SUPERIOR COURT OF THE STATE OF CALIFORNIA

Transcription

1 0 Brian T. Hildreth (SBN ) bhildreth@bmhlaw.com Charles H. Bell, Jr. (SBN 0) cbell@bmhlaw.com Paul T. Gough (SBN 0) pgough@bmhlaw.com BELL, McANDREWS & HILTACHK, LLP Capitol Mall, Suite 00 Sacramento, California Telephone: () - Facsimile: () - Attorneys for Petitioner AARON STARR SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF VENTURA, HALL OF JUSTICE AARON STARR, an individual, v. Petitioner, CITY OF OXNARD, a municipal corporation; STEPHEN FISCHER, in his capacity as Interim City Attorney of the City of Oxnard; and DOES -0, Respondents. CASE NO. VERIFIED PETITION FOR WRIT OF MANDATE [CAL. ELEC. CODE 0 and ; CCP 0., 0; CAL CONST ARTS. XIII C and XIII D]. IMMEDIATE ACTION REQUIRED: ELECTION LAW MATTER ENTITLED TO CALENDAR PREFERENCE PURSUANT TO C.C.P. 0 Petitioner AARON STARR ( Petitioner ) by this Verified Petition, hereby petitions this Court for a Writ of Mandate and alleges as follows: INTRODUCTION. This is a matter compelled by an abject denial of State Constitutionals rights reserved to citizens of California; and compelled further by an unprecedented refusal to perform obligations unambiguously imposed on the City of Oxnard under the California Elections Code.. Petitioner brings his action pursuant to Article XIII C, section of the California Constitution, California Elections Code section, and Code of Civil Procedure section 0, et seq. to compel Respondents CITY OF OXNARD, a municipal corporation, and STEPHEN FISCHER, in his official capacity as legal counsel for the City of Oxnard, to exercise a

2 0 0 mandatory ministerial duty to issue a title and summary for a proposed ballot initiative measure introduced by Petitioner that seeks the repeal of recently enacted Oxnard Municipal Ordinance No. 0.. Petitioner, who is also the Proponent of the constitutionally-authorized ballot initiative, submitted a duly prepared Notice of Intention to circulate an initiative petition for the purpose of repealing Oxnard Municipal Ordinance No. 0. The ordinance increased wastewater rates charged by the City to customers in the City.. Despite clear authority under the California Constitution allowing voters to pursue such an effort, and a clear direction under the Elections Code mandating the City perform its ministerial duty to process such initiative measures, Oxnard s attorney has refused to perform his mandatory duty and issue a title and summary to Proponent. Without the title and summary, Petitioner/Initiative Proponent is prevented from circulating the initiative petition among voters to gather signatures to qualify the measure for the ballot to present the question to voters.. Prompt action is required by this Court on the instant petition because the City s refusal to act violates unequivocal constitutional rights reserved to Petitioner/Proponent under the California Constitution and the California Elections Code, and prevents Petitioner from collecting the requisite number of signatures to qualify the proposed initiative petition.. Prompt action also is further required by this Court because the significantly increased wastewater rates that are the subject of the proposed initiative petition are presently in effect and water users are currently being charged the increased rates. JURISDICTION AND VENUE. Petitioner AARON STARR is the Proponent of the proposed initiative measure to repeal Oxnard Municipal Ordinance No. 0. As the Proponent of the proposed initiative measure, Petitioner is beneficially interested in the refusal by Oxnard s legal counsel to complete his ministerial duty to issue the title and summary. Petitioner also is an elector within the City of Oxnard.. Respondent, CITY OF OXNARD is a general law city organized under the Constitution of the State of California, located in the County of Ventura;

3 0 0. STEPHEN FISCHER is the appointed Interim City Attorney of the City of Oxnard, and is the city attorney for the purposes of California Elections Code Sections 0. Respondent is named in his official capacity only.. Plaintiffs are unaware of the true names and capacities of Defendants DOES through 0, inclusive, and therefore sue those parties by such fictitious names. Plaintiffs will seek leave to amend this Complaint to state the true names and capacities of the fictitiously named parties when they have been ascertained. GENERAL ALLEGATIONS 0. On March, 0, Petitioner submitted a duly prepared Notice of Intent to Circulate an Initiative Petition (Exhibit A hereto) for the purpose of repealing Oxnard Municipal Ordinance No. 0, which increased wastewater rates charged to City customers. Along with the Notice of Intention, Proponent submitted a request to forward a copy of the Notice of Intent to the City Attorney so that a title and summary could be prepared. The title and summary must appear on any petitions being circulated to voters. California elections law provides that without a title and summary, no signatures may be collected by initiative proponents.. The California Constitution guarantees the right of the people to exercise local legislative authority by initiative. (Cal. Const. Art. II,.) The right of the people to use their initiative power, as reflected in the California Constitution, is one of the most precious and basic rights of our democratic process. (Pala Band of Mission Indians v. Board of Supervisors of San Diego () Cal.App.th, citing Mervynne v. Acker () Cal.App.d,.). Petitioner s initiative in the present matter is specifically authorized by Article XIII C, section of the California Constitution, which provides: [T]he initiative power shall not be prohibited or otherwise limited in matters of reducing or repealing any local tax, assessment, fee or charge. The power of initiative to affect local taxes, assessments, fees and The City has filed a Complaint for Declaratory Relief (Case No: CU-MC- VTA), naming the initiative Proponent as defendant, seeking a declaration that the proposed initiative is unconstitutional and retroactively relieving the City Attorney of his duty to prepare ballot title and summary.

4 0 0 charges shall be applicable to all local governments and neither the Legislature nor any local government charter shall impose a signature requirement higher than that applicable to statewide statutory initiatives. (Emphasis added.). Importantly, under Elections Code section 0(a), the City Attorney has a ministerial duty to prepare the ballot title and summary and return it to Petitioner within days of the filing of the Notice of Intent and text of the proposed initiative. Elections Code section 0(a) provides in pertinent part: Within days after the proposed measure is filed, the city attorney shall provide and return to the city elections official a ballot title for and summary of the proposed measure. (Emphasis added; see also Schmitz v. Younger () Cal.d 0, [The duty to prepare a ballot title and summary for a proposed initiative is ministerial].). Nonetheless, on March, 0 the City informed Petitioner that the City would not issue a title and summary. This refusal violates the express provisions of Elections Code section 0, and violates Petitioner s right to the initiative process afforded under the California Constitution.. Elections Code section provides that any elector may seek a writ of mandate by alleging that... any neglect of duty has occurred or is about to occur in connection with an election. Moreover, a court may issue a writ of mandate to compel the performance of an act which the law specially enjoins, as a duty resulting from an office... (Code Civ. Proc. 0.) Mandate applies when: () the respondent has a clear, present duty to act; and () the petitioner has a beneficial right to performance of that duty. (People ex. rel. Younger v. County of El Dorado () Cal. d 0,.) Both parts of that test are met in this case. Code Civ. Proc. Procedure 0 provides that when a verified petition is submitted by a party beneficially interested, a writ must issue where there is not a plain, adequate speedy remedy in the ordinary course of law.. Unless ordered to do so, the City Attorney will refuse to issue the requested title and summary, already past due. Petitioner is thus compelled to file the present verified Petition for Writ of Mandate. / / /

5 0 0 FIRST CAUSE OF ACTION (Writ of Mandate: Public Official s Abuse of Discretion). Petitioner incorporates by reference each and every allegation made in Paragraphs through of this petition as though fully set forth herein.. The City s legal counsel possesses no discretion to refuse to provide a title and summary. Under Elections Code section 0(a), the City Attorney has a ministerial duty to prepare the title and summary and return it to Petitioner within days. Elections Code section 0(a) provides in pertinent part: Within days after the proposed measure is filed, the city attorney shall provide and return to the city elections official a ballot title for and summary of the proposed measure. (Emphasis added.). Petitioner has a clear, present and substantial right to have the City s attorney perform his legal duty to issue the requested title and summary. The City s legal counsel has a ministerial (nondiscretionary) duty to issue the title and summary as required by Elections Code section 0. (See also Schmitz v. Younger () Cal.d 0, [The duty to prepare a ballot title and summary for a proposed initiative is ministerial].) Accordingly, the City Attorney has a present and immediate duty to act as required by law and provide the requested title and summary. 0. Petitioner has no plain, speedy, and adequate remedy in the ordinary course of law other than the relief sought in this Petition because, unless ordered to do so, the City Attorney will refuse to carry out his statutory duty to issue the title and summary relative to Petitioner s duly submitted Notice of Intention to circulate an initiative petition regarding Oxnard Municipal Ordinance No. 0. This refusal will cause injury, not only to Petitioner, but also to the other qualified voters in the City of Oxnard who wish to repeal the City s increase of the fees charged for wastewater service provided by the City.. Petitioner is, thus, compelled to file the present Writ of Mandate as provided in Elections Code section and related provisions. PRAYER FOR RELIEF WHEREFORE, Petitioner AARON STARR prays:. For an alternative writ of mandate ordering Respondent City Attorney and his

6 0 officers, agents, and all persons acting by, through or in concert with him to immediately issue a Title and Summary in response to Petitioner s Notice of Intent to Circulate an Initiative Petition relative to Oxnard Municipal Ordinance No. 0, or in the alternative, to show cause why he should not be ordered to do so;. For a peremptory writ of mandate ordering the City Attorney and his officers, agents, and all persons acting by, through or in concert with him to immediately issue a Title and Summary in response to Petitioner s Notice of Intent to Circulate an Initiative Petition relative to Oxnard Municipal Ordinance No. 0;. For an award of attorneys fees under Code of Civil Procedure section 0. and costs of this proceeding; and. For such other and further equitable relief as this Court may deem just and proper. 0 DATED: April, 0. Respectfully submitted. BELL, McANDREWS & HILTACHK, LLP BY: BRIAN T. HILDRETH CHARLES H. BELL, JR. PAUL T. GOUGH Attorneys for Petitioner, AARON STARR