SUPERIOR COURT OF THE STATE OF CALIFORNIA County of Nevada B.SCOTT THOMSEN, Presiding Judge LINDA J. SLOVEN, Assistant Presiding Judge THOMAS M. ANDERSON, Judge ROBERT L. TAMIETT, Judge CANDACES. HEIDELBERGER, 201 Church Street S, ROBERT TICE RASKIN, Judge Judge Nevada City, CA 95959 G. SEAN METROKA, ‘VETTE DURANT, (530) 265-1311 Cour Executive Ofcer Commissioner EMAIL COVER SHEET — Amanda Uhrhammer and Scott McLeran, Office of the County Counsel amanda.uhthammer@co.nevada.ca.us Heather Burke and Charnel James, Plaintiff's Counsel, = hburkelegal@gmail.com 8: ‘YubaNet.Com pascale@yubanet.com ‘The Union Newspaper, Brian Hamilton, Editor bhamilton@theunion.com From: Nevada County Superior Court, Civil Division Subject Case No. CU16-081626, Hurd v. County of Nevada, et al. Date: March 8, 2016 No.of Pages _O , including cover sheet Please see the attached Ruling on OSC Re Preliminary Injunction.oe 4 am bw 10| uw 12 13) 14 15 16| 17 18] 19 20] 21 2| 25 27] rior Court of the Sergio of California County of Nevada. IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF NEVADA, FORREST HURD, Petitioner,| | CASE NO.: CU16-081626 vs. RULING ON OSC re PRELIMINARY INJUNCTION; ORDER THEREON COUNTY OF NEVADA AND GREGORY DIAZ, Blection Official, Respondents, The above-entitled matter came on for hearing before the undersigned on March 8, 2016, at 8:30 am, in Dept. 4, Attorneys Heather Burke and Charnel James appeared for and with Petitioner Forrest Hurd. Assistant County Counsel Amanda Uhrhammer and Deputy County Counsel Scott McLeran appeared for Respondents. Following argument, the Court now rules as follows: Petitioner’s OSC re Preliminary Injunction is granted. Background In 2012, Ordinance 2349 was passed by the County to regulate the location and size of indoor and outdoor medical marijuana cultivation,ee ee 10 1) 12) 13) 14 15] 16 17) 18) 19) a 22 23 25 26| 21] 28| On January 12, 2016, the County passed Urgency Ordinance 2405. This ordinance amended sections G-IV 5.2, 5.3, 5.4, and 5.5 of the County Code. In sum, it banned all ‘outdoor medical marijuana cultivation, Due to the passing of Ordinance 2405, Section 5.4(C) currently provides that cultivation may be undertaken only by (1) a qualified patient who occupies a legal residence on the parcel being grown on as the primary place of residence; (2) a primary caregiver on behalf of his qualified patient but only on a legal parcel with a legal residence which is ‘occupied by the patient or primary caregiver as his primary place of residence; (3) in conformance with all state and local laws. ‘Additionally, due to the passing of Ordinance 2405, Section 5.4(B) currently sets forth limits: (1) outdoor marijuana cultivation in any amount is prohibited and cultivation within any detached accessory structure that does not meet the definition of indoor shall also be considered outdoor cultivation and is prohibited; (2) marijuana may be cultivated only on legal parcels zoned for residential or rural uses, 12 plants per parcel and one contiguous cultivation area; (3) commercial cannabis activity in any amount or quantity on property located within the county is prohibited. Now, the County seeks to present Measure W (Resolution 16-038) to the voters for the June 7, 2016 election. This resolution amends only G-IV 5.4(C) and 5.4(E) of the County Code and adds a provision entitled Article IIL. Measure W’s proposed 5.4(C) provides that marijuana may only be cultivated: (1) on a legal parcel improved with a permanent, occupied, legally permitted residence; (2) by a qualified caregiver on the same parcel that he occupies as his primary place of residence; (3) by a primary caregiver on behalf of his qualified patient on the same parcel that the caregiver or patient occupies as his primary place of residence; (4) only for medical purposes in accordance with federal, state and local laws; (5) in conformance with all applicable state and local laws, including all regulations and restrictions adopted by the Board. Measure W's proposed 5.4(E) provides that: (1) outdoor cultivation in any amount is prohibited; (2) indoor cultivation of more than 12 plants per legal parcel is prohibited; (3) 2ee a awn sw 10) iu 12 13] 14 15 16 a7 18 19 20) a 22| 26| 27 indoor cultivation may occur only on legal parcels located in an area zoned primarily for residential or rural uses; (4) indoor cultivation on any other parcel is prohibited; (5) indoor cultivation is prohibited in non-permitted structures, structures that are exempt from permitting, or any portion of a structure designed or intended for human occupancy; (5) commercial cannabis activities in any amount or quantity are prohibited. Note that Measure W also has an Asticle III that is being added to the code provisions. ‘This Article II provides that the Board may adopt, without a vote of the people, such additional regulations as may be necessary to interpret and clarify the provisions of the Ordinance. ‘After Measure W (Resolution 16-038) was approved to go the voters, there was confusion by the public about whether or not Measure W would replace or repeal Ordinance 2405. Accordingly, Resolution 16-082 was passed by the County. This Resolution states, “If the Ballot Measure [Measure W] is not approved by a majority of the registered voters voting on the measure, it is the intent of the Board of Supervisors to reject the Ballot Measure, to repeal the ban on outdoor cultivation of marijuana and to consider and adopt other outdoor regulations at the next available meeting...” The Court notes, however, that Resolution 16-082 is not being presented to the voters. Rather, only Measure W (Resolution 16-038) is being presented to the voters and is the subject of the present litigation, Legal Authority Blections Code §13314 permits a voter to seek a writ of mandate “alleging that an error of omission has occurred, or is about to occur, in the placing of a name on, or in the printing of, a ballot, sample ballot, voter pamphlet, or other official matter, or that any neglect of duty has occurred, or is about to occur. [1] (2) A peremptory writ of mandate shalll issue only upon proof of both of the following: [4] (A) That the error, omission, or neglect is in violation of this code or the Constitution. {] (B) That issuance of the writ will not substantially interfere with the conduct of the election."ees am es wn 10) 11 13) 14 15 16) 17 18} 19) 20] a1 2| 23 24) 25 27 28| Elections Code §9160(b) provides: “The county counsel or district attorney shall prepare an impartial analysis of the measure showing the effect of the measure on the existing aw and the operation of the measure, The anallysis shall include a statement indicating whether the measure was placed on the ballot by a petition signed by the requisite number of, voters or by the board of supervisors. The analysis shall be printed preceding the arguments for and against the measure. The analysis may not exceed 500 words in length.” Burden of Proof Elections Code§13314 simply requires proof that (1) an error, omission, or neglect is in violation of this code or the Constitution and (2) that issuance of the writ will not substantially interfere with the conduct of the election." This means proof by evidence more likely than not. In the opposition to the OSC re Preliminary Injunction, the County improperly references the need for “clear and convincing proof.” This heading is incorrect. This Court must examine the facts based on evidence more likely than not. Verification of Petition The opposition to the OSC re Preliminary Injunction argues that the verification of the petition is defective. However, the Court’s file contains a verification signed by Mr. Forrest Hurd, Its located on the last page of the document, on the last page after Exhibit D. Thus, the Court finds no defect. Furthermore, such verification substantially complies with the law. Ha ‘The County argues that Petitioner has failed to show irreparable or substantial harm. However, as set forth in the Tahoe Keys case, {(1994) 23 Cal.App.4 1459] such harm is adequately demonstrated by improper public acts. iscussion of the “Impartial Analysis’ In the underlying Petition for Writ of Mandate and in the present OSC re Preliminary Injunction, Petitioner alleges that the language of the Impartial Analysis of the ballot measure is untruthful, confusing, misleading and not impartial for the following reasons:ee a a 8 YN 10] uw 13) 14 15 16 17 18 19 2 22| 24| 25| 27 28| 1. The Analysis states that Measure W would “codify the above restrictions on ‘marijuana cultivation.” Petitioner argues that the restrictions are already codified by Ordinance 2405, so Measure W would not be doing any codifying of the already existing regulations. ‘The Court agrees with Petitioner. Ordinance 2405 is already codified. Measure W seeks to umend two provisions that have already been codified. Thus, the language in the Impartial Analysis on this point is misleading. 2. The Analysis infers that Measure W would be upholding Ordinance 2405. But, Measure W has no effect on Ordinance 2405. Again, this Court agrees with Petitioner. Measure W seeks only to amend two provisions that are already in effect. The Impartial Analysis infers that a “yes” vote would uphold Ordinance 2403. However, a “yes” vote will have no effect on Ordinance 2405. Thus, the Impartial Analysis is misteading, 3. The Analysis infers that the voter would be maintaining existing law. But, itis actually amending two sections. ‘As set forth above, the Court agrees with Petitioner. Ordinance 2405 is the law at this point, Measure W amends two sections and adds one provision, but does not uphold any other provisions. 4, The Analysis makes it confusing as to what a “no’ vote means. The Analysis discusses Resolution 16-082 and that if the voters vote “no,” then the Board would take some kind of action, Petitioner argues that this is confusing because the language should be limited to talking about only what a “yes” means and only what a “no” means. Petitioner again is correct in his interpretation. The Impartial Analysis improperly intertwines Resolution 16-038 and Resolution 16-082. However, only Measure W [Resolution 16-038] is before the voters. Addressing the Board’s intent resolved on another Resolution is confusing and improper. 5. While not addressed in the Petition, the Court notes that the Impartial Analysis docs not clearly delineate that a brand new provision, Article II, is also being voted upon by theee a a 8 oe 10) i R 13) 14] 15 16} 7 18} 19} 20] 2 B 25| 26| 21] 28| public. The Impartial Analysis must make clear that two provisions are being amended and one provision is being added. The effect of the measure on existing law is not properly and clearly set forth in the Impartial Analysis as required by Elections Code §9160. While any one of these errors standing alone might not be sufficient to support a finding that the Impartial Analysis is misleading or confusing, the cumulative effect does support such a finding. Interference with mnduct of Election Elections Code §13314 also requires that the Court find that the issuance of a writ ‘would not substantially interfere with the conduct of the election. While the Court is not ruling on the underlying petition itself, the Court finds that there is no substantial interference with the conduct of the election. At the hearing on the TRO, Deputy County Counsel argued that the ballots are not going to the printer until March 18, 2016, and that the Board can schedule an emergency meeting to make changes and discuss the Impartial Analysis, if necessary. Thus, there is still adequate time to correct the five errors set forth above prior to printing of the ballots and there will be no substantial interference with the conduct of the election. Conclusion Based on the foregoing, the Preliminary Injunction is granted. The County is prohibited from printing and distributing the proposed “Impartial Analysis” until the five errors set forth above are corrected and clarified. Final Comments The Court notes that this Ruling on Preliminary Injunction does not address the validity or Constitutionality of either Ordinance 2405 or Measure W. Whether or not a complete outdoor ban is permissible under the law is not before this Court. Petitioner's challenge was to the language contained in the Impartial Analysis, and does not in any way place at issue in this action the language contained in Measure W itself. Additionally, any delay in placing Measure W on the ballot does not change the current ban on outdoorees am 2 we 10 uw 2 14 15] 16 17 18} 19 20] a HM 26| 27) 28) cultivation, because Ordinance 2405 continues to be the law. The Court is not ordering that Measure W cannot be on the June 7 ballot; rather, it cannot be on the June 7, 2016 ballot as currently described in the Impartial Analysis. DATED: March 8, 2016 aD aoy” CANDACE HEIDELBERGER Iudge of the Superior CourtDECLARATION OF SERVICE BY MAIL 1, G, SEAN METROKA, Court Executive Officer, County of Nevada, being a citizen of the United States, a resident of the County of Nevada, and not a party to the cause, do hereby certify that I mailed copies of the RULING ON OSC RE PRELIMINARY INJUNCTION of which the original is on file in Case No. CU16-081626 on the following named persons: Heather Burke Amanda Uhrhammer Law Offices of Heather L. Burke Assistant County Counsel 230 Main Street, Second Floor 950 Maidu Avenue, Suite 240 Nevada City, CA 95959 Nevada City, CA 95959 Charnel James Law Office of Chamel James 500 Olive Street Marysville, CA 95901 and that the envelope with prepaid postage was sealed and placed for collection and mailing in the United States Post Office at Nevada City, California on__2>- B-| i G. SEAN METROKA. Court Executive Officer Nevada County Superior Court