Posted by frank, a resident of the Pleasanton Heights neighborhood, on Feb 17, 2008 at 8:28 pm
Yes, Karen, highly technical arguments. And it gets tougher. Here's even more...
On the issue of "ripe". Quotes from Lin's briefs.
"A two-pronged test is used to determine the ripeness of a controversy: (1) whether the dispute is sufficiently concrete so that declaratory relief is appropriate, and (2) whether the parties will suffer hardship if judicial consideration is withheld. (See Farm Sanctuary, Inc. v. Department of Food & Agriculture, 63 Cal.App.4th 495,501-02 (1998). The case law is clear that the City Clerk has a ministerial duty to reject for filing all referendum petitions that, on their face, do not comply with the full-text requirements of Elections Code § 9238(b). (See Billig v. Voges, 223 Cal.App.3d 962,970 (1990).) Petitioners' claims ripened the moment that the City Clerk failed to discharge her ministerial duty to reject the facially deficient Referendum Petition. Once the Clerk commenced processing, the facts were sufficiently formed to permit an intelligent judicial determination as to whether (i) the Referendum Petition conforms to the requirements of the Elections Code, and (ii) whether the City Clerk had a ministerial duty to reject the Referendum Petition. Accordingly, Petitioners' claims satisfy the first prong of the ripeness test."
"Real Parties contend that Petitioners' claims will not ripen unless and until the Referendum Petition is successful, which is contrary to the well-established requirements for a preelection challenge."
There is more to the argument if you bother to read it. To decide for yourself if the writers of the brief are correct, you have to read counter arguments in Ayala's briefs as well as read all the respective case law citations found in both.
Regarding the central complaint of Lin and the size of the plan. I quote from Nelson v. Carlson (1993) 17 Cal.App.4th 732. This case law is prominently cited in the Lin's complaint. The case was very similar to ours but occurred in Dana Point in 1993.
"[4b] The failure to attach to the referendum petition the exhibit containing the plan presents a fatal defect in this case. The resolution's focus was on the adoption of the plan and that document was incorporated into it. Without the plan individuals reviewing the petition had no way of informatively evaluating whether to sign it.
In Billig, the ordinance was 22 pages long. In Chase, the exhibit in question was a lengthy legal description of real property. In the present case, the general plan is several hundred pages long and roughly two and one-half inches thick. Given the size of a general plan, the question arises whether [17 Cal.App.4th 740] attaching it to a referendum petition would realistically assist someone considering whether to sign the petition.
No case has considered a document as voluminous as the plan considered here. We conclude plaintiffs were required to attach the plan to their referendum petition. This conclusion enforces the express requirements of section 4052. As Billig noted, the meaning of the term "text" in section 4052 is clear. By it "the Legislature intended referendum petitions must contain the exact wording of the challenged measure." (Billig v. Voges, supra, 223 Cal.App.3d at p. 967.) Here, the plan was the resolution's focal point and was expressly made a part of it. Section 4052 delineates no exception to the requirement that the petition contain the text of the challenged legislation. If the Legislature had wanted to allow an exception for bulky ordinances or resolutions it could have provided for that situation. So far the Legislature has not done so."
So, it's too bad if the document was thick as far as the appellate court judges were concerned. If you want a referendum to obey Election Code, you deal with it, no short cuts. The main difference with the present case vs. the Dana Point case is our Pleasanton city attorney did not in the ordnance draft explicit language saying that the plan was attached. Maybe he was lazy, like the petitioners. However, it is unlikely that the perceived deficiencies of our city attorney in drafting ordnances will save Ayala's case, since it is the duty of the petitioner of the referendum to obey Election Code, not the city attorney by virtue of how he drafts ordnances. There are separate case law citations in this regard.
All of the above is not me opinionating, but the writings of attorneys and judges.
Who knows, though, how this judge will rule.....