Original post made
on Apr 4, 2008
Say what? I didn't read anything in the ruling saying the ordinance was not complete. The judge ruled that the REFERENDUM PETITION was incomplete.
1) State Law only requires complete text of ordinance to be attached to signature pages in petitions
2) Judge rules referendum petition incomplete.
3) Therefore, being the ordinance is the only thing required to be attached to the petition, the ordinance must be incomplete.
I didn't understand this guy much when he was on the Planning Commission- very strange. I think he means well, but I guess we shouldn't expect that he'd start making sense now.
You make it sound so simple!
1) State law is interpreted and clarified by the justice system through trials and precedent. Precedent cited in the ruling explains that whatever is being modified by an ordinance needs to also be attached. This means that _more than only_ the text of the ordinance needed to be included.
2) The ordinance modifies parts of the Development Plan and those parts being modified were not attached to the petition.
3) Therefore, the referendum petition was incomplete, not the ordinance.
Here's the link Web Link to the full text of the ordinance. Page 4 is Exhibit B, Final Conditions of Approval, which modify the Development Plan.
Stacey, are you saying that the Council previously approved a development plan and this ordinance modifies what was previously approved? I have not heard about a previous development plan and I hope this council did not approve such an item in a behind doors decision.
Not really. I'm giving my understanding of what is written in the ruling. I don't believe the Council would have approved anything in relation to this ordinance prior to the approval of the ordinance.
As usual, this thread is travelling off into confusing directions, simply because the subject letter that spawned this thread is based upon poor understanding of the legal processes that have occurred (and those that have not occurred).
First, let me state that the ORDINANCE AS WRITTEN IS LIKELY TO MEET COMPLETELY LEGAL STANDARDS FOR SUCH ORDINANCES THAT ARE PASSED BY ELECTED COUNCILS. The judge DID NOT RULE THAT THE ORDINANCE IS INSUFFICIENT IN ANY REGARD. He ruled THE PETITION AS PRESENTED DID NOT MEET THE STANDARD OF ELECTION LAW THAT SPECIFICALLY APPLIES TO PETITIONS PRESENTED TO CITIZENS FOR REFERENDA.
Mr. Arkin needs to educate himself a bit before he publicizes his opinions if he wants credibility. That's my opinion.
The issue that legally is at play here is that the ordinance as written did not EXPRESSLY INCORPORATE the development plan in its text. Yet, the whole purpose of the ordinance was to approve the development plan and make it law. Without the development plan existing there was no purpose for the ordinance. The effect of approval of the ordinance was to make the development plan, as well as the CEQA findings and the conditions of approval, LAW. So, the law that was approved consisted of the development plan, the CEQA findings, and the conditions of approval. This should not be difficult to understand.
Since the text of the ordinance did not EXPRESSLY INCLUDE the development plan, the petitioners did not carry it during their signature solicitation drive. The judge ruled that they should have carried at least an intelligently chosen portion of it. That would have fulfilled the requirements of election law applied to PETITIONS. Without at least these portions, the intention of the applicable law was fatally violated. Essentially, the LAW that is referended must be available to read at the time of signing a petition. Ayala claimed she consulted three attorneys, yet none of them were smart enough to advise her regarding this critical portion of election law.
Alternatively, a legislative body such as our elected council has complete access to all of the information contained in the development plan. It has city staff, the planning commission, and many public hearings at its disposal to fully understand the development plan that it is approving. In this case, there was a four year trail of such meetings and hearings.
SO, THERE IS NO ISSUE THAT THE ORDINANCE AS WRITTEN AND APPROVED BY COUNCIL MAY BE INSUFFICIENT OR INCOMPLETE IN ANY WAY. It is quite SUFFICIENT.
In my opinion, this subject letter is just about politics and its purpose seems to be to throw more confusion at the Pleasanton public and to try to gain sympathy for their position.
well frank, it seems like you have an opinion on this matter but I would expect this since you work with the developer.
Lets see the judge stated that this ordinance modified a development agreement that was not previously voted on by the council and this non-approved development agreement was not included with the petition so it was incomplete. clear as mud.
I still happen to have a set of this petition (a friend dropped one off for me to collect signatures but I ended up with the flu and could not collect signatures) and when I look at the last couple of pages, there is a map (exhibit A-2) of the property location and also a site plan drawing of the road and where the houses go as exhibit A-3. What else constitutes a "development plan"?
You state that Ayala's attorneys were not smart enough on this so I assume you feel that our city attorney is not smart either when he stated that the referendum petition had the complete ordinance as required by law?
alice, i think you are a paid consultant to ayala.
"While the referendum petition ... did not have to attach the entire Development Plan to achieve technical compliance with section 9238 (as the Development Plan was not expressly incorporated by reference), the failure to include at least some portions of the Development Plan and/or exhibits thereto frustrates the purpose of section 9238, which is to ensure that members of the electorate are adequately informed so that they can intelligently exercise their rights. (See Hebard, 65 Cal. App. 4th at 1339) The Final Conditions of Approval, which were attached to the Petition as Exhibit B and which modify the Development Plan, are meaningless and potentially misleading without including at least some portions of the Development Plan. (See Mervyn's, 69 Cal. App. 4th 93 (holding "full text" requirement not satisfied where General Plan that would be modified by proposed ordinance was not itself attached, and concluding that prospective signers could not be fully informed about the substance of the proposed ordinance). See also Hebard, 65 Cal. App. 4th at 1341-42 (holding that omission of information from title was potentially misleading, even if correct information was available elsewhere in attachment to petition).)"
"The Final Conditions of Approval modify the terms of the Development Plan, including, for example, construction mitigation measures; specific design guidelines such as maximum house heights, building floor measures, maximum grading slopes, placement of side drives in setback areas; and design review procedures. (See Referendum Petition, Ex. B at p. 7-16) In addition, the Final Conditions of Approval impose numerous conditions on specific lots. These modifications and conditions are rendered meaningless, and/or are potentially misleading, without the relevant portions of the referendum petition and a map indicating the location of each lot."
Maybe that is what an appeal would be based upon, that the Development Plan wasn't something previously approved? *shrug*
I should add from the ruling...
"The information in the referendum petition thus does not accurately inform voters of the contents of the Ordinance sought to be invalidated."
Note that the judge is using the words "referendum petition" here and not "ordinance". The referendum petition was put on trial, not the ordinance. Brian Arkin's letter stating that the judge ruled that the ordinance was incomplete is misleading and I think it is irresponsible of a public figure like Mr. Arkin to do.
Working with the developer. Yeah, maybe I should send the Lin's and James Tong a bill for expressing my opinions which originate from my long held positions regarding personal rights and democratic values. But, of course, I will not. Democracies should not give factions the ability to take away personal rights that our Federal Constitution grants to all citizens. I subscribe to the republican form of a democracy and believe the right to petition initiatives and referenda has become a tactic for factions and is widely abused by both sides of any issue.
Now, thank you Stacey for publishing what the judge actually ruled. In separate threads I made a weblink to this ruling available so posters could actually read the facts for themselves, but apparently many failed to avail themselves of any facts before they post.
In even other posts I have addressed the issue of the city attorney and what expertise is required for his position, and that to be expert in land use law regarding initiatives and referenda is not an expertise required of him. In this situation he probably gave his best effort advice.
So, if you mount a petition drive and a city attorney tells you that he believes that this material is sufficient, AND you separately consult up to three attorneys with respect to the petition drive that you are about to mount, who is responsible for your failing? Ultimately, you.
The blame game continues, but the bottomline is there is nothing wrong with the ordinance itself, the citizens of Pleasanton are not responsible for the legal consequences of the actions of a faction led by a self-appointed leader, and all costs of an appeal should be born by the faction.
By the way, the judge entered a final judgement this week that included awarding costs to be recovered by the Lin's. On Friday, Ayala's attorneys filed notice of appeal of this judgement and filed a legal argument against this award.
You can read this stuff yourself at the Superior Court's web site as I do. You don't need to "work with the developer" in order to do this (nor do you need to be a rocket scientist). When this case is eventually filed in the 1st Appellate Court District, there is a website available that will have similar postings of the actions that are filed.
I went to lookup the California Election Code to see what this is all about. Municipal Referendums start at section 9235. 9238 specifically deals with the form of the petition.
(a) Across the top of each page of the referendum petition there shall be printed the following: "Referendum Against an Ordinance Passed by the City Council." - check; that is there
(b) Each section of the referendum petition shall contain
(1) the identifying number or title - check; that is there
(2)the text of the ordinance or the portion of the ordinance that is subject to the referendum. - check; the text of the ordinance was there (interesting that this says you can do a referendum on a portion of an ordinance and does not have to be the whole ordinance even though the whole ordinance was here).
The petition sections shall be designed in the same form as specified in Section 9020 (this governs that you have to collect a signature, printed name, address, etc.)
(c) Each section shall have attached thereto the declaration of the person soliciting the signatures - check; that is there
That is it.
This seems so straightforward on what should be attached to the petition. Everything that is specified in this section of the election code on referendums is present. I thought reading the election code here would be real complicated as others are making it out to be but the section on municipal referendums surprised me to be actually readable.
Nothing in the election code states you have to attach additional information. If the judge is saying the attached ordinance is misleading then we have our city to blame on that as they wrote it. But even this election code says you can actually petition for a referendum of part of an ordinance if you wanted.
Stacey: Since you are the "self-appointed" legal person here, please explain to me what part of the election code (as published by the state) is not being followed (not the judge's ruling but the actual election code that people are supposed to follow when they do a referendum). I kept going through the election code trying to find where it states that additional information on a project needs to be attached but I could not find anything on this.
You mentioned you have addressed the "expertise requirements" for the city attorney. I've haven't had any luck locating these requirements. Are they posted somewhere or would you be stating your personal opinion when addressing these requirements.
I have no idea when the current city attorney was employed but do you suppose this is the first "land use law regarding initatives and referenda" that has crossed his desk.
Perhaps he isn't required be an "expert" regarding "land use law regarding initatives and referenda" but, IMO, one would expect a city attorney to have more than a passing acquaintance with the subject since it is likely his office could be involved from time to time. When is "best effort advice" acceptable from a professional when something as simple as a land use initative is involved. Could be a little research have been helpful.
The "Three Amigo's" continue to be mentioned in this discussion but let's not forget there was also another "Amigo" involved.
One can spin the subject in any direction one choses but we wouldn't be having this discussion if the one of the "Amigo's" had given it more than his apparent "best effort".
The Lin lawsuit alleged violation of Section 9238 (b), as you quoted above. The text of the law looks simple to me too and is perhaps too simple, which is why we have a justice system. Again from the ruling:
"The requirements of section 9238(b) are construed strictly, and when in doubt, ambiguities should be resolved with an eye to protecting the electorate from confusing or misleading information and to guarantee the integrity of the electoral process."
The judge here is explaining to us what the spirit and purpose of 9238 (b) is supposed to mean. What you must realize is that if only the actual text of an ordinance were required, a City could write an ordinance that says basically nothing, a group of citizens could petition for a referendum using it, and voters would not be informed of the substance of the law being referended. That would not be fair and just. Let's say Ordinance 1961 (the Oak Grove ordinance) didn't include anything but the words "We adopt the Oak Grove Development Plan." Then petitioners carry around this "full text", a single sentence. It looks like it would comply with the law, right? After all, the single sentence is the text of the ordinance. But would petition signers know what was in the Oak Grove development plan that was being adopted? Would such a referendum petition adequately inform the voting public of what was being referended?
Now I know you're thinking that the example would be a problem because the example ordinance was bad, but the ordinance's form would be legal. Does anyone remember the Bernal park initiative asking us to approve a certain park plan? It was just a single sentence. It didn't include the park plan in the text of the initiative. The proposed law was not illegal in that form. There is no requirement that the park plan needed to be attached to the law. But the park plan would have needed to be attached to a referendum petition (if one could referend an initiative) so that signers of a petition could be informed properly of what was being referended.
I think we are at a stalemate here. You quote the judge as saying,
"The requirements of section 9238(b) are construed strictly, and when in doubt, ambiguities should be resolved with an eye to protecting the electorate from confusing or misleading information and to guarantee the integrity of the electoral process."
What is ambigius about the full text of the initiative, as required by the state election code?
It sounds like what you are saying is if the city approves an oridnance that says basicially nothing (is bad in your example), the citizens would be required to take this ordinance and write another document to attach to the petition that explains what the referendum is all about. This additional document and the collection of the signatures would still have the 30 day time limit of the state election code. I don't think the election code contemplates a citizens group to finish writing a document that the city did not do right. Plus, anything that the citizens group wrote would in fact be opinion and subject to attorneys throwing this out saying it is misleading. The only fair, and obvious to me, thing to do is if the citizens want an referendum on any ordinance (does not have to be a development but could be smoking ordinances, burning wood in your back yard, etc.), the attach the actual ordinance to a petition in the correct format and collect signatures.
An interesting item on the suit is it is actually suing the city clerk for approving the form of the petition and saying they do not have a right to certify it as complete. The City Clerk along with the City Attorney had to validate the form of the referendum before they could start the process of counting signatures. The city clerk, as represented by the city attorney did write a declaration that the petition was complete. The judge then declared that our city clerk and our city attorney also did not know what they were doing by approving the form of the petition. This is actually their job so I hope they would be trained for it since this is their legal duty. So before we go around blaming Ayala and her lawyers, it is the city that is also at fault and also the defendant of this case. This means that if the petitioners do ask for costs as the judge allows, it will be the city that has to pay since they declared the petition legal and then counted the signatures. When the suit was filed, if the city said the allegations in the suit were correct and the petition was not legal and the signatures would not be certified, there would have been no need for a case for collecting legal costs by the petitioners. The city did stand by their declaration that the referendum petition was complete.
This goes back to the post above asking if the city attorney has to be an expert on this. The answer is "yes". Since the City has the legal authority and responsibility to approve the form of petitions, or can be sued, the city attorney and/or the city clerk has to be an expert on this.
So before you all continue to blame the "self-appointed" leader of the referendum, the blame rests on either the developer for taking this case to court, or the city for approving the form of the petition. Period.
Bill asked, "What is ambigius about the full text of the initiative, as required by the state election code?"
I've tried to answer this in my previous post. The ambiguity arises because of the contents of the text of the ordinance. That doesn't make the ordinance illegal. It makes the referendum petition illegal. The state election code applies to referendum petitions, not ordinances.
No so Stacey. A referendum petition is a process to put a previously approved ordinance on the ballot for the public to vote on. You cannot do a referendum on anything but an ordinance. The election code does not ask for, or allow, anything else to be attached to a petition of signatures.
If these signature collectors had anything else attached to the petition besides the ordinance, the developer would then be suing saying that whatever was attached was misleading.
So if you do not put extra information attached to the petition, it will be deamed misleading. If you do put extra information attached to the petition, it will be deamed misleading. Sounds to me like this judge is trying to throw out the referendum process. This abilitiy for the citizens to vote on an ordinance is now reserved for high priced attorneys and not citizens anymore. Sigh.
Since four out of five of the members of the council, including the mayor, have previously done initiatives and/or referendums, and were elected to the council because they stand up to the citizens, I would hope that they agree to participate in this appeal process. If any one of those four members had this happen to them before they were elected, they would have been outraged. I hope their position of power, at this moment, does not get in the way of what they used to stand up for.
Bill wrote: "A referendum petition is a process to put a previously approved ordinance on the ballot for the public to vote on."
That still doesn't make a referendum petition an ordinance or visa versa. The election code doesn't apply to ordinances, etc. voted into law by a City Council or even State Legislature. It does apply to referenda, recalls, and initiatives.
Bill also wrote: "If these signature collectors had anything else attached to the petition besides the ordinance, the developer would then be suing saying that whatever was attached was misleading."
Possibly. The case of Mervyn's vs. Reyes, 69 Cal. App. 4th 93 is cited often in what I've read. Anyone can sign up for a free account at FindLaw.com and look at the details of that case. Web Link This judge is not exactly ruling anything unique in the Lin lawsuit. If you read about the Mervyn's case, Hayward's General Plan was being modified and so the parts that were being modified needed to be attached to the petition. The link I provided cites numerous other cases too that clarify what exactly needs to be attached. As I wrote above, one poster mentioned that the Oak Grove Development Plan isn't something like a General Plan (previously approved) in the cited case so maybe that will be something an appeal could hinge upon.
Referendums are all about ordinances. The election code states the petition must have the words "Referendum Against an Ordinance Passed by the City Council" on it. If a City Council can approve an ordinance in a certain form, the electorate can do a referendum against it in exactly the same form. No abuse can occur if the electorate has exactly the same document the City Council did.
As for the merits of the project and whether they are good or bad and the other affects this could or could not have on the community, that is reserved for the ballot where each side gets to submit their arguments and also the counter arguments against what the other side is saying.
I must object. I AM the self-appointed legal expert, not Stacey!
Now, having said that, let me make some points.
To Bill. In your succession of posts you are ignoring three decades of case law. You flip between accusations regarding the council and the city attorney and statements which are untrue. Like:
"city that has to pay since they declared the petition legal and then counted the signatures."
"The election code does not ask for, or allow, anything else to be attached to a petition of signatures."
These are your opinions. If not, present some present references or case law references to support your statements.
Case law is the interpretation by various courts of the meaning and INTENT of the law that legislators wrote. You are reading the original legislation but not interpreting its meaning in view of the many cases that have been judged since its introduction into the election code. The text you read are technical requirements that the legislature wrote into law attempting to enforce their INTENT. They were not at the time prescient regarding all possibilities of deviations that would occur in the future that usurped their intent, like an ordinance written to meet different standards (eg., laws passed by elected bodies) but not expressly incorporating certain portions (you have to be brain dead not to know that the development plan was the law being approved). That's why when you read the judge's rulings you also have to read the cases cited in his ruling. You can't stop with just what he writes along with your reading of the election code and then conclude he is wrong. You HAVE to read the case law history to understand the complete interpretation of the meaning and INTENT of the original code. That is exactly what the appeal court will do if they accept this case, which it may not. We must wait and see on this point.
That's what attorneys who are expert in this specialty of the law are for. You pay them and they advise you regarding the complete, up-to-date interpretation of written law that is important and applies to you and your situation. The burden to do this falls on the initiators of any referendum, not the city or the city attorney. That's fair by anyone's standards. The city and its taxpayers cannot be responsible for the actions of any independent group that chooses to exercise its rights to referendum.
To Jerry. We crossed swords in another thread on this issue about the city attorney and what is expected of him. My position is an opinion based upon assessing many input variables and combining these with logical thinking. At the end of the day, it doesn't matter whether you are right or I am because a city attorney represents the city, not any faction or its self-appointed leader. He's not their lawyer! You may beat on him politically, but if you think there is a basis for a legal action, then I put the burden on you to present your case along with some references to support your conclusion.
The bottom line in my opinion is that the ordinance will stand according to this council, and the council won't pay for the appeal.
Hello again Frank,
Your acknowledgment that your stated knowledge of the city attorney's duties is strictly your personal opinion was suspected all along. Care to explain these "input variables" you used? I'm always seeking education.
I can't understand why you apparently continue to assume I think the city attorney represents "any faction or it's self-appointed leader". Is providing ALL necessary documents required of his office "representing a faction"? I wouldn't think that to be the case. IMO, that would merely be fulfilling the duties of his office, which one should expect from a professional attorney representing a city government. After all, one could conclude he seems to have knowledge of what was required since, per the Lin's attorneys, he apparently stated at a council meeting that all documents related to the ordinance should be attached.
If you think expecting competency is "beating on him politically", so be it. Could competence be a legal offense - as I have stated before, I have no idea.
I'm not only self-appointed, but Bill confirmed me!
Sorry frank, I guesss you are the self-appointed lawyer. Did you pass the bar?
Since it is the city that is named as the defendent in this case, it is only the city that can be asked for costs. If the petitioner or the city feels the interested real parties are responsible for the costs, that will be yet another suit. As I stated, the developers sued the city for approving the form of the initiative; they did not sue the signature collectors directly. While the city deferred to the attorneys of the real parties to do most of the work defending this case, the city did continue as the defendent in the case by attending the court hearings and not admitting "guilt" when the case was filed.
As for all the statements about courts "reinterpreting" state law and hiring expensive lawyers to represent the citizens rights... "The first thing we do," said the character in Shakespeare's Henry VI, is "kill all the lawyers." Sorry, I could not resist quoting Shakespeare.
The city was named in the suit because the petition had to go through the clerk by law. Lest we forget, after 4 years of study, the council approved the development by a 4-1 vote. Why would they support an appeal of a decision with which they agree? To preserve the people's right to refer a law? Referendums are not supposed to be easy. There were numerous reports of misleading facts. The judge ruled that the ordinance needed some additional clarification, not pounds worth but pages worth. It' great the someone said you have to be clear. The public should have the benefit of understanding what the council approved, not what the petitioners said they approved
Finally, whether one agrees or not, there is a reason why we have a judicial system. Councils (and other legislative bodies) make ordinances (laws) judges interpret them. All referendums are not equal, some are more complicated.
The city attorney represents the city and its residents as a group.
I imagine he acted in good faith concerning the ordinance. There was no malice
The judge disagreed. The judge gets to interpret the ordinance. That's his job.
Just checking in.....
And I found two items worth addressing.
Jerry, you and I are now circling the same give and take arguments again on the City Attorney's job description. Only his employer really knows! Let's wait to see what shoe drops over the next month or so on this issue.
Bill. WRONG. You are not reading any of these links that we have been posting in all of these threads. The Lin's named in the lawsuit the City Clerk as Respondents and Ayala and her Does 26 through 75 as Real Parties In Interest and both as Defendents. It were the Real Parties In Interest that failed to carry the required documents. The City Clerk failed to refuse to certify on the basis of this insufficiency. Both were sued. The judge said "I agree". The final judgement entered last week said petitioners are entitled to recover costs. How Ayala and the City settle up is what's at play right now along with everything else. That plays into the reason she is pressuring them to lead the appeal.
Oh, I forgot one thing, Bill.
When you are self-appointed, you don't have to pass anything. Therefore, no bar exam for me. Just like self-appointed leaders of factions who don't have to be elected by any democratic process.