independent Energy Producers Assn. v.
McPherson:
in such a case a court should take into consideration the availability
of postelection relief in deciding whether it is preferable to resolve
the issue in the often charged and rushed atmosphere of an
10
expedited preelection review, or instead to leave the challenge for
resolution with the benefit of the full, unhurried briefing, oral
argument, and deliberation that generally will be available after the
election.
(Id. at 1025.)
The requested relief and the original jurisdiction of this appellate court
proceeding (for a writ of mandate or other appropriate extraordinary relief) is
appropriate pursuant to Elections Code section 13314, subdivision (a)(1) and the
holdings of the California Supreme Court and Court of Appeal decisions in
appellate court decisions Farley v. Healey, (1967) 67 Cal. 2d 325, 326-327, and
Andal v. Miller, (1994) 28 Cal.App.4th 358, 360-361.
The issues and nature of the requested relief in this Petition also qualify
for immediate action and calendar preference pursuant to Code of Civil
Procedure section 35, and Elections Code section 13314, subdivision (a)(3).
As detailed below, this Petition meets all of the factors for this Court to
review the underlying legal issue and grant the requested writ(s) of mandate and
any other relief necessary to dispense with proper justice as requested and
alleged herein.
/ /
/ /
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A. Nature of the Emergency
1. Petitioners have no other plain, speedy and adequate remedy in
the ordinary course of law
Election disputes are matters in which writ relief is appropriate because of
the lack of a plain, speedy and adequate remedy through the usual appeal
process. (Hill v. Superior Court of County of Sacramento, (1911) 15 Cal.App.
307, 313 [An appeal “should not be considered a speedy and adequate remedy in
election contests in which the public are so largely interested. . .”].)
Here, although Petitioners have initially attempted adjudication by obtaining
and filing an appeal of the trial court’s judgment, Petitioners have no plain, speedy
or adequate remedy to seek a writ of mandate against the Registrar because less than
30 days exist before expiration of Registrar’s August 10, 2018 deadline for
submission of the Referendum Petition for the November 6, 2018 general election.
(Ex. A and Ex. E, Exhibits in Support of Petition for Writ of Mandate, Vol. 3, pp.
498, 518.)2 There is simply no other method to resolve the legal question whether
the Registrar, based on the decision of the trial court, is undertaking unlawful action
by refusing to place the Referendum Petition on the November 6, 2018 ballot.
Similarly, although Petitioners expediently sought writ relief against JCFPD
in the San Diego Superior Court (AA 10, 91-94, AA 354:17, 354:23-355:2; AA 374-
2 Citations to “Exhibits” in support of this Petition are contained
in Volume 3 of the Exhibits in Support.
12
376)3 as soon as the JCFPD (and real parties Court and LAFCO) refused to suspend
Resolution No. 2018-03, a judgment did not issue in that case until June 28, 2018.
(AA 475-476) Petitioners filed a notice of appeal as soon as Petitioners became
aware of the judgment (Ex. E, Exhibits in Support of Petition for Writ of Mandate,
Vol. 3, p. 521 [¶ 10]) and have concurrently prepared an appellants’ appendix, open
brief, and motion for calendaring preference to have that appeal heard as
expediently as possible.4 In the event that appeal can be decided on the same
expedited timeline as requested herein (before August 10, 2018), including
Petitioners’ willingness to waive the right of a reply brief and oral argument, then
such an approach might be plausible. However, the backlog in the administrative
offices of the Fourth District Court of Appeal and Superior Court are preventing
Petitioners from getting a case number and effectuate any Court of Appeal filings.
(Ex. E, Exhibits in Support of Petition for Writ of Mandate, Vol. 3, p. 522 [¶ 12].)
There appears to simply be no time for a traditional appeal of the
judgment for briefing, argument, and a decision made before by August 10,
3 Volumes 1 and 2 of the Exhibits in Support of this Writ are the same
as the Appellant’s Appendix prepared for the underlying appeal and
therefore contain “AA ___” as the page number designations. 4 Appellants’ appendix, open brief, and motion for calendaring
preference are being lodged as exhibits to this writ petition as they
contain relevant and related information necessary for this Court’s
consideration and adjudication of this Petition and the relief
requested herein. (Open brief and motion for calendar preference
attached as Ex. E and Ex. F, to Exhibits in Support of Petition for
Writ of Mandate, Vol. 3, p. 502 and p. 529 et seq.)
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2018. Thus, Petitioners include in this Petition a request for immediate stay of
the judgment in the trial court in Case No. 37-2018-0023393-CU-WM-CTL, and
writs of mandate to JCFPD, LAFCO, and County to suspend dissolution activity
because there is no plain, speedy, or adequate remedy through the standard
appeal process.
2. Petitioners Will Suffer Irreparable Injury if Such Relief is Not Granted
Upon the May 8, 2018 presentation of the Referendum Petition to the
JCFPD and its board president and secretary, the JCFPD was legally required to
immediately cease and suspend all activities in furtherance of Resolution No.
2018-03, including its purpose and intent to file an application of dissolution.
(Elections Code § 9144, applicable to local districts such as JCFPD through
Elections Code § 9340.)
Since May 8, 2018, the JCFPD and its officers and legal counsel continue
to pursue and promote dissolution efforts under Resolution No. 2018-03, by
making one more applications and agreements with Real Party agencies in
furtherance, and with intent to, implement and finalize the dissolution of the
JCFPD. (AA 115-117, 122-140; see also AA 143, 363)
County’s takeover efforts of the JCFPD are being preliminarily put into
place as of June 1, 2018. (AA 129 [¶ 18]). Without an immediate stay, the
JCFPD will be fully dissolved before the time a traditional appeal can be
14
decided. This is an irreparable injury because buildings, infrastructure, and
equipment will already have been transferred, sold, or disposed of. Petitioners
and their long-standing supportive petitioner entity, the Julian Volunteer Fire
Company Association, will also be rendered worthless and divested of its right to
meaningfully proceed with its other district tax benefit voter initiative that has
already qualified for the November 6, 2018 ballot. (Ex. B, Exhibits in Support of
Petition for Writ of Mandate, Vol. 3, p. 499.) The failure and refusal of having
the Referendum Petition appear on the November ballot calls into question and
improperly prejudices the efficacy and validity of the concurrent tax increase
initiative to save and not dissolve the JCFPD. (Id.)
Further, if this Court agrees with Petitioners that the Resolution 2018-03
is predominantly a policy and legislative action, the Referendum Petition should
be able to immediately proceed to a vote because it was timely submitted to the
JCFPD, thereafter the JCFPD timely submitted the Referendum to the Registrar
of Voters, and thereafter the Registrar certified that the Referendum Petition has
sufficient signatures to qualify for the November ballot. (Ex. B, Exhibits in
Support of Petition for Writ of Mandate, Vol. 3, p. 520 [¶ 7].)
The failure and refusal of having the Referendum Petition on the
November 6, 2018 ballot will additionally compel a special election at significant
cost.
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B. Nature of the Action
1. This Proceeding Does Not Raise Any Factual Issues, But Presents
Solely a Question of Law
As related to the questioned and appealed Judge Medel decision that the
Registrar is relying upon, whether the Registrar here may impede the right of
JCFPD voters, to propose initiative measures (or referenda), is a legal question of
whether the Registrar has exceeded its ministerial duty, which is a legal question.
(Farley v. Healey, (1967) 67 Cal.2d 325, 327; see also Weinstein v. County of
Los Angeles, (2015) 237 Cal.App.4th 944, 965 [question of ministerial duty
subject to de novo review].) There are no factual disputes that the Registrar
certified that the Referendum Petition as qualified for the November 6, 2018
ballot, and then withdrew said finding based on its legal opinion that the
Referendum Petition is moot. (Ex. B and Ex. C, Exhibits in Support of Petition
for Writ of Mandate, Vol. 3, pp. 525, 526.)
The sole dispute and legal issue in the Superior Court Case is whether
Resolution No. 2018-03, as a decision affecting the constituent and voters of the
JCFPD, is a locally-controlled legislative and policy decision (subject to
referenda) or is it an administrative subject and action that is a matter of
statewide concern (not local control). As briefed below in Section V.A.3,
Petitioners maintain, as they did in the trial court, that Resolution No. 2018-03 is
a legislative decision and matter and therefore the Referendum Petition is a valid
16
matter for the ballot. This was similarly and correctly identified by the trial
court: the primary legal issue in this case relates to case authority and statutory
authority that the district’s actions in this case are not subject to the referendum
process by law. (AA 350:13-17; see also AA 439.)
2. This Case Directly Involves the Public Interest
This case involves the election matter of a referendum, otherwise known
as “the peoples’ veto,” which is a constitutional and statutory right and check on
government, which the courts have the duty to “jealously guard this right of the
people and to prevent any action which would improperly annul that right.”
(Martin v. Smith, (1959) 176 Cal.App.2d 115, 117.) California courts have
acknowledged that election issues implicate the public interest. (Hill v. Superior
Court of County of Sacramento, supra, 15 Cal.App. at p. 313.)
C. Summary of the Parties and the Claims and Issues Presented
Petitioners Dave Southcott, Brian Crouch, Mike Hatch, Eva Hatch, are
individuals who are members of, or are associated with, the Julian Volunteer Fire
Company Association, all of whom have an interest in the preservation of local
control of the JCFPD. Respondents are Julian-Cuyamaca Fire Protection District
(JCFPD), Jack Shelver, in his official capacity as Board President of the JCFPD,
and Marcia Spahr, in her official capacity as District Secretary of the JCFPD.
17
Jack Shelver is the primary backer and proponent of the dissolution of the
JCFPD. On April 10, 2018, the JCFPD adopted Resolution No. 2018-03 move
forward and file an application of dissolution of the JCFPD with LAFCO. (AA
117, 150-151 [Sherman Decl. ¶ 10, Ex. H].)
The JCFPD is moving quickly to dissolve and transfer control of the
JCFPD to real party in interest County, through a dissolution process applied for
on April 11, 2018 by JCFPD to real party in interest LAFCO. (AA 156-157,
[Sherman Decl. ¶ 10, Ex. H at pp. 7-8, Application to LAFCO date-stamped
April 11, 2018].)
Respondent San Diego County Registrar of Voters initially certified that
the Referendum Petition was qualified for the November 6, 2018 ballot on June
26, 2018, but subsequently rescinded qualification on June 28, 2018. (Ex. B and
Ex. C, Exhibits in Support of Petition for Writ of Mandate, Vol. 3, pp. 525, 526.)
There are two legal claims at issue. The first is that Respondent Registrar
exceeded its authority and violated its ministerial duty to place the Referendum
Petition on the November 6, 2018 ballot, after certifying that sufficient valid
signatures were submitted by Petitioners. The second legal claim is that the
Referendum Petition is valid because Resolution 2018-03 is a legislative action,
and, upon its submittal, as an operation of law, Respondent JCFPD and real
parties in interest County and LAFCO must suspend all dissolution activities.
18
II.
PETITION FOR WRIT OF MANDATE AND
REQUEST FOR AN IMMEDIATE STAY ORDER
By this verified petition, Petitioners aver as follows:
1. JCFPD prepared, published, and posted an agenda for a regular
JCFPD meeting for Tuesday, April 10, 2018. Item 13 on the agenda which
pertained to dissolution of the JCFPD through the adoption of Resolution No. 2018-
03. (AA 117, 150-151)
2. Resolution No. 2018-03 is not an application for dissolution. (Cf. AA
150-151 [resolution made April 10, 2018]; AA 156-157 [application dated and filed
April 11, 2018].)
3. JCFPD’s application for dissolution (“Application”) was filed on April
11, 2018, the day after the passage of Resolution 2018-03. (AA 156-157)
4. Subsequent to JCFPD’s decision and resolution on April 10, 2018,
Petitioners organized a referendum petition drive and gathered sufficient signatures
to rescind Resolution 2018-03. (AA 256-257 [¶¶ 6-9].)
5. Petitioners and supporters prepared and circulated petitions within the
geographical boundaries of the JCFPD obtaining signatures of registered voters as
set forth in the Referendum Petition. (AA 259-261)
6. On May 8, 2018, the Referendum Petition was presented to
JCFPD’s board president Jack Shelver and board secretary Marcia Spahr by
19
Petitioners within thirty days of the adoption of Resolution No. 2018-03, at
the start of the May 8, 2018 meeting, at approximately 10:00 a.m. during the
morning public communication (non-agenda public comment) portion of the
meeting. (AA 257, 115)
7. Since May 8, 2018 JCFPD has continued to pursue its dissolution
efforts under Resolution No. 2018-03 by making one or more applications and
agreements with real party in interest agencies in furtherance, and with intent to,
implement and finalize the dissolution of the JCFPD. (AA 115-117, 122-140
[¶¶ 5-9]; see also AA 143, 363)
8. JCFPD made an agreement for County to transfer interim control of
administration and fire services while dissolution is being completed. (AA 81-90,
122-125, 257 [¶ 10].)
9. On May 10, 2018, in light of the statutory suspension rule under
California Elections Code § 9144, counsel for Petitioners wrote the executive
director and legal counsel for LAFCO asking and directing said agency to cease and
desist the administrative processing of JCFPD’s application. (AA 136-137)
10. On May 11, 2018, counsel for LAFCO delivered a letter to Petitioners
counsel in which LAFCO indicated that it rejected the Petition for Referendum and
would continue actions to dissolve the JCFPD. (AA 138-140 [¶ 7].)
11. On May 11, 2018, counsel for Petitioners wrote to County seeking
compliance with the Referendum Petition’s legal effect of suspension of Resolution
2018-03 by County removing Agenda Item No. 2 from its May 15, 2018 agenda to
20
proceed with dissolving the JCFPD by reorganizing the Julian-Cuyamaca Fire
Protection District into County Service Area No. 135. (AA 116, 141-142, 143)
12. County refused responded that it would be immediately move forward
with dissolution activities. (AA 116)
13. County has taken additional steps to facilitate dissolution including
replacement of JCFPD equipment and personnel with County and CalFire
“management takeover” during the interim dissolution time period. (AA 126-135,
143) County’s takeover efforts were preliminarily put in place on June 1, 2018.
(AA 129 [¶ 18].)
14. Counsel for Petitioners gave notice of Petitioners Ex-Parte
Application to respective legal counsel for JCFPD, LAFCO, and County at
approximately 12 p.m. on May 14, 2018, the same day the lawsuit in the underlying
suit was filed. (AA 10, 91-94)
15. Petitioners’ ex parte request for an alternative writ and stay was heard
by the trial court the next day on May 15, 2018. (AA 91; transcript at AA 337-356)
16. Both JCFPD and LAFCO were represented by counsel at the hearing.
(AA 340)
17. The trial court denied Petitioners’ ex parte application based on a legal
finding that Resolution 2018-03 was a local administrative action within exclusive
LAFCO jurisdiction not subject to referendum. (AA 350, 319 [minute order].)
18. At Petitioners request, the trial court scheduled an expedited writ of
mandate hearing for June 8, 2018 with Petitioners agreeing to rely on their ex parte
21
application as their moving papers. (AA 354:17, 354:23-355:2; AA 374-376 [notice
of motion])
19. Further responsive briefing for the June 8, 2018 hearing followed with
Respondents and Real Parties filing oppositions (AA 382-389 [JCFPD’s
Opposition]; AA 394-400 [LAFCO’s Opposition]), and Petitioners filing a reply
brief (AA 410-420).
20. After issuing a Tentative Ruling on June 6, 2018 (AA 456-457), on
June 8, 2018 the trial court heard argument and ruled against Petitioners because the
trial court found that Resolution 2018-03 was an administrative act not subject to
referendum. (AA 473:10-13.)
21. Upon request, the trial court was made aware of Petitioners’ need to
expedite the issuance of judgment so this matter could be swiftly appealed and the
matter of the November election redressed. (AA 469:18-24)
22. The trial court adopted its Tentative Ruling as its final statement of
decision in its subsequently issued June 8, 2018 Minute Order. (AA 458-459)
23. The trial court issued its judgment on June 28, 2018. (AA 475-476)
24. Petitioners filed their Notice of Appeal on July 11, 2018. (AA 479-
480)
25. JCFPD submitted the Referendum Petition to the San Diego County
Registrar of Voters and on June 26, 2018 the Register certified that the Referendum
Petition qualified for the ballot. (Ex. B, Exhibits in Support of Petition for Writ of
Mandate, Vol. 3, p. 525.)
22
26. On June 27, 2018, the Registrar withdrew his qualification of the
Referendum Petition based on a finding that it was legally moot because Judge
Medel had issued a ruling that the subject was not a proper matter for a referendum.
(Ex. C, Exhibits in Support of Petition for Writ of Mandate, Vol. 3, p. 526.)
III.
PRAYER FOR RELIEF
WHEREFORE, petitioners Julian Volunteer Fire Company Association,
Brian Crouch, Mike Hatch, Eva Hatch, and Dave Southcott pray that this Court:
1. Pending its complete and formal ruling and decision on the
underlying appeal, Petitioners request this Court to immediately stay the June 28,
2018 judgment of Honorable Kenneth J. Mendel so that a timely and proper
presentation and adjudication of Referendum Petition can be made by way of
ballot and vote of the electorate, and rights of referenda fulfilled;
2. Petitioners request a writ of mandate from this Court to the San
Diego County Registrar of Voters ordering the Registrar to prepare and place the
Referendum Petition, challenging the April 10, 2018 Resolution No. 2018-03 of
the Julian-Cuyamaca Fire Protection District, on the November 6, 2018 general
election ballot;
3. Petitioners request a writ of mandate to the Julian-Cuyamaca Fire
Protection District, the San Diego Local Agency Formation Commission, and the
23
County of San Diego to immediately suspend all efforts to dissolve the Julian-
Cuyamaca Fire Protection District based on the legal effect of the May 8, 2018
timely presented Referendum Petition, challenging the April 10, 2018 Resolution
No. 2018-03 of the Julian-Cuyamaca Fire Protection District; and
4. Grant such other and further relief as may be just and proper.
Dated: July 17, 2018
Respectfully submitted,
CRAIG A. SHERMAN, A PROFESSIONAL
LAW CORPORATION
______________________________
Craig A. Sherman, Esq.
Attorney for Petitioners
DAVE SOUTHCOTT ET AL.
IV.
VERIFICATIONS
I, DAVE SOUTHCOTT, have read and know all the contents of the
underlying facts contained in the above writ petition and request for stay or other
extraordinary relief. I am also informed and believe, and on that ground allege,
that the matters stated herein are true. I declare under the penalty of perjury under
the laws of California that the above foregoing is true and correct and that this
verification was executed on the below stated date in San Diego, California.
Dated: July 16, 2016
DAVE SOUTHCOTT
I, BRIAN CROUCH, have read and know all the contents of the underlying
facts contained in the above writ petition and request for stay or other
extraordinary relief. I am also informed and believe, and on that ground allege,
that the matters stated herein are true. I declare under the penalty of perjury under
the laws of California that the above foregoing is true and correct and that this
verification was executed on the below stated date in San Diego, California.
Dated: July 16, 2016
BRIAN CROUCH
24
25
V.
MEMORANDUM OF POINTS AND AUTHORITIES
A. THE JULIAN CUYAMACA FIRE PROTECTION DISTRICT IS A
LOCAL DISTRICT, UNDER LOCAL CONTROL, WITH A VOTER
ELECTED BOARD; A DECISION WHETHER OR NOT TO REMAIN
UNDER LOCAL CONTROL (OR DISSOLVE) IS A LOCAL POLICY
OR LEGISLATIVE DECISION - NOT A MATTER OF STATEWIDE
CONCERN
Respondents and real parties in interest, at no time in the underlying case
Superior Court case, have questioned the argument of Petitioners that the JCFPD
is a local agency that is subject to referendum pursuant to the California
Elections Code and the Bergeson Fire District Law. (Elections Code §§ 9340,
9144; Health and Safety Code § 13801). The trial court did not deny Petitioners’
requested writ of mandate on those grounds. (AA 458-459) Instead, the dispute
in this case arises over Respondents’ contentions that the decision to make and
commencing a LAFCO application is administrative act and therefore out of the
reach of voters’ oversight and right of referendum that they have over the actions
of their elected JCFPD board. As argued by opposing parties “The District’s act
of applying to LAFCO for dissolution was administrative rather than legislative”
(AA 365:17-18) and “the District cannot compel dissolution nor can it compel
LAFCO to approve the application of dissolution.” (AA 378:21-22)
26
Respondents confuse fruits with vegetables by their arguments to the trial
court that Petitioners are challenging the process of dissolution. The trial court
agreed with Respondents and Real Parties, finding that:
The District cannot compel dissolution nor can it compel LAFCO to
approve the application of dissolution. Because only LAFCO has
the power to dissolve the District, the District’s resolution to dissolve
is administrative and such an administrative act is not subject to
referendum as a matter of law.
(AA 459)
The trial court erred in determining that Resolution No. 2018-03 was an
administrative act based on the undisputed premise that District “cannot compel
dissolution” nor “compel LAFCO to approve an application of dissolution.” (Id.)
This is facially incorrect because Petitioners simply did not challenge any part of
the LAFCO dissolution process. (AA 18 [Petition at ¶ 34])
By its ruling, the trial court ignored the actual issue in this case – that the
decision made by the JCFPD board of directors, to make a dissolution
application, is a legislative and policy decision subject to a referendum. (AA
458-459) In fact, JCFPD’s decision was made in the form of a Resolution (No.
2018-03) and is the resolution for which the Referendum Petition was circulated
and filed. (AA 190) The Petition was not brought against the subsequent April
11, 2018 application or process involved with LAFCO. (AA 10-26)
27
1. There is a Critical Difference Between a Local Agency Resolution
Making a Decision to Proceed with Dissolution and the Proceedings
Involved with LAFCO Regarding Whether and How it Might Allow
Dissolution
The Cortese-Knox-Hertzberg Local Government Reorganization Act of
2000, Division 3, commencing with section 56000 of the California Government
Code (hereafter “CKH”), is the procedural framework for general district
reorganization. This is not in dispute. However, what Respondents and Real
Parties argue, and where the trial court failed to correctly interpret the law, is
deciding at what point the LAFCO administrative procedure takes over and
becomes an issue of statewide concern, such that decisions of the local JCFPD
can deny the electorate therein a right of referenda.
There are two methods for a district to make the legislative decision to
seek dissolution in the process described by CKH. The first is by a petition of
voters or by resolution of application by the board of a district. (Government
Code § 56650.) A petition of voters is a legislative act, as evidenced by the
process by which initiatives and referenda are placed on the ballot. (See e.g.
Election Code §§ 9144-9145; see also e.g. Government Code § 56654, subds.
(a), (b) & (c).) As stated in the Government Code section 56654, subdivision
(a): “A proposal for a change of organization or a reorganization may be made by
the adoption of a resolution of application by the legislative body of an affected
local agency. . .”.
28
The follow-on legislated process allows that “Any petitioner or legislative
body desiring to initiate proceedings shall submit an application to the executive
officer of the principal county.” (Government Code § 56658, subd. (a); see also
Government Code § 56611, subd, (a).) Further, the petition filing and eligibility
requirements, pursuant to making an initial LAFCO application, mirror
requirements for initiatives and referendum in the election code –recognizing that
the decision to apply for dissolution is a legislative act. (See Government Code
§§ 56700-56711)
LAFCO argued to the trial court that “the District cannot compel
dissolution nor can it compel LAFCO to approve the application of dissolution.”
(Cf. AA 378:21-22) This statement is inapplicable, contorted, and need not be
disputed because LAFCO’s process occurs only after a legislative action or is
made to file an application. (Government Code § 56651 [commission
proceedings not initiated with the passage of a resolution for dissolution].)
However, the trial court adopted Respondents’ argument that “The District
cannot compel dissolution nor can it compel LAFCO to approve the application
of dissolution.” (AA 459) The trial court incorrectly applied irrelevant post-
application proceedings of LAFCO as if it applied to JCFPD’s prior and
unrelated legislative and policy decision, made by its board, on behalf of its
constituents, whether the JCFPD wanted to dissolve. (Id.)
Contrary to the trial court’s finding, the subject Resolution No. 2018-03
bears out that it is legislative. In fact, Resolution 2018-03 is not even the actual
29
application to LAFCO. Rather, said legislative Resolution No. 2018-03 is a
decision to allow the preparation and submission of the application required by
LAFCO pursuant to Government Code section 56652, which then creates the
initiation of a LAFCO matter with all its incumbent procedures. (See title of
application at AA 156-157 [“Application for Expansion of Latent Powers in
Association with Julian/Cuyamaca Fire Protection District Special District
Dissolution”].)
In this Petition, Petitioners request this Court consider the undisputable
fact that Resolution No. 2018-03, approved on April 10, 2018, and the
application submitted by District to LAFCO on April 11, 2018, are different acts
and documents – the first legislative and the latter administrative. This
distinction is critical because it demonstrates that the policy and legislative
Resolution was passed prior to administrative application and the initiation of
LAFCO dissolution proceedings.
2. The Trial Court Did Not Follow the Standard of “Extraordinary Deference”
Accorded to the Public’s Right of Referendum
The trial court’s Decision does not mention or heed to the standard of
deferential review involved in cases involving inquiry whether a referendum
petition is allowed or not. (AA 458-459) Because the issues here are pure issues
of law, this Court applies de novo review. In considering whether an agency
followed the correct procedure in a writ of mandamus case pursuant to Code of
30
Civil Procedure section 1085, this Court employs a de novo standard of review.
(See Citizens for East Shore Parks v. State Lands Commission, (2011), 202
Cal.App.4th 549, 573, modified (Jan. 27, 2012, No. A129896)
___Cal.App.4th___ [2012 Cal. App. LEXIS 76]; Palmer/Sixth Street Properties,
L.P. v. City of Los Angeles, (2009) 175 Cal.App.4th 1396, 1405; Fry v. Saenz,
(2002) 98 Cal.App.4th 256, 262.) In reviewing the legal issue here, whether
Resolution No. 2018-3 is subject to referendum, the standard is extraordinary
deferential in favor of Petitioners. The starting point of inquiry, in deciding the
validity of the Referendum Petition and related actions involved in dissolving the
JCFPD, is that all doubts must be resolved in favor of the people’s reserved right
of referendum. (Associated Home Builders etc., Inc. v. City of Livermore, (1976)
18 Cal.3d 582, 591; Pala Band of Mission Indians v. Bd. of Supervisors, (1997)
54 Cal.App.4th 565, 573-574 [“The state constitutional right of initiative or
referendum is ‘one of the most precious rights of our democratic process.’”]; see
also Gayle v. Hamm, (1972) 25 Cal.App.3d 250, 258.) Courts have the duty to
“jealously guard this right of the people and to prevent any action which would
improperly annul that right.” (Martin v. Smith, (1959) 176 Cal.App.2d 115, 117.)
Well-settled law requires “extraordinarily broad deference” to the voters’
ability to bring initiatives and referenda. (Id.) This extraordinary level of
deference is warranted because “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. Section 1, article IV, of the
31
Constitution expressly so provides.” (Ley v. Dominguez, (1931) 212 Cal. 587,
593, italics in original.)
The trial court’s finding that Resolution No. 2018-03 is not subject to
referendum must be judicially reviewed and resolved in favor of Petitioners’
right of referendum with this Court giving “extraordinary deference” to that
right. Nothing of the opposition comes close to overcome the presumption and
deference to be accorded. Tellingly, Respondents’ briefing to the trial court did
not cite a single case where an initial legislative resolution or application to
dissolve a district – prior to becoming a LACFO issue or administrative matter –
is a statewide concern. (Cf. AA 386-388, 396-398) The Resolution of the JCFPD
to dissolve is not yet part of the LAFCO administrative jurisdiction. This is an
initial matter controlled by local districts and the persons entitled to petition, and
control, their local fire district as intended by the State Legislature. (Health and
Safety Code § 13801.)
3. Initial Local Fire District Decision Whether or Not to Dissolve are
Legislative and Policy Decisions; The Trial Court Relied on Respondents’
and Real Parties’ Clearly Distinguishable and Inapplicable Cases
The Decision of the trial court principally relied on two cases to determine
that Resolution 2018-03 is not subject to referendum. (AA 458, citing Ferrini v.
City of San Luis Obispo (“Ferrini”), (1983) 150 Cal.App.3d 239; and Friends of
Mount Diablo v. County of Contra Costa (“Mount Diablo”), (1977) 72
32
Cal.App.3d 1006.) Neither case stands for the proposition that a resolution of an
independent local fire district, deciding to apply for dissolution, is an
administrative action.
In their opposition briefs, Respondents and Real Parties cited Ferrini for
the proposition that “Courts have repeatedly held that local agency actions
regarding reorganizations under LAFCO’s authority are not subject to
referendum.” (AA 396:23-24; see also AA 386-387[District Opp. at 5:16-24 &
6:1-7, citing Ferrini at pp. 242-243].)
Respondents did not define “local agency actions” or explain to the trial
court how Ferrini has direct application to Resolution 2018-03. (Id.) There is
good reason they did not try to do so – because there is none. The facts and
opinion in Ferrini do not involve or address a resolution by an independent local
district deciding whether or not to seek dissolution. The court in Ferrini
considered a matter whereby the citizens of the San Luis Obispo could not have a
charter vote trying to control a LAFCO annexation matter involving uninhabited
land after an application had been made to it by the landowner. (Ferrini, supra,
150 Cal.App.3d at p. 242 [decided under MORGA, the statutory predecessor to
the CKH].) Notably, there was no challenge to the initial decision to apply for
annexation. (Id. at p. 245.) Rather, the Ferrini case concerned and addressed that
voters of a city do not have a right, or initiative ability, to enact a separate charter
amendment as a way to upend and stop an already-filed annexation proceeding.
(Id. at p. 245.) The rejection of San Luis Obispo voters’ ability to suspend an
33
annexation application, after it had already been made, would be akin to voters
of the County of San Diego filing a voter initiative to prevent LAFCO from
joining JCFPD to a new County Service Area after the LAFCO application had
been properly made. The trial court erroneously found the decision in Ferrini
applies to and controls the outcome of this case.
The Mount Diablo case is similarly inapplicable to this current action. In
Friends of Mount Diablo v. County of Contra Costa, (1977) 72 Cal.App.3d 1006,
petitioners sought to challenge the county’s decision to approve the LAFCO
reorganization of an already-filed LAFCO application. (Id. at pp. 1009-1010)
The court found that such a decision was an administrative action not subject to
referendum because a referendum, at that midstream stage of the LAFCO
administrative proceedings would interfere with the policy of the State on a
subject of statewide concern. (Id. at pp. 1011-1013.)5 Tellingly, the court
specifically noted that petitioners had a right to challenge the initial rezoning
ordinance via referendum, but they did not. (Id. at p. 1009.) Here, Petitioners are
timely challenging the initial legislative decision of JCFPD whether or not it
should cease from being a local fire district – an occurrence and act prior to the
LAFCO proceedings – a matter that is subject to referendum.
5 The court also noted that the resolution challenged by the petitioners
in that case was purely a final administrative action because the
Contra County Board of Administrators had only the power to approve
or disapprove, without ability to modify, according to specific
provisions of the DRA. (Id. at p. 1009.)
34
Here, there is no doubt that the Referendum Petition challenges the initial
legislative decision to apply for dissolution. (AA 117, 151-152, 256-257, 259)
The trial court erroneously ruled that the decision of Friends of Mount
Diablo applied in this case as a bar to Petitioners’ right of referendum.
4. Further Cases Argued by Respondents are Inapplicable to the Present Case
In their briefing and at oral argument, Respondents and Real Parties
argued two other distinguishgable and inapplicable cases – Las Tunas Beach
Geologic Hazard Abatement Dist. v. Superior Court (“Las Tunas”), (1995) 38
Cal.App.4th 1002, and L.I.F.E. Comm. v. City of Lodi (“Lodi”), 213 Cal. App. 3d
1139. (AA 378, citing Las Tunas; AA 471:16-22, citing Lodi].)
LAFCO cited and briefed Las Tunas Beach Geologic Hazard Abatement
Dist. v. Superior Court (“Las Tunas”), (1995) 38 Cal.App.4th 1002, for the
proposition that the CKH is the exclusive method for dissolution of any district.
(AA 397-398, citing Las Tunas at p. 1012.)
Admittedly, a city cannot create an alternative dissolution procedure for a
geologic hazard abatement district (GHAD) because the process of dissolving a
GHAD, once initiated, is subject to CKH. (Las Tunas at p. 1012.) However, the
court of appeal in Las Tunas did not create a blanket rule that the CKH occupy
the field of all district formations, dissolutions, and annexations, nor could it. In
fact, the Las Tunas court found that, for the formation of a GHAD, the
35
generalized procedures of the CKH did not apply because the GHAD statutory
scheme had its own specific formation procedures. (Id. at p. 1010.)
The legal issue presented in Las Tunas, whether a city can create
alternative dissolution procedures for a GHAD, is beside the point here. There is
no dispute that the CKH has a general process of dissolution (once initiated and
filed), but that has nothing to do with a local agency’s legislative decision,
present in this case, whether or not to make an application for dissolution. This is
especially where the Legislature specifically enacted a statutory paradigm
whereby decisions of a local fire district are locally controlled and not being
subject to a statewide interest or control. (Health and Safety Code § 13801)
Respondents and Real Parties do not provide any contrary authority that
the JCFPD is specifically identified by the Legislature as being a district where
“Local control over the types, levels, and availability of these services is a long-
standing tradition in California which the Legislature intends to retain.” (Id.)
JCFPD’s initial resolution and decision to retain or dissolve such local fire
control is a legislative local decision. The fact that subsequent dissolution
procedures remain solely within the CKH has no effect on the rights and controls
of the electorate of their local Fire District.
The issue in the Lodi decision, as with Mount Diablo, involved whether
citizens of a city had authority to enact separate laws or zoning, during already-
filed annexations, as a veto power, thus interfering with the annexation process.
(Lodi, supra, 213 Cal.App.3d at pp. 1145-1146 [“a local ordinance allowing city
36
voters to pass judgment on proposed annexation proceedings is inconsistent with
the statutory scheme for annexation.”].)
None of the cases cited by the opposition, or adopted by the trial court,
address the question and issue whether the initial decision of a local district to
dissolve and file a LAFCO application, is a legislative act subject to referenda.
on whether to seek to dissolve.
5. The Trial Court Did Not Resolve All Doubts in Favor of the
Right of Voters to Referendum
As a case of first impression involving initial dissolution decisions, along
with statutory authority that the electorate of a local Fired District (such as the
JCFPD) have a right to referendum6, those rights should be heavily guarded
resulting in a reversal in favor of Petitioners here.
On the issue of whether the Referendum Petition is subject to referendum,
all doubts must be resolved in favor of the electorate and petitioners. (Associated
Home Builders etc., Inc. v. City of Livermore, supra, 18 Cal.3d at p. 591; Pala
Band of Mission Indians v. Bd. of Supervisors, supra, 54 Cal.App.4th at pp. 573-
574 [“The state constitutional right of initiative or referendum is ‘one of the most
precious rights of our democratic process.’”]; see also Gayle v. Hamm, supra, 25
Cal.App.3d at p. 258.)
6 Elections Code §§ 9340, 9144; Health and Safety Code § 13801,
discussed immediately below.
37
There are yet additional reasons and doubts in favor of Petitioners for the
issuance of a writ of mandate and stay order (and ultimate reversal) of the trial
court Decision. First, the Elections Code and the Bergeson Fire District Law
(Cal. Elections Code §§ 9340, 9144 and Health and Safety Code § 13801) both
declare that the JCFPD is a legislative body whose resolutions are legislative
actions and that the Legislature intended that fire districts like JCFPD are
legislative bodies under local control.
Second, and most telling, the CKH itself delineates and acknowledges that
a district or a local agency invokes the CKH application and administrative
processing via a legislative process, by way of either petition or resolution, as
the manner to decide whether to seek dissolution. (Government Code § 56650.)
Based on the undisputed acts of Petitioners’ timely preparing and
presenting the subject Referendum Petition, the intention of the Legislature that
local fire districts are local independent bodies of a legislative nature, and the
fact that deciding whether or not to initiate a dissolution proceeding is a policy
and legislative decision (not an administrative matter under any cited or other
case law precedence), there is substantial and serious doubts against the trial
court’s finding that Resolution No. 2018-03 is administrative and not subject to
referendum.
A declaration of policy is an exercise of legislative power. (Simpson v.
Hite, (1950) 36 Cal.2d 125, 130.) The decision of the JCFPD to dissolve the
38
JCFPD was a policy decision and based on a resolution akin to an ordinance with
findings made by the District. (AA 150-151)
With the numerous doubts and erroneous case law interpretations made by
the trial court in this case, the extraordinary deference standard favors construing
and preserving Petitioners’ right of referendum for the Fire District voters as to
whether they want to continue as a local fire district.
B. THE REGISTRAR OF VOTERS MAY NOT SUBSTITUTE ITS
JUDGMENT FOR THAT OF THE COURTS; THE REGISTRAR
FAILED TO FOLLOW THE LAW BY RESCINDING ITS
QUALIFICATION OF THE REFERENDUM PETITION AND NEEDS
TO HEED TO FURTHER RULINGS OF THIS COURT BY WAY OF
MANDATE
The California Supreme Court has spoken decisively on the duties of a
registrar of voters. (Farley v. Healey (1967) 67 Cal.2d 325, 327 [a registrar of
voters exceeds its authority in undertaking to determine whether the proposed
initiative was within the power of the electorate to adopt].) The facts here are
similar. The Registrar, after first qualifying the Referendum Petition for the
November 6, 2018 ballot, later determined to disqualify the Referendum Petition
based on the Registrar’s interpretation of the legal impact of the judgment in the
trial court in Case No. 37-2018-0023393-CU-WM-CTL. (Ex. B and Ex. C,
Exhibits in Support of Petition for Writ of Mandate, Vol. 3, pp. 525, 526.) In
doing so the Registrar exceeded its authority, and thus is subject to a writ
39
ordering the Registrar to place the Referendum Petition on the ballot pursuant to
Code of Civil Procedure section 1085. (See Lippman v. City of Oakland, (2017)
19 Cal.App.5th 750, 756 [Writ of Mandate under Code of Civil Procedure § 1085
“is a method for compelling a public entity to perform a legal and usually
ministerial duty.”].)
Further, as discussed above on page 1 of Section I, case law supports that
courts should allow items to appear on ballot, and let the voters decide, prior to
adjudging and legal efficacy of the matter – which can be maintained and
decided later. (Independent Energy Producers Assn. v. McPherson, (2006) 38
Cal.4th 1020, 1024-1025.)
Thus, this Court should issue a writ of mandate to compel the Registrar to
place the Referendum Petition on the November 6, 2018 ballot.
40
VI.
CONCLUSION
For the above reasons, and with the question and issue in this case
involving rather straightforward legal issue, Petitioners request reversal of the
Decision and Judgment of the trial court with direction to enter a new judgment
consistent with this Court’s opinion.
Respectfully Submitted,
Dated: July 17, 2018
CRAIG A. SHERMAN, A PROFESSIONAL
LAW CORPORATION
/s/Craig Sherman .
Craig A. Sherman, Esq.
Attorney for Petitioners
DAVE SOUTHCOTT ET AL.
41
VII.
CERTIFICATION OF WORD COUNT COMPLIANCE
Counsel of record for Petitioners, Craig A. Sherman, hereby certifies that
pursuant to California Rules of Court, Rule 8.486, subd. (a)(6) and Rule 8.204,
subd. (c), that the above PETITION FOR WRIT OF MANDATE,
EMERGENCY STAY ORDER, AND OTHER EXTRAORDINARY RELIEF
has been produced using 13-point Roman type, and contains 7,145 words
(including footnotes, headings, and citations, but excluding the verification and
this word count certificate), which is less than the 14,000 words permitted by this
rule, as counted by the word counter of the computer program used to prepare
the brief.
Dated: July 17, 2018
CRAIG A. SHERMAN, A PROFESSIONAL
LAW CORPORATION
/s/Craig Sherman .
Craig A. Sherman, Esq.
Attorney for Petitioners
DAVE SOUTHCOTT ET AL.
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COURT OF APPEAL, STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT, DIVISION ONE
DECLARATION OF SERVICE
Southcott, et al. v. Julian-Cuyamaca Fire Protection District, et al.
Court of Appeal Case No. ________
San Diego Superior Court Case No.: 37-2018-23393-CU-WM-CTL
I, PAUL BEST, declare that:
I was at least 18 years of age and not a party to the case; I am employed
in the County of San Diego, California. My business address is 1901 First
Avenue, Suite 219, San Diego, California, 92101.
On July 17, 2018, I electronically filed the below listed documents with
the Clerk of the Court for the Court of Appeals, Fourth Appellate District,
Division One, by using the appellate EFS system, described as:
PETITION FOR WRIT OF MANDATE, IMMEDIATE STAY ORDER,
OR OTHER EXTRAORDINARY RELIEF
Participants are authorized and have agreed to accept e-service in this
case and will be served by the appellate EFS system:
Gena B. Burns, Esq.
8100 La Mesa Boulevard, Suite 200
La Mesa, CA 91942
Counsel for Respondents
JULIAN-CUYAMACA FIRE
PROTECTION DISTRICT, JACK
SHELVER, AND MARCIA SPAHR
Holly O. Whatley, Esq.
790 E. Colorado Boulevard, Suite 850
Pasadena, CA 91101-2109
Counsel for Respondent
SAN DIEGO LAFCO
Timothy M. Barry, Esq.
Suedy Alfaro, Esq
Office of County Counsel
1600 Pacific Highway, Room 355
San Diego, CA 92101
Counsel for Respondents
COUNTY OF SAN DIEGO and
L. MICHAEL VU, REGISTRAR OF
VOTERS
43
I further declare that I have served the below participants by placing a
copy of the above listed document(s) in a separate envelope, with postage fully
pre-paid, and depositing each in the U.S. Mails at San Diego, CA:
Hon. Kenneth J. Medel
San Diego Superior Court
Department 66
330 West Broadway
San Diego, CA 92101
I declare under the penalty of perjury under the laws of the State of California
that the above foregoing is true and correct.
Executed on July 17, 2018 at San Diego, California.