Ex Parte ApplicationCal. Super. - 6th Dist.May 5, 2021QQUI-PUJN 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Electronically Filed rJI‘HE 311513qu LSAtVy FBIRMN PC1335930 by Superior Court of CA,ames . u on, a e ar o. JP Fisher, State Bar No. 335073 Egflfzgfifingg gfira’ 150 Post Street, Suit 405 . : _ San Francisco, CA 94108 Rewewed By. A. Rodriguez Tel: 415/732-7700 Case #21CV331463 Fax: 415/732-7701 Envelope: 6382525 jsuflonfiicalnpaignlawerscom Jpfisher@campalgnlawyers.com Attorneys for Petitioners David Kissner and Shahryar Rokni SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SANTA CLARA UNLIMITED JURISDICTION Case N0.:MDavid Kissner and Shahlyar Rokni, ' PETITIONERS’ EX PARTE Petitioners, APPLICATION FOR ORDER SHORTENING TIlVIE FOR HEARING V. ON PETITION FOR WRIT OF MANDATE; IVIEMORANDUM 0F Santa Clara County Superintendent 0f POINTS AND AUTHORITIES [N Schools Dr. Mary Ann Dewan; Santa SUPPORT THEREOF; Clara County Office ofEducation; Loma DECLARATION OF JADIES R. Prieta Joint Union School District; Santa SUTTON; [PROPOSED] ORDER Clara County Registrar 0f Voters Shannon Bushey; Santa Cruz County Clerk Tricia gCaliform'a Elections Code section Webber; and DOES 1-10; 3314; California Code 0f Civil ,Procedure sections 1085 et seq.) Respondents. [PRIORITYELECTIONAMTTER PURSUANT T0 CALIFORNIA ELECHONS CODESECHON 13314(a)(3)] EX PARTE APPLICATION Petitioners David Kissner and Shahryar Rokni (“Petitioners”) hereby apply to this Court, ex part6, for an Order Shortening Timc for the hearing on their Verified Petition for a Writ 0fMandate. As reflected in the Verified Petition, this is an action pursuant t0 California Elections Code section 133 14 and California Code 0f Civil Procedure sections EX-PARTE APPLICATION FOR ORDER SHORTENWG TME l . xwoxmgmw 00 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1085 et seq. to call a special election to fill the recent vacancy on the Board of Trustees of the Loma Prieta Joint Union School District. This action is entitled to prioritv over all other civil matters. pursuant to Elections Code section 13314(a)(3). and. upon information and belief. must be resolved bv late Mav 2021. Respondents are Santa Clara County Superintendent of Schools Dr. Mary Ann Dewan (the “Superintendent”) and the Santa Clara County Office 0f Education, who are responsible for detennining whether to call a special election to fill a recent vacancy 6n the Board of'Trustees ofthe School District; and the Lorna Prieta Joint Union School District (the “School District”), the Santa Clara County Registrar 0fVoters Shannon Bushey (the “Santa Clara County Registrar”) and Santa Cruz County Clerk Tricia Webber (the “Santa Cruz County Clerk”), who are responsible for holding such a special election. Time is 0fthe essence in this proceeding because ofthe need to hold a special election t0 fiII the vacancy on the School District’s Board 0f Trustees on 0r before September 21, 2021. Petitioners therefore respectfufly request that the Court schedule a hearing on or before Wednesday, May 19, 2021 and set an expedited briefing schedule. Petitioners filed their Petition for Writ 0fMandate less than a week afier receiving notification from the Superintendent that she had rejected their petition for a special election; this matter is therefore brought 011 a timely basis. Petitioners’ counsel has informed all 0fthe Respondents ofthjs ex parte application 011 a timely basis and 1'11 accordance with the Local Rules and Rules of Court. (Declaration of James R. Sutton.) Good cause exists for the issuance of the requested ex part6 refiefso that this matter may be heard and justice may be effectuated prior t0 the deadline for scheduling a special election in the School District on or before September 21, 2021. EX-PARTE APPLICATION FOR ORDER SHORTENING TIME 2 POINTS & AUTHORITIES IN SUPPORT OF EX PARTE APPLICATION FACTUAL BACKGROUND The School Distn'ct is a kindergarten through 8‘“ grade school district comprised of approximately 500 students located in the Santa Cruz mountains, straddling Santa Clara ‘ and Santa Cruz counties. It includes one elementary school (Lorna Prieta Elementary School), and one middle school (C. T. English Middle School). The School District is run by a School Board of five elected members. A vacancy was created 0n the School District’s Board of Trustees earlier this year when a recently elected Trustee moved out 0fthe District and therefore could no longer serve. The Education Code gives the remaining School Board members the option of either filling the sit by appointment or by calling a special election so that voters may choose the replacement; the School Board chose the former option, and filled the vacancy by appointment at its meeting held 0n March 15, 2021. Because the School Board chose not to call a Special election to fill the vacancy, the law gives the authority to voters Within the School District t0 gather signatures 0n a petition t0 force a special election to fill the vacancy. (Cal. Educ. Code section 509l(c)(1).) Petitioners, who believe that the vacancy should be filled by the voters rather than by the Schoql Board, began this process immediately afier the School Board’s decision, and ultimately turned in 90 signatures, far more than the 52 signatures required under the law, 0n April 2, 2021, only 18 days into the 30 days allowed by law to gather signatures. Petitioners went t0 great lengths t0 make certain that all 0f their actions comply With all applicable laws. They used a template for the petition provided by the Santa Cruz County Clerk’s office, and had several conversations with the Registrar’s office t0 make certain that they drafied and formatted the petition properly. Though not attorneys themselves, they closely reviewed section 5091, as well as the sections of the Elections Code referenced in section 5091. EX-PARTE APPLICATION FOR ORDER SHORTENINGTM 3 \Oooxlm 10 11 12 I3 14 15 16 17 18. 19 20 21 22 23 24 25 26 27 28 Petitioners gathered far more than 52 signatures 0fregistered voters in the School District, and used a petition which complied With all legal requirements, thereby effectively terminating the appointment to the Board 0fTrustees made in March by the Board of Trustees, and requiring the School District t0 hold a special election t0 fill the vacancy. The Superintendent nevertheless rejected the petition claiming that it violated three provisions in the law. - First, the Superintendent wrongly claimed that the petition needed to include bo_th cost estimates, for 12¢ the August and November elections, even though it would be legally impossible to hold the election in November 2021. Sécond, The Superintendent wrongly claimed that the Declaration of Circulator at the bottom of the petition needed t0 refer to the “Official Top Funders,” even though Petitioners did not qualify as a committee and did not accepted any contributions of $50,000 0r more (or of any amount). Finally, the Superintendent wrongly claimed that the petition was, required t0 print a notice regarding paid and volunteered signature gatherers, even though that requirement is contained in Elections Code section 101, 1L0; in one of the two Elections Code provisions imposed on the petition by Education Code section 5091. LEGAL ARGUIVLENT 1,. Time is 0f the essence in this matter. Time is 0fthe essence in this matter, and the Writ Petition can not proceed 0n the Court’s regular schedule for hearings, because the special election t0 fill the vacancy, if ordered by the Court, would have t0 be held 0n or before September 21, 2021. The law sets out a very specific fimeljne for elections being held to fill a vacancy 011 a school board: Petitioners were required t0 submit the signed petition within 30 days fiom the date that the School District’s Board of Trustees filled the vacancy by appointment; the Superintendent’s office then had 30 days t0 review the petition; and'then the Superintendent was legally required t0 schedule the special election within 130 days 0f confirming the validity of the petition. (Cal. Educ. Code section 5091(0).) Because the EX-PARTE APPLICATION FOR ORDER SHORTENING TIME 4 AWN WOOQQUI 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Board of Trustees filled the vacancy on March 15, 2021, the Special election therefore is legally required to be held on or before September 21, 2021. Based 0n information fiom the Santa Clara Registrar’s office, the actual date 0f the Special election would be August 3 1, 2021. (Pursuant to California Elections Code sections 1400 et. seq., August 31, 2021 is a “established election data”) The law also sets out deadlines for When the candidates who would like to run t0 fill the vacancy have t0 file their “nomination papers.” Specifically, the law requires candidates to file their nomination papers Within 88 days before the election, and allows candidates t0 file nomination papers up to 25 days before this date, or 113 days before the election. (Cal. Elec. Code sections 8020 et. seq..) The. 88th day before August 3 1, 2021 is June 4, 2021, and the 113th day before August 3 1, 2021 is May 10, 2021. In order to give potential candidates t0 fill the vacancy enough time to decide Whether they want t0 run an fill out their nomination papers, a ruling is therefore needed at least a few weeks before the June 4, 2021 deadline for filing nomination papers. A ruling is not necessarily needed as early as May 10, 2021, however, because candidates Will not necessarily need the full 25 days to decide whether to run and t0 complete their nomination papers, especially in a school district as small as the Lorna Prieta Joint Union School District. Assuming that candidates will be able t0 decide Whether t0 run and complete their nomination papers within 15 days out of the 25 days normally allowed in regular elections, the Court would need to issue its ruling by Thursday, May 20, 2021. Petitioners filed their writ 011 a timely basis, instituting their legal challenge to the Superintendent’s decisions within just six days.. The Superintendent informed the Petitioners of the decision t0 reject the petition 0n Wednesday, April 28, 2021 ; the Petitioners retained counsel Within two days, 0n Friday, April 30, 2021 ; and Petitioners gave notice 0f the ex parte hearing for an order shortening time on Tuesday, May 4, 2021; Petitioners provided all moving papers t0 the Respondents and their counsel That same day; and Petitioners arc now before the Court with this ex parts application on EX-PARTE APPLICATION FOR ORDER SHORTENING TIME 5 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 \oooxnoan-p Wednesday, May 5, 2021. 2. Petitioners’ Request for Ex Part6 Relief is Appropriate Under the California Election Code and Rules 0f Court Under California Elections Code section 133 14(a)(3), any writ to correct “errors or omissions” in the printing of a ballot “shall have priority over all other civil matters.” Petitioners allege that the Superintendent made a serious error by rejecting their petition and not calling the special election to fill the vacancy. The Court must therefore consider their petition 0n an expedited basis. Courts routinely grant ex parte applications for orders shortening time, and set an expedited briefing and hearing schedule, in election related matters. Petitioners also have good cause for seeking ex parte reliefpursuant to California Rules of Court 3.1200 ct. seq., because of'the imminent deadlines for scheduling a special election before the September 21, 2021 deadline, including the time period for candidates t0 fill the vacancy to file their nomination documents and the deadline for printing the ballots and voter information pamphlet. Given these impending deadlines, Petitioners have no choice but to forego normal notice procedures and seek ex parts relief in order to obtain an expedited briefing schedule and hearing date to compel a special election t0 fill the vacancy on the Board of Trustees. 3. Petitioners and A11 Voters in the School District will Face Irre arable Harm {Dfrglgeedllircetgion for Writ 0f Mandate is Heard Under Reguiarlv Noticed Issuance of the requested writ is necessary to over-rule the incorrect decision by the Superintendent t0 reject the petition submitted by Petitioners and to compel Respondents to schedule a special election t0 fill the vacancy 0n 0r before September 21, 20 12. If ex parte relief is not grantéd, then Petitioners and all voters in the School District Will face irreparable harm because they will be deprived of their statutory and First . Amendment right to vote on a replacement Trustee, rather than having that important EX-PARTE APPLICATION FOR ORDER SHORTBNTNG TLME 6 [\J ‘QO‘xUI-PUJ 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 position filled by the other Trustees. This Court should not countenance the Superintendent’s decision to rej ect the petition, which is not supported by the law 0r facts and Which violates the rights of Petitioners and the people who signed the petition, and should therefore grant Petitioners’ ex parte_app1ication for an order shortening time for the hearing on the writ. PROPOSED BRIEFING & HEARING SCHEDULE Petitioners’ counsel attempted to reach all Respondents in order t0 agree to a proposed briefing and hearing schedule, but could not d0 so within the time constraints 0f filing this ex part6 application. Petitioners therefore propose the following briefing and hearing schedule in order to accommodate a reasonable period for candidates to make their decision 0n Whether to r1m to fill the vacancy on the Board 0fTrustees and file their nomination papers by the June 4, 2021 deadline: ° Tuesday, May 4, 2021 at 6pm: Petitioners send Wri Petition, Points & Authorities and Ex Parts Application t0 all Respondents. - Wednesday, May 5, 2021 at 8:30am: Petitioners file Wri Petition and Points & Authorities with Court. - Wednesday, May 12, 2021 at 5pm: Respondents file opposition brief. - Monday, May 17, 2021 at 5pm: Petitioners file reply brief. - r Wednesday, May 19, 2021, Court hearing. CONCLUSION Based on the foregoing, Petitioners respectfufly request that this Court grant an order shortening time for their writ petition to be heard 0n or before May 19, 2021, so that the Court may issue a ruling by May 20, 2021, and that the Court adopt a briefing schedule allowing for all parties to have the opportunity to be heard before the Court rules on this matter. EX-PARTE APPLICATION FOR ORDER SHORTENING TIME 7 M \JONUI-PUJ 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 23 ReSpectfully Submitted: Dated: May 4, 2021 By: flfivw//CW TI ’es R. Sut'ton, Esq JP isher, Es. THE SUTTO LAW FIRM P.C Attorneys for Petitioners David Kissner and Shahryar Rokni EX-PARTE‘APPLICATION FOR ORDER SHORTENING TIME 8 OONJONU'I-DDJN \D 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DECLARATION OF JANIES R. SUTTON I, James R. Sutton, declare based 011 my personal knowledge and under penalty 0f perjury that: 1. I am an attorney licensed t0 practice law in the State 0f California and am an attorney at the Sutton Law Firm, which represents Petitioners David Kissner and Shahryar Rpkni. 2. I specialize in election law and have represented parties in numerous writ proceedings relating t0 the scheduling of elections in Santa Clara County Superior Court and in other counties throughout the state. 3. 011 Tuesday morning, May 4, 2021 at approximately 8am, I sent an email to all Respondents in the case informing them that we would be appearing on an ex part6 basis in the Santa Clara County Superior Court 0n Wednesday morning, May 5, 2021 in order tophallenge Superintendent Dewan’s rejection of Petitioners petition. (S ee email attached.) At approximately 3pm that afternoon, I sent 3.11 email clarifying that the Court has adopted a Covid-related policy of deciding ex parte matters 011 the papers Without a hearing. 4. On Tuesday, May 4, 2021 at approximately 9:403111, I spoke with Priscilla Caballero, Superintendent Dewan’s Assistant, t0 confirm that Superintendent Dewan had received my email. In this conversation, I also repeated the date, time, location and pmpose for the ex parte hearing. Ms. Caballero indicated that she would immediately forward my message to the Superintendent and would make certain that the Superintendent reviewed my email. Superintendent Dewan called me at approximately 2pm and confirmed that she had received notice ofthe ex part6 hearing, and that she would let me know as soon as the Office ofEducation retains legal counsel in this case. 5. On Tuesday, May 4, 2021 at approximately 9:45am, I spoke with Deputy County Counsel Mary Hanna~Weir, who represents the Santa Clara County Registrar of Voters, about the ex parts hearing and the deadlines for candidates t0 file their EX-PARTE APPLICATION FOR ORDER SHORTENTNG TIIWE 9 nomination papers in connection with the potential August 3 1, 2021 special election. 6. On Tuesday, May 4, 2021 at approximately 9:50am, I left a message for Santa Clara County Clerk Tricia Webber to confirm that she had received my email and to repeat the information contained in the email about the ex parte hearing. I declare under penalty ofpcrjury undcr the laws of the State 0f California that the foregoing is true and correct. Date:May 4, 2021 (W fl /£Lfi%“ / James R. Sutton EX-PARTE APPLICATION FOR ORDER SHORTENINGTM 1 0 James Sutton .L 1 From: James Sutton Sent: Tuesday, May 4, 202‘1 3:53 PM To: Mary Hanna-Weir (mary.hanna-weir@cco.sccgov.org); |.fraser@loma.k1 2.ca.us; mdewan @sccoe.org; scarrig @sccoe.org; e.bevans@loma.k1 2.ca.us; tricia.webber@santacru2county.us Cc: JP Fisher Subject: RE: IMPORTANT -- Notice of Ex Parte Hearing on Wednesday, May S, 2021 We just learnefi from the court that it is n0 longer holding hearings on ex parte matters, rendering its decision 0n the papers only, unless the judge Specifically requests a hearing or a party shows good cause for having an hearing. The ex parte application for an order shortening time in this case Will therefore be decided on the papers, unless the judge orders otherwise. We still hope to be able t0 provide you With the Writ Petition and Points & Authorities later today, and then Will provide you with the ex parte application tomorrow morning when we file it with the court. Finally, we would appreciate all respondents considering tentatively agreeing to a briefing and hearing schedule, with hopes that we can present this proposed schedule to the court. The dates suggested below stem from a potential August 3 1, 2021 election date, which would require candidates seeking to fill the vacancy on the School District’s Board'of Trustees by June 4, 2021: - Wednesday, May 5, 2021 at 8:30am: Petitioners’ file/serve Petition for Writ ofMandate and Points & Authorities. - Wednesday, May 12, 2021 at 5pm: Respondents file/scrve opposition brief. ° Monday, May 17, 2021 at 5pm: Petitioners file reply brief. ° Wednesday, May 19, 2021: hearing. Please let us know ifyou would be willing to stipulate to this proposed briefing and hearing schedule, or ifyou have suggestions for different deadlines for filing the papers 0r a different hearing date. Thank you for your cooperation in this matter. James R. Sutton, Esq. | The Sutton Law Firm 150 Post Street, Suite 405, San Francisco, CA 94108 dir 415/732-4501 lfax 4 15/732-7701 |cell 415/359~7701 www.campaignlawyers.com | isutton@campaignlawyers.com ' THIS E-MAIL IS CONFIDENTIAL AND MAY BE LEGALLY PRIVILEGED. ‘IF YOU HAVE RECEIVED THIS E-MAIL IN ERRUR, PLEASE NOT] FY US IMMEDIATELY AND THEN DELETE OR DESTROY IT. ANY TAX ADVICE CONTAI NED IN THIS COMMUNICATION IS NOT INTENDED TO BE USED, AND CANNOT BE USED, FOR THE PURPOSE OF AVOIDING IRS PENALTIES OR FOR RECOMMENDING ANY TAX-RELATED TRANSACTION OR MATTER T0 A THIRD PA RTY. From: James Sutton Sent: Tuesday, May 4, 2021 8:02 AM To: Mary Hanna-Weir (mary.hanna-weir@cco.sccgov.org) ; |.fraser@loma.k12.ca.us; mdewan@sccoe.org; scarrig@sccoe.org; e.bevans@|oma.k12.ca.us; tricia.webber@santacruzcounty.us Cc: JP Fisher Subject: lMPORTANT- Notice of Ex Parte Hearing on Wednesday, May 5, 2021 Importance: High To Respondents Santa Clara County Superintepdent of Schools Dr. Mary Ann Dewan, the Santa Clara County Office of Education, the Lorna Prieta Joint Union School District, Santa Clara County Registrar ofVoters Shannon Bushey (via Deputy County Counsel Mary Hanna-Weir) and Santa Cruz County Clerk Tricia Webber: PLEASE TAKE NOTICE that on behalf of our clients, Loma Prieta Joint Union School District voters and parents David Kissner and Shahryar Rokni, we will be appearing. ex part6, 0n Wednesday. MaV 5, 2021 at 9 am in the Santa Clara Countv Superior Court. located at 191 North First Street San Jose, CA 951 13, to seek an order shortening time for the expedited briefing 0f. and an expedited hearing on. a Petition for Writ ofMandate (the “Petition”) in the matter ofKissner and Rokni v. Dewan. We will send you a copy ofthe Petition and accompanying papers as soon as they are completed (most likely later today), and will provide you with any other information which we receive about the procedures which the Court is currently following for ex parte hearings under its Covid public health orders. The Petition is being brought pursuant to California Elections Code section 133 14 and California Code of Civil Procedure sections 1085 et seq. on the grounds that Respondents Dewan and the County Office of Education improperly rejected the petition submitted by petitioners last month t0 terminate the appointment made by the School District’s Board of Trustees t0 fill the recent vacancy on the Board and to instead compel a special election to fill the vacancy. We intend to demonstrate to the Court, via our moving papers and oral argument, that the petition satisfied all legal requirements to compel such a special election. Because the special election must be held on or before September 21, 2021, time is of the essence, and this matter can not be heard 0n the regular motion calendar. If you will be represented by an attorney in this matter, please forward this email to him or her right away, and please provide us with his or her contact information. (Please send all emails ti) both me and my associate JP Fisher, who is copied on this email.) Also, we would appreciate you telling us Whether you or your attorney will be appearing at the ex parte hearing and ifyou will be opposing the ex parte relici" being sought. Finally, please let us know whether you would be willing to discuss agreeing to a briefing schedule and hearing date. If so, we should talk today so that we can present a stipulated briefing and hearing schedule to the Court in connection with the ex parte papers. Thank you For your cooperation, and please feel free to call or email with any questions about this ex parte notice 01' the Petition. James R. Sutton, Esq. l The Sutton Law Firm 150 Post Street, Suite 405, San Francisco, CA 94108 dir415/732-4501 1 fax 415/732-7701 | cell 415/359-7701 Z www.canmaignlawvers.com | isufionfilcampaignlawvers.com THIS E-MAIL IS CONFIDENTIAL AND MAY BE LEGALLY PRIVILEGED. IF YOU HAVE RECEIVED THIS E-MAIL IN ERROR, PLEASE NOTIFY US INIMEDIATELY AND THEN DELETE 0R DESTROY IT. ANY TAX ADVICE CONTAINED IN THIS COMMUNICATION IS NOT INTENDED TO BE USED, AND CANNOT BE USED, FOR THE PURPOSE OF AVOIDING IRS PENALTIES OR FOR RECOMMENDING ANY TAX-RELATED TRANSACTION 0R MATTER TO A THIRD PARTY.
