Opposition ObjectionsCal. Super. - 6th Dist.May 5, 2021DocuSign Envelope ID: 26E0618A-8073-4Do4-BE94-90F0390004B7 21CV381463 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Santa Clara - Civil R. Ngu JAMES R. WILLIAMS, County Counsel (SB. #271253) Electronically Filed STEVE MITRA, Assistant County Counsel (SB. #244054) by Superior Court of CA, MARY E. HANNA-WEIR, Deputy County Counsel (SB. #3ZOCUQnty of Santa Clara, OFFICE OF THE COUNTY COUNSEL on 7/29/2021 3:31 pM 70 West, Heddmg Street, East ng, Nmth Floor Reviewed By: R. Nguyen San Jose, Cahfomla 95 1 10-1770 c #21 CV381 463Telephone: (408) 299-5900 ase Facsimile: (408) 292-7240 Envelope: 6953282 Attorneys for Respondent SHANNON BUSHEY, REGISTRAR OF Exempt from Filing Fees Pursuant VOTERS FOR THE COUNTY OF SANTA t0 Govt. Code § 6103 CLARA, IN HER OFFICIAL CAPACITY SUPERIOR COURT OF CALIFORNIA, COUNTY OF SANTA CLARA DAVID KISSNER, and SHAHRYAR ROKNI, No. 21CV381463 Petitioners, OPPOSITION TO EX PARTE APPLICATION SEEKING AN ORDER V. LIFTING AUTOMATIC STAY, OR IN THE ALTERNATIVE TIME FOR EXPEDITED SANTA CLARA COUNTY BRIEFING AND AN EXPEDITED SUPERINTENDENT OF SCHOOLS DR. HEARING ON AN ORDER LIFTING MARY ANN DEWAN; SANTA CLARA AUTOMATIC STAY COUNTY OFFICE OF EDUCATION; LOMA PRIETA JOINT UNION SCHOOL DISTRICT; Date: July 30, 2021 SANTA CLARA COUNTY REGISTRAR OF Time: 9:00 am. VOTERS SHANNON BUSHEY; SANTA Dept: 6 CRUZ COUNTY CLERK TRICIA WEBBER; AND DOES 1-10, Date of First Filing: May 5, 2021 Respondents. Respondent Shannon Bushey, Registrar of Voters for the County of Santa Clara, opposes the extraordinary relief requested by Petitioner to lift the automatic stay as granting such relief would create the unacceptable risk of the county elections officials in both Santa Clara and Santa Cruz counties beginning preparations for an election that is later canceled if Respondent Dr. Mary Ann Dewan, Santa Clara County Superintendent 0f Schools prevails on appeal. Respondent Bushey further opposes lifting the automatic stay because Petitioners brought this action in their capacity as residents, voters, and parents, not in their professional capacities, and therefore Petitioner Rokni’s professional interests are not related t0 whether the stay remains in place. However, Respondent 1 yen Opposition t0 EX Parte Application Seeking an Order Lifting Automatic Stay, or in the Alternative Time 21CV38 1463 for Expedited Briefing and an Expedited Hearing on an Order Lifting Automatic Stay DocuSign Envelope ID: 26ED618A-8073-4D04-BE94-9DF039DCD4B7 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Bushey takes no position on the merits 0f the underlying petition for writ 0f mandate and related appeal. Pursuant t0 California Code 0f Civil Procedure section 1110b, the automatic stay of the writ of mandate should only be lifted if this court “is satisfied upon the showing made by the petitioner that he Will suffer irreparable damage in his business 0r profession if the execution is stayed.” (Code Civ. Proc. § 1110b). However, the interest of Petitioners in this matter are as “residents, voters, and parents in the Loma Prieta Joint Union School District.” (Petition for Writ 0f Mandate at 1:23-24). Petitioners brought this action pursuant t0 Elections Code section 133 14, Which states that an elector may seek a writ 0f mandate alleging that an error 0r omission has occurred, 0r is about t0 occur, in the placing 0f a name 0n, 0r in the printing 0f, a ballot, county voter information guide, state voter information guide, or other official matter, 0r that any neglect 0f duty has occurred, 0r is about to occur. (emphasis added) In order t0 bring this action, Petitioners averred that they are “residents of and registered voters in the School District,” and they further indicated n0 professional interests in whether the special election moved forward. (Petn 1] 1) Given that the writ was brought in his capacity as an elector, and the interests vindicated by the trial court ordering the writ are those of the voters, it would seem that the business 0r professional interests of Petitioner Rokni are inapposite to this matter. However, for the first time in filing the ex parte application, Petitioner Rokni has declared an intent t0 run as a candidate in the special election, and alleges that if the stay is not lifted his professional interest will be irreparably harmed because the appointed incumbent may run in the special election and may use the ballot designation 0f “appointed incumbent,“ and further that in the past several elections incumbents have prevailed in every election. (Rokni DeclarationW 3-5). However, any such harm is plainly speculative: the provisionally appointed incumbent may choose not to run, may use a ballot designation pursuant t0 Elections Code section 13107(a)(3) that does not 1 Petitioners incorrectly allege that the appointed incumbent may use the ballot designation 0f “incumbent,” but the provisionally appointed incumbent is not eligible t0 use the term “incumbent” as a ballot designation pursuant t0 Elections Code section 13 107(a)(2). Rather, pursuant t0 Elections Code section 13 107(a)(4), the provisionally appointed incumbent may, but is not required to, use “appointed incumbent” 0r “appointed (title 0f office)” However, if the special election petition is determined t0 be legally sufficient, the provisional appointment would be terminated, (Educ. Code § 5091(0)), and so there would not be an appointed incumbent eligible to use the ballot designations available pursuant to Elections Code section 13 103(a)(4). Opposition t0 EX Parte Application Seeking an Order Lifting Automatic Stay, or in the Alternative Time 21CV38 1463 for Expedited Briefing and an Expedited Hearing on an Order Lifting Automatic Stay DocuSign Envelope ID: 26ED618A-8073-4D04-BE94-9DF039DCD4B7 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 include reference t0 their current appointment or may choose t0 have n0 ballot designation at all, and Petitioner Rokni may prevail in the November 2022 special election against the appointed incumbent if it were held during the pending appeal. Petitioner’s ex part6 application seeks t0 invoke a standard for lifting the automatic stay that is inapplicable t0 this matter because the interests underlying the matter are those 0f electors not professional interests, but, even if the standard is applicable, the alleged damage to his professional interests is speculative. On either basis, the relief should be rejected? Further, if the stay is lifted, Respondent Bushey Will expend significant resources in preparing for the special election without certainty regarding whether the election is proceeding given the pending appeal. (See Bushey Declaration 1N 3-7). If the stay is lifted, Respondent Dewan Will be required t0 deem the special election petition t0 be legally sufficient, verify the signatures, and then call an election if there are sufficient signatures. (Peremptory Writ of Mandate 1] 1). The election must be called nor more than 130 days after Respondent Dewan determines the petition is legally sufficient. (Educ. Code § 5091(c)(2)). The usual candidate nominations period runs from 113 days t0 88 days before an election. (Elec. Code § 10603(a)). Since the Education Code directs that special elections to fill governing board vacancies “shall be conducted in as nearly the same manner as practicable as other governing board member elections,” Respondent Bushey anticipates that the election date set by Respondent Dewan would be between 113 and 130 days after her determination. (See Educ. Code § 5091(g)). Further, in order t0 meet statutory deadlines for publishing the Notice of Election, Respondent Bushey must know the date of the special election, if called, at least 97 days in advance. (Bushey Decl. fl 3). Significant preparations, and therefore associated costs, Will commence immediately upon 2 Some case law has suggested that an appellate writ may have been the more proper vehicle for appealing the trial court’s granting of the writ of mandate to avoid the imposition of the automatic stay 0n appeal and to ensure the matter is adjudicated quickly by the appellate court before compliance with the writ renders appellate review moot. (See e.g., Hayward Area Plan. Assn. v. Superior CL, (Ct. App. 1990) 218 Cal. App. 3d 53, 56 (“Since an appeal could not be determined prior to the election, the remedy by appeal is inadequate. Because the decision 0f the superior court is stayed pending the appeal, the referendum will remain 0n the ballot, inevitably causing confusion in the electorate as to the effect 0f the vote. If the stay were lifted, the ensuing election would render the appeal moot.” (internal citation omitted». 3 Opposition t0 EX Parte Application Seeking an Order Lifting Automatic Stay, or in the Alternative Time 21CV38 1463 for Expedited Briefing and an Expedited Hearing on an Order Lifting Automatic Stay DocuSign Envelope ID: 26ED618A-8073-4D04-BE94-9DF039DCD4B7 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Respondent Dewan issuing a call for the election, should the stay be lifted. (Bushey Decl. fl 3-7). But, if Respondent Dewan prevails in the pending appeal, the special election should n0 longer proceed. However, given the normal briefing schedule and rules 0f court, the appeal may not be decided before the election proceeds if the stay were 1ifted.3 Therefore, proceeding with preparing for and running the special election could cause significant confusion for voters as well as the possibility 0f confusion over Who is properly a member of the governing board and the term they should serve. If the stay were lifted, Respondent Dewan’s determination that the petition is sufficient would terminate the provisional appointment, (Educ. Code § 5091(c)(2)), that would otherwise extend through an election for the remaining two year term in November 2022. (Educ. Code § 5091(6)). But a candidate elected through a special election pursuant t0 the petition would serve until the regular election in November 2024. (Id). If the election were held, but the appellate court determines it should not have been held, then a court may need t0 resolve Which person would be entitled t0 hold office and for how long. Even if the election were canceled midway through preparations because Respondent Dewan prevails 0n appeal, the costs that had already been incurred in preparing for the election would be charged to the Loma Prieta Joint Union School District, (see Elec. Code § 10530; Bushey Declaration 11 6), and voters may have already received ballots, causing confusion and undermining confidence in the electoral process. / / / / / / / / / / / / / / / / / / 3 If the election were to be held prior t0 resolution of the appeal because Respondents complied with this court’s order t0 lift the automatic stay, the appellate court may conclude that the appeal is not moot because complying With a court order is not voluntary action intended t0 resolve the matter. (See Caldwell Banker & C0. v. Dep't 0fIns., (Ct. App. 1980) 102 Cal. App. 3d 381, 401 (complying with the court’s order to lift the stay does not moot an appeal because the respondents was “compelled t0 follow the order 0r face a citation fglr contempt”) Opposition t0 EX Parte Application Seeking an Order Lifting Automatic Stay, or in the Alternative Time 21CV38 1463 for Expedited Briefing and an Expedited Hearing on an Order Lifting Automatic Stay DocuSign Envelope ID: 26ED618A-8073-4D04-BE94-9DF039DCD4B7 1 The relief sought by Petitioner Rokni to lift the automatic stay should be denied. 3 Dated: July 29, 2021 Respectfully submitted, 4 JAMES R. WILLIAMS County Counsel 5 DocuSigned by: MARY E. HANNA-WEIR 7 Deputy County Counsel 6 By: 8 Attorneys for Respondent SHANNON BUSHEY, REGISTRAR OF 9 VOTERS FOR THE COUNTY OF SANTA CLARA. IN HER OFFICML CAPACITY 1 0 2456305 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 Opposition to Ex Parte Application Seeking an Order Lifting Automatic Stay, or in the Alternative Time 21CV381463 for Expedited Briefing and an Expedited Hearing on an Order Lifting Automatic Stay DocuSign Envelope ID: 26ED618A-8073-4D04-BE94-9DF039DCD4B7 10 ll l2 13 l4 15 16 l7 18 19 20 21 22 23 24 25 26 27 28 SUPERIOR COURT OF CALIFORNIA, COUNTY OF SANTA CLARA PROOF OF SERVICE BY ELECTRONIC MAIL David Kissner, et al. v. Shannon Bushey, Registrar 0f Voters Case No.2 21CV381463 for The Countv ofSanta Clara, in her official capacity, et al. I, Kimberly Ide, declare: I am now and at all times herein mentioned have been over the age of eighteen years, employed in Santa Clara County, California, and not a party to the within action or cause; that my business address is 70 West Hedding Street, 9th Floor, San Jose, California 951 10-1770. My electronic service address is: kimberly.ide@cco.sccgov.org. On July 29, 2021, I electronically served copies via the Odyssey e-filing system the following: OPPOSITION TO EX PARTE APPLICATION SEEKING AN ORDER LIFTING AUTOMATIC STAY, OR IN THE ALTERNATIVE TIME FOR EXPEDITED BRIEFING AND AN EXPEDITED HEARING 0N AN ORDER LIFTING AUTOMATIC STAY to the people listed below at the following electronic service address: James Sutton Email: isutto11(fi1ca1npaignlawvers.com JP Fisher Email: infisher@campaignlawvcrs.com Ruby Marquez Email: rubymarquez@santacruzcountv.us Brian Bock Email: brian@proactiveblg.com Marcelo Quinones Email: marcelo.quinones@cco.sccgov.org Gabriel Markoff Email: gabriel.markoff@cco.Sccgov.org I declare under penalty ofperjury under the laws of the State of California that the foregoing is true and correct, and that this declaration was executed on July 29, 2021. Kimfierlfldq/ 2456268 6 Opposition to Ex Parte Application Seeking an Order Lifting Automatic Stay, or in the Alternative Time 2 1 CV381463 for Expedited Briefing and an Expedited Hearing on an Order Lifting Automatic Stay
