Opposition To Write of Mandate, Flynn vs. Vinson

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TABLE OF CONTENTS Page TABLE OF CONTENTS .. i TABLE OF AUTHORITIES ...iii
5 6 7 8 9 10 11 12 13 A. 14 B. 15 C. 16 17 18 19 20 21 22 23 24 25 26 27 28
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I. II.
SUMMARY OF ARGUMENT ....1 THE COURT SHOULD ABSTAIN FROM ISSUING A PRE-ELECTION RULING ON THE INITIATIVES SUBSTANTIVE LAW SO AS TO NOT INTERFERE WITH OR DEPRIVE THE ELECTORATE OF THE OPPORTUNITY TO EXERCISE THEIR INHERENT CONSTITUTIONAL POWER TO APPROVE OR DISAPPROVE A DULY QUALIFIED INITIATIVE ...4 THE PETITION DOES NOT IDENTIFY ANY MINISTERIAL OR MANDATORY DUTY RESPONDENTS HAVE FAILED TO PERFORM, WHICH CONSTRAINS THE COURT TO DENY THE PETITION AND DISMISS THE CASE 10 CITY CLERKS DUTIES UNDER THE MURRIETA MUNICIPAL CODE ...10 CITY CLERK AND REGISTRARS DUTIES UNDER THE ELECTIONS CODE ...11 CITY COUNCILS DUTIES UNDER THE ELECTIONS CODE ..13 RESPONDENTS HAVE PERFORMED ALL MINISTERIAL AND MANDATORY DUTIES ...13
III.
D.
IV.
ARGUMENT...13 A. NEITHER THE CITY CLERK, THE REGISTRAR, THE CITY COUNCIL, NOR THE COUNTY HAS A MINISTERIAL OR MANDATORY DUTY TO CONDUCT A PRE-ELECTION INVESTIGATION AND DETERMINATION AS TO WHETHER THE INITIATIVE IS LAWFUL OR CONSTITUTIONAL ....14 ELECTIONS CODE SECTION 13314 IS LIMITED TO COMPELLING AN ELECTION OFFICIAL TO CARRY OUT A MINISTERIAL OR MANDATORY DUTY NOT AS LEGAL DEVICE FOR ASSERTING PRE-ELECTION CHALLENGE TO THE SUBSTANTIVE LAW OF AN INITIATIVE ..15
B.
REAL PARTIES IN INTEREST DIANA SERAFIN AND ROBIN NIELSONS MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO VERIFIED PETITION FOR WRIT OF MANDATE
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TABLE OF CONTENTSContinued Page THE COURT DOES NOT HAVE SUBJECT MATTER JURISDICTION BECAUSE THE PETITION REQUESTS THE COURT TO ISSUE A WRIT OF MANDATE TO PREVENT THE INITIATIVE FROM APPEARING ON THE BALLOT FOR ANY ELECTION.16 THE PETITION MUST BE DENIED BECAUSE PETITIONER HAS AN ADEQUATE REMEDY AT LAW, AS HE CAN FILE A POST-ELECTION CHALLENGE TO THE INITIATIVES SUBSTANTIVE LAW...16 THE PETITION REQUESTS THIS COURT TO ISSUE AN UNPERMITTED ADVISORY OPINION...17 BY WAITING UNTIL THIS LATE DATE TO SEEK RELIEF, PETITIONERS CLAIMS ARE BARRED BY THE DOCTRINE OF LACHES .17 PETITIONERS PRE-ELECTION CHALLENGE TO THE INITIATIVE AT THIS LATE DATE WILL SUBSTANTIALLY INTERFERE WITH THE ELECTION PROCESS AND IS UNNECESSARY BECAUSE PETITIONERS CHALLENGE TO THE SUBSTANTIVE LAW OF THE INITIATIVE CAN BE PURSUED POST-ELECTION ...................18 PETITIONERS RELIANCE ON ELECTIONS CODE 13314 AND Kunde v. Seiler IS MISPLACED BECAUSE NEITHER SUPPORTS A PRE-ELECTION CHALLENGE TO THE INITIATIVES SUBSTANTIVE LAW ..19 THE PETITIONERS PRE-ELECTION ATTACK ON THE SUBSTANTIVE LAW OF THE INITIATIVE IS WITHOUT MERIT 20
CONCLUSION ...25
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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 CASES:
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Amador Valley Joint Union High School District v. State Board of Equalization, 22 Cal.3d 208 (1978) .....8 Associated Home Builders v. City of Livermore, 18 Cal.3d 582 (1976) ..8, 17 Barnes v. Wong, 33 Cal.App.4th 390 (1995) ....2, 10, 13 Barratt American, Inc. v City of Rancho Cucamonga, 37 Cal.4th 685 (2005) ...3, 17 Blotter v. Farrell, 42 Cal.2d 804 (1954) .....1 Brosnahan v. Eu, 31 Cal.3d 1 (1982) ...5, 19 Buckley v. American Constitutional Law Foundation, 525 U.S. 182 (1999) ...10 Buckley v. Valeo, 424 U.S. 1 (1976) ...10 California Association for Health Services at Home v. Department of Health Services, 148 Cal.App.4th 696 (2007) .14 California Water & Tel. Co. v. County of Los Angeles, 253 Cal.App.2d 16 (1967) ...4, 17 Carsten v. Psychology Examining Committee, 27 Cal.3d 793 (1980) ...17 Costa v. Superior Court, 37 Cal.4th 986 (2006) ...8, 17 Farley v. Healy, 67 Cal.2d 325 (1967) ...15
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TABLE OF AUTHORITIESContinued Page Gayle v Hamm, 25 Cal.App.3d 250 (1972) ...6, 17 H.D. Arnaiz, Ltd. v. County of San Joaquin, 96 Cal.App.4th 1357 (2002) .17 Ibara v. City of Carson, 214 Cal.App.3d 90 (1989) ....1 Independent Energy Producers Association v. McPherson, 38 Cal.App.4th 1020 (2006) .22 Kavanaugh v. West Sonoma County Union High School District, 29 Cal.4th 911 (2003) ......14 Kunde v. Seiler, 197 Cal.App.4th 518 (2011) ...19, 20 Legislature of the State of California v. Deukmejian, 34 Cal.3d 658 (1983) .15, 19 Ley v. Dominguez, 212 Cal. 587 (1931) ...8 Loder v. Municipal Court, 17 Cal.3d 859 (1976) ...14 Martin v. Smith, 176 Cal.App.2d 115 (1959) ...8 Meyer v. Grant, 486 U.S. 414 (1988) ...10 Mulkey v. Reitman, 64 Cal.2d 529 (1966) .5, 6, 10, 19, 21, 23 People ex rel. Fund American Companies v. California Insurance Company, 43 Cal.App.3d 423 (1974) .14, 15 Roth v. United States, 354 U.S. 476 (1957) ...10
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TABLE OF AUTHORITIESContinued Page Sands v. Morongo, 53 Cal.3d 863 (1991) ...21 San Francisco Forty-Niners v. Nishioka, 75 Cal.App.4th 637 (1999) ...23 Stocks v. City of Irvine, 114 Cal.App.3d 520 (1981) .17 Wind v. Hite, 58 Cal.2d 415 (1962) ...6, 21 CONSTITUTIONS: CAL. CONST. ART. 2, 1 .7, 17, 20 CAL. CONST. ART. 2, 8 7, 8 CAL. CONST. ART. 2, 10 ...9 CAL. CONST. ART. 2, 11 1, 20 CAL. CONST., ART. 3, 1 ...20, 21 CAL. CONST. ART. 3, 3.3 ...9 U.S. CONST., AMEND I ...9 CALIFORNIA CODES AND RULES: Civil Code, 51 ....5 Civil Code, 52 ....5 Code of Civil Procedure, 430.10 ..3, 16 Code of Civil Procedure, 1085 ..2-4, 10, 13-16 Code of Civil Procedure, 1086 .3, 17 Code of Civil Procedure, 1102 ...3 Code of Civil Procedure, 1103 ...3
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TABLE OF AUTHORITIESContinued Page Code of Civil Procedure, 1104 ...3 Code of Civil Procedure, 1105 ...3 Elections Code, 307 ..11 Elections Code, 9200-9259 ..1 Elections Code, 9201 ..1 Elections Code, 9202 1, 11
9 10 11 12 13 14 15 Elections Code, 9209 ..1 16 17 18 19 20 21 22 Elections Code, 9215 1, 12 23 24 25 26 27 28

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Elections Code, 9203 12 Elections Code, 9205 1, 12 Elections Code, 9206 1, 12 Elections Code, 9207 ..1 Elections Code, 9208 ..1
Elections Code, 9210 1, 12 Elections Code, 9211 1, 12 Elections Code, 9212 ..12, 13 Elections Code, 9213 12 Elections Code, 9214 ..1, 12, 13
Elections Code, 9223 13 Elections Code, 13314 .. passim Government Code, 26802 ....11
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1 2 3 4 Health & Safety Code, 35700-35744 ...5 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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TABLE OF AUTHORITIESContinued Page Government Code, 26802.5 .11
Murrieta Municipal Code, Title 2, 2.12.020 10, 11, 13 Vehicle Code 21100 .20 TREATISES: 8 WITKIN, CAL. PROC. 5th (2008) Writs, 19, p. 900 ...4
FOREIGN AUTHORITIES (ATTACHED TO PETITIONERS MEMO AS EXHIBITS A & B): Joytime Distributors v. State, 528 S.E.2d 647 (S.C. 1999) ...24, 25 Mukilteo Citizens for Simple Government v. City of Mukilteo, 2012 Wash. LEXIS 174 (Wash. March 12, 2012) ....24, 25
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I.
SUMMARY OF ARGUMENT The Legislature has enacted a comprehensive statutory scheme, Elections Code, 9200-
9259,1 governing municipal elections, including the approval of initiative measures submitted to the electorate, 9200-9226 and CAL. CONST.,
ART.
2, 11. A city initiative measure is a
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proposed ordinance filed by petition and signed by a specified number of voters of the city within a definite period of time. 9201; see, also, Blotter v. Farrell, 42 Cal.2d 804, 810-812 (1954). Prior to circulating any initiative petition, the proponent must file with the election officials of the municipality a notice of intent to circulate petition. 9202. The initiative petition shall be accompanied by the written text of the initiative and may be accompanied by a written statement not in excess of 500 words, setting for the reasons for the proposed petition. 9202(a) and 9205-9207; see, also, Ibara v. City of Carson, 214 Cal.App.3d 90, 94-97 (1989). Then, after all signatures are gathered during the collection period, the initiative petition along with all the signatures is filed with the election officials of the municipality. Upon receipt, the election officials must verify the validity of the signatures and certify that the required number of valid signatures has been collected to place the initiative on the ballot. 9207-9211, 9215. Finally, within ten (10) days of receiving the certified initiative, the municipality must either approve the initiative or refer it to the electorate by way of a general or special election. 9214(a)-(c). As evinced by Petitioner Stephen Flynns Verified Petition for Writ of Mandate (Petition) and exhibits thereto, it is undisputed that the Real Parties, Diana Serafin and Robin Nielson, and the Respondents, the Murrieta City Council (City Council), the Murrieta City Clerk (City Clerk), the Riverside County Registrar of Voters (Registrar), and the Riverside
Hereinafter all references to section or shall refer to the California Elections Code.
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County Board of Supervisors (County), have complied with all of the foregoing procedures, thereby satisfying all of the Election Code requirements for placing the subject initiative, Murrieta Prohibition of Automated Traffic Enforcement Systems Act (the Initiative), on the November 2012, Ballot. See, Exhs. A, B, C, and D to the Petition (copies of which are attached
5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6-8 (emphasis added). This type of phrasing is required for properly alleging causes of action
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hereto for the Courts convenience). As the record further evinces, Petitioners alleged gravamen is not that the Real Parties and Respondents have failed to perform any ministerial or mandatory duty under the Elections Code or the Murrieta Municipal Code, but rather the Initiative is unlawful and/or unconstitutional. However, Respondents have no duty under the Elections Code or Murrieta Municipal Code to assess or determine whether or not any proposed initiative is lawful or constitutional. In particular, a writ of mandate will issue to compel the performance of an act which the law specially enjoins, as a duty resulting from an office, trust, or station, or to compel the admission of a party to the use and enjoyment of a right or office to which the party is entitled.... Code of Civil Procedure (CCP), 1085. Stated more succinctly, a petition for writ of mandate must present evidence that proves the existence of a clear, present and usually ministerial duty on the part of the respondent. Barnes v. Wong, 33 Cal.App.4th 390, 394395 (1995) (Barnes) (emphasis added). As the record demonstrates, Respondents have not failed to fully perform any of their ministerial or mandatory duties under the Elections Code or the Murrieta Municipal Code, and, therefore, no legal basis exists for the issuance of a writ of mandate. Id.; CCP 1085. The remedies sought by Petitioner are effectively for declaratory and injunctive relief. In particular, the Petition alleges: [T]he taxpayers of the City of Murrieta will suffer severe and irreparable injury if the Court does not enjoin Petition, 20, p. 5, ll. 14-16 and 25, p. 6, ll.
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sounding in injunctive and declaratory relief, not for a writ of mandate. As the relief requested by Petitioner is not within the legal scope of a writ of mandate to compel Respondents compliance with a ministerial or mandatory duty, this Court is without subject matter jurisdiction to entertain any of the causes of action alleged in the Petition. See, e.g., CCP
5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 constrained to deny the Petition.

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430.10(a) (legal basis for sustaining a demurrer). Assuming, arguendo, the Initiative were to be approved by the electorate, Petitioner still has the post-election ability to challenge the ordinance as unlawful and/or unconstitutional through a complaint seeking declaratory and/or injunctive relief. This, of course, means that Petitioner has an adequate remedy at law, which deprives this Court of jurisdiction to issue a writ of mandate. CCP, 1086; see, e.g., Barratt American, Inc. v City of Rancho Cucamonga, 37 Cal.4th 685, 705 (2005). Another important legal deficiency in the Petition is that it does not actually request relief that is permitted by a writ of mandate, but rather the type sought by way of a writ of prohibition, as Petitioner requests the Court to enjoin Respondent City Clerk and Respondent County Registrar of Voters from submitting the measure to the [electorate], Petition, 20, p. 5, ll. 1418, and to enjoin Respondent City Clerk from submitting the measure to the [electorate], Petition, 25, p. 6, ll. 6-8. A writ of mandate may issue to compel performance of a ministerial or mandatory duty when there is a clear legal right in the person seeking relief, a corresponding duty in the respondent, and a lack of an adequate remedy at law. CCP 1085(a) and 13314. Contrariwise, a writ of prohibition may issue to prevent an inferior court or tribunal possessing judicial or quasi-judicial powers from exercising its jurisdiction in matters over which it lacks sufficient jurisdiction. CCP 1102-1105. For this reason alone the Court is, as a matter of law,
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A writ of mandate commands a person, board, etc., to perform a ministerial act or mandatory duty, CCP 1085(a) and 13314, whereas a writ of prohibition serves to prevent judicial acts from being taken. The unequivocal distinction between these two remedies is addressed in Witkin, California Procedure:
5 6 7 8 9 10 11 12 13 14 15 that the facts have sufficiently congealed to permit an intelligent and useful decision to be made. 16 17 18 19 20 21 22 23 24 25 26 27 28 California Water & Tel. Co. v. County of Los Angeles, 253 Cal.App.2d 16, 22-27 and n. 9 (1967) (California Water). Based on the foregoing, and as well as additional legal reasons set forth below, the Court must, as a matter of law, deny the Petition and dismiss this case. II. THE COURT SHOULD ABSTAIN FROM ISSUING A PRE-ELECTION RULING ON THE INITIATIVES SUBSTANTIVE LAW SO AS TO NOT INTERFERE WITH OR DEPRIVE THE ELECTORATE OF THE OPPORTUNITY TO EXERCISE THEIR INHERENT CONSTITUTIONAL POWER TO APPROVE OR DISAPPROVE A DULY QUALIFIED INITIATIVE This Court should exercise judicial restraint by not conducting a pre-election review of Petitioners challenge to the substantive law of the Initiative. In addition to the principles set forth in this section, the exercise of such restraint against pre-election review is based on the principle
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The differences [between mandate and prohibition] are fundamental: (a) Prohibition deals with judicial acts; mandamus deals with ministerial acts. (b) Prohibition restrains or prevents action; mandamus compels action. (c) Prohibition issues only where jurisdictional defects are shown; this is seldom the basis for mandamus. 8 WITKIN, CAL. PROC. 5th (2008) Writs, 19, p. 900 (emphasis added). Finally, as the Initiative has not been passed by the electorate, the causes of action alleged in the Petition (which are essentially declaratory and injunctive) are not justiciable because they are premature (i.e., not ripe). If the Initiate were to be approved by the electorate, then Petitioners challenge to the Initiatives substantive law would have reached, but [had] not passed, the point
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that an initiative is not yet within the purview of either the executive, legislative, or judicial branches, as it has not yet transformed from an initiative into an actual law. The California Supreme Court has made this point clear: As we have frequently observed, it is usually more appropriate to review constitutional and other challenges to ballot propositions or initiative measures after an election rather than to disrupt the electoral process by preventing the exercise of the peoples franchise... Brosnahan v. Eu, 31 Cal.3d 1, 4 (1982) (Eu) (emphasis added). The California Supreme Courts decision in Mulkey v. Reitman, 64 Cal.2d 529 (1966) (Reitman), provides an instructive example of how California courts jealously guard the initiative process by being loathe to pre-empt the electorates prerogative by entertaining preelection challenges to the substantive law of any initiative. Reitman concerned Proposition 14, which related to the right of private sellers and lessors to discriminate, and to forestall future state action that might circumscribe this right. In particular, Proposition 14 proposed nullifying both the Rumford Fair Housing Act, Health & Safety Code, 35700-35744, and the Unruh Civil Rights Act, Civ. Code, 51 and 52, as they applied to the housing market. The California Supreme Court rejected a pre-election challenge to the substance of Proposition 14 (i.e., challenge under the Fourteenth Amendment): Prior to its enactment the unconstitutionality of Proposition 14 was urged to this court in Lewis v. Jordan, Sac. 7549 (June 3, 1964). In rejecting the petition for mandamus to keep that proposition off the ballot we stated in our minute order that it would be more appropriate to pass on those questions after the election ... than to interfere with the power of the people to propose laws and amendments to the Constitution and to adopt or reject the same at the polls. ... But we further noted in the order that there are grave questions whether the proposed amendment to the California Constitution is valid under the Fourteenth Amendment to the United States Constitution. ... We are now confronted with those questions. Id. at 534-535 (emphasis added). In this post-election decision, the California Supreme Court went on to declare Proposition 14 unconstitutional under both the California and the United States constitutions:
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For the foregoing reasons the severability clause is ineffective in the instant case, and the whole of the constitutional amendment [Proposition 14] must be struck down. Article I, section 26, of the California Constitution thus denied to plaintiffs and all those similarly situated the equal protection of the laws as guaranteed by the Fourteenth Amendment to the federal Constitution, and is void in its general application. Id. at 545. Accordingly, in Reitman the California Supreme Court protected the initiative process and substantive constitutional law and fundamental civil rights. Certainly, if the California Supreme Court will deny a pre-election challenge in a civil rights case, then the red-light camera initiative at issue in this case can wait for post-election review of the substantive law as well.
9 10 11 12 13 14 15 initiative (concerning a penal law) was twice rejected: 16 17 18 19 20 21 22 23 24 25 26 27 28 counsel informed the clerk that the proposed initiative was invalid because it was
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Moreover, this Court should exercise such judicial restraint, which will serve the electoral process, by protecting the electorates exercise of their will, and preserve Petitioners substantive challenges (which he can make post-election). The same result was reached by the California Supreme Court in Wind v. Hite, 58 Cal.2d 415 (1962) (Hite), where a pre-election challenge to the constitutionality of a proposed
Moreover, it should be noted that on August 10, 1962, application was made directly to this court in Jensen v. Hite, L.A. 26956, for mandamus to compel the Registrar of Voters to omit from the ballot the proposition now before us. That petition, which challenged the constitutionality of section 337s of the Penal Code, was unanimously denied by this court on August 15, and the present proceeding was instituted in the Superior Court of Los Angeles County thereafter. We are still of the view that we should not interfere with the exercise of the electorates franchise for the purpose of determining the question of constitutionality, a matter which can, if necessary, be more appropriately passed upon after the election. Id. at 417 (emphasis added). Unlike the Petition in the case at Bar, Gayle v Hamm, 25 Cal.App.3d 250 (1972) (Hamm) provides a clear example on the proper use of a writ of mandate. In Hamm, the county
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unconstitutional and unlawful (i.e., under the Fourteenth Amendments Equal Protection Clause). Based on this finding, the clerk refused to process the initiative. The proponents filed a petition for writ of mandate to compel the clerk to process the initiative. The superior court held that the clerks duty was ministerial under 3706, and, therefore, issued a writ of mandate
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 initiative power is the power of the electors to propose statutes and amendments to the Constitution and to adopt or reject them.
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commanding the clerk to process the initiative. Id. at 252. In affirming the superior courts decision, the court of appeal held: The exercise of initiative and referendum is one of the most precious rights of our democratic process. Since under our theory of government all the power of government resides in the people, the power of initiative is commonly referred to as a reserve power and it has long been our judicial policy to apply a liberal construction to this power wherever it is challenged in order that the right be not improperly annulled. If doubts can reasonably be resolved in favor of the use of this reserve power, courts will preserve it. A premature interposition of the judiciary constitutes an unwarranted limitation upon this reserve power. To accept the position espoused by defendants in this case, namely, that the court must determine the validity of the initiative ordinance at the processing juncture represented by this case and the showing made by defendants would be tantamount, in our opinion, to requiring every proponent of an initiative measure to first seek the advisory opinion of the courts as to its validity before getting the measure to the electorate. Id. at 258 (internal citations omitted; emphasis added). The foregoing is the judiciarys interpretation and enforcement of what Californias Constitution makes clear: that all political power is vested with the People, that the purpose of government is to serve them, and that they may alter or reform government as they choose: All political power is inherent in the people. Government is instituted for their protection, security, and benefit, and they have the right to alter or reform it when the public good may require. CAL. CONST.
ART.
2, 1 (emphasis). Consistent with this power, Article 2, section 8 vests the
people with power to directly enact laws:
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1 2 3 4 5 6 7 8 Amador Valley Joint Union High School District v. State Board of Equalization, 22 Cal.3d 208, 9 10 11 12 13 14 15 Ley v. Dominguez, 212 Cal. 587, 593 (1931) (emphasis in original). The California Supreme 16 17 18 19 20 21 22 23 24 25 26 27 28
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CAL. CONST. ART. 2, 8(a). In several decisions, the California Supreme Court has described this inherent power as one of the most precious rights of our democratic process, and that the sovereign peoples initiative power is clearly a fundamental right. Associated Home Builders v. City of Livermore, 18 Cal.3d 582, 591 (1976) (Livermore); Brosnahan v. Brown, 32 Cal.3d 236, 241 (1982) (Brosnahan); Costa v. Superior Court, 37 Cal.4th 986, 1007-1008 (2006) (Costa). California courts have recognized that they have a solemn duty to jealously guard this right,
248 (1978) (Amador), and to prevent any action which would improperly annul that right, Martin v. Smith, 176 Cal.App.2d 115, 117 (1959). What is of the utmost importance in the case at Bar is for this Court to recognize and apply the principle underlying the initiative power: It is well settled that the power of initiative and referendum, as exercised in this state, is the exercise by the people of a power reserved to them, and not the exercise of a right granted to them.
Court has explained this principle: (I)t has long been our judicial policy to apply a liberal construction to this power wherever it is challenged in order that the right be not improperly annulled. If doubts can reasonably be resolved in favor of the use of this reserve power, courts will preserve it. Livermore, supra,18 Cal.3d at 591 (internal citations omitted). In addition to numerous other reasons set forth below, this constitutional command is precisely why this Court should not intervene pre-election in this matter. Adhering to this dictate is also consistent with Californias Doctrine of Separation of Powers. This bedrock principle was incorporated into the California Constitution:
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The powers of state government are legislative, executive, and judicial. Persons charged with the exercise of one power may not exercise either of the others except as permitted by this Constitution. CAL. CONST.
ART.
3, 3.3 (emphasis added). This is precisely what the Petition requests by
attempting to entice this Court to circumvent the initiative process by depriving the electorate from 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
U.S. CONST., AMEND I: Congress shall make no lawabridging the freedom of speech, orto petition the government for redress of grievances.
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exercising their inherent political power of directly enacting laws. Although a subtle legal point, this violates not only the initiative process but also the doctrine of separation of powers because it would be the Court (rather than the electorate) deciding whether or not to exercise this legislative power, which is prohibited by Article 3, 3.3 of the California Constitution. Another salient principle is that the California Constitution also expressly divests the Legislature from overruling an initiative approved by the electorate unless the electorate provides their consent: [The Legislature] may amend or repeal an initiative statute by another statute that becomes effective only when approved by the electors unless the initiative statute permits amendment or repeal without their approval. CAL. CONST. ART. 2, 10(c) (emphasis added). This constitutional provision should give this Court great pause before inserting itself in order to prevent the Initiative from being placed on the November 6, 2012, ballot. The California Constitution and case law provide a more judicious approach of non-intervention at the pre-election stage because Petitioner will still have his rights preserved to launch a post-election challenge, assuming the Initiative is approved by the electorate. Furthermore, Petitioners pre-election challenge to the Initiative fares no better under the U.S. Constitution. The First Amendments Speech and Petition Clauses2 afford the broadest protection to political expression to assure [the] unfettered interchange of ideas concerning issues of political and
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social change and importance. Buckley v. Valeo, 424 U.S. 1, 14 (1976) (Buckley) (quoting, Roth v. United States, 354 U.S. 476, 484 (1957)). Moreover, the United States Supreme Court has expressly recognized that the initiative process is core political speech, because it involves interactive communication concerning political change. First Amendment protection for such interactionis at
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its zenith. Buckley v. American Constitutional Law Foundation, 525 U.S. 182, 186-187 (1999) (quoting, Meyer v. Grant, 486 U.S. 414, 422 & 425 (1988) (Meyer)). Finally, as requested by Petitioner, any limit[s] [on] the power of the people to initiate legislation are to be closely scrutinized and narrowly construed. Meyer, supra, 486 U.S. at 423 (emphasis added). Based on these long established principles, this Court should defer to the initiative process in this case, especially in light of Petitioners pre-election challenge to preempt the electorates exercise of this power. Accordingly, this Court should follow Reitmans example by deferring review of the Initiatives substantive law until after the November 6, 2012 general election.
III.
THE PETITION DOES NOT IDENTIFY ANY MINISTERIAL OR MANDATORY DUTY RESPONDENTS HAVE FAILED TO PERFORM, WHICH CONSTRAINS THE COURT TO DENY THE PETITION AND DISMISS THE CASE As a petition for writ of mandate requests a court to compel an official to perform a
ministerial or other mandatory duty, CCP 1085 and Barnes, supra, this section outlines the Respondents duties under the Elections Code and the Murrieta Municipal Code. A. CITY CLERKS DUTIES UNDER THE MURRIETA MUNICIPAL CODE: The City Clerk has the following duties under Title 2 of the Murrieta Municipal Code (City Code): 1. Attend all meetings of the city council and be responsible for the recording and maintaining of a record of all the actions of the council;
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2. Keep all ordinances and resolutions of the council in such a manner that the information contained therein will be readily accessible and open to the public; 3. Keep all records of the council and of the office of the city clerk in such manner that the information contained therein will be readily accessible and open to the public...; 4. Serve as the official custodian of all city records; 5. Be the custodian of the seal of the city; 6. Prepare the council agendas, in conjunction with and under the direction of the city manager; 7. Perform the duties prescribed by the Elections Code of the state in conducting municipal elections; 8. Perform the duties imposed upon city clerks by the California Political Reform Act, being California Government Code Sections 81000 - 81016; 9. Be responsible for the publication of all the official advertising of the city; 10. Be responsible for the maintenance and distribution of the municipal code; 11. Process and refer to the city manager all claims filed against the city and its officers, agents, or employees; and 12. Perform such other duties consistent with this code as may be required of the city clerk, by the city council. (City Code, Title 2, 2.12.020(B) (emphasis added). B. CITY CLERK AND REGISTRARS DUTIES UNDER THE ELECTIONS CODE: The Elections Code provides a broad definition of the term Clerk to include both the City Clerk and the Registrar: "Clerk means the county elections official, registrar of voters, city clerk, or other officer or board charged with the duty of conducting any election. 307 (emphasis added). In the context of this case, the duties of the City Clerk and Registrar are further defined in Government Code 26802 as discharging all duties vested by law in the county clerk that relate to and are part of election procedure. Government Code 26802.5 specifically directs the Registrar to discharge all duties vested by law in the county elections official that relate to and are a part of the election procedure. In this regard, the City Clerk and the Registrar have the following duties under Elections Code: 1. Receive an initiative petition and notice of intent, as well as the required fees.
9201 & 9202(a) & (b).

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2.
Receive a filed copy of the proposed measure with request that ballot title and
summary be prepared and transmit a copy of the proposed measure to the city attorney. 9203(a). 3. Receive a ballot title from city attorney and summary of the proposed measure and
furnish a copy of the ballot title and summary to the proponent. 9203(b). 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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4.
Receive declarations and verify that the proponent properly published a notice of
intention and the title summary of the proposed measure. 9205 and 9206. 5. Receive filed petitions and sections during normal office hours and upon
presentation of petition for filing: a. Ascertain number of registered voters of the city last reported by the county elections official to the Secretary of State, 9210(a); and b. Determine total number of signatures affixed to petition and if the minimum is met, accept petition for filing. 9210(b). 6. Examine the petition in the same manner as county petitions in accordance with
9214 and 9215. 9211. 7. following: a. The number of municipal initiative petitions circulated during the preceding two calendar years which did not qualify for the ballot, and the number of these proposed initiatives for which reports were prepared pursuant to Section 9212, 9213(a); b. With respect to municipal initiative measures that qualified for the ballot in the preceding two calendar years, the number that were approved by the voters, and the number of these ballot measures for which reports were prepared pursuant to Section 9212, 9213(b); and c. With respect to municipal initiative measures that qualified for the ballot in the preceding two calendar years, the number that were not approved by the voters, and the number of these ballot measures for which reports were prepared pursuant to Section 9212, 9213(c). Pursuant to 9213, file a report with the Secretary of State containing the
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8.
Whenever any ordinance or measure is submitted to the voters of the city, official
shall cause ordinance or measure to be printed. 9223. C. CITY COUNCILS DUTIES UNDER THE ELECTIONS CODE: Pursuant to the Elections Code, the City Council has the following duties once an initiative
5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 IV. ARGUMENT The Petition requests issuance of a writ of mandate under 13314 (pp. 3-5) and CCP 1085 (pp. 5-6) for the express purpose of preventing the Initiative from appearing on the November 6,
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is certified by the City Clerk and the Registrar as a valid ballot measure to be presented to the electorate at the next election or special election: 1. Adopt the ordinance, without alteration, at the regular meeting at which the
certification of the petition is presented, or within 10 days after it is presented; 2. Immediately order a special election and present the initiative to the electorate of the City for a vote; or 3. Order a report pursuant to Section 9212 and when the report is subsequently
presented to the City Council, the City Council shall either adopt the ordinance within 10 days or order an election pursuant to Section 9214(b). 9214(a)-(c). D. RESPONDENTS HAVE PERFORMED ALL MINISTERIAL AND MANDATORY DUTIES: As mentioned in Section I, supra, Respondents have performed all required ministerial and mandatory duties under the City Code and Elections Code. See, Exhs. A, B, C, and D. Nowhere in the Petition is it alleged that either the City Clerk, Registrar, City Council, or County failed to perform any of the foregoing duties outlined in the preceding sub-sections. Accordingly, the Petition must be denied and the case dismissed because, as a matter of law, there is no unperformed duty for this Court to compel by way of a writ of mandate. CCP 1085; Barnes, supra, 33 Cal.App.4th at 394-395.
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2012, general election ballot. (Petition, pp. 3-6.) As is has already been discussed in great detail in Sections I through III, supra, and as will be further discussed in this section, neither 13314 nor CCP 1085 supports the issuance of a writ of mandate in this pre-election challenge to the substantive law of the Initiative.
5 6 7 8 To be entitled to a writ of mandate, Petitioner must show that (1) the City Clerk, the 9 10 11 12 13 14 15 as a duty resulting from an office, trust, or station To justify the issuance of a writ of mandate, 16 17 18 19 20 21 22 must first determine from the evidence whether a ministerial duty exists, which the California 23 24 25 26 27 28 Supreme Court has defined as an act that a public officer is required to perform in a prescribed manner in obedience to the mandate of legal authority and without regard to his own judgment or opinion Kavanaugh, supra, 29 Cal.4th at p. 916. More succinctly, where a statute requires an officer to do a prescribed act on a prescribed contingency, his functions are ministerial. People ex
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A.
NEITHER THE CITY CLERK, THE REGISTRAR, THE CITY COUNCIL, NOR THE COUNTY HAS A MINISTERIAL OR MANDATORY DUTY TO CONDUCT A PRE-ELECTION INVESTIGATION AND DETERMINATION AS TO WHETHER THE INITIATIVE IS LAWFUL OR CONSTITUTIONAL
Registrar, the City Council, or the County has a duty to act and (2) Petitioner has a beneficial right to performance of that duty. Kavanaugh v. West Sonoma County Union High School District, 29 Cal.4th 911, 916 (2003) (Kavanaugh); Loder v. Municipal Court, 17 Cal.3d 859, 863 (1976); see, also, CCP 1085(a): [a] writ of mandate may be issued by any court to any inferior tribunal, corporation, board, or person, to compel performance of any act which the law specially enjoins,
a petitioner must prove that the public official had a ministerial duty to perform, that is, a duty required to be performed in a prescribed manner without any exercise of judgment, discretion, or opinion concerning the propriety of the act. California Association for Health Services at Home v. Department of Health Services, 148 Cal.App.4th 696, 704 (2007). For purposes of determining whether a writ of mandate should issue, the superior court
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rel. Fund American Companies v. California Insurance Company, 43 Cal.App.3d 423, 431-432 (1974). As evinced by the allegations in the Petition and the exhibits thereto, Respondents do not possess the legal authority or discretion to take the actions Petitioner seeks to require, that is, to
5 6 7 8 9 10 11 B. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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determine whether or not the Initiative is lawful or constitutional before placing it on the ballot. In Legislature of the State of California v. Deukmejian, 34 Cal.3d 658 (1983) (Deukmejian), the California Supreme Court held that an election official has no discretion to refuse to submit a properly qualified initiative measure to voters. Id. at p. 679 (citing, Farley v. Healy, 67 Cal.2d 325, 327 (1967)). Accordingly, the Court is constrained to deny the Petition. ELECTIONS CODE SECTION 13314 IS LIMITED TO COMPELLING AN ELECTION OFFICIAL TO CARRY OUT A MINISTERIAL OR MANDATORY DUTY NOT AS LEGAL DEVICE FOR ASSERTING PRE-ELECTION CHALLENGE TO THE SUBSTANTIVE LAW OF AN INITIATIVE Petitioner is attempting to invoke 13314 in an improper manner. That section provides that [a]n elector may seek a writ of mandate alleging that an error or 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. 13314(a)(1) (emphasis added). That section concerns the placing of a name on and printing of a ballot, and an election officials unperformed ministerial duties, it does not provide a remedy for substantive law deficiencies such as the ones alleged by Petitioner. Consequently, for a writ of mandate to issue under 13314, there must be a neglect of duty or other violation of law by an election official, as is the case under CCP 1085. Accordingly, this Court is without subject matter jurisdiction to issue a pre-election writ of mandate based on any alleged substantive law problems with the Initiative.
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C.
THE COURT DOES NOT HAVE SUBJECT MATTER JURISDICTION BECAUSE THE PETITION REQUESTS THE COURT TO ISSUE A WRIT OF MANDATE TO PREVENT THE INITIATIVE FROM APPEARING ON THE BALLOT FOR ANY ELECTION The Petition requests the Court to issue an order that would clearly exceed its subject
matter jurisdiction. In particular, the Petition requests issuance of a writ of mandate to prevent the 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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Initiative from being placed on the ballot for any election. Clearly, this relief is prospective, and is nothing more than a request for a permanent injunction as to all future elections, including the November 6, 2012, general election. As the Petition requests a writ of mandate under 13314 and CCP 1085, any other prospective relief sought or granted would not only be constitutionally suspect as overbroad but also exceed this Courts subject matter jurisdiction. CCP 430.10(a). Furthermore, as mentioned in Section I, supra, the remedies sought by Petitioner are effectively for declaratory and injunctive relief. In particular, the Petition alleges: [T]he taxpayers of the City of Murrieta will suffer severe and irreparable injury if the Court does not enjoin Petition, 20, p. 5, ll. 14-16 and 25, p. 6, ll. 6-8 (emphasis added). Accordingly, as the relief requested by Petitioner is not within the legal scope of a writ of mandate to compel Respondents compliance with a ministerial or mandatory duty (see, Section III, supra), this Court is without subject matter jurisdiction to entertain any of the causes of action alleged in the Petition. Id. D. THE PETITION MUST BE DENIED BECAUSE PETITIONER HAS AN ADEQUATE REMEDY AT LAW, AS HE CAN FILE A POST-ELECTION CHALLENGE TO THE INITIATIVES SUBSTANTIVE LAW Assuming, arguendo, the Initiative were to be approved by the electorate, Petitioner still has the post-election ability to challenge the ordinance as unlawful and/or unconstitutional through a complaint seeking declaratory and/or injunctive relief. Accordingly, Petitioner has an adequate remedy at law, thereby prohibiting this Court from issuing a pre-election writ of
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mandate to prevent the electorate from exercising their franchise on whether or not to approve the Initiative. CCP, 1086; see, e.g., Barratt, supra, 37 Cal.4th at 705. E. THE PETITION REQUESTS THIS COURT TO ISSUE AN UNPERMITTED ADVISORY OPINION California decisions, like those of the federal courts, preclude the courts of this state to issue advisory opinions, as courts are not vested by the California Constitution with this type of
6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 challenge attempts to enlist this Court into providing an unpermitted advisory opinion: A premature interposition of the judiciary constitutes an unwarranted limitation upon this reserve power. To accept the position espoused by defendants in this case, namely, that the court must determine the validity of the initiative ordinance at the processing juncture represented by this case and the showing made by defendants would be tantamount, in our opinion, to requiring every proponent of an initiative measure to first seek the advisory opinion of the courts as to its validity before getting the measure to the electorate. Hamm, supra, 25 Cal.App.3d at 258 (emphasis added). Based on the foregoing, the Court should not issue a pre-election advisory opinion regarding the Initiatives substantive law. F. BY WAITING UNTIL THIS LATE DATE BARRED BY THE DOCTRINE OF LACHES
TO
power. See, e.g., Stocks v. City of Irvine, 114 Cal.App.3d 520, 531 (1981); Carsten v. Psychology Examining Committee, 27 Cal.3d 793, 798 (1980); California Water, supra, 253 Cal.App.2d at 2223. Furthermore, permitting Petitioners pre-election challenge to the Initiatives substantive law would usurp and do violence to the peoples inherent political power employed through the initiative process. CAL. CONST. ART. 2, 1; Livermore, supra, 18 Cal.3d at 591; Brosnahan , supra, 32 Cal.3d at 241; Costa, supra, 37 Cal.4th at1007-1008. Consequently, Petitioners pre-election
SEEK RELIEF, PETITIONERS CLAIMS
ARE
Petitioners eight month delay in filing the Petition in this matter is fatal to his case: Under the doctrine of laches a writ may be denied where a party unreasonably delays in filing the petition and there is prejudice to the real party in interest. H.D. Arnaiz, Ltd. v. County of San Joaquin, 96 Cal.App.4th 1357, 1368 (2002).
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In the case at bar, on October 18, 2011, the City Clerk certified the Initiative in accordance with the County Registrars issuance of the Certificate of Sufficiency that the Initiative had the required number of valid signatures to place it on the ballot for the November 2012 election. (See, Exhs. B and C.)
5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 substantially interfere with the conduct of the election. 13314(a)(2)(B). The California 23 24 25 26 27 28
A minor part of this delay was due to the Real Parties legal counsels previously scheduled trip (July 17-25). However, the unjustified and inexplicable eight months delay in filing the Petitioner is solely attributable to the Petitioner.
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3
On November 1, 2011, the Murrieta City Counsel, by unanimous vote cleared the way to place the Initiative on the ballot for the November 6, 2012, general election, which is more than a year before the election. (See, Exh. D, p. 5, Action Section.) However, Petitioner waited until June 5, 2012, to file the Petition. As represented by the Registrars legal counsel, Sunshine Sykes, during the June 20, 2012, ex parte hearing, the date the ballot for the November 6, 2012, election goes to print is August 15, 2012. Because Petitioner inexplicably delayed for eight months before filing this action, leaving the Court only fifteen days between the hearing on August 1st and the printing of the ballot on August 15th, not to mention virtually no time for review by the court of appeal or the California Supreme Court, the Real Parties will suffer great prejudice and violation of their state and federal substantive and procedural due process rights. 3 Accordingly, the Petition is barred by the doctrine of laches. Id. G. PETITIONERS PRE-ELECTION CHALLENGE TO THE INITIATIVE AT THIS LATE DATE WILL SUBSTANTIALLY INTERFERE WITH THE ELECTION PROCESS AND IS UNNECESSARY BECAUSE PETITIONERS CHALLENGE TO THE SUBSTANTIVE LAW OF THE INITIATIVE CAN BE PURSUED POST-ELECTION The Elections Code strictly prohibits a writ of mandate from issuing where it will
Supreme Court has held where, as in the case at Bar, any challenge based on a claim that the
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measure is one that may not be presented to the voters must be promptly made and determined by a petition for writ of mandate. Deukmejian, supra, 34 Cal.3d at 679 (emphasis added). As set forth in detail in the preceding sub-section, Petitioner waited eight months before filing the Petition requesting the Court to intervene pre-election to prevent the Initiative from
5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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being placed on the ballot thereby unconstitutionally disenfranchising the electorate. Eu, supra, 31 Cal.3d at 4; Reitman, supra, 64 Cal.2d at 534-535. Clearly, under Deukmejian and 13314(a)(2)(B), the Petition was not promptly made and is substantially interfering with the election process. On the other hand, Petitioners substantive challenges to the Initiative can be made post-election, assuming the Initiative is approved by the electorate. Accordingly, the Petition should be denied and the case should be dismissed. H. PETITIONERS RELIANCE ON ELECTIONS CODE 13314 AND Kunde v. Seiler IS MISPLACED BECAUSE NEITHER SUPPORTS A PRE-ELECTION CHALLENGE TO THE INITIATIVES SUBSTANTIVE LAW As mentioned in greater detail in Section IV.B, supra, 13314 does not support a preelection challenge to the Initiatives substantive law. It is noteworthy that Petitioner cited a Fourth District Court of Appeals case, Kunde v. Seiler, 197 Cal.App.4th 518 (2011) (Kunde), in conjunction with 13314 to support that such pre-election challenges are permitted. (Memo of P&A in Supp. of Ex Parte Application, p. 1, ll.7-21.) However, careful review of Kunde reveals that it fails to support such a proposition. Kunde related to inclusion of electioneering materials in the sample ballot provided to the electorate. In contradistinction to the case at Bar, Kunde did not address a pre-election challenge to the substantive law of a proposed initiative. A voter challenged the inclusion of these materials by way of a petition for writ of mandate, contending that the registrar of voters committed an error
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in printing the ballot. Thus, Kunde did not authorize or relate to a pre-election challenge to the substantive law of a proposed initiative, but rather whether the Registrar ha[d] neglected her duty by including the materials with the ballot. Id. at 528-529. It is undeniable that 13314 was designed to remedy printing errors in any ballot, not as a vehicle by which to make a pre-election
5 6 7 8 9 10 11 12 13 14 15 their required duties, the Petitioners pre-election attack on the substantive law of the initiative is 16 17 18 19 20 21 22 2, sections 1 and 11 and Article 3, section 1 of the California Constitution. Specifically, 23 24 25 26 27 28 Petitioner argues that VC 21100s language that [l]ocal authorities may adopt rules and regulations serves to prohibit the electorate from exercising their inherent power to directly enact laws by way of the initiative power. First, as a general matter, that section uses the permissive term may rather than the mandatory shall. Consequently, there is no mandatory
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challenge to the substantive law of an initiative. In Kunde, the Fourth District concluded that the materials were proper for inclusion in the ballot, and, therefore, Kunde did not relate to a preelection challenge to the substantive law of a proposed initiative. Accordingly, Kunde is inapposite to the case at Bar. I. THE PETITIONERS PRE-ELECTION ATTACK INITIATIVE IS WITHOUT MERIT
ON THE
SUBSTANTIVE LAW
OF THE
Even assuming, arguendo, this Court were to ignore long established principles embodied in the California and U.S. constitutions regarding the peoples inherent power to directly enact laws, as well as ignore that 13314 does not apply because respondents have performed all of
without merit. 1. The Petition seeks a writ of mandate to prevent the Initiative from appearing on the
ballot for the November 6, 2012, election because Petitioner alleges that the electorate is not permitted to vote on this subject matter. (Petition, pp. 4-5.) However, Petitioner is requesting the Court to interpret and apply Vehicle Code (VC) 21100 in a manner that would violate Article
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duty imposed upon local authorities to adopt laws relating to red-light cameras, and there is no corresponding pre-emption of the electorates inherent power to propose and approve the Initiative. CAL. CONST., ART. 2, 1 and 11. Second, there is no legislative intent or expression in any of the VC sections cited by
5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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Petitioner or any other statute indicating the Legislature pre-empted the peoples initiative power to prohibit local authorities from employing red-light camera systems. Third, the VC sections cited by Petitioner merely outline the proper procedures and standards to be utilized and followed if a red-light camera system is adopted. Absent from any of the cited sections is a command that municipalities must employ a red-light camera system. Accordingly, the City Council may or may not employ red-light camera systems. Similarly, the electorate maythrough the initiative processemploy, not employ, or prohibit red-light camera systems. Fourth, even assuming, arguendo, the Legislature had written the VC sections cited by Petitioner in a manner that seemed to pre-empt the electorates initiative power, such sections would not survive constitutional muster. Specifically, such interpretation and application would serve to abrogate the electorates initiative power under the California Constitution, placing preemption in conflict with the California Constitution. However, where a state statute conflicts with the California Constitution, the latter prevails. CAL. CONST., ART. 3, 1; see, e.g., Sands v. Morongo, 53 Cal.3d 863, 902 (1991) (The California Constitution is the supreme law of our state.). Finally, the California Supreme Court has made it abundantly clear that such pre-election inquiry into the constitutionality of various VC sections and the Initiative should not (and may not under 31314) be made until after the election. Reitman, supra, 64 Cal.2d at 534-535; see, also, Hite, supra, 58 Cal.2d at 417 (emphasis added):
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are still of the view that we should not interfere with the exercise of the electorates franchise for the purpose of determining the question of constitutionality, a matter which can, if necessary, be more appropriately passed upon after the election. 2. The pre-election review requested by Petitioner should be deferred to post-election
We
because Section 4 of the Initiative is a severability clause: If any provision of this measure or the application thereof to any person or circumstance is held invalid, that invalidity shall not affect the other provisions or application, and to this end the provisions of this measure are severable. (Exhibit A, Text of The Initiative, Sec. 4.) As the Petitioner challenges only Section 2 of the Initiative (Petition, pp. 4-5), a court would be required to make a more exacting inquiry as to the entire Initiative, the interplay between the separate sections of the Initiative, and an analysis of the separate sections of the Initiative and each sections relation to the stated purpose of the Initiative. For example, if Section 2 were determined to be improper, then Section 4 would serve to sever that section from the Initiative, thereby leaving the remaining portions of the Initiative in full force and effect. Another possibility is that Section 2 can be upheld by reasonably interpreting and applying it in a manner that is consistent with the Initiative. For example, a court would have the
17 18 19 20 21 22 23 be more time for full briefing and deliberationoften will be the wiser course. Independent 24 25 26 27 28 Energy Producers Association v. McPherson, 38 Cal.App.4th 1020, 1030 (2006) (McPherson) (emphasis added). The foregoing notwithstanding, a court should not employ this comprehensive inquiry,
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discretion and power to uphold and give effect to Section 2 in a way that is consistent with the entire purpose of the Initiative by interpreting and applying that section to prohibit red-light camera systems in the City of Murrieta. After all, that is the express purpose of the Initiative. Another important point is that because this type of challenge is one that can be raised and resolved after an election, deferring judicial resolution until after the electionwhen there will
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analysis, and application in a pre-election challenge because to do so would interfere with and jeopardize the peoples inherent power to directly enact laws: The arena of the entire initiative process, through the final tabulation of yes or no, is the appropriate ring in which voters rightfully determine the winner. Opponents should not look to the court to stop the bell before round one. San Francisco Forty-Niners v. Nishioka, 75 Cal.App.4th 637, 649 (1999) (Forty-Niners) (emphasis added). As mentioned in greater detail in this memorandum in Section 2, supra, in Reitman, the California Supreme Court protected both the initiative process and substantive constitutional law and fundamental civil rights by deferring substantive review of Proposition 14 until post-election. It bears repeating: if the California Supreme Court will deny a pre-election challenge in a civil rights case, then the red-light camera initiative in this case can wait until after the election for substantive review of the Initiativel. Moreover, this Court should exercise judicial restraint, which will serve the electoral process, by protecting the electorates exercise of their will, and by preserving the Petitioners substantive challenges, which he can make post-election. Based on the foregoing long established principles, this Court should defer to the initiative process in this case, especially in Petitioners pre-election challenge to preempt the electorates exercise of this power. Accordingly, this Court should follow Reitman by deferring review of the Initiatives substantive law until after the November 6, 2012, general election. Reitman, supra, 64 Cal.2d at 534-535. 3. For the reasons cited by Petitioner, the Washington and South Carolina cases are
inapposite to the case at Bar. In Mukilteo Citizens for Simple Government v. City of Mukilteo, 2012 Wash. LEXIS 174 (Wash. March 12, 2012) (Mukilteo), the Washington Supreme Court considered a post-election challenge to a voter proposed initiative. However, as argued by
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Petitioner, Mukilteo is inapposite to the case at Bar. First, the initial pre-election challenge to the substantive law of the initiate was rejected as premature by the trial court and the Washington Supreme Court. Id. at *2. Second, the challenge was post-election, as the election had already occurred and the initiative was approved. Third, before the case reached the Washington Supreme
5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 course, the reason is that a writ of mandate compels an official to perform a ministerial or
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Court the approval of the initiative caused the Mukilteo City Council to repeal the red-light camera system. Fourth, the relief sought was for declaratory and injunctive relief, unlike the writ of mandate sought under 13314 in the case at Bar. Finally, as the dissent correctly identified, the case had been mooted before it reached the Washington Supreme Court because the alleged offending initiative had already been repealed by the City Council. Id. at 5. This Court should decline to consider Mukilteo persuasive as argued by Petitioner, as Petitioners application of the facts and the legal relief sought are inapposite to the case at Bar. However, the fact that the preelection challenge to the substantive law of the initiative was denied as premature by both the trial court and the Washington Supreme Court, Mukilteo actually serves to support the Real Parties positions argued in this brief. As in Mukilteo, in Joytime Distributors v. State, 528 S.E.2d 647 (S.C. 1999) (Joytime), the South Carolina Supreme Court reviewed the constitutionality of a statute passed by the South Carolina Legislature. In particular, the Legislature passed a state law that submitted a question to the electorate by way of a referendum. Id. at 649. Consequently, Joytime is not actually about a pre-election challenge to a voter originated initiative, but simply deals with the constitutionality of a state law passed by the Legislature. What was at issue in Joytime was not the initiative but the enabling statute, which was passed by the Legislature not the electorate. Id. Again, the relief sought in the South Carolina Supreme Court was injunctive relief not a writ of mandate. Of
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mandatory duty; whereas in Joytime, the injunction was sought to enjoin employment of an existing law. Finally, similar to the suggestion made by Real Parties in this memorandum, the South Carolina Supreme Court employed a severability clause to save those portions of the state law that did not violate the states constitution. Id. at 654-655. Again, this is the type of inquiry
5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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that should be deferred to post-election review of the substantive law of the Initiative, as it requires significant briefing by the parties and analysis by the Court.
V.
CONCLUSION Based on the foregoing arguments and authorities, Real Parties in Interest respectfully
request the Court to deny the Petition and hereby move to dismiss this case.
Dated: July 16, 2012.
LEPISCOPO & ASSOCIATES LAW FIRM
By: ___________________________________ Peter D. Lepiscopo, Esq., Attorneys for Real Parties in Interest, DIANA SERAFIN and ROBIN NIELSON
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LEPISCOPO & ASSOCIATES

SAN DIEGOORANGE COUNTYSACRAMENTO
www.LepiscopoLawFirm.com
_____________________________________________________________________________________________ SAN DIEGO OFFICE
EXHIBIT A
L &A
L A W FI R M

_____________________________________________________________________________________________ SAN DIEGO OFFICE
EXHIBIT B
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_____________________________________________________________________________________________ SAN DIEGO OFFICE
EXHIBIT C
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_____________________________________________________________________________________________ SAN DIEGO OFFICE
EXHIBIT D

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TABLE OF CONTENTS Page TABLE OF CONTENTS .. i TABLE OF AUTHORITIES ...iii

TABLE OF AUTHORITIES Page

9 10 11 12 13 14 15 Elections Code, 9209 ..1 16 17 18 19 20 21 22 Elections Code, 9215 1, 12 23 24 25 26 27 28

1 2 3 4 Health & Safety Code, 35700-35744 ...5 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

TABLE OF AUTHORITIESContinued Page Government Code, 26802.5 .11

2, 11. A city initiative measure is a

5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 constrained to deny the Petition.

2, 1 (emphasis). Consistent with this power, Article 2, section 8 vests the

people with power to directly enact laws:

3, 3.3 (emphasis added). This is precisely what the Petition requests by

9201 & 9202(a) & (b).

SEEK RELIEF, PETITIONERS CLAIMS

Dated: July 16, 2012.

LEPISCOPO & ASSOCIATES LAW FIRM

LEPISCOPO & ASSOCIATES

LEPISCOPO & ASSOCIATES

LEPISCOPO & ASSOCIATES

LEPISCOPO & ASSOCIATES

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