Pleasanton mayoral candidate Julie Testa's candidate statement will not be placed on the Nov. 8 sample ballot after a court commissioner Thursday denied her motion to compel Pleasanton City Clerk Karen Diaz to file it.
The final court decision, filed electronically Thursday afternoon, followed a morning hearing at the Hayward Hall of Justice in front of Alameda County Superior Court Commissioner Thomas Rasch.
At the start of that hearing, Rasch issued a tentative ruling against Testa, then allowed both sides to argue their case in the courtroom. In the end, however Rasch sided with Diaz and the city of Pleasanton.
"Clearly I'm disappointed, but I'm also very pleased that he ruled I was in substantial compliance, which is what we said all along, and that there really wasn't a basis to deny our statement at the time of filing," Testa said in a phone interview late Thursday afternoon.
Pleasanton City Manager Nelson Fialho said the city would follow the court's order.
"While Ms. Testa's name will still appear on the ballot as a candidate for mayor, per the court's order, she will not have a candidate statement in the voter information pamphlet," Fialho said in a written statement Thursday afternoon.
Testa is the lone candidate challenging incumbent Jerry Thorne, who is seeking a third straight term as Pleasanton mayor.
Testa submitted her nomination papers just before the filing deadline on Aug. 12. However, the electronic filing of her candidate's statement for the sample ballot, which was emailed at 4:30 p.m. that day, was not accepted by the city clerk, Diaz.
Attorney Matt Morrison, who represents Testa, emailed the city clerk Testa's candidate statement before the 5 p.m. deadline, but Diaz said it had to be printed out and that she could not print a copy of the email for filing nor accept the email as Testa's statement.
A city ordinance adopted in late 2007 stipulates that candidates for city offices file statements electronically and by provide one signed original to the city clerk's office before the deadline.
Testa and Morrison arrived in Diaz's office just after 4:30 p.m. Aug. 12 to file Testa's candidacy paperwork, according to court documents. At first, Diaz turned Testa away from qualifying as a candidate because Testa didn't file a financial disclosure Form 700 "Statement of Economic Interests."
Though Testa and Morrison were able to show Diaz that document had already been filed directly with the Alameda County Registrar of Voters' Office, they went to Morrison's office nearby to file it electronically.
Morrison previously told the Weekly that upon returning to the city clerk's office, Testa realized she had forgotten and had left the printed candidate statement at Morrison's office.
By the time Testa retrieved and submitted her signed statement, the deadline had passed and Diaz denied the filing.
As a result, Testa filed suit against Diaz and Alameda County Registrar of Voters Tim Dupuis on Aug. 24 asking the court to order her candidate statement to be placed on Pleasanton voter sample ballots.
In court on Thursday, Court Commissioner Rasch issued a tentative ruling denying Testa's petition. He deemed that her petition was not filed with the court in a timely manner because she submitted it Aug. 24, two days after a 10-day window closed for those seeking a writ of mandate regarding nomination paperwork.
Rasch also tentatively found that Testa was in "substantial compliance" with state election laws in the submission of her candidate statement, as it does not mandate how statements be filed.
The preliminary ruling also sided with an argument set forth by Diaz's attorney, Thomas Willis of the law firm Remcho, Johansen & Purcell, who stated that Testa's statement should be rejected as defective.
In court documents, Willis called Testa's statement an attack on Mayor Thorne and the City Council and it violated the state election code, which says a candidate's statement cannot "in any way make reference to other candidates for that office or to another candidate's qualifications, character or activities."
Testa's statement said the mayor and City Council were not responding to concerns about water, crowded schools and traffic congestion "in order to promote a pro-development agenda."
In response to the tentative ruling, Morrison argued in court Thursday that the 10-day window for filing a lawsuit should not apply in the case because there was no 10-day public review period possible for his client's statement since it was rejected.
Rather, he argued, a more general section of the code should apply, as it also outlines legal-challenge process but does not specify a petition deadline.
He also contended the motion was filed in as timely a manner as possible given the constraints that his client encountered in the process.
After Diaz rejected her statement, Testa immediately sought an informal resolution with the city, Morrison said. But the city did not reject it until Aug. 17, leaving Testa to find an attorney.
"We made every effort to try to achieve an informal resolution (with the city)," Testa said after the court hearing. "No way I thought the city would be as unrelenting."
Morrison also asked that the court remove the unpermitted language in Testa's candidate statement.
In reply to Morrison's request, Rasch expressed concern about the inability for candidates and voters to review and potentially dispute Testa's statement if it were amended since the review window passed and this Friday (Sept. 2) is the deadline for all ballot submissions.
"At some point doesn't a deadline mean something?" Rasch said.
Morrison argued in turn that a decision on Testa's motion would not have been possible in the 10-day review window regardless.
Willis, meanwhile, called that time-frame "sacrosanct."
"Deadlines are sometimes tough, but deadlines are deadlines," he said.
Ultimately, Rasch concurred. In his final ruling, he wrote that the 10-day lawsuit-filing window was applicable and repeated his findings from the tentative ruling against Testa. He also found that the court could not edit Testa's statement.
"The court will not edit the petitioner's statement at this late date and deprive the voters of the jurisdiction of any opportunity to review or challenge the content," an excerpt from the decision reads.
In a press release after the final ruling, Morrison said that while he was disappointed, he credited Rasch for giving both attorneys ample time to argue their case and for issuing a ruling promptly.
"Unfortunately, Julie taking three days trying to convince the city clerk and city manager that she substantially complied with filing requirements and waiting for their decision on an informal resolution was part of what delayed her from filing her petition earlier," Morrison said. "Had Testa immediately filed suit against the city clerk, according to Commissioner Rasch's decision she likely would have prevailed."
Testa said after the ruling that she hoped the city would take a closer look
at what she called outdated procedures that are a part of the city clerk's office in order to better serve the public. She added that while she believes the lack of a candidate's statement puts her at a "significant disadvantage" against the incumbent Mayor Thorne, she will still get her message to the voters.
"I will still have the opportunity to have a voice, and the voters will still have a choice, but I will be working harder to make up for the disadvantage," she said.