COURT OF APPEAL, STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT, DIVISION ONE

Transcription

1 COURT OF APPEAL, STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT, DIVISION ONE DAVE SOUTHCOTT, et al. ) No. ) Petitioners, ) ) L. MICHAEL VU, SAN DIEGO ) COUNTY, REGISTRAR OF VOTERS, ) ) Respondent, ) ) JULIAN-CUYAMACA FIRE ) PROTECTION DISTRICT, et al. ) ) Respondent, ) ) COUNTY OF SAN DIEGO; COUNTY ) OF SAN DIEGO LOCAL AGENCY ) FORMATION COMMISSION, ) ) Respondent. ) ) EXHIBITS TO PETITION FOR WRIT OF MANDATE Volume 3 of 3 (Pages 496 through 559 of 559 total pages) San Diego Super. Ct., Case No CU-WM-CTL Honorable Kenneth J. Medel, Dept. 66, (619) Related Appeal filed July 11, 2018 (unnumbered) ELECTION MATTER Stay Requested and Emergency Orders Requested by August 10, 2018 Craig A. Sherman, Esq. State Bar No CRAIG A. SHERMAN, A PROFESSIONAL LAW CORPORATION 1901 First Avenue, Suite 219, San Diego, CA Tel: (619) ; Fax: (619) CraigShermanAPC@gmail.com Attorney for Petitioners 0497

2 INDEX OF EXHIBITS Southcott v. Julian-Cuyamaca Fire Protection District San Diego Superior Ct., Case No CU-WM-CTL Court of Appeal, Fourth Dist., No. D TABLE OF CONTENTS Bookmark Date Document Filed By Page No. VOLUME 3 An Index of Additional Exhibits (In Support of Petition for Writ of Mandate, Stay Order, or Other Extraordinary Relief) Exhibit A San Diego County Registrar of Voters, Calendar of Events for Local Measures: County, School and Special Districts Exhibit B Letter/Memorandum by L. Michael Vu, Registrar of Voters, re A Referendum Against Resolution , dated June 26, Exhibit C Letter/Memorandum by L. Michael Vu, Registrar of Voters, re Rescission Update, A Referendum Against Resolution , dated June 27, Exhibit D Letter/Memorandum by L. Michael Vu, Registrar of Voters, re Initiative to Repeal and Replace Benefit Fee, dated May 11, Exhibit E - Motion for Calendar Preference; Declaration of Craig Sherman in Support; Proposed Order Petitioner 498 Petitioner 499 Petitioner 500 Petitioner 501 Petitioner Exhibit F Appellants Opening Brief Petitioner

3 SAN DIEGO COUNTY REGISTRAR OF VOTERS NOVEMBER 6, 2018 CALENDAR OF EVENTS FOR LOCAL MEASURES: COUNTY, SCHOOL AND SPECIAL DISTRICTS (CITIES: PLEASE CONTACT EACH CITY CLERK FOR DETAILS.) Unless stated otherwise, all section references are for the California Elections Code. DAYS BEFORE AN ELECTION DATE EVENT 88 August 10 Registrar of Voters to receive resolution(s) requesting consolidation, services, etc. Ballot text (limited to 75 words) must be included in the resolution. (10403; Education Code 5322) 88 August 10 Tax rate statement (if applicable) is due at Registrar of Voters Office. (9401) 85 August 13 Registrar of Voters to publish a Notice of Argument Deadline. (9163, 9316, 9502) 81 August 17 Impartial analysis is due at Registrar of Voters Office. (9160, 9313, 9500) 81 August 17 Arguments in favor of OR against the measure are due at Registrar of Voters Office. (9163, 9316, 9502) 76 August 22 Rebuttal arguments due at Registrar of Voters Office. (9167, 9317, 9504) 67 to 41 August 31 - September 26 Ballots typeset, proofed and printed. 29 October 8 First day Vote-by-Mail ballots are available. (3001) 15 October 22 Last day to register to vote in this election. (2102) 14 to 0 October 23 - November 6 Conditional Voter Registration Period Voters who miss the registration deadline may register and vote at the Registrar of Voters Office. (2170) 7 October 30 Last day to submit written request for vote by mail ballot. (3001) 6 to 0 October 31 - November 6 Emergency voting in person or pick up (also can pick up with written/signed statement of request by any authorized representative). (3021) 0 November 6 ELECTION DAY Polls open from 7 am to 8 pm. DAYS AFTER THE ELECTION DATE EVENT + 30 December 6 Certified results available after the official canvass is completed. Major elections (Primary or General of an even year, for example) may require 30 days; standalone or smaller elections require less time. (15300 & 15372) Exhibit A 0498

4 MICHAEL VU Registrar of Voters June 26, 2018 Qlountt! of an iego REGISTRAR OF VOTERS County Operations Center Campus 5600 Overland Avenue, Suite 100, San Diego, California Telephone: (858) Toll-free: 1 (800) TTY / TDD: (800) Facsimile: (858) Web Address: CYNTHIA L. PAES Assistant Registrar of Voters TO: FROM: Board of Directors of the Julian-Cuyamaca Fire Protection District c/o Marcia Spahr, District Secre L. Michael Vu Vt:-U/ill'!,,c '-"-- -- Registrar of v I, ' Re: Julian/Cuyamaca Fire Protection District - A Referendum Against Resolution The "A Referendum Against Resolution Passed by the Julian-Cuyamaca Fire Protection District" petition was filed with the Registrar of Voters on May 14, The Registrar of Voters verified 313 signatures out of 313 submitted. A total of 134 valid signatures is required to qualify. As a result of our verification of the signers, this petition does have a sufficient number of valid signatures to qualify. Results of the verification process are as follows: CERTIFICATION OF RESULTS: Number of sections submitted Number of signatures submitted Number of signatures verified Number of signatures found to be valid Number of signatures found not to be valid (includes O duplicates) Number of signatures required for qualification If you have questions, please contact me at (858) or Javier De Anda at (858) c: Supervisor Kristin Gaspar, Chair Supervisor Dianne Jacob, Vice Chair Supervisor Greg Cox Supervisor Ron Roberts Supervisor Bill Horn Helen N. Robbins-Meyer, Chief Administrative Officer Donald F. Steuer, Assistant Chief Administrative Officer/Chief Operating Officer Thomas E. Montgomery, County Counsel April Heinze, P.E., Deputy Chief Administrative Officer, Community Services Group Ron Lane, Deputy Chief Administrative Officer, Public Safety Group David Hall, Clerk of the Board of Supervisors Herman P. Reddick, Director, San Diego County Fire Authority Exhibit B 0499

5 MICHAEL VU Registrar of Voters June 27, 2018 Olountu of an iebo REGISTRAR OF VOTERS County Operations Center Campus 5600 Overland Avenue, Suite 100, San Diego, California Telephone: (858) Toll-free; 1 (800) TTY I TDD: (BOO) Facsimile (858) Web Address: CYNTHIA L. PAES Assistant Registrar of Voters TO: FROM: Board of Directors of the J ulian-cuyamaca Fire Protection District c/o Marcia Spahr, District S"' " ;l"fl'"-- L. Michael V - Registrar of"-f,. Re: Rescission Update - Julian/Cuyamaca Fire Protection District - A Referendum Against Resolution It has come to my attention that Superior Court Judge Medel, in Southcott v. Julian-Cuyamaca Fire Protection District, rendered a decision that makes the qualification of this referendum petition moot. As a result, this updated communication is being sent to rescind my June 26, 2018 qualification memorandum. If you have questions, please contact me at (85 8) or Javier De Anda at (858) c: Supervisor Kristin Gaspar, Chair Supervisor Dianne Jacob, Vice Chair Supervisor Greg Cox Supervisor Ron Roberts Supervisor Bill Hom Helen N. Robbins-Meyer, Chief Administrative Officer Donald F. Steuer, Assistant Chief Administrative Officer/Chief Operating Officer Thomas E. Montgomery, County Counsel April Heinze, P.E., Deputy Chief Administrative Officer, Community Services Group Ron Lane, Deputy Chief Administrative Officer, Public Safety Group David Hall, Clerk of the Board of Supervisors Herman P. Reddick, Director, San Diego County Fire Authority Exhibit C 0500

6 MICHAEL VU Registrar of Voters May 11, 2018 (!Iounty of an JBiego REGISTRAR OF VOTERS County Operations Center Campus 5600 Overland Avenue, Suite 100, San Diego, California Telephone: (858) Toll.free: 1 (800) TTY / TDD: (800) Facsimile: (858) Web Address: CYNTHIA L. PAES Assistant Registrar of Voters Patricia Landis, Proponent 3617 Calico Ranch Gate Julian, CA William Everett, Proponent 4824 Pine Ridge Way PO Box 2468 Julian, CA Karen Kiefer, Proponent 3836 Crescent Drive PO Box 1978 Julian, Ca Re: Initiative to Repeal and Replace Benefit Fee The "Citizens' Initiative to Repeal and Replace Julian-Cuyamaca Fire Protection District Benefit Fee" petition was filed with the Registrar of Voters on April 20, The Registrar of Voters verified 304 signatures out of 304 submitted. A total of 228 valid signatures is required to qualify. As a result of our verification of the signers, this petition does have a sufficient number of valid signatures to qualify. Results of the verification process are as follows: CERTIFICATION OF RESULTS: Number of sections submitted Number of signatures submitted Number of signatures verified Number of signatures found to be valid Number of signatures found not to be valid (includes 4 duplicates) Number of signatures required for qualification eat (858) or Javier De Anda at (858) Registrar of Voters Exhibit D 0501

7 COURT OF APPEAL, STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT, DIVISION ONE DAVE SOUTHCOTT; BRIAN ) Appeal No. D CROUCH; MIKE HATCH; EVA ) HATCH; JULIAN VOLUNTEER ) San Diego Super. Ct., Case No. FIRE COMPANY ASSOCIATION ) CU-WM-CTL ) Appellants and Petitioners, ) ) JULIAN-CUYAMACA FIRE ) PROTECTION DISTRICT; JACK ) SHELVER; MARCIA SPAHR ) ) Respondents and Respondents, ) ) COUNTY OF SAN DIEGO; COUNTY ) OF SAN DIEGO LOCAL AGENCY ) FORMATION COMMISSION ) ) Real Parties in Interest ) ) Appeal from the Judgment of the San Diego Superior Court Honorable Kenneth J. Medel, Presiding MOTION FOR CALENDAR PREFERENCE; DECLARATION OF CRAIG SHERMAN IN SUPPORT; PROPOSED ORDER Craig A. Sherman, Esq. State Bar No CRAIG A. SHERMAN, A PROFESSIONAL LAW CORPORATION 1901 First Avenue, Suite 219 San Diego, CA Tel: (619) Fax: (619) CraigShermanAPC@gmail.com Attorney for Petitioners and Appellants

8 MOTION FOR CALENDAR PREFERENCE TO PRESIDING AND ASSOCIATED JUSTICES OF THE COURT OF APPEAL, AND ALL PARTIES AND THEIR ATTORNEYS OF RECORD: Plaintiffs and appellants Dave Southcott, Brian Crouch, Mike Hatch, Eva Hatch, and Julian Volunteer Fire Company Association ( Appellants ) move this Court for calendar preference and an expedited briefing schedule, for an opinion by this Court on or before August 8, 2018, with no extensions of time for briefing pursuant to California Rules of Court ( CRC ), Rules 8.240, 8.50, 8.54 and 8.68, and immediate noticing of oral argument pursuant to CRC Rule 8.256, subd. (b) if oral argument is requested. 1 This request for expedited briefing and decision is necessary to meet the August and September deadlines for submission of the subject Referendum Petition to the San Diego County Registrar of Voters. (See Declaration of Craig A. Sherman ( Sherman Decl. ) 3-5 included below.) Good cause exists to expedite this appeal because (1) this action is statutorily entitled to preference over other civil cases as being a proceeding under Code of Civil Procedure 35 involving the certification or denial of 1 As discussed in this motion, Appellants will waive their rights to file a reply brief and oral argument if an order is granted expediting this appeal in the timeline requested herein

9 certification of ballot measures, and election contests, and (2) prejudice will result to Appellants because the Respondents Julian-Cuyamaca Fire Protection District; Jack Shelver, in his official capacity as Board President of the JCFPD; Marcia Spahr, in her official capacity as District Secretary of the JCFPD (hereafter collectively District ) are quickly moving to dissolve and transfer control of the Julian Cuyamaca Fire Protection District ( JCFPD ) to the County of San Diego ( County ), (3) there is a great likelihood of voter confusion over a proposed tax increase to fund fire service by the JCFPD (already set to appear on the November 6, 2018 ballot), unless the voters have the opportunity to decide whether to halt dissolution of the fire district, and (4) if the referendum is not placed on the November 2018 ballot, such delay will require the cost of a special election as required by Elections Code sections 9340 and With the next general election scheduled for November 6, 2018, and due to election statutory deadlines and necessary readiness of the Registrar of Voters, immediate consideration and decision by this Court is needed. (Sherman Decl. 3-5.) This motion is based upon the below Memorandum and Declaration of Craig A. Sherman, the Proposed Order, and the concurrently filed Appellants Opening Brief and Appellants Appendix

10 I. INTRODUCTION This subject of the underlying lawsuit and this appeal involves the efforts of Appellants to have their petition of referendum ( Referendum Petition ) appear on the November 6, 2018 general election ballot. A requisite number of qualified voters have signed a properly composed and circulated Referendum Petition. (Sherman Decl. 7, Ex. B, hereto.) The legal dispute in this case revolves around whether the local District decision, to proceed with the filing of an application with San Diego Local Agency Formation Commission ( LAFCO ) for possible dissolution, is subject to referendum. Opposing parties argue, and the trial court agreed, that LAFCO has exclusive jurisdiction over the dissolution including the original District legislative action and decision whether or not to proceed with a LAFCO application. Resolution of this question is needed so that voters know whether they have the right of referendum to determine whether their local fire agency should be dissolved or not. / / / /

11 II. STATEMENT OF FACTS On April 10, 2018, the Board of Directors (hereafter Board ) for the JCFPD made a decision and adopted Resolution to apply to LAFCO for dissolution of the local Fire District. 2 District s officers filed an application for dissolution with LAFCO on April 11, 2018, the day after the passage of Resolution (AA 117, ) Subsequent to District s decision and resolution on April 10, 2018, Appellants organized a referendum petition drive and collected signatures of voters within the JCFPD to rescind the April 10, 2018 and resolution/action of the Board. (AA ; see also e.g. AA ) Appellants obtained a sufficient number of signatures of registered voters within the geographical boundaries of the JCFPD to timely and fully qualify for the November 6, 2018 general election. (Sherman Decl. 7-8, Exhs. B-C) 3 2 Appellants have filed a separate action in the Superior Court (Case No CU-WM-CTL) challenging certain Brown Act and statutory noticing violations involving the adoption of Resolution No That case has been calendared for a writ petition hearing on November 2, The Registrar of Voters has analyzed and certified both the validity of the and number of requisite signatures to qualify the matter for the subject referendum election (vote). (Sherman Decl., Exhs. B and C.)

12 At the start of the May 8, 2018 regular meeting of the JCFPD, within thirty days of the adoption of Resolution No (as required by Elections Code 9141, subd. (b).), the Referendum Petition was presented by Appellants to District s board president Jack Shelver and board secretary Marcia Spahr by Appellants. (AA 257, 115) Upon the May 8, 2018 presentation of the Referendum Petition, the JCFPD was legally required to immediately cease and suspend all activities in furtherance of Resolution No (including its purpose and intent to file an application of dissolution). (Elections Code 9144 [applicable to local districts such as JCFPD through Elections Code 9340].) Since May 8, 2018, JCFPD continues to pursue its efforts under Resolution No by making one more applications and agreements with Real Parties agencies in furtherance, and with intent to, implement and finalize the dissolution of the JCFPD. (AA , ; see also AA 143, 343) / / / /

13 III. LITIGATION HISTORY After it became clear that the JCFPD, Respondents, and Real Parties 4 would not halt dissolution activities, or honor the district electorate s right to referendum, Appellants have moved quickly to have this matter heard before the trial and appellate courts. Immediately after filing this action on May 14, 2018 (AA 10), Appellants filed an emergency ex parte application on May 14, 2018 requesting an alternative writ and stay. (AA 91-94) The ex parte was heard the next day on May 15, (See AA 91; see also AA 337 [Ex Parte Transcript]) Both District and LAFCO were represented by counsel at the hearing. (AA 340:6-12.) The trial court denied Appellants ex parte application based on a legal finding that Resolution was a local administrative action within exclusive LAFCO jurisdiction not subject to referendum. (AA 350:5-17; AA 336 [minute order].) 4 Defendant and respondents are Julian-Cuyamaca Fire Protection District; Jack Shelver, in his official capacity as Board President of the JCFPD; Marcia Spahr, in her official capacity as District Secretary of the JCFPD (hereafter Respondents ). Appellants also named and sued real parties in interest San Diego County ( County ) and San Diego Local Agency Formation Commission ( LAFCO ) (collectively, Real Parties ) so that the reach and remedies of the courts could order suspension of dissolution activities during the pendency of this action as such action is legislatively required to be suspended after presentation of a referendum petition pursuant to Elections Code section

14 At Appellants request, the trial court scheduled an expedited writ of mandate hearing for June 8, 2018 with Appellants agreeing to rely on their ex parte application as their moving papers. (AA 354:17, 354:23-355:2; AA [notice of motion]) Further responsive briefing for the June 8, 2018 hearing followed with Respondents and Real Parties filing oppositions (AA [District s Opposition]; AA [LAFCO s Opposition]) and Appellants filing a reply brief (AA ). After issuing a Tentative Ruling on June 6, 2018 (AA ), on June 8, 2018 the trial court heard argument and ruled against Appellants because the trial court found that Resolution was an administrative act not subject to referendum. (AA 473:10-13.) Upon request, the trial court was aware of Appellants need to expedite the issuance of judgment so this matter could be swiftly appealed and the matter of the November election redressed. (AA 469:18-24) The trial court adopted its Tentative Ruling as its final statement of decision in its subsequently issued June 8, 2018 Minute Order. (AA [Minute Order].) After reaching accord for the content and language for a Proposed Judgment on June 13, 2018, Appellants hand-delivered and served the parties the agreed Proposed Judgment directly to the trial judge for review and signature

15 (Sherman Decl. 10) 5 The trial court issued its judgment on June 28, (AA ) On July 9, 2018 Appellants received notice that the Judgment had been signed (Sherman Decl. 11), and On July 11, 2018 Appellants received, via mail, a copy of the signed and conformed Judgment. (Sherman Decl. 11) Appellants filed their Notice of Appeal on July 11, (AA ) IV. REQUESTED EXPEDITED REVIEW AND ISSUES ON APPEAL Appellants are concurrently filing an Appellants Appendix and Appellants Opening Brief, and if necessary will be filing an alternative writ proceeding and emergency stay order under this Court s original jurisdiction against the County of San Diego Registrar of Voters and ruling of the Superior Court, because the Registrar has verified that the Referendum Petition as having sufficient signatures and is valid for placement on the ballot, but then withdrawing said validation based on the alleged erroneous legal interpretation. Such a writ is appropriate and necessary because (1) 5 With no activity or response from Department 66, on June 29, 2018 Appellants e-filed a Notice of Lodgment and Lodgment of the prior-provided Proposed Judgment. This e-filing was rejected on July 9, 2018 with a return remark that the judge had signed the Judgment on June 28, An ex parte hearing had been scheduled on July 5, 2018, for the earliest available date of July 11, 2018, to bring attention to the delay

16 Appellants are informed that it may take weeks to get a Court of Appeal case number and conduct any filings in its July 11, 2018 filed appeal. (Sherman Decl. 13), and (2) it is a direct action against the San Diego County Registrar and involves merely a stay of the trial court s ruling, and suspension of activities in furtherance of the dissolution of the JCFPD. Should Appellants timely receive an appellate case number, Appellants are committed to have this matter expeditiously heard. Therefore, Appellants agree to waive the filing of a reply brief and their rights to oral argument. Respondents will also benefit from an expedited appeal because substantial time, election expenses, and uncertainty will be resolved on a principally legal question. As explained above, this appeal seeks to reverse a decision denying a writ of mandate to allow the placement of the Referendum Petition on the next general election ballot of November 6, 2018 as should be accorded because otherwise a special election will be required to be held pursuant to Elections Code section 9340, (incorporating Elections Code section 9145) which requires that a Referendum Petition is expeditiously put to the voters. It would be a great waste of interim dissolution efforts and special election costs if the Referendum Petition is not placed on the November 6, 2018 ballot. Additionally, voters within the JCFPD have already qualified a tax benefit fee increase for the November 6, 2018 ballot for the purpose of

17 increasing revenues for the continuation of their local Fire District. (Sherman Decl. 9 [Ex. D] and 14) On these grounds, Appellants respectfully requests this motion be granted and the matter be expedited to the fullest extent possible. As part of its request that this matter be expedited, Appellants request calendar preference, and further request that no extensions of time be given on any briefing. V. LEGAL ANALYSIS California Rules of Court, Rule 8.240, provides that the Court of Appeal may set an expedited appeal schedule, which may include expedited briefing and preference in setting the date of oral argument. (CRC, Rule ) Pursuant to the Advisory Committee Notes, Rule is broad in scope and includes motions for preference on the grounds that: (1) A statute provides for preference in the reviewing court; (2) The reviewing court should exercise its discretion to grant preference when a statute provides for trial preference; and (3) The reviewing court should exercise its discretion to grant preference on a non-statutory ground (e.g., certain election matters). (CRC, Rule 8.240, Advisory Comm. Notes.)

18 Upon an appropriate showing, this Court has discretion to grant a motion for calendar preference. (Warren v. Schecter, (1997) 57 Cal.App.4th 1189, 1199.) As set forth herein, good cause exists to grant Appellants motion to expedite and for calendar preference because: (1) this action is statutorily entitled to preference over other civil cases at the trial level (Code of Civil Procedure 35), (2) Appellants and voters within the JCFPD are prejudiced by the interim dissolution of the JCFPD by the District and Real Parties, (3) if the issues in this appeal are not settled (whether the JCFPD will be dissolved without a voter referendum) voter confusion will occur because a tax increase initiative to fund the JCFPD is currently set to be on the November 6, 2018 ballot, and (4) unnecessary expense and substantial delay to the JCFPD and other parties will occur if the Referendum Petition is not placed on the November 6, 2018 ballot. A. THE COURT OF APPEAL SHOULD EXPEDITE THE APPEAL BECAUSE THIS CASE WAS ENTITLED TO SCHEDULING PREFERENCE AT THE TRIAL LEVEL Actions pursuant to Code of Civil Procedure section 35 are entitled to calendar preference, including Proceedings in cases involving... the certification or denial of certification of ballot measures... The Referendum Petition, if found valid, will be placed on the ballot as a ballot measure. (Cf

19 Santa Barbara County Coalition Against Automobile Subsidies v. Santa Barbara County Assn. of Governments, (2008) 167 Cal.App.4th 1229, 1242.) Thus, expediting the appeal is warranted and necessary to effectuate the purposes of Code of Civil Procedure section 35 for calendar preference for proceedings involving election, voting and ballot measures. B. CALENDAR PREFERENCE IS NEEDED TO AVOID UNNECESSARY DELAY AND PREJUDICE TO APPELLANTS AND CONFUSION OF THE VOTERS Respondents have moved swiftly to dissolve the JCFPD including the filing of a dissolution application the day after its April 10, 2018 board meeting, and the County and District entering an agreement to transfer immediate interim fire services while dissolution is completed. (AA [Interim Services Agreement], [May 8, 2018 Agenda], 257 [Crouch Decl. 10]) Unless this matter is quickly decided Appellants will be prejudiced by said interim activities and will not be able to exercise their constitutional and legislated right to have their Referendum Petition heard at the next general election. Voters within the local Fire District desire to exercise their rights to increase their tax base and govern themselves. (Ortiz v. Board of Supervisors, (1980) 107 Cal.App.3d 866, 874 [ all power of government ultimately resides in the people. Referendum remains a veto by the people, and a means whereby the people can prevent legislation from

20 going into effect... characterized by Theodore Roosevelt as a big stick behind the door... it still remains a means of implementation of the spirit of democracy. ].) Further, voters are being asked to decide whether to increase taxes in the JCFPD in order to fund fire services for the fire district. (Sherman Decl., 9) Voter confusion will occur unless this appeal is quickly decided because uncertainty will exist over whether voters are being asked to approve a tax increase for a fire protection district that may be dissolved without the right of voters to a concurrent Referendum Petition to maintain the JCFPD. (See Sherman Decl. 14.) C. CALENDAR PREFERENCE IS NEEDED TO AVOID UNNECESSARY COSTS Pursuant to Elections Code sections 9430 and 9145, the JCFPD and its Board (because they have not timely suspended activities and rescinded Resolution ) must submit a referendum petition to the voters either (1) at the next general election or (2) at a special election called for the matter. 6 There remains approximately three weeks time for this Court to review, decide, and order Respondent and Real Parties to correctly comply with the 6 The requirement that the Referendum Petition is not submitted to the voters less than 88 days between the date of the order (April 1, 2018) and the next general election (November 6, 2018) is not at issue in this case

21 law regarding the Referendum Petition and allow placement of the Referendum Petition on the November 6, 2018 general election ballot. If the appeal is not timely heard, and Appellants later prevail, a special election will need to be paid for and held. Also, in the interim, with District and County dismantling and handing control of the JCFPD to County, substantial and unnecessary cost and expenses will be necessary to return fire services to the local fire district. (AA [Interim Services Agreement, see e.g. AA 81, WHEREAS, COUNTY and DISTRICT desire to set forth the terms and conditions on which COUNTY and DISTRICT will share fire protection and prevention resources and exchange of funding during the DISTRICT dissolution process[,] capitalization in original]; AA 120, 175, 182 [supporting argument that Interim Services Agreement is actually an agreement to transition fire services from the JCFPD to County].) This is especially troublesome because all such dissolution activities should have been suspended in the first instance as of May 8, (See Elections Code 9144.) / / / /

22 VI. CONCLUSION There is a clear statutory right and purpose for calendar preference of the election and petition for writ of mandate matters and statutes involved in this appeal. Appellants respectfully request this appeal be heard and decided as soon as possible. In light of the foregoing, Appellants respectfully request that the court grant its motion for calendar preference and issue a scheduling order that: 1) Respondents and Real Parties shall file their Respondents Brief(s) on or before July 27, 2018; 2) There shall be no extensions of time for the filing of responsive briefs; 3) The Court shall decide and/or provide other interim relief on or before August 8, 2018, if, and as appropriate, so that to Appellants rights under the Referendum Petition can be protected and timely executed; and 4) Conditioned on the Court s granting of timeline and substantial requests of Appellants, Appellants waive their rights to file a reply brief and to have oral argument. Respectfully Submitted,

23 Dated: July 16, 2018 CRAIG A. SHERMAN, A PROFESSIONAL LAW CORPORATION /s/craig Sherman. Craig A. Sherman, Esq. Attorney for Appellants DAVE SOUTHCOTT, BRIAN CROUCH, MIKE HATCH, EVA HATCH, AND JULIAN VOLUNTEER FIRE COMPANY ASSOCIATION DECLARATION OF CRAIG A. SHERMAN (IN SUPPORT OF CALENDAR PREFERENCE) I, CRAIG A. SHERMAN declare: 1. I am counsel of record for petitioners Dave Southcott, Brian Crouch, Mike Hatch, Eva Hatch, and Julian Volunteer Fire Company Association ( Petitioners ) in the above-captioned action. I am personally aware of all of the information contained herein, and if I was called to testify, I could and would do so as set forth herein. 2. I am informed and believe that August 10, 2018 is a published and/or ordinary statutory deadline put forth by the San Diego County, Registrar of Voters and pursuant to Elections Code section I am also informed and believe that a resolution and 75-word statement must be submitted to the Registrar by August 10, 2018 to be included on the November 6, 2018 general election ballot

24 3. I am informed and believe that between the dates of August 13, 2018 and August 22, 2018 the Registrar of Voters accepts arguments in favor, against, and in rebuttal to argument for and against ballot measures on November 6, 2018 general election ballot. I am not aware of legal requirement that a voter-presented referendum petition ballot measure must have arguments for or against to be presented to the voters on a ballot. 4. I am informed and believe that between the dates of August 31, 2018 and September 26, 2018 the items placed on the ballots are typeset, proofed and printed for the November 6, 2018 general election ballot. 5. The above dates in paragraphs 3-5 are given and based on the published CALENDAR OF EVENTS FOR LOCAL MEASURES: COUNTY, SCHOOL AND SPECIAL DISTRICTS as published by the San Diego County - Registrar of Voters for the November 6, 2018 general election, available at Measures.pdf 7, last accessed on July 13, 2018, and which is attached hereto as Exhibit A. 7 The Election Calendar of Events is available as a hyperlink at last accessed on July 13, 2018, under the heading: November 6, 2018 Statewide General Election... Local Measures with the words Local Measures linking to the pdf document attached as Exhibit A

25 6. As being the drafter of the subject Referendum Petition, I am personally aware that it substantially meets all legal requirements and contents for circulation and qualification to be placed on the ballot, and that it has been drafted for presentation on the ballot in its essential form and ballot question to read: Should Resolution No adopted by the by the Julian/Cuyamaca Fire Protection District on April 10, 2018, Requesting The Local Agency Formation Commission To Take Proceedings To Dissolve The Julian-Cuyamaca Fire Protection District, be Repealed. 7. Attached hereto as Exhibit B is a true and correct copy of a June 26, 2018 letter and memorandum by Registrar of Voters, L. Michael Vu, indicating that The Registrar of Voters verified 313 signatures out of 313 submitted. A total of 134 valid signatures is required to qualify. As a result of our verification of the signers, this petition does have a sufficient number of valid signatures to qualify. (Bold in original.) 8. Attached hereto as Exhibit C is a true and correct copy of a June 26, 2018 letter and memorandum by Registrar of Voters, L. Michael Vu, who wrote again on June 27, 2018 that he was rescinding his qualification memo due to Superior Court Judge Medel, in Southcott v. Julian-Cuyamaca Fire Protection District, rendered a decision that makes the qualification of this referendum petition moot. However, the effect of the Judge Medel s ruling (on appeal here) does not affect or change the fact that (1) all 313 signatures

26 were verified and (2) the clearly surpassed the 134 number of required signatures. 9. Attached hereto as Exhibit D is a true and correct copy of a May 11, 2018 of the Registrar of Voters, L. Michael Vu, indicating that the locally supported Citizens Initiative to Repeal and Replace Julian-Cuyamaca Fire Protection District Benefit Fee was found to have a sufficient number of valid signatures to qualify (bold in original) for the November 6, 2018 ballot. 10. On June 8, 2018, during the writ hearing in the underlying case, I requested the trial court expedite the issuance of a judgment for the purposes of an expeditious appeal, and the trial court was aware of Appellants need to expedite the issuance of judgment so this matter could be swiftly appealed and the matter of the November election redressed. (AA 469:18-24) After reaching accord for the content and language for a Proposed Judgment on June 13, 2018, I caused the Proposed Judgment to be hand-delivered directly to the trial judge for review and signature and served a copy of the same on Respondents. 11. After waiting several days after June 13, 2018, I inquired with the trial court when the judgment would be signed and available. The deputy court clerk in Department 66 did not return a phone message about my inquiry. On June 29, 2019 I e-filed and lodged another set of the same agreed Proposed Judgment to get the trial court s attention to it. On July 5, 2018 I calendared an ex parte hearing to request that the trial court s review and issue the judgment

27 12. On July 9, 2018 I received notice, by way of rejection of the e- filed and attempted lodgment of the Proposed Judgment, that the Judgment had been signed on June 28, On July 11, 2018 I received, via U.S. Mail, a copy of the signed and conformed Judgment. I immediately filed a Notice of Appeal that same day. 13. Between July 9, 2018 and July 11, 2018, my office made both telephone and in-person inquiry (while filing the Notice of Appeal) that I was seeking an appellate case number so I could urgently file a motion for calendar preference and appellants opening brief for this appeal. I was informed that there was a backlog in civil appeals processing and that an appellate case number could take weeks to be generated or obtained. After significant research and information obtained from the clerks in the Superior Court (civil appeals division), Court of Appeal and TrueFilings, I was informed and believe there is no way to make any filing in an appeal until a court of appeal case number is generated and in the TrueFilings e-filing system. 14. Good cause exists for expediting this appeal because of the great need and urgency for a decision so that the Referendum Petition may be timely submitted to be placed on the November 6, 2018 general ballot. A need exists because (1) it saves the time and expense of holding a special election; (2) it resolves the issues in the case before harm occurs from the full dissolution of the Julian-Cuyamaca Fire Protection District ( JCFPD ); and

28 (3) there is already an initiative set for the November 6, 2018 ballot for a tax increase within the JCFPD, to fund fire protection services, that will be directly affected by the uncertainty of whether the JCFPD will or will not be dissolved. Executed on July 16, 2018 in San Diego County. Craig A. Sherman

29 SAN DIEGO COUNTY REGISTRAR OF VOTERS NOVEMBER 6, 2018 CALENDAR OF EVENTS FOR LOCAL MEASURES: COUNTY, SCHOOL AND SPECIAL DISTRICTS (CITIES: PLEASE CONTACT EACH CITY CLERK FOR DETAILS.) Unless stated otherwise, all section references are for the California Elections Code. DAYS BEFORE AN ELECTION DATE EVENT 88 August 10 Registrar of Voters to receive resolution(s) requesting consolidation, services, etc. Ballot text (limited to 75 words) must be included in the resolution. (10403; Education Code 5322) 88 August 10 Tax rate statement (if applicable) is due at Registrar of Voters Office. (9401) 85 August 13 Registrar of Voters to publish a Notice of Argument Deadline. (9163, 9316, 9502) 81 August 17 Impartial analysis is due at Registrar of Voters Office. (9160, 9313, 9500) 81 August 17 Arguments in favor of OR against the measure are due at Registrar of Voters Office. (9163, 9316, 9502) 76 August 22 Rebuttal arguments due at Registrar of Voters Office. (9167, 9317, 9504) August 31 September 26 Ballots typeset, proofed and printed. 29 October 8 First day Vote-by-Mail ballots are available. (3001) 15 October 22 Last day to register to vote in this election. (2102) October 23 November 6 Conditional Voter Registration Period Voters who miss the registration deadline may register and vote at the Registrar of Voters Office. (2170) October 30 Last day to submit written request for vote by mail ballot. (3001) 6 to 0 October 31 November 6 Emergency voting in person or pick up (also can pick up with written/signed statement of request by any authorized representative). (3021) 0 November 6 ELECTION DAY Polls open from 7 am to 8 pm. 67 to to 0 7 DAYS AFTER THE ELECTION + 30 DATE December 6 EVENT Certified results available after the official canvass is completed. Major elections (Primary or General of an even year, for example) may require 30 days; standalone or smaller elections require less time. (15300 & 15372) 23 Exhibit A 0524

30 Qlountt! of an iego MICHAEL VU REGISTRAR OF VOTERS Registrar of Voters County Operations Center Campus 5600 Overland Avenue, Suite 100, San Diego, California CYNTHIA L. PAES Assistant Registrar of Voters Telephone: (858) Toll-free: 1 (800) TTY / TDD: (800) Facsimile: (858) Web Address: June 26, 2018 TO: Board of Directors of the Julian-Cuyamaca Fire Protection District c/o Marcia Spahr, District Secre FROM: L. Michael Vu Vt:-U/ill'!,,c. '-"-- -Registrar of v I, ' Re: Julian/Cuyamaca Fire Protection District - A Referendum Against Resolution The "A Referendum Against Resolution Passed by the Julian-Cuyamaca Fire Protection District" petition was filed with the Registrar of Voters on May 14, The Registrar of Voters verified 313 signatures out of 313 submitted. A total of 134 valid signatures is required to qualify. As a result of our verification of the signers, this petition does have a sufficient number of valid signatures to qualify. Results of the verification process are as follows: CERTIFICATION OF RESULTS: Number of sections submitted Number of signatures submitted Number of signatures verified Number of signatures found to be valid Number of signatures found not to be valid (includes O duplicates) Number of signatures required for qualification If you have questions, please contact me at (858) or Javier De Anda at (858) c: Supervisor Kristin Gaspar, Chair Supervisor Dianne Jacob, Vice Chair Supervisor Greg Cox Supervisor Ron Roberts Supervisor Bill Horn Helen N. Robbins-Meyer, Chief Administrative Officer Donald F. Steuer, Assistant Chief Administrative Officer/Chief Operating Officer Thomas E. Montgomery, County Counsel April Heinze, P.E., Deputy Chief Administrative Officer, Community Services Group Ron Lane, Deputy Chief Administrative Officer, Public Safety Group David Hall, Clerk of the Board of Supervisors Herman P. Reddick, Director, San Diego County Fire Authority 24 Exhibit B 0525

31 Olountu of an iebo MICHAEL VU REGISTRAR OF VOTERS Registrar of Voters County Operations Center Campus 5600 Overland Avenue, Suite 100, San Diego, California CYNTHIA L. PAES Assistant Registrar of Voters Telephone: (858) Toll-free; 1 (800) TTY I TDD: (BOO) Facsimile (858) Web Address: June 27, 2018 TO: Board of Directors of the Julian-Cuyamaca Fire Protection District c/o Marcia Spahr, District S"' " ;l"fl'"-- FROM: L. Michael V,. Registrar of"-f Re: Rescission Update - Julian/Cuyamaca Fire Protection District - A Referendum Against Resolution It has come to my attention that Superior Court Judge Medel, in Southcott v. Julian-Cuyamaca Fire Protection District, rendered a decision that makes the qualification of this referendum petition moot. As a result, this updated communication is being sent to rescind my June 26, 2018 qualification memorandum. If you have questions, please contact me at (858) or Javier De Anda at (858) c: Supervisor Kristin Gaspar, Chair Supervisor Dianne Jacob, Vice Chair Supervisor Greg Cox Supervisor Ron Roberts Supervisor Bill Hom Helen N. Robbins-Meyer, Chief Administrative Officer Donald F. Steuer, Assistant Chief Administrative Officer/Chief Operating Officer Thomas E. Montgomery, County Counsel April Heinze, P.E., Deputy Chief Administrative Officer, Community Services Group Ron Lane, Deputy Chief Administrative Officer, Public Safety Group David Hall, Clerk of the Board of Supervisors Herman P. Reddick, Director, San Diego County Fire Authority 25 Exhibit C 0526

32 (!Iounty of an JBiego MICHAEL VU REGISTRAR OF VOTERS Registrar of Voters County Operations Center Campus 5600 Overland Avenue, Suite 100, San Diego, California CYNTHIA L. PAES Assistant Registrar of Voters Telephone: (858) Toll.free: 1 (800) TTY / TDD: (800) Facsimile: (858) Web Address: May 11, 2018 Patricia Landis, Proponent 3617 Calico Ranch Gate Julian, CA William Everett, Proponent 4824 Pine Ridge Way PO Box 2468 Julian, CA Karen Kiefer, Proponent 3836 Crescent Drive PO Box 1978 Julian, Ca Re: Initiative to Repeal and Replace Benefit Fee The "Citizens' Initiative to Repeal and Replace Julian-Cuyamaca Fire Protection District Benefit Fee" petition was filed with the Registrar of Voters on April 20, The Registrar of Voters verified 304 signatures out of 304 submitted. A total of 228 valid signatures is required to qualify. As a result of our verification of the signers, this petition does have a sufficient number of valid signatures to qualify. Results of the verification process are as follows: CERTIFICATION OF RESULTS: Number of sections submitted Number of signatures submitted Number of signatures verified Number of signatures found to be valid Number of signatures found not to be valid (includes 4 duplicates) Number of signatures required for qualification e at (858) or Javier De Anda at (858) Registrar of Voters 26 Exhibit D 0527

33 ORDER IT IS HEREBY ORDERED that, for good cause shown, the appeal taken in Dave Southcott et al. v. Julian Cuyamaca Fire Protection District, et al., Court of Appeal Case No. (Superior Court Case No CU-WM-CTL), shall be expedited and given calendar preference according to the following schedule, taking into account that Appellants Opening Brief has been filed on July, 2018, and Appellants waiving their rights to file a reply brief and waiving their rights for oral argument: 1. Respondents Brief shall be filed on or before July 27, 2018; 2. No extensions shall be granted; 3. No oral argument shall be heard; and 4. The appeal shall be decided on or before August 3, 2018, or as soon thereafter as may be conducted by this Court. IT IS SO ORDERED. Dated: Presiding Justice

34 COURT OF APPEAL, STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT, DIVISION ONE DAVE SOUTHCOTT; BRIAN ) Appeal No. D CROUCH; MIKE HATCH; EVA ) HATCH; JULIAN VOLUNTEER ) San Diego Super. Ct., Case No. FIRE COMPANY ASSOCIATION ) CU-WM-CTL ) Appellants and Petitioners, ) ) JULIAN-CUYAMACA FIRE ) PROTECTION DISTRICT; JACK ) SHELVER; MARCIA SPAHR ) ) Respondents and Respondents, ) ) COUNTY OF SAN DIEGO; COUNTY ) OF SAN DIEGO LOCAL AGENCY ) FORMATION COMMISSION ) ) Real Parties in Interest ) ) Appeal from the Judgment of the San Diego Superior Court Honorable Kenneth J. Medel, Presiding APPELLANTS OPENING BRIEF Craig A. Sherman, Esq. State Bar No CRAIG A. SHERMAN, A PROFESSIONAL LAW CORPORATION 1901 First Avenue, Suite 219 San Diego, CA Tel: (619) Fax: (619) CraigShermanAPC@gmail.com Attorney for Appellants DAVE SOUTHCOTT; BRIAN CROUCH; MIKE HATCH; EVA HATCH; JULIAN VOLUNTEER FIRE COMPANY ASSOCIATION

35 TABLE OF CONTENTS Page I. INTRODUCTION II. STATEMENT OF FACTS AND PROCEDURAL HISTORY A. THE ADMINISTRATIVE HISTORY OF RESOLUTION AND REFERENDUM PETITION B. RESPONDENTS TO CONTINUED DISSOLUTION AFTER THE REFERENDUM PETITION WAS PRESENTED ON MAY 8, C. LITIGATION HISTORY III. APPEALABILITY IV. STANDARD OF REVIEW A. AN INDEPENDENT REVIEW IS APPLIED TO THIS COURT S INTERPRETATIONS OF LAW B. WHETHER AN AGENCY PERFORMED A LEGAL DUTY OR FAILED TO FOLLOW PROCEDURE PURSUANT TO CODE OF CIVIL PROCEDURE 1085 IS A LEGAL QUESTION REVIEWED DE NOVO V. ARGUMENT A. THE JULIAN CUYAMACA FIRE PROTECTION DISTRICT IS A LOCAL DISTRICT, UNDER LOCAL CONTROL, WITH A VOTER ELECTED BOARD; A DECISION WHETHER OR NOT TO REMAIN UNDER LOCAL CONTROL (OR DISSOLVE) IS A LOCAL POLICY OR LEGISLATIVE DECISION - NOT A MATTER OF STATEWIDE CONCERN There is a Critical Difference Between a Local Agency Resolution Making a Decision to Proceed with Dissolution and the Application Proceedings at LAFCO Regarding Whether and How it Might Allow Dissolution

36 TABLE OF CONTENTS (continued) 2. The Trial Court Did Not Follow the Standard of Extraordinary Deference Afforded to the Public s Right of Referendum Page 3. Initial Local Fire District Decision Whether or Not to Dissolve are Legislative and Policy Decisions; The Trial Court Relied on Respondents and Real Parties Clearly Distinguishable and Inapplicable Cases Further Cases Argued by Respondent are Inapplicable to the Present Case The Trial Court Did Not Resolve All Doubts in Favor of the Right of Voters to Referendum VI. CONCLUSION VII. CERTIFICATION OF WORD COUNT COMPLIANCE

37 TABLE OF AUTHORITIES California Case Law Page Associated Home Builders etc., Inc. v. City of Livermore, (1976) 18 Cal.3d 582, , 28 Citizens for East Shore Parks v. State Lands Commission, (2011), 202 Cal.App.4th 549, Committee for Green Foothills v. Santa Clara County Bd. of Supervisors, (2010) 48 Cal.4th 32, Donaldson v. Department of Real Estate, (2005) 134 Cal.App.4th 948, Ferrini v. City of San Luis Obispo, (1983) 150 Cal.App.3d , 24 Friends of Mount Diablo v. County of Contra Costa, (1977) 72 Cal.App.3d 1006, , , 25, 26, 27 Fry v. Saenz, (2002) 98 Cal.App.4th 256, Gayle v. Hamm, (1972) 25 Cal.App.3d 250, , 28 Ghirardo v. Antonioli, (1994) 8 Cal.4th 791, L.I.F.E. Comm. v. City of Lodi, (1989) 213 Cal. App. 3d 1139, , 27 Las Tunas Beach Geologic Hazard Abatement Dist. v. Superior Court, (1995) 38 Cal.App.4th 1002, 010, , 27 Ley v. Dominguez, (1931) 212 Cal. 587, Martin v. Smith, (1959) 176 Cal.App.2d 115,

38 TABLE OF AUTHORITIES (continued) California Case Law (continued) Page Pala Band of Mission Indians v. Bd. of Supervisors, (1997) 54 Cal.App.4th 565, , 28 Palmer/Sixth Street Properties, L.P. v. City of Los Angeles, (2009) 175 Cal.App.4th 1396, Scott v. Common Council, (1996) 44 Cal.App.4th 684, Simpson v. Hite, (1950) 36 Cal.2d 125, Taxpayers for Accountable School Bond Spending v. San Diego Unified School Dist., (2013) 215 Cal.App.4th 1013, California Statutes Page Cal. Code of Civil Procedure 904.1, subd. (a)(1) Cal. Code of Civil Procedure Cal. Elections Code Cal. Elections Code 9340, , 28, 29 Cal. Elections Code , 11 Cal. Elections Code , 19 Cal. Government Code 56611, subd, (a) Cal. Government Code , 23, 29 Cal. Government Code Cal. Government Code Cal. Government Code 56654, subd. (a) Cal. Government Code 56654, subds. (a), (b) & (c) Cal. Government Code 56658, subd. (a) Cal. Government Code Cal. Health and Safety Code , 23, 27, 28,