Ex Parte Application

Cal. Super. - 6th Dist.May 5, 2021

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 THE SUTTON LAW FIRM, PC James R. Sutton, State Bar No. 135930 JP Fisher, State Bar No. 335073 150 Post Street, Suit 405 San Francisco, CA 94108 Tel: 415/732-7700 Fax: 415/732-7701 jsutton(&campaiplawyers.com jpfisher@campaignlawyers.com Attorneys for Petitioners David Kissner and Shahryar Rokni SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SANTA CLARA UNLIMITED JURISDICTION David Kissner and Shahryar Rokni, Petitioners, v. Santa Clara County Superintendent of Schools Dr. Mary Ann Dewan; Santa Clara County Office of Education; Loma Prieta Joint Union School District; Santa Clara County Registrar of Voters Shannon Bushey; Santa Cruz County Clerk Tricia Webber; and DOES 1-10; Respondents. Case No.: 21CV381463 PETITIONERS' SUPPLEMENTAL EX PARTE APPLICATION FOR ORDER SHORTENING TIME FOR HEARING ON PETITION FOR WRIT OF MANDATE; DECLARATION OF JP FISHER; [PROPOSED] ORDER (California Elections Code section 13314; California Code of Civil Procedure sections 1085 et seq.) [PRIORITY ELECTION MATTER PURSUANT TO CALIFORNIA ELECTIONS CODE SECTION 13314(a)(3)] EX PARTE APPLICATION Petitioners David Kissner and Shahryar Rokni ("Petitioners") hereby supplement their earlier application for an Order Shortening Time for the hearing on their verified Petition for Writ of Mandate. Petitioners' previously applied for, ex parte, and were granted, an Order Shortening Time, and the Court scheduled a Case Management Conference for June 10, 2021. After discussion with the Court's Civil Calendar and Law & Motion Clerk, Petitioners file this Supplemental Ex Parte Application in order to EX-PARTE APPLICATION FOR ORDER SHORTENING TIME Electronically Filed by Superior Court of CA, County of Santa Clara, on 5/14/2021 10:12 AM Reviewed By: R. Nguyen Case #21CV381463 Envelope: 6446139 21CV381463 Santa Clara - Civil R. Nguyen 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 clarify that, to protect the interests of Petitioners, the individuals who signed the petition requesting the special election in the Loma Prieta Joint Union School District, and all voters in the School District, a final decision in this case is needed on or about June 8, 2021.' Petitioners have met and conferred with all of the Respondents, and all of the parties have agreed that, should the Court grant the requested relief, it is greatly preferable that the election be held no later than September 21, 2021, and that an expedited briefed and hearing schedule is therefore necessary in this case. The deadline for candidates to file their "nomination documents" in order to appear on a September 21, 2021 ballot is June 25, 2021; all parties therefore respectfully request that the Court issue a new Order Shortening Time setting out an expedited briefing schedule which will allow the Court to make a decision in the case on or about June 8, 2021, approximately two weeks before the June 25, 2021 deadline for filing candidate nomination documents. Specifically, Petitioners and all five Respondents have agreed to this proposed briefing and hearing schedule: • Wednesday, May 5, 2021: Petitioners filed Petition and opening brief. (Already done.) • Thursday, May 27, 2021: Respondents file opposition brief. • Friday, June 4, 2021: Petitioners file reply brief. • Monday, June 7, 2021: Court hearing. While Petitioners respect the Court's schedule, especially during the Covid-19 pandemic, and appreciate the Court's first Order Shortening Time, by the time of the June 10, 2021 Case Management Conference, the right of Petitioners, the individuals who signed the election petition, and all voters in the School District to a special election on or before September 21, 2021 would be violated. 'Pursuant to California Rule of Court 3.1202, Petitioners hereby fully disclose that this is Petitioners' second ex parte application, and the first ex parte application was ruled on by this Court on May 7, 2021. EX-PARTE APPLICATION FOR ORDER SHORTENING TIME 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 POINTS & AUTHORITIES FACTUAL BACKGROUND The School District is a kindergarten through 8th 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 (Loma 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 on the School District's Board of Trustees earlier this year when a recently elected Trustee moved out of the District and therefore could no longer serve. The Education Code gives the remaining School Board members the option of either filling the seat 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 on 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 to gather signatures on a petition to force a special election to fill the vacancy. (Cal. Educ. Code section 5091(c)(1).) Petitioners, wholbelieve that the vacancy should be filled by the voters rather than by the School Board, began this process immediately after the School Board's decision, and ultimately turned in 90 signatures, far more than the 52 signatures required under the law, on April 2, 2021, only 18 days into the 30 days allowed by law to gather signatures. Petitioners went to great lengths to make certain that all of 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 to make certain that they drafted 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. Petitioners ultimately gathered more than the requisite number of signatures, using a petition which complied with all legal requirements, EX-PARTE APPLICATION FOR ORDER SHORTENING TIME 3 thereby effectively terminating the appointment to the Board of Trustees made in March by the Board of Trustees, and requiring the School District to hold a special election to 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 both cost estimates, for both the August and November elections, even though it would be legally impossible to hold the election in November 2021. Second, the Superintendent wrongly claimed that the Declaration of Circulator at the bottom of the petition needed to refer to the "Official Top Funders," even though Petitioners did not qualify as a political committee and did not accept any contributions of $50,000 or more (or of any amount). Finally, the Superintendent wrongly claimed that the petition was required to print a notice regarding paid and volunteer signature gatherers, even though that requirement is contained in Elections Code section 101, not in one of the two Elections Code provisions imposed on the petition by Education Code section 5091. LEGAL ARGUMENT 1. Time Is of the Essence in This Matter. Time is of the essence in this matter, and the Writ Petition can not proceed on the Court's regular schedule for hearings, because the special election to fill the vacancy, if ordered by the Court, would have to be held on or before September 21, 2021. The law sets out a very specific timeline for elections being held to fill a vacancy on a school board: Petitioners were required to submit the signed petition within 30 days from the date that the School District's Board of Trustees filled the vacancy by appointment; the Superintendent's office then had 30 days to review the petition; and then the Superintendent was legally required to schedule the special election within 130 days of confirming the validity of the petition. (Cal. Educ. Code section 5091(c).) Because the Board of Trustees filled the vacancy on March 15, 2021, the special election therefore is EX-PARTE APPLICATION FOR ORDER SHORTENING TIME 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 legally required to be held on or before September 21, 2021.2 The law also sets out deadlines for when the candidates who would like to run to fill the vacancy have to file their "nomination documents." Specifically, the law requires candidates to file their nomination documents within 88 days before the election, and typically allows candidates to file nomination documents up to 25 days before this date, or 113 days before the election. (Cal. Elec. Code sections 10603.) The 88th day before September 21, 2021 (the latest possible election date) is June 25, 2021, and the 113th day before September 21, 2021 is May 31, 2021. If the Court orders a special election to be held on September 21, 2021, candidates will therefore have until June 25, 2021 to prepare and file their nomination documents. In order to give potential candidates enough time to decide whether they want to run to fill the vacancy and to prepare their nomination documents, a ruling is therefore needed at least a few weeks before the June 25, 2021 deadline for filing nomination documents. A ruling is not necessarily needed as early as May 31, 2021, however, because candidates will not necessarily need 25 days to decide whether to run and to complete their nomination documents, especially in a school district as small as the Loma Prieta Joint Union School District. Assuming that candidates will only need a few weeks to decide whether to run and complete their nomination documents, the Court would need to issue its ruling on or about June 8. Petitioners filed their writ on a timely basis, instituting their legal challenge just six days after the Superintendent's decision to deny their petition. The Superintendent informed the Petitioners of the decision to reject the petition on April 28, 2021; the Petitioners retained counsel within two days; they then gave notice of the original ex parte application on May 4, 2021 and provided all moving papers to all Respondents and their 2Respondents Dr. Mary Ann Dewan and Santa Clara County Office of Education disagree with Petitioners' positions that a special election is legally required and also disagree that any special election must be held by September 21, 2021. However, these Respondents support shortening time as requested in this Application because, if the Court does order that a special election be held, their position is that they would greatly prefer it to be held on or before September 21, 2021. EX-PARTE APPLICATION FOR ORDER SHORTENING TIME 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 counsel on that same day; they filed their Verified Writ Petition and supporting Points & Authorities on May 5, 2021. Petitioners now timely submit their second Ex Parte Application for an Order Shortening Time, and provided notice of this ex parte proceedings to all parties before 10am yesterday, May 13, 2021, as required by the rules of court. 2. Petitioners' Request for Ex Parte Relief is Appropriate Under the California Election Code and Rules of Court. Under California Elections Code section 13314(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 crucial error by rejecting their petition and not calling the special election to fill the vacancy. The Court must therefore consider their petition on 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 relief pursuant to California Rules of Court 3.1200 et seq., because of the imminent deadlines for scheduling a special election before September 21, 2021, including the time period for candidates to prepare and 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 parte relief in order to obtain an expedited briefing schedule and hearing date to compel a special election to fill the vacancy on the Board of Trustees. Because the election must be scheduled, candidates must file their nomination documents, and ballots must be printed well in advance of the actual election date, it is no surprise that the law explicitly instructs courts to give priority to lawsuits challenging whether an error or omission has occurred in the election process. Here, Petitioners believe that the County Superintendent made an error when she denied their election petition; though Petitioners appreciate how the Covid-19 pandemic has affected the EX-PARTE APPLICATION FOR ORDER SHORTENING TIME 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Court's docket, they also have the right to have the Court consider the matter in a timely manner. In this case, complying with the provision in the Elections Code giving priority to election-related matters means setting a briefing and hearing schedule and issuing a ruling on or about June 8, 2021. 3. Petitioners and All Voters in the School District Will Face Irreparable Harm if the Petition for Writ of Mandate is Heard Under Regularly Noticed Procedures. Issuance of the requested writ is necessary to over-rule the incorrect decision by the Superintendent to reject the petition submitted by Petitioners and to compel Respondents to schedule a special election to fill the vacancy on or before September 21, 2021. If ex parte relief is not granted, then Petitioners, the individuals who signed the petition requesting the special election, 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 position filled by the other Trustees. This Court should not countenance the Superintendent's decision to reject the petition, which is not supported by the law or facts and which violates the rights of Petitioners and the voters who signed the petition, and should therefore re-consider its prior decision to schedule a Case Management Conference on June 10, 2021 and instead issue a new Order Shortening Time allowing for a decision to be rendered on or before June 8, 2021. PROPOSED BRIEFING & HEARING SCHEDULE Petitioners have met and conferred with counsel for all Respondents, and all of the parties have agreed that, should the Court grant the requested relief, the election would be held on or before September 21, 2021, and that an expedited briefed and hearing schedule is therefore necessary in this case. Because the deadline for candidates to file their nomination documents for the September 21, 2021 ballot is June 25, 2021, all parties therefore respectfully request that the Court issue a new Order Shortening Time setting out an expedited briefing schedule which will allow for a decision in the case on or about June 8, 2021, approximately two weeks before the June 25, 2021 deadline for filing EX-PARTE APPLICATION FOR ORDER SHORTENING TIME 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 candidate nomination documents. Specifically, Petitioners and all five Respondents have agreed to this proposed briefing and hearing schedule: • • Wednesday, May 5, 2021: Petitioners filed Petition and opening brief. (Already done.) Thursday, May 27, 2021: Respondents file opposition brief. Friday, June 4, 2021: Petitioners file reply brief. Monday, June 7, 2021: Court hearing. The parties believe that this proposed, expedited briefing and hearing schedule will give Respondents sufficient time to respond to the Petition for Writ of Mandate, the Petitioners sufficient time to prepare a reply brief, and the Court sufficient time to consider the papers and hold a hearing, while accommodating a reasonable period of time for potential candidates to make their decision on whether to run to fill the vacancy on the Board of Trustees and prepare and file their nomination documents. CONCLUSION Based on the foregoing, Petitioners respectfully request that this Court grant a second Order Shortening Time for their Writ Petition to be heard on or before June 7, 2021, so that the Court may issue a ruling on or about June 8, 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. Dated: May 14, 2021 By: Respectfully Submitted: James R. Sutton, Esq. JP Fisher, Esq. THE SUTTON LAW FIRM, P.C. Attorneys for Petitioners David Kissner and Shahryar Rokni EX-PARTE APPLICATION FOR ORDER SHORTENING TIME 8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 DECLARATION OF JP FISHER I, JP Fisher, make this Declaration under penalty of perjury that: 1. I am attorney licensed to practice law in the State of California and am an attorney at the Sutton Law Firm, which represents Petitioners David Kissner and Shahryar Rokni. 2. On Thursday morning, May 13, 2021 at approximately 9:56 A.M., I sent an email to all Respondents in this case informing them that we would be filing on an ex parte basis in the Santa Clara County Superior Court on Friday Morning, May 14, 2021 in order to challenge Superintendent Dewan's rejection of Petitioners petition and seek an expedited briefing and hearing schedule. (See email attached.) 3. On Thursday, May 13, 2021, at approximately 2:00 P.M., I spoke with all Respondents' counsel via conference call to confirm they had received the notice of ex parte submission. In this phone call, all parties agreed to the briefing and hearing schedule proposed in Petitioners' Supplemental Ex Parte Application For Order Shortening Time. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Date: May 13, 2021 JP FISHER, Esq. JP Fisher From: JP Fisher Sent: Thursday, May 13, 2021 9:56 AM To: ruby.marquez@santacruzcounty.us; Quinones, Marcelo; Brian Bock; Hanna-Weir, Mary; Markoff, Gabriel Cc: James Sutton Subject: IMPORTANT -- Notice of Ex Parte Submission on Friday, May 14, 2021 To Respondents Santa Clara County Superintendent of Schools Dr. Mary Ann Dewan and the Santa Clara County Office of Education (via Deputy County Counsels Marcelo Quinones and Gabriel Markoff), the Loma Prieta Joint Union School District (via counsel Brian Brock), the Santa Clara County Registrar of Voters Shannon Bushey (via Deputy County Counsel Mary Hanna-Weir), and Santa Cruz County Clerk Tricia Webber (via Deputy County Counsel Ruby Marquez): 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 submitting a Supplemental Ex Parte Application seeking an Order Shortening Time for the expedited briefing of, and an expedited hearing on, the Petition for Writ of Mandate (the "Petition") in the matter of Kissner v. Dewan on Friday morning, May 14, 2021, between 8:15 and 9am, in the Santa Clara County Superior Court, located at 191 North First Street San Jose, CA 95113. Per the Court's instructions, we will be filing the Supplemental Ex Parte Application electronically. We will send you the Supplemental Ex Parte Application and Proposed Order as soon as it is finalized later today. This Supplemental Ex Parte Application follows the Ex Parte Application which we submitted in this case last week, and the Order Shortening Time which the Court granted, scheduling a Case Management Conference on June 10, 2021. The Clerk's Office subsequently followed up with us, indicated that the judge was not aware of the upcoming election-related deadlines, and asked us to file this Supplemental Ex Parte Application. As you know, the Petition is being brought pursuant to California Elections Code section 13314 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 to terminate the appointment made by the School District's Board of Trustees to 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 (which you have already received) and oral argument, that the petition satisfied all legal requirements to compel such a special election. Because of the impending deadlines for the special election, time is of the essence, and this matter cannot be heard on the regular motion calendar. The Clerk's Office has confirmed that, due to the Covid-19 pandemic, the Court is not hearing ex parte applications in person, that ex parte papers may only be filed electronically (not via paper in the drop box as the local rules imply), and that the Court will issue an order on the papers alone. As we have discussed with each of you, given the upcoming election deadlines, we are proposing a briefing and hearing schedule of: 1 • • Wednesday, May 19, 2021: Respondents file opposition brief. Friday, May 21, 2021: Petitioners file reply brief. Thursday, May 27, 2021: Court hearing. Please let us know if you would like to propose alternative dates, and we will presumably also discuss this proposed briefing and hearing schedule at our call today at 2pm. Also, please let us know whether you will be opposing the ex parte relief being sought. We would also appreciate counsel for Superintendent Dewan and the Santa Clara County Office of Education confirming whether they will accept service via email, as the other respondents have already done. Thank you for your cooperation, and please feel free to call or email with any questions about this ex parte notice or the Petition. Jonathan "JP" Fisher Associate Attorney The Sutton Law Firm 150 Post Street, Suite 405 I San Francisco, CA 94108 PH: 415/732-7700 x4513 I Fax: 415/732-7701 fisher www.campaignlawyers.com THIS EMAIL IS CONFIDENTIAL AND MAY BE LEGALLY PRIVILEGED. IF YOU HAVE RECEIVED IT IN ERROR, PLEASE NOTIFY IMMEDIATELY AND THEN DELETE IT. ANY TAX ADVICE IS NOT INTENDED TO AND CANNOT BE U.5 ED FOR AVOIDING IRS PENALTIES OR FOR RECOMMENDING ANY TAX-RELATED TRANSACTION OR MATTER TO A THIRD PARTY 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE I am employed at the Sutton Law Firm in the City and County of San Francisco, California. On May 14, 2021, I served the foregoing documents: PETITIONERS' SUPPLEMENTAL EX PARTE APPLICATION FOR ORDER SHORTENING TIME FOR HEARING ON PETITION FOR WRIT OF MANDATE; DECLARATION OF JAMES R. SUTTON; [PROPOSED] ORDER The above-referenced documents were served on: Marcelo Quinones, Esq. Gabriel Markoff, Esq. Counsel for Respondents Dr. Mary Ann Dewan, County Superintendent of Schools, & Santa Clara County Office of Education Santa Clara County Counsel's Office 70 W. Hedding St., Flr. 9 San Jose, CA 95110-1705 marcelo.quinones@cco.sccgov,org gabriel.markoff@cco.sccgov.on Mary Hanna-Weir, Esq. Counsel for Respondent Santa Clara County Registrar of Voters Shannon Bushey Santa Clara County Counsel's Office 70 W. Hedding St., Flr. 9 San Jose, CA 95110-1705 mary.hanna-weir cco.sccgov.org (408) 299-5945 Ruby Marquez, Esq. Counsel for Respondent Santa Cruz County Clerk Tricia Webber Santa Cruz County Counsel's Office 701 Ocean St., Rm. 505 Santa Cruz, CA 95060 ruby.marquez@santacruzcounty.us Brian Bock, Esq. Counsel for Respondent Lisa Fraser Superintendent, Loma Prieta Joint Union School District The Brock Law Group, PC 31610 Railroad Canyon Road, Suite 2 Canyon Lake, CA 92587 brian@proactiveblg.com Ei BY E-MAIL: I caused such document to be e-mailed as pdf attachments to the addressees shown above. [2] (State) I declare under penalty of perjury under the laws of the State of California that the above is true and correct. Executed on May 14, 2021, at San Francisco, California. JP usher SUPPLEMENTAL EX PARTE APPLICATION AND POINTS & AUTHORITIES IN SUPPORT 1