HomeMy WebLinkAboutTrial Court Rules in Cupertino's Favor - Press Release - 03.10.2017
OFFICE OF PUBLIC AFFAIRS
Telephone: (408) 777-3262 • FAX: (408) 777-3366 • pio@cupertino.org
City Hall • 10300 Torre Avenue • Cupertino, CA 95014-3255
N E W S R E L E A S E
March 10, 2017
Trial Court Rules in Cupertino's Favor, Upholding Rejection of
Petition Sections for North DeAnza Gateway Initiative
CUPERTINO, CA – On Friday, March 3, 2017 the trial court ruled in favor of the City of
Cupertino (“City”) by denying the Petition for Writ of Mandate filed in Reed Sparks, Ruby
Elbogen, and William Hausmen (“Petitioners”) v. Grace Schmidt, et al., Santa Clara County
Superior Court Case No. 16CV301471. Petitioners challenged the City Clerk's rejection of 2,048
petition sections relating to the North DeAnza Gateway Initiative ("Initiative").
The Initiative proposed to amend the zoning and height restrictions in the City’s General Plan
for construction of a hotel with 156 additional rooms at the property, which currently contains
the 126-room Cupertino Inn and the Goodyear Auto Service Center.
The court found that the petition sections did not technically comply with Elections Code
sections 9201 and 9203(b) because the City Attorney’s ballot title and summary was not
included “above the text of the proposed measure” on the first page of each petition section.
The court concluded that this failure was a significant defect. The court stated that the title and
summary “must be prominently included in the circulated petition to provide the voters whose
signatures are sought with an accurate and objective petition” and “an accurate and objective
description of the general matter of the initiative and its main points.” “Primarily … (this) …
reduces the risk that voters will be misled … by making available to them a neutral explanation
of the measure.”
In denying the petition, the court concluded that Petitioners did not simply omit the City
Attorney’s neutral explanation of the Initiative on the first page of each petition section. Instead,
Petitioners included their arguments in support of the measure, which were clearly not neutral.
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F tH
Ð
I
VS.
MAR - t 2017
of the Court
CA
BY
Ingrid Stewart
SUPERIOR COURT OF CALIFORNIA
COUNTY OF SANTA CLARA
REED SPARKS, et a1.,Case No. I6-CY-301471
Petitioners,ORDER RE: PETITiON FOR WzuT OF
MANDATE
GRACE SCHMIDT,
Respondent
The petition for writ of mandate by Reed Sparks, Ruby Elbogen, and William Hausman
came on lor hearing before the Honorable Peter H. Kirwan on February 27,2017, at 10:00 a.m.
in Department 19. The matter having been submitted, the Court finds and orders as follows:
I. Background
This mandamus action arises out of the rejection of an initiative petition related to the
development of the North De Anza Gateway area of Cupertino, California. Petitioners Reed
Sparks, Ruby Elbogen, and William Hausman ("Petitioners") proposed the North De Anza
Gateway initiative measure (hereinafter, the "Initiative") to amend the zoning and height
restrictions in Cupertino's General Plan for construction of a boutique hotel. (Petition for Writ
of Mandate ("P'WM"), Exh. A.) The City Clerk of Cupertino, Grace Schmidt ("Respondent"),
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rejected the petition they circulated in support of the Initiative because it did not comply with
statutory formatting requirements. Petitioners commenced this action to compei Respondent to
accept their initiative petition and the signatures affixed thereto.
On April 6,2016, Petitioners filed with Respondent the: (1) notice of intent to circulate
petition; (2)text of the Initiative; (3) proponents' cefiification; and (4) authorization of legal
counsel. (PWM, Exh. D.) On April 21,2016, Petitioners received the official title and summary
of the Initiative prepared by the city attorney. (See PWM, 11 11; PWM, Exh. E.) Petitioners
published the official title and summary of the initiative in the Cuperlino Courier and sent proof
of publication to Respondent. (PWM, Exh. F.) Petitioners thereafter circulated the petition in
sections to obtain voter signatures and submitted 4 boxes of petition sections to Respondent on
October 4,2016. (PWM, T 14.)
Upon receipt of the petition sections, Respondent conducted araw signature count.
(See Elec. Code, $ 9210, subd. (b) lclerk first determines if minimum number of signatures
present before verifying signatures].) Respondent issued a "Receipt for Prima Facie Section and
Signature Count [ ]" indicating she received 2,A48 petition sections containing 5,266 signatures.
(PWM, Exh. B.) She represented, however, that she was receiving but not formally accepting
the petition sections pending review of compliance with statutory formatting requirements.
(PWM, Exh. B.) The very next day, Respondent rejected a\\2,048 petition sections based on
noncompliance with statutory directives governing placement and formatting of the official title
and summary prepared by the city attomey. (PWM, Exh. C.)
Petitioners assert the petition sections technically and substantially comply with the
applicable statutory requirements. On this basis, they filed a verif,red petition for writ of mandate
to compel Respondent to accept their petition for filing. Respondent filed an opposition and
requests forjudicial notice in support thereof.
U. Requests for Judicial Notice
Respondent filed initial and supplemental requests for judicial notice in support of her
opposition. "Judicial notice is the recognition and acceptance by the court | ] of the existence of
a matter of law or fact that is relevant to an issue in the action without requiring formal proof of
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the matter." (Unruh-Haxton v. Regents of the University of California (2008) 162 Cal.App.4th
343,364, internal quotation marks and citations omitted.)
A. Initial Request for Judicial Notice
First, Respondent requests judicial notice of initiative petitions for developments with no
connection to the present action. Respondent apparently presents these other petitions as
examples of petitions she previously accepted. These initiative petitions for unrelated
developments are not relevant here. Courts are not bound by the acts of local officials. (See,
€.g., Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450,455-56 ftrial courts bound
by rulings of higher courts].) A clerk's acceptance of unrelated petitions, in the absence of an
appellate court's decision confirming the clerk properly accepted the petitions, does not
demonstrate whether the clerk correctly applied the Elections Code and formatting requirements
therein. In other words, the Court cannot simply rely on Respondent's previous interpretations
and applications of the law. Accordingly, the unrelated petitions are not proper subjects of
judicial notice.
Second, Respondent requests judicial notice of the initiative text and preliminary
documents Petitioners filed in April 2016 prior to circulating their petition. A court need not
take judicial notice of documents unless they are necessary, relevant, or helpful. (See Jordache
Enterprises, Inc. v. Brobeck, Phleger & Harrison (1998) 18 Cal.4th 739,148, fn. 6.) Petitioners
already filed these documents as exhibits to the petition for writ of mandate. Consequently, it is
not necessary or helpful to take judicial notice of these documents.
Third, Respondent requests judicial notice of several requests to withdraw signatures
from the petition in support of the Initiative. Respondent does not specifically address whether
these requests are proper subjects ofjudicial notice. Rather, Respondent states generically with
respect to the entirety of the initial request for judicial notice that "la]11of the above documents
are public records." (Initial Request for Judicial Notice "Initial RINI" at p. 1:20.) Respondent
thereafter quotes Evidence Code section 452, subdivision (h), which authorizes a court to take
judicial notice of: "Facts and propositions that are not reasonably subject to dispute and are
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capable of immediate and accurate determination by resort to sources of reasonably indisputable
accuracy." (See Initial RJN at p.1,:22-24.)
Evidence Code section 452 does not authorize a court to take judicial notice of
documents simply because they are public records. Rather, a court may take judicial notice of
"[o]fficial acts of the legislative, executive, and judicial departments of the United States and of
any state of the United States." (Evid. Code, 5 452, subd. (c).) There is "'no authority and none
has been cited for the proposition that materials prepared by private parties and merely on file
with state agencies may be judicially noticed pursuant to lEvidence Code section 452,]
subdivision (c).' fCitations.]" (Hughes v. BIue Cross of Northern Caliþrnia (1989) 215
Cal.App.3d 832,856, fn. 2.) These requests to withdraw signatures prepared by private
individuals and merely filed with Respondent therefore are not subject to judicial notice as
official acts.
While Respondent quotes Evidence Code section 452, subdivision (h), it is not especially
clear what fact or matter she asserts is undisputed. Presumably, these voter requests are being
offered to show voter confusion. Even so, a voter can simply withdraw his or her signature; the
voter need not be confused or state his or her reason for doing so. (See Elec. Code, $$ 103, 9602
fprocedure for withdrawal of signature].) Accordingly, requests to withdraw signatures, without
more, do not indisputably demonstrate voters were confused. Only three of these voter requests
actually contain additional information reflecting a voter was "misled." (Initial RJN, Exh. 6.) In
any event, these three voters did not clearly identify the specific source ofconfusion or attribute
confusion to the formatting of the petition sections Petitioners circulated. (Initial RJN, Exh. 6.)
Furthermore, Petitioners dispute whether the voters who submitted these requests even signed
the petition sections at issue because Respondent rejected them based on a purported facial
defect and never even began verifying signatures or requests to withdraw signatures. Thus,
while Respondent may be a reputable source, these requests to withdraw signatures and thèir
significance are in fact disputed.
Otherwise, while Respondent is correct That a court may consider evidence of voter
confusion in evaluating a petition for writ of mandate based on a purporled formatting defect, she
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cites no cases in which a court took judicial notice of requests to withdraw signatures. (See
Suppl. RJN at p.5:I7-26 faddressing Petitioners' objection], citing Creightonv. Reviczlqt (1985)
171 Cal.App.3d 1225, Hayward Area Planning Assn. v. Superior Court (1990) 218 Cal.App.3d
53.) For these reasons, the requests to withdraw signatures are not proper subjects ofjudicial
notice.
Finally, Respondent requests judicial notice of a blank petition section circulated in
support of the Initiative. Petitioners initially took issue with the format of the petition section
filed with the Court, arguing it was not a true and correct copy. Petitioners have slnce
their objection. In any event, the blank petition section f,rled as Exhibit 1 to Respondent's initial
request for judicial notice is identical to that filed as Exhibit A to the petition for writ of
mandate, A court may decline to take judicial notice of documents that are not necessary,
relevant, or helpful. (See Jordache Enterprises, Inc. v. Brobeck, Phleger & Harrison, supra,1.8
Cal.4th atp.748, fn. 6.) There is no actual dispute between the parties as to the format and
contents of the petition sections circulated. Thus, it is neither necessary nor helpful to take
judicial notice of the blank petition section because it is a duplicate.
For these reasons, Respondent's initial request for judicial notice is DENIED.
B. Supplemental Request for Judicial Notice
Respondent asks the Court to take judicial notice of an order denying a petition for writ
of mandate to compel her to accept an initiative petition for a different retail development in
Cupertino, This unrelated order is not relevant to a material issue before the Court because the
other action involved distinct facts, legal issues, and arguments. Furtherrnore, "a written trial
court ruling has no precedential value." (Santa Ana Hospital Medical Center v. Belshe (1997) 5
Cal.App.4th 819, 831.) As the Honorable Mary E. Arand explained in this unrelated order when
denying a request for judicial notice of unrelated petitions, courts are only bound by higher
courts. (See Auto Equity Sales, Inc. v. Superior Court, supra, 57 Cal.2d atpp. 455-56.) Thus,
this unrelated order is neither binding nor persrÌasive. For these reasons, the unrelated order is
not a proper subject ofjudicial notice. Respondent's supplemental request for judicial notice is
therefore DENIED.
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III. Discussion
A party may file a petition for writ of mandate compelling a local official to perform a
ministerial duty, which is "an act that a public officer is obligated to perform in a prescribed
manner required by law when a given state of facts exists." (Alliance for a Better Downlown
Millbrae v. Wade ("Millbrae') (2003) 108 Cal.App.4th 123,128-29; see also Code Civ. Proc.,
$ 1085 lauthorizing petition for writ of mandate].) A court may issue a writ if there is: "(1) a
clear, present, ministerial duty on the part of the respondent and (2) a correlative clear, present,
and beneñcial right in the petitioner to the performance of that duty." (Millbrae, supra,I08
Cal.App.4th atp.I29.)
When a proponent submits signed petition sections for signature counting, a city clerk has
a ministerial duty to evaluate whether they comply with the formatting requirements set forth in
the Elections Code and accept or reject them in accordance therewith. (Millbrae, supra,108
Cal.App.4th at p. 132.) In determining whether petition sections are code-compliant, a clerk may
not engage in a discretionary evaluation of evidence or consider extrinsic evidence. (Id. at
p. 13a.) The clerk may only conduct a "straightforward comparison of the submitted petition
with clear statutory directives." (Ibìd.)
Here, Respondent reviewed the face of the petition sections, determined they did not
comply with the formatting requirements set forth in Elections Code sections 9201 and9203, anc
rejected them on this basis. Specifically, Respondent rejected the petition sections because
Petitioners did not (1) include the city attorney's title and summary on the first page of each
petition section or (2) correctly reproduce and format the city attorney's title and sulnmary on the
signature page of each petition section.
Pursuant to Elections Code section 9201, a proponentmay circulate an initiative petition
in sections so long as the sections comply with the statutory directives. One of these directives
states "the first page of each section shall contain the title of the petition and the text of the
measure." (Elec. Code, $ 9201.) "The person proposing the measure shall, prior to its
circulation, place upon each section of the petition, above the text of the proposed measure and
across the top of each page of the petition on which signatures are to appear, in roman boldface
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type not srnaller than 12 point, the ballot title prepared by the city attorney." (Elec. Code,
$ 9203, subd. (b).) Section 9203 of the Elections Code actually contains a sample headìng and
instructs that, after the heading, the proponent must: "set for1h the title and summary prepared by
the city attorney. This title and summary must also be printed across the top of each page of the
petition whereon signatures are to appeat."
As to the first defect identified by Respondent, there is no dispute Petitioners omitted the
city attorney's title and surrmary from the first page of each petition section. Despite their
general position that the petition sections both technically and substantially comply, Petitioners
do not actualiy dispute Respondent's assertion that the petition sections are technically
noncompliant in this regard. Consequently, the petition sections, which do not contain the title
and summary on the first page, do not technically comply with Elections Code sections 9201 and
9203.
Respondent also rejected the petition sections because Petitioners did not conectly
reproduce the city attorney's title and summary on the signature page of each petition section.
Respondent concluded Petitioners did not fully comply with the requirement that the title and
summary be reprinted on the signature page because they did not clearly denominate the title and
summary, inaccurately reproduced the summary provided by the city attorney, and faiied to print
the title and summary in boldface type.
First, Respondent argues Petitioners should have printed the words "Title:" and
"summary:" before the actual title and summary. Respondent cites no authority establishing
these denominations must appear before the title and summary. The sample heading in section
9203 of lhe Elections Code does not include these denominations. Respondent also does not
demonstrate these terns are part and parcel of the title and summary. The notice from the city
attorney to Petitioners informing them of the official title and summary states, for example,
"TITLE: Initiative (1) amending Cupertino's General Plan requirements for the North De Anza
Gateway . . . ." (PWM, Exh. E.) Given the actual contents of the title follows the colon, it is not
obvious how the denomination is apart of the title itself. (See, e,g., Amador Valley Joint Union
High School Dist. v. State Bd. of Equalization (1978) 22 CaL3d208,242-44 fdiscussing
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requirements for initiative titles].) Furthermore, Respondent's reliance on Hebard v. Bybee
(1998) 65 Cal.App .4th 1331 is not persuasive because that case involved omission of the actual
contents of the title, specif,rcally the phrase "of four acres," and not simply a denomination used
in the city attorney's comespondence informing the proponent of what the title and summary
were. This argument therefore lacks merit.
Second, while not substantively addressed in her opposition, Respondent also rejected the
petition sections because Petitioners included the word "aßd" in the city attorney's summary.
Paragraph 2 of the summary contains a long iist of the amendments to "the City's Zoning Code"
that would be effectuated by the Initiative. (PWM, Exh. A.) Before the very last item in this list
Petitioners included the word "and," which does not appeffi in the city attorney's summary.
(PWM, Exh. A.) Specifìcally,paragraph 2 of the sunmary as printed, which consists of
subdivisions a) and b), states: "iii) includes a parking requirement of one space per unit and
employee and a bicycle parking requirements of 5% more than auto parking; and b) change the
zoning for the Property to G (Gateway)[.]" (PWM, Exh. A, italics added.) Respondent does not
explain and it is not obvious how this extra "and" changes the meaning of the summary in any
way. Even so, the word "and" is, indeed, an addition to the city attorney's summary. A
proponent must accurately reproduce the city attorney's title and summary in each petition
section. (See Hebard v. Bybee, supra,65 Cal.App .4th at pp. 1338-39.) Petitioners did not print
the exact summary as prepared by the city attorney. Petitioners do not argue to the contrary.
The petition sections therefore do not strictly comply with the statutory directives in this regard.
Finally, Respondent also rejected the petition sections because Petitioners did not print
the city attorney's title in boldface type. As with the extra "and," Respondent does not
substantively address this issue in her opposition. Petitioners do not dispute that the city
attorney's title must be printed in boldface type or that the petition sections do not technically
comply with this requirement. (See Elec. Code, $ 9203, subd. (b).) Consequently, the petition
sections do not technically comply with the statutory directives for this reason as well.
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To summarize,the petition sections do not technically comply with the statutory
directives in Elections Code sections 920I and 9203 because Petitioners omitted the city
attorney's title and summary from the first page of each section, included an additional "and" in
the summary printed on the signature page, and failed to print the title and summary on the
signature page in boldface type. Nevertheless, Petitioners emphasize the petition sections should
still be accepted because they substantially comply with the content and formatting requirements.
In California, "the governing cases | ] have recognized that an unreasonably literal or
inflexible application of constitutional or statutory requirements that fails to take into account the
purpose underlying the particular requirement at issue would be inconsistent with the
fundamental nature of the people's constitutionally enshrined initiative power . . . ." (Costa v.
Superior Court (2006) 37 Cal.4th 986, 1013.) Thus, a measure may still be submitted to the
voters when there are "relatively minor defects that [ ] could not have affected the integrity of the
electoral process as arealistic and practical mattet . . . ." (lbid., original italics.) That is,
"technical deficiencies in referendum and initiative petitions will not invalidate the petitions if
they are in 'substantial compliance' with statutory and constitutional requirements." (Assembly
v. Deukmejian (1982) 30 Cal.3d 638,652, quoting Califurnia Teachers Assn. v. Collins (*CTA")
(193 4) I Cal.2d 202, 204.)
The inclusion of the extra "and" in the summary and failure to print the city attomey's
title in boldface type are clearly minor defects that could not have affected the integrity of the
electoral process under the circumstances. (See, e.g., Costa v. Superior Court, suprq,37 Cal.4th
atp.1025 feven substantive differences are insignificant if they do not impact accuracy];see alsc
CTA, supra, I CaLZd atp.2A4 þetition with incorrect font type and slight wording differences
substantially complied with statutory directives].) These minor discrepancies did not change the
meaning or accuracy of the title and summaÍy in any way. Thus, these defects are not a basis for
concluding the petition sections do not substantially comply with the statutory directives.l
lRespondent concedes the petition sections substantially comply with the statutory directives if considering the extra
"and" alone. (Resp. Mem. of Pts. & Auth. at p.14,frt.4.)
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The complete omission of the city attorney's title and summary from the front of the
petition, however, is a significant defect. The purpose of the statutory directives, including those
conceming placement of the title and summary, is to "'give information to the electors who are
asked to sign the initiative petitions."' (Costav. Superior Court, supra,3l CaL th at p. 1013,
quoting CTA, supra, I CaL2d atp.204.) The title and summary "must be prominently included
in the circulated petition" to "provide the voters whose signatures are sought with an accurate
and objective description of the general subject matter of the initiative and its main points."
(Costav. Superior Court,supra,3T CaL thatp.1023; seealso Millbrae,supra,108 Cal.App.4th
at pp. 130-31 f"Primarily, it reduces the risk that voters will be misled when asked to sign a
petition to qualify a proposed measure of the ballot by making available to them a neutral
explanation of the measure."]) Petitioners' omission of this essential information from the front
of the petition and inclusion of it only on the signature page does not serve the purpose of
preventing voters from being misled because the placement did not allow voters to easily access
accurate and objective information about what they were being asked to sign.
Petitioners' reliance on Millbrae to supporl a contrary conclusion is not persuasive. In
that case, the court did not conclude the petition sections substantially complied with the
statutory directives despite the omission of the city attorney's title and summary from the first
page of each section. Rather, the court concluded the petition sections substantiaily complied
with the requirement that the title and summary be "reprinted" on the signature pages because
the proponent printed the title and summary on the front of each double-sided sheet of paper
bearing signature lines. (Millbrae, supra,108 Cal.App.4th at pp. 130-31.)
Furthermore, as articulated by counsel for Respondent at the hearing on the petition for
writ of mandate, Petitioners did not simply omit the city attorney's neutral explanation of the
measure from the front of each petition section. Instead, they included their arguments in
support of the Initiative, which clearly are not neutral. For example, on the first page of each
petition section where the title and summary should have appeared, Petitioners stated the
boutique hotel was the "best use" of the property in the North De Anza Gateway area. (PWM,
Exh. A.) Thus, under these circumstances, voters did not first receive neutral and objective
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information to facilitate their understanding of the technical language of the full text of the
measure that followed. (See, e.g., Elec. Code, $$ 9201 ,9203 ["[A]bove the text of the proposed
measure."])
"Where the purpose of the statutory requirement is to give information to the public to
assist the voters in deciding whether to sign or oppose the petition, the substantial compliance
argument is often rejected and strict compliance held essential." (Ibarra v. City of Carson
(1989) 214 Cal.App.3d 90, 99. ) Moreover, a finding of substantial compliance under these
circumstances would require the Court to completely disregard the statutory directives, which is
not permisslble. (ld. at pp. 98-99; accord CTA, supra, I Cal.2d at p.204 fsubstantial compliance
permissible if it would not vitiate the requirement]; see also Arnett v. Dal Cielo (1996) 14
CaI. th4,22lcourts should interpret statutes so as to avoid rendering language surplusage].)
Petitioners therefore do not demonstrate the petition sections, despite the omission of the title
and summary from the hrst page, substantially comply with the pulpose and substance of the
statutory directives. Petitioners thus fail to demonstrate the petition sections technically or
substantially comply with the statutory directives such that Respondent had a ministerial duty to
accept them.
Separate and distinct from the arguments with respect to compliance with the statutory
directives, Petitioners also take issue with the manner in which Respondent initially accepted the
petition sections for review. They argue Respondent "must conduct her format review at the
very beginning of the [verification] process." (Pet. Mem. of Pts. & Auth. atp.4:19.) Petitioners
assert it was improper for Respondent to have given them a receipt with the raw signature count
while simultaneously stating she needed additional time to evaluate the petition sections for
compliance with the formatting requirements. (Pet. Mem. of Pts. & Auth. alp.3:25.) in their
reply, they assert that Respondent somehow waived her opportunity to evaluate the format of the
petition sections once she conducted a taw signature count. They do not provide any authority
that actually supports this assertion. Although their argument is not especially clear, Petitioners
apparently take the position that the Court should issue a writ compelling Respondent to accept
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their petition for filing, irrespective of the formatting defects, because once she began counting
the signatures she had to accept the petition. This argument lacks merit for several reasons.
First, Petitioners do not actually cite any authority demonstrating Respondent's review
procedure was improper. While Petitioners cite Elections Code section 9210, it simply states the
elections official must determine the number of registered voters and whether the minimum
number of signatures are affixed to the petition. This statute does not, on its face, restrict when
an elections official may review the petition for compliance with the statutory directives.
Petitioners do not explain how this statute somehow requires Respondent to instantly evaluate
the format of the petitions or relinquish her obligation to do so. Signif,rcantly, Respondent's
"ministerial duty exists even when the procedural statute contains no express authorization to the
local elections official to enforce its provisions." (Millbrae, sltpra,108 Cal.App.4thalp.I23.)
Thus, while reviewing a petition for compliance with the statutory directives is not explicitly
listed in Elections Code section 9210 as one of the steps that must be taken during the signature
count process, an elections off,rcial still has an obligation to conduct this review. (Ibid.)
Second, Petitioners do not articulate how any initial defect in the review procedure gives
rise to a ministerial duty to accept the petition sections given they do not technically or
substantially comply with the statutory directives in the first instance. Elections Code section
9201 conditions the submission of a proposed ordinance to a legislative body through the
initiative petition process on compliance with the statutory procedures. (Elec. Code, $ 9201
["[I]n the manner hereinafter prescribed."]) Petitioners do not demonstrate Respondent must
accept their petition for filing based solely on commencing the signature count when she is
otherwise required to reject a petition that "violatefs] one or more statutory procedural
requirements." (Millbrae, supra,108 Cal.App.4thatp. I23.) Thus, even if Petitioners had
demonstrated the order of review was improper, they fail to establish their petition could,
nevertheless, be accepted for filing given it does not comply with the statutory directives.
Finally, any assertion that Respondent somehow did in fact accept the petition for filing
such that she could not subsequently reject it lacks merit because the "Receipt for Prima Facie
t2
ORDER RE: PETITION FOR WRIT OF MANDATE
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Section and Signature Count [ ]" explicitly states she was not accepting the petition as she had
not completed her review. (PWM, Exh. B.)
In sum, Petitioners do not demonstrate Respondent's review of the petition sections was
procedurally improper or that the raw signature count vested in them a right to have a
noncompliant petition accepted for filing. Petitioners' argument that Respondent must accept
their petition irrespective of their noncompliance with the statutory directives therefore lacks
merit and is not a basis for granting the petition for writ of mandate. Based on the foregoing,
Petitioners fail to demonstrate Respondent had a ministerial duty to accept the petition sections,
which do not comply with the statutory directives in Elections Code sections 920I and9203.
The petition for writ of mandate is therefore DENIED,
\,1 i¡r \<-r-+-Date: >t-l
Peter H. Kirwan
Judge of the Superior Court
13
ORDERRE:PETITION FOR WRIT OF MANDATE
SUPERIOR COURT OF CALIFORNIA
COUNTY OF SANTA CLARA
Plaintiff:
REED SPARKS, et al
FILED
Date: Marchl,2017
REBECCA FLEMING
Chief Executive Officer / Clerk
Superior Court of CA of Santa
By
I ,D CLERK
Defendant:
GRACE SCHMIDT
Case Number: 16-CV30147 IPROOF OF SERVICE BY MAIL OF:
ORDER RE: PETITION FOR V/RIT OF MANDATE
CLERK'S CERTIFICATE OF SERVICE: I certify that I am not a party to this case and that atrue copy of
this document was mailed first class, postage fully prepaid, in a sealed envelope addressed as shown below and
the document was mailed at SAN JOSE, CALIFORNIA on : MARCH 1,2017
Rebecca Offrcer / Clerk
BY Deputy
tewart,Deputy
Steven G. Churchwell, Esq.
Karl A. Schweikert, Esq.
CHURCHWELL WHITE LLP
1414KStreet, 3'd Floor
Sacramento, Ca.95814
Robert S. Perlmutter, Esq.
SHUTE, MIHALY & \ryEINBERGER LLP
396 Hayes Street
San Francisco, Ca. 94102
Randolph S. Hom, Esq.
CITY OF CUPERTINO
City Attorney
20410 Town Center Lane, Suite 210
Cupertino, Ca.95014
Proof of service
Clerk's Certificate of Service