Memorandum Points and Authorities

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

21CV381463 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 isutton(qtcampaianlawvers.corn jpftsher(a,camuaianlawvers.cotn Attorneys for Petitioners David Kissner and Shahryar Rolon 10 SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SANTA CLARA UNLIMITED JURISDICTION 11 David Kissner and Shahryar Rokni, Case No.: 12 13 14 15 16 17 18 19 20 21 22 23 24 Petitioners, vs. Santa Clara County Superintendent of Schools Dr. Mary Ann Dewan; Santa Clara County Office of Education; Lorna Prieta Joint Union School District; Santa Clara County Registrar of Voters Shannon Bushey, Santa Cruz County Clerk Tricia Webber; and DOES 1-10; Respondents. POINTS k, AUTHORITIES IN SUPPORT OF VERIFIED PETITION FOR WRIT OF MANDATE TO COMPFI. CERTIFICATION AND SCHEDULING OF SPECIAL ELECTION (California Code of Civil Procedure sections 10S5 et seq.; California Elections Code section 13314.) [PRIORITYMA TTER PURSUANT TO CALIFORNIA ELECTIONS CODE SECTION 13314(a) (3)] Date: Time: Dept.: 25 c's 4~.='. 27 Although Petitioners David Kissner and Shahryar Rokni ("Petitioners") gathered the requisite number of valid signatures from voters in the Lorna Prieta Joint Union School District (the "School District") to compel the School District to hold a special POINTS k AUTHORITIES IN SUPPORT OF VERIFIED PETITION FOR WRIT OF MANDATE I Electronically Filed by Superior Court of CA, County of Santa Clara, on 5/5/2021 5:58 PM Reviewed By: R. Tien Case #21CV381463 Envelope: 6386338 I election to fill the recent vacancy on the Board of Trustees, and although Petitioners 2 complied with all formatting requirements under the Education Code and Elections Code when preparing the petition, Respondent Santa Clara County Superintendent of 4 Education Dr. Mary Ann Dewan (the "Superintendent") exceeded her authority by rejecting the petition for reasons which were completely unsupported by the law and facts. Because Petitioners complied with all legal requirements relating to the petition, 7 the Court should issue a writ of mandate directing the Superintendent and Office of Education to approve the petition and schedule the special election, and directing the 8 Superintendent, Office of Education, and Respondents Santa Clara County Registrar of Voters Shannon Bushey ("Santa Clara County Registrar") and Santa Cruz County Clerk 10 Tricia Wcbber (Santa Cruz County Clerk") to schedule the special election on or before 11 September 21, 2021. 12 13 14 Facts 1. Petitioners seek special election to overturn decision of District's Board of Trustees filled bv Board of "1'rustees to fill vacancv bv appointment. X ss A" sus 15 The School District is a kindergarten through 8~ grade school district comprised of 16 approximately 500 students located in the Santa Cruz mountains, straddling Santa Clara 17 and Santa Cruz counties. It includes one elementary school (Lorna Prieta Elementary 18 School), and one middle school (C. T. English Middle School). The School District is run I 9 by a School Board of five elected members. A vacancy was created on the School District's Board of Trustees earlier this year 21 when a recently elected Trustee moved out of the District and therefore could no longer serve. (Sce Declaration of David Kissner & Exhibit A to Petition for Writ of Mandate.') 22 The Education Code gives the remaining School Board members the option of either 23 filling the sit by appointment or by calling a special election so that voters may choose 24 the replacement; the School Board chose the former option, and filled the vacancy by 25 appointment at its meeting held on March 15, 2021. (Exh. C.) 26 27 'll Exhibits are attached to the original Petition for Writ of Mandate. 28 POINTS & AUTHORITIES IN SUPPORT OF VERIFFED PFTITION FOR WRIT OF MANDATE 2 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(cc)(1).) Petitioners, who believe 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. 2. Petitioners drafted the netition in compliance with all anulicable laws. Petitioners went to great lengths to make certain that all of their actions comply 10 with all applicable laws. They used a template for the petition provided by the Santa 11 Cruz County Clerk's office, and had several conversations with the Registrar's office to s 'i3s gzs 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 make certain that they drafted and formatted the petition properly (Exhs. F.. & F.) Though not attorneys themselves, they closely reviewed section 5091, as well as the sections of the Elections Code referenced in section 5091. (Kissner Dec., Exh. A.) Two of Petitioners'ecisions regarding the formatting of the petition are at issue in this case today. First, the law requires that the petition include the "estimate" of the cost of the potential special election, which Petitioners are supposed to obtain from the Registrar's office. (Cal. Educ. Code section 5091(f)(1)(A).) Although the Registrar's office had provided Petitioners with two estimates, one for potential election held in August 2021 and another for a potential election held in November 2021, Petitioners only included the cost estimate for the August 2021 election on the petition - because the special election, by the clear parameters of the law, could not be held after September 21, 2021. Second, the law requires that the petition comply with Elections Code section 104, which dictates how the "Declaration or Circulator" section at the bottom of the petition must read. Elections Code section 104 was amended just last year to require initiative, referenda and recall petitions to list the highest three contributors of $50,000 or more to the political committee established to support the qualification of the underlying election POINTS & AUTHORITIES IN SUPPORT OF VERIFIED PETITION FOR WRIT OF MANDATE 3 matter; the law refers to these large contributors as the "Official Top Funders." (See Cal. Elec. Code section 107, added by Stats. 2019, Ch, 563, section 3 (SB 47), effective 1/1/20.) Ffere, Petitioners did not raise or spend any funds in connection with the petition effort, so did not qualify as a "committee" under the law, and did not need to refer to the "Offtcial Top Funders" on the petition. 3. The petition includes the reuuisite number of signatures - but the Superintendent nevertheless reiected the petition. for wron~ reasons. Petitioners gathered at least 52 signatures of registered voters in the School District, 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 10 election to fill the vacancy. The Superintendent nevertheless rejected the petition 11 claiming that it violated three provisions in the law. (See Exh. G.) First, the 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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 "Offtcial Top Funders," even though Petitioners did not qualify as a committee and did not accepted 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 volunteered signature gatherers, even though that requirement is contained in Elections Code section 104, not in one of the two Elections Code provisions imposed on the petition by Education Code section 5109. Arguments At the outset, it is important to note that the efforts of the Petitioners and the 90 people who signed the petition are protected by the First Amendment, and that courts traditionally interpret formatting and other technical requirements in ways to protect these fundamental rights. As one court described the importance of deferring toctizns'ight to petition the government for the redress of grievance: "IF]t has long been our judicial policy to apply a liberal construction to this [election petition] power wherever it POINTS & AUTHORITIES IN SUPPORT OF VERIFIED PETITION FOR WRIT OF MANDATE 4 I is challenged in order that the right be not improperly annulled. If doubts can reasonably 2 be resolved in favor of the use of this reserve power, courts will preserve it." (Associated 3 Ilome Builders v. Livermore (1976) 18 Cal.3d 582, 591; footnotes and citations omitted.) ln fact, numerous courts have over-ruled decisions made by elections officials to reject election-related petitions, and have instead ordered these matters on the ballot. (See, e.g., Costa v. Sunerior Court (2006) 37 Cal. 4th 986; Alliance for Better Millbrae v. Wade (2003) 108 Cal..App.4~ 123.) This Court should follow this line of cases and 7 similarly overrule the Superintendent's incorrect decision to reject the election-related 8 petition in this case. 9 1. The Superintendent erred bv reiectinu the netition for not listing cost estimates 10 for two elections. 11 The petition clearly only had to include the estimate for the cost of holding the 12 special election in August 2021, and did not have to also include the estimate for a potential November 2021 election. The law contains very specific deadlines for the 14 process of forcing a special election to fill a vacancy on a school board after the school board makes a provisional appointment. Specifically, the law first gives voters 30 days 16 from the of the appointment to gather signatures on a petition, and then gives the County 17 Office of Education 30 days from the date of receiving the petition to verify the number of signatures. If the petition contains the requisite number of signatures, the Office of 19 Education must schedule election within 130 days. (Cal. Educ. Code section 5091(c)(1) k. (2).) Thus, according to the clear guidelines set out in the law, the election would have 21 to be held within 190 days from the date of the appointment: 30 l 30 + 130 =- 190. Here, the appointment to fill the vacancy took place on March 15, 2021; 190 days from March 22 15, 2021 is September 21, 2021. In other words, the special election in this case would 23 have to be held or before September 21, 2021, and could not legally be held in November 24 2021.i The petition therefore contained the only cost estimate relevant to voters. 25 26 petitioners are not aware of why the Santa Clara County Registrar of Voters included the 27 cost estimate for the November 2021 election when it provided the information about the cost estimate to Petitioners. 28 POINTS k AUTHORITIES IN SUPPORT OF VERIFIED PETI11ON FOR WRIT OF MANDATE 5 I The only exception would be if the date of the special election would be held 2 within 130 days of one of the "established election dates" set out in the Elections Code. 3 (Cal. Educ. Code section 5091(c)(1) k (2); see Cal. Elec. Code section 1000.) According 4 to Elections Code section 1000, the only established election date during odd-numbered years such as 2021 is the first Tuesday after the first Monday in November (or November 2 in 2021). Based on the date of the appointment by the Board of Trustees to fdl the vacancy, the deadline for submitting the petitions, and the deadline for the Superintendent 7 to verify the petitions, it would be impossible to hold the special election within 130 days 8 ofNovember 2, 2021, so this exception is not relevant to this case. Not only did the law not require Petitioners to include the cost estimate for the 10 November 2021 election on the petition, doing so would have actually provided incorrect 11 and misleading information to voters. The law presumably requires petitions to fill 12 vacancies on school boards by election rather the appointment to include the cost of the potential special election so that voters can use this information when deciding whether 14 to sign the petition; i.e., do voters think that the cost of the special election justifies not allowing the vacancy to be filled by the school board. Including the higher estimate for a 16 potential November 2021 election, which could never haunen as a matter of law, could 17 therefore have convinced certain voters to not sign the petition, even though the actual 18 cost ofholding the election in August 2021 would be much lower. It would have been 19 false and misleading for Petitioners to include information about a November 2021 20 election on the petition, and the Superintendent could not require them to do so. 21 Including two cost estimates on the petition also violates the clear language of the law which calls for only one estimate, using the singular terms "estimate," "cost" and 22 "the" special election, not any plural term: "The petition shall contain the estimate of the 23 elections official of the cost of conducting the special election." (Cal. Educ. Code section 24 5091(f)(1)(A).) In fact, the United States Supreme Court just confirmed in a decision 25 issued last month that there is an important difference between references to singulars and plurals in the law, and that laws which refer to "a," "an" or "one" only require one action. (Niz-Chavez v. Garland (4/29/21) U.S Supreme Court Case No. 19-863.)) 28 POINTS & AUTHORITIES IN SUPPORT OF VERIFIED PETITION FOR WRIT OF MANDATE 6 I 2. The Superintendent erred bv reiecting the petition for not printin~ a notice 2 about paid and volunteer sienature gatherers. 3 The law did not require the petition to contain a notice regarding paid or volunteer signature gatherers as asserted by the Superintendent. Education Code section 5109 very clearly only requires petitions to comply with two provisions in the Elections Code: sections 100 and 104. (Subs. (fl(l)(D).) The requirement to print a notice on initiative, 7 referendum and recall petitions regarding paid and volunteer signature gatherers is contained in Elections Code section 101, not in sections 100 or 104. Petitions were 8 therefore clearly not required to print this notice on the petition, and the Superintendent incorrectly rejected the petition for not including this notice. 10 To that extent that the Elections Code requires this notice on initiative, referendum 11 and recall petitions so that potential signors know that the people circulating the petitions 12 may be paid by the Proponents, we note that none of the people who gathered signatures on this petition were paid. The notice, if required (which it clearly was not) therefore 14 would not have served any policy interest. 15 16 3. The Superintendent erred bv reiectine the petition for not referring to the "Official Top Funders." 8 dg5 s 17 This Superintendent also erred by claiming that the Declaration of Circulator printed on the bottom of the petition should have referred to the "Official Top Funder Sheet." As mentioned above, the law was amended last year to require election-related 21 petitions to disclose the names of their three largest contributors, but onlv when: (1) the proponents have raised enough money to qualify as a "committee" under the law; and (2) 22 the committee has accepted contributions of $50,000 or more, which the law refers to as 23 "Official Top Funders." (Cal. Elec. Code section 107 t"A committee formed pursuant to 24 section 82013 of the Government code that pays for the circulation of a state or local 25 initiative, referendum or recall petition shall create an Official Top Funders sheet..."j.) 26 The law requires proponents to either print the Official Top Funders on the face of the petition, or to have circulators confirm in the Declaration of Circulator section printed on 28 POINTS & AUTIIORITIES IN SUPPORT OF VERIFIED PETITION FOR WRIT OF MANDATE 4 kg s I the bottom of the petition that they showed potential signers the Official '1 op Funders 2 sheet. (Cal. Elec. Code section 104(b)(4).) Because the petition here did not include 3 Official Top Funders, the Superintendent claims that the Declaration of Circulator had to 4 confirm that circulators showed the list of Official Top Funders to all potential signers. Neither of these requirements for referring to the Official Top Funders sheet on the petition were met here. First, the Proponents did not raise any money in connection 7 with their efforts to qualify the petition. The law clearly states that groups raising money to qualify an initiative, referendum or recall for the ballot only qualify as a "committee" 8 if they raise $2,000 or more. (Cal. Govt. Code section 82013(a).) Petitioners did not raise any money in connection with qualifying the petition, and therefore did not qualify 10 as a committee and did not have to register with the Registrar's office. (Kissner Dec., 11 Exh. A.) Petitioners in fact confirmed for the Superintendent that they did not raise 12 enough money to qualify as a committee. (Exh. J.) Because Elections Code section 107 clearly only requires a reference to Official Top Funders if the Proponents qualify as a 14 "committee," Petitioners were not required to refer to the Official Top Funders in the Declaration of Circulator and the Superintendent improperly rejected the petition for this 16 reason. 17 ln addition, Petitioners did not receive any contributions of $50,000. They therefore did not receive any "Top Funders" as that term is defined in the law (see Cal. 19 Govt. Code section 84501), which is a separate reason why the Superintendent incorrectly rejected the petition. 21 Referring to an Official Top Funders sheet would actually have provided inaccurate and misleading information to potential signors of the petition, to the extent 22 that it would have implied that the Proponents had raised enough money to qualify as a 23 committee and/or had accepted contributions of $50,000 or more. It would therefore 24 have been inappropriate for the Petitioners to refer to Official Top Funders on the petition 25 and the Superintendent could not reject the petition for this reason. 26 The Superintendent in fact confirmed in her April 7, 2021 memorandum to Petitioners that they were not required to refer to the Official Top Funders sheet on the 28 POINTS K AUTHORITIES IN SUPPORT OF VERIFIED PETITION FOR WRIT OF MANDATE 8 I petition unless they qualified as a committee by raising $2,000 or more. (Exh. I.) She 2 nevertheless inexplicably rejected the petition for not including this reference. 3 4. In the alternative, and at the verv least. the petition substantiallv complied with all formattine requirements. 4 5 Petitioners clearly complied with all formatting requirements placed on the petition by the Education Code and Elections Code, and the superintendent clearly 7 violated her ministerial duty to approve the petition, terminate the appointment, and schedule a special election. If the Court for some reason determines instead that 8 Petitioners did not completely comply with all formatting requirements, it should still 9 grant the writ and order the Superintendent to schedule a special election to fill the 10 vacancy because the petition substantially complies with all legal requirements. To this point, we note that Petitioners are neither attorneys nor politically 12 sophisticated, but rather are simply parents who are not happy with the leadership of the School District where their children attend school. As mentioned above, they went to 14 great lengths to make certain that the petition complied with all applicable laws, and interacting numerous times with the Santa Cruz County Clerk's office about the 16 formatting requirements. (Exhs. E&F.) If they missed one or more technical 17 requirements of the law, it was certainly unintentional. 18 More notably, any errors or omissions in the petition were minor and do not rise to the level of invalidating the signatures of the 90 School District residents and voters who would like to vote on a replacement Trustee. The people who signed the petition clearly understood the purpose of the effort. More specifically, potential signers were informed that the election would cost money (information which is not mentioned at all on regular 22 initiative, referendum and recall petitions). Potential signers were also not misled in any 23 way because the petition did not state explicitly that it may be circulated by a paid 24 signature gatherer or a volunteer - because Petitioners only use volunteers to gather 25 y signatures. Similarly, potential signers were not misled in any way because the petition 26 did not explicitly reference the Official Top Funders sheet, because Petitioners did not raise any money for this all-volunteer effort, and certainly did not receive contributions of 28 POINTS & AUTHORITIES IN SUPPORT OF VERIFIED PETITION FOR WRIT OF MANDATE 9 $50,000. Any errors or omissions in the petition - which, again, we believe there are none - did not impact the underlying purpose of the law. Courts very often allow election-related petitions to proceed to the ballot even when the proponents have made minor errors in the formatting or process, when the errors did not impact the underlying purpose of the requirement. The California Supreme Court in Costa v. Sunerior Court &2006) 37 Cal. 4th 986, 1013 noted that, "when California courts have encountered relatively minor defects that the courts find could not have affected the integrity of the electoral process as a realistic and practical matter, past decisions generally have concluded that it would be inappropriate to preclude the 9 electorate from voting on a measure on the basis of such a discrepancy or defect. In such 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 27 28 cases, as long as the fundamental purposes underlying the applicable constitutional or statutory requirements have been fulfilled, the decisions have concluded that there has been 'substantial compliance'ith the applicable constitutional or statutory provisions and that invalidation of a petition and preclusion of a vote on the measure is not warranted." Courts have also relied on the good faith efforts of the proponents when allowing petitions to proceed to the ballot: "[w]e are more strongly inclined to so hold [that the petition must be accepted] in view of the fact that [it] was prepared and is being circulated in good faith [and] that many thousands of signatures thereto have already been secured...." (Costa, at 1015.) All of these conditions for concluding that the petition substantially complied with the law are present here. Potential signers were aware that the special election would cost a significant amount of money, and the proponents did not use paid signature gatherers or raise any money. If the Court for some reason concludes that the petition did not comply with one or more fonuatting requirement, it should therefore conclude that Petitioners substantially complied with the law and order the Superintendent to approve the petition and schedule the election. Conclusion In order to protect the rights of the voters who signed the petition, and the rights of the Petitioners, to compel the vacancy to be filled by the voters of the School District POINTS & AUTIIORITIES IN SUPPORT OF VERIFIED PETITION FOR WRIT OF MANDATE 10 I rather than the Board of Trustees, the Court must overturn the Superintendent's 2 unsubstantiated rejection of the petition and issue a writ ordering a special election to be 3 held to fill the vacancy. The law very clearly did not require the petition to include the cost estimate for an impossible November 2021 election, did not require any reference on the petition to the Official Top Funders sheet, and did not require the notice about paid v. volunteer signature gatherers. The Superintendent therefore had a ministerial duty to 7 approve the petition and order a special election to fill the vacancy on August 31, 2021 or another date allowed by law, and a writ is justified in this case. 8 9 Dated: May 4, 2021 10 12 13 14 James R. Sutton The Sutton Law Firm Attorneys for Petitioners 16 17 18 19 20 21 22 23 24 25 26 27 POINTS k. AUTHORITIES IN SUPPORT OF VERIFIED PETITION FOR WRIT OF MANDATE 11 I PROOF OF SERVICE 2 I am employed at the Sutton Law Firm in the City and County of San Francisco, California. On May 4, 2021, I served the foregoing documents: 4 POINTS 4 AUTHORITIKS IN SUPPORT OF VERIFIED PETITION FOR WRIT OF MANDATE TO COMPEL CERTIFICATION AND SCHEDULING OF 5 SPECIAL ELECTION The above-referenced documents were served on: 10 12 Dr. Mary Ann Dewan County Superintendent of Schools County Office of Education 1290 Ridder Park Dr. San Jose, CA 95131 mdewan@sccoc.orv Suzanne carrivCaisccoe.orrg 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 rubv.ma~ruez a santacruzcountv.us Mary Hanna-Weir, Esq. 13 Counsel for Respondent Santa Clara County Registrar of Voters Shannon 8ushey 15 Santa Clara County Counsel's Office 70 W. Hedding St., Flr. 9 San Jose, CA 95110-1705 marv.hanna- weir&~a)cco. sec v ov.orv. (408) 299-5945 Lisa Fraser Superintendent Lorna Prieta Joint Union School District 23800 Summit Rd. Los Gatos, CA 95033 L fraser@loma.k.12.ca.us e.bevans(@lorna.k.12.ca.us 18 19 P(l BY K-MAIL: I caused such document to be e-mailed as pdf attachments to the addressees shown above. 20 (State) I declare under penalty of perjury under the laws of the State of California that the above is true and correct. 22 23 24 25 Executed on May 4, 2021, at San Francisco, California. 'P Fisher 26 27 POINTS & AUTHORITIES IN SUPI'ORT OF VERIFIED PETITION FOR WRIT OF MANDATE 12