Santa Clara County Superior Court Denies Challenge to the Cupertino City Clerk s Rejection of Oaks Shopping Center Petition

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1 OFFICE OF PUBLIC AFFAIRS Telephone: (0) -3 FAX: (0) -33 City Hll 300 Torre Avenue Cupertino, CA 01-3 N E W S R E L E A S E nury, 01 Snt Clr County Superior Court Denies Chllenge to the Cupertino City Clerk s Rejection of Oks Shopping Center Petition CUPERTINO, CA On Thursdy, December, 01 the Snt Clr County Superior Court issued n order denying the chllenge to the Cupertino City Clerk s rejection of the Oks Shopping Center development project petition. The Oks petition clled for n inititive mending Cupertino's Generl Pln nd Hert of the City Specific Pln to llow 0,000 squre feet of office spce, 00 hotel units, 0 residentil units, nd height limit of feet for mixed-use development project t the Cupertino Oks Shopping Center long Stevens Creek Boulevrd. Elections Code section 01 sttes tht [t]he first pge of ech section shll contin the title of the petition nd the text of the mesure. The petition sections submitted to the City Clerk did not ctully comply, nor substntilly comply, with section 01 becuse the first pge of ech section did not contin the text of the mesure. Insted ech petition section ws stpled out of order with the text of the mesure not ppering until the fifth physicl pge of six pge petition. This pge ws lbeled pge 1. The Court noted tht the text of the mesure either ppers on the first pge or it does not. Significntly, the Court recognized tht the purpose of the sttutory requirement is to give informtion to the public to ssist the voters in deciding to sign or oppose the petition. Here, the Court determined tht, Petitioner intentionlly buried the text of the mesure in the middle of petition section, the pges of which re not consecutively numbered. As result, the Court found tht the petition s formtted did not clerly lert voters to the complete text of the mesure to llow them to first evlute wht they were being sked to sign. In so ruling, the Court sustined the decision to reject 0 petition sections (, signtures) tht were submitted to the City Clerk. ###

2 i. FF:h;H S-ue.z-x--.)á * sr pqlúr,öourt of CeCrty of.eltr Cfrn SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA KENNETH SILVERY TERSINI, Cse No. 1-CV-00 1 VS. Plintiff, ORDER RE: PETITION FOR WRIT OF MANDATE T ORDER ON SUBMITTED MATTER 1 GRACE SCHMIDT, et l., t Defendnts 1 l 1 0 t 3 The petition for writ of mndte by Kenneth Silvery Tersini cme on for hering before the Honorble Mry E. Arnd on October,01 in Deprtment. The mtter hving been submitted, the Court finds nd orders s follows: L Bckground This is mndmus ction rising out of the rejection of inititive petitions relted to the development of shopping center in Cupertino, Clifomi brought by Kenneth Silvery Tersini ("Petitioner") ginst the City Clerk of Cupertino, Grce Schmidt ("Respondent"). KT Urbn owns the Oks Shopping Center in downtown Cupertino. It wnted to revitlizethe shopping center by, mong other things, dding new mixed-use development contining retil, office, hotel, nd residentil spce s well s on-site prking. The Cupertino City Council denied KT Urbn's ppliction to build the new development. Consequently, 1 ORDER RE: PETITION FOR WRIT OF MANDATE

3 1 1 I 1 1 T] l 3 Petitioner begn the process of qulifying n inititive mesure to mend the city plns for the re nd pve the wy for the development. On Februry,01, Petitioner filed with Respondent the text of the proposed mesure nd notice of intent to circulte petition. After receiving the pproved title nd summry from the City Attorney, Petitioner begn circulting the petition. Petitioner circulted some bookletstyle petition sections by mil (the "mil-in petition sections"). At issue in the present ction re the petition sections circuited in person (the "in-person petition sections"), which re formtted differently. The in-person petition sections consisted of three double-sided. by 1 inch sheets of pper stpled together s follows: (1) 'þge " contining the title, summry, nd signture lines 1 through ; () "pge " intentionlly left blnk; (3) 'þge 3" contining n illustrtion of the proposed development; () oopge " contining some inititive tex! () oopge 1" contining inititive text; nd () "pge " contining signture lines through nd the circultor declrtion. (See Petitioner's Exh. A.) On August,0, Petitioner submitted two boxes of the petition sections to Respondent. Respondent begn the rw count to determine the number of signtures. (See Elec. Code, $, subd. (b) fmust first determine if minimum number of signtures present].) During the counting process, Respondent contcted Petitioner's counsel bout the irregulr formtting of the sections circulted in person, specificlly the plcement of "pge 1" contining the inititive text. Therefter, Respondent ccepted the 3 mil-in petition sections contining 1 signtures but rejected the 0 in-person sections contining, signtures becuse the text of the mesure did not ctully pper on the first pge of these sections. (Schmidt Decl.,,lf,]i e-.) On August,01, Petitioner filed verified petition for writ of mndte to compel Respondent to ccept the in-person petition sections. Petitioner submitted evidence nd requesl for judicil notice in support of his petition. On September 1,01, Respondent filed its opposition, supporting evidence, nd request for judicil notice. On October,01, the Court herd rguments from both prties nd received evidence. Petitioner brought to the hering the ORDER RE: PETITiON FOR WRIT OF MANDATE

4 I T t I z3 l originl boxes of signed petition sections tht hd been retumed to Petitioner fter rejection of the in-person petition sections. The Court exmined smples of the originl petitions, nd returned the originl documents to Petitioner. The Court received in evidence, without objection. Exhibit A, n unsigned smple of the in-person petition section; Exhibit C, n unsigned smple of the mil-in petition section; nd Exhibits B nd D, smples of unrelted petition sections submitted to the City of Cupertino for different development project. The Court then took the mtter under submission. II. Requests for udicil Notice Both prties filed requests for judicil notice in this mtter. "udicil notice is the recognition nd cceptnce by the court [ ] of the existence of mtter of lw or fct tht is relevnt to n issue in the ction without requiring forml proof of the mtter." (Unruh-Hxton v. Regents of University of Cøliforni (00) 1 Cl.App.th33,3, inteml quottion mrks nd cittions omitted.) A. Petitioner's Request for udicil Notice Petitioner requests judicil notice of the legisltive history of Elections Code section 01. A court my tke judicil notice of legisltive history mterils pursunt to Evidence Code section, subdivision (c) becuse they constitute officil cts of the Legislture. (See Kufmn & Brod Communities, Inc. v. Perþrmnce Plstering, Inc. (00) 3 Cl.App.th,3.) The legisltive history of Elections Code section 01 is relevnt becuse it is the sttute t issue in this cse. Petitioner's legisltive history mterils re therefore proper subjects ofjudicil notice. Petitioner's request for judicil notice is therefore GRANTED. B. Respondent's Request for udicil Notice First, Respondent sks the Court to tke judicil notice of two petitions from other unreited inititive mesures. (See RN, Exhs. -.) Respondent offers these petitions s exmples of wht other clerks previously ccepted for filing. The Court is not bound by wht locl officils ccept or reject. (See, e.g., Auto Equity Sles, Inc. v. Superior Court (1) Cl.d 0,- fsuperior court must follow decisions of higher courts].) Whether clerk ccepts or rejects n unrelted petition does not reflect whether such n ct ws in ccordnce -) ORDERRE:PETITION FOR WRIT OF MANDATE

5 1 t 1 1 t n t L with the sttutory directives. The unrelted petitions therefore re not relevnt nd re not proper subjects of j udicil notice. Second, Respondent requests judicil notice of copies of the mil-in nd in-person petition sections pursunt to Evidence Code section, subdivision (h), which uthorizes court to tke judicil notice of "[f]cts nd propositions tht re not resonbly subject to dispute nd re cpble of immedite nd ccurte determintion by resort to sources of resonbly indisputble ccurcy." (See RN, Exhs.l-.) These copies re single-sided nd reproduced in different fshion thn the originl petition sections tht the Court dmitted into evidence without objection. Consequently, it is not obvious how these documents re ccurte, relevnt, necessry, or helpful under the circumstnces. (See ordche Enterprises, Inc. v. Brobeck, Phleger & Hrrison (1) 1 Cl.th 3,, fn. frequest for judicil notice denied where documents not necessry, relevnt, or helpful].) The copies of the petition sections therefore re not proper subjects ofjudicil notice. Finlly, Respondent requests judicil notice of its officil notice ccepting the mil-in petitions sections, rejecting the in-person petition sections, nd identifying the rw signture count. (See RN, Exh. 3.) This notice, signed by Respondent, is the proper subject ofjudicil notice becuse it is n off,rcil ct nd is clerly relevnt to mteril issue before the Court. (See Evid. Code, ç, subd. (c).) Bsed on the foregoing, Respondent's request for judicil notice is GRANTED s to the officil notice nd DENIED s to the unrelted petitions nd copies of the petition sections in this cse. III. Discussion A prty my petition court for writ of mndte compelling locl officil to perform i ministeril duty, which is o'n ct tht public officer is obligted to perform in prescribed mnner required by lw when given stte of fcts exists." (Allince for Better Downtown Millbre v. Wde ("Millbre") (003) Cl.App. th, 1-; see lso Code Civ. Proc., $ i0 futhorizing petition for writ of mndte].) To obtin writ, "the petition must show (1) cler, present, ministeril duty on the prt of the respondent nd ().correltive cler, ORDER RE: PETITION FOR WRIT OF MANDATE

6 1 T 1 1 I l 1 present, nd beneficii right in the petitioner to the performnce of tht duty." (Millbre, supro, 1 0 Cl.App. th t p. 1.) When n inititive petition is filed for signture counting, city clerk hs ministeril duty to either ccept or reject the petition bsed on whether it complies with the sttutory requirements, including formtting. (Millbre, supr, Cl.App.th t p..) In deciding whether n inititive petition is code-complint, clerk my not engge in dismetionry evlution of evidence or consider extrinsic evidence, such s how petition ws circulted. (Id. tp.i3.) The clerk my only conduct "strightforwrd comprison of the submitted petition with cler sttutory directives," such s the directives to ttch the full text of the mesure nd signed declrtion to the petition sections. (Ibid.) In ddition to these directives, "[t]he first pge of ech section lof petitionl shll contin the title of the petition nd the text of the mesure." (Elec. Code, $ 01.) Hete, s Respondent points out, Petitioner printed the text of the mesure on pge found in the middle of the petition sections. (See Petitioner's Exh. A.) The text therefore ws not printed on the first pge. Contrry to Petitioner's rgument, it is unnecessry to rely on extrinsic evidence such s how the petition sections were circulted or how they were plced in the box for submission to rech this conclusion. The pge bering the text of the mesure is not visible nd is not the first pge, irrespective of wht direction the petition is oriented, whether pges or T - the outermost pges - fce upwrds Petitioner presents severl rguments in support of its position tht the Court should, nonetheless, hold its "pge 1" is the first pge. For the resons set forth below, these rguments fil. First, Petitioner rgues the text is on the first pge becuse it is on pge mrked s number 1. Petitioner's pgintion is of little significnce becuse it does not reflect the ctul order of the pges. Here, the pge mrked number 1 ppers in the middle of the petition section nd on its reverse is pge mrked number. Consequently, the designted pge number is clerly not reflective ofthe ctul order ofthe petition nd "pge 1" cnnot properly be considered the first pge. Moreover, following Petitioner's logic would vitite this formtting ORDER RE: PETITION FOR WzuT OF MANDATE

7 1 l I t 1 1 r l Z requirement s prties could simply put the text wherever they wnted so long s they mrked the pge s "pge 1." Petitioner's rgument tht the Court should simply ccept the pge numbers s determintive of complince with Elections Code section 01 therefore is not persusive. Next, Petitioner rgues the text is on the first pge becuse it is on the first sheet of pper. Petitioner relies on Millbre in which the court held it ws sufficient to plce the title nd sunìmry of mesure on the front of ech sheet of pper bering signture lines. (See Millbre, supr, Cl.App.Ath t p. 0.) In reching this conclusion, the court determined "pge" in the specif,rc context of Elections Code section 03, ment sheet of pper s whole nd not ech side of sheet of pper. (Ibid.) Millbrøe cn be distinguished for severl resons. First, the court did not consider the mening of the word "pge" s used in section 0I. Second, the lnguge nd context of Elections Code sectionai is distinct becuse it refers to "the first pge of ech section" wheres section 03 refers to "ech pge of the petition." Third, the court held plcement on one side of the sheet of pper ws sufficient becuse the title nd summry conspicuously pperedonthefrontofechsheetofpper. (Millbre,supr,l0SCl.App.thtpp ) The court held this plcement comported with the purpose of the formtting requirement, nmely reducing voter confusion. (Ibid.) Here, unlike Millbre, the text ppers on the bck of wht Petitioner rgues is the first sheet of pper. This plcement does not lert voters to the presence of the text of the mesure. Petitioner's rgument tht section 01 requires plcement of the text on the first sheet ofpper therefore is not persusive. Additionlly, even if the Court dopted Petitioner's proposed definition of pge s whole sheet ofpper, the text does not pper on the first sheet ofpper. The sheet ofpper Petitioner rgues is first is numbered pge on one side nd contins signture lines through s well s the circultor's declrtion. (See Pet. Exh. A.) In contrst, the outermost pge on the reverse of the petition section, lthough designted pge, contins signture lines I through. Given the signture lines must be consecutively numbered strting with line 1, pge is clerly the first sheet of pper in the petition section, not pge. (See Elec. Code, $ 0, subd. ORDER RE: PETiTION FOR WRIT OF MANDATE

8 1 1 l 1 t t 1 T 0 t 3 (c) fnumber nd formt requirements for signture lines].) The text of the mesure is not on pge or its reverse. Consequently, the petition does not comply with the sttutory directive even dopting Petitioner's proposed definition. Finlly, the Court rejects Petitioner's rgument tht the sttute simply requires inclusion of the text of the mesure somewhere in ech section. In support of this rgument, Petitioner sserts it is effectiveiy impossible to include the text of the mesure on the first pge becuse title nd summry informtion, which my contin up to 00 words, must lso be included in 1- point font. Petitioner rgues there simply is no room. Petitioner my be correct tht the formtting requirements re imprcticl. Even so, it is not the role of the Court to mke policy decision s to wht is prcticl for professionl petition circultors s blnced ginst the rights of voters to hve strightforwrd ccess to informtion; tht is the role of the Legislture. (See, e.g., Knight v. Superíor Court (00) 1 Cl.App.th 1, 30.) Courts re tsked with pplying the lw so s to "give mening to every word of sttute if possible [ ] nd void construction mking ny word surplusge." (Arnett v. Dl Cielo (1) 1 Cl.th,; see lso Knight v. Superior Court, supr, 1 Cl.App. th t p. [" court cnnot insert or omit words to cuse the mening of sttute to conform to presumed intent tht is not expressed."]) The Court therefore declines to dopt Petitioner's suggested interprettion of the sttute omitting the first-pge requirement becuse doing so would render this express lnguge surplusge. To this point, the Court lso rejects Petitioner's relted rgument tht the express lnguge of the sttute should somehow be disregrded s n fterthought becuse one of the Legislture's purposes in dopting section 01 ws mking it cler petitions could be circulted in sections rther thn s whole. Petitioner does not explin, nd it is not obvious from the legisltive history presented, how llowing petitions to be circulted in sections is t odds with the first-pge requirement nd the overll purpose of the formtting requirements, nmely reducing voter confusion. This rgument therefore lcks merit. ORDER RE: PETITION FOR WRIT OF MANDATE

9 I T I 1 T T] z) l For these resons, the Court concludes the in-person petition sections did not techniclly comply with Elections Code section 01 becuse the text of the mesure ws not on the first pge ofech section. Petitioner lterntively rgues the Court should compel Respondent to ccept the inperson petition sections becuse they substntilly complied with Elections Code section0l. Clifomi coutls sometimes invoke the doctrine of substntil complince when there re minor defects in the inititive process tht do not impct the integrity of the electorl process. (Cost v. Superior Court (00) 3 Cl.th,.) "'The requirements of both the Constitution nd the sttute re intended to nd do give informtion to the electors who re sked to sign the inititive petitions.'" (Id.t p., quoting Cliforni Techers Assn. v. Collins ("CTA") () C1.d0,0.) "'If tht be ccomplished in ny given cse, little more cn be sked thn tht substntil complince with the lw nd the Constitution be hd, nd tht such complince does no violence to resonble construction of the technicl requirements of the lw."' (Cost v. Superíor Court, supr,3 Cl. th t p. 1, quoting CTA, supr,i Cl.d t p. 0 fholding use of 1-point font rther thn 1-point font substntilly complint].) In other words, technicl defects will only be excused if there is "ctul complince [ ] in respect to the substnce essentil to the objective of the sttute." (Ibrr v. City of Crson (1) 1 Cl.App.3d 0,.) "Where the purpose of the sttutory requirement is to give informtion to the public to ssist the voters in deciding whether to sign or oppose the petition, the substntil complince r ument is often rejected nd strict complince held essentil." (Ibid.) Here, Petitioner intentionlly buried the text of the mesure in the middle of petition section, the pges of which were not consecutively numbered. The Court is not presented with petition tht, while techniclly non-complint, otherwise contined cler or conspicuous presenttion of informtion sufficient to stisfy the purpose of the formtting requirement. The petition s formtted did not clerly lert voters to the complete text of the mesure to llow them to first evlute wht they were being sked to sign. Additionlly, given the nture of this prticulr formtting requirement, it is not obvious how the Court could hold the petition sections substntilly complied without rewriting the ] ORDER RE: PETITION FOR WRIT OF MANDATE

10 I sttute. The text of mesure either ppers on the first pge or it does not. Consequently, finding of substntil complince would effectively require the Court to disregrd the sttutory directive in its entirety. The petition sections therefore did not substntilly comply with Elections Code section 01. In conclusion, Petitioner fils to demonstrte Respondent hd ministeril duty to ccept the petition sections circulted in person becuse they did not comply with the sttutory directive in Elections Code section 01. The petition for writ of mndte is therefore DENIED. t Dte: l"-\ L\ --> lv Mry Ë. Arnd Mry E. Arnd udge of the Superior Court 1 1 I T 1 I 0 I 3 ORDER RE: PETITION FOR WRIT OF MANDATE

11 SUPERIOR COTRT OF CALIFORI{IA COUNTY OF SAI\TA CLARA DOWNTOWN COURTHOUSE NoRTH FlRsr SrRsnr Sel,t osé, CllronNr rr3 CTVILDIVISION December,01 Robert Steven Perlmutter 3 Hyes St Sn Frncisco GA RE: Cse Number: Kenneth Tersinivs Grce Schmidt 1CV00 PROOF OF SERVICE ORDER RE: PETITION FOR WRIT OF MANDATE ws delivered to the prties listed below the bove entitled cse s set forth in the sworn declrtion below. lf you, prty represented by you, or witness to be clled on behlf of iht prty need n ccommodtion under the Americn with Disbilities Act, plese contct the Court Administrtor's office t (0) BB-00, or use the Court's TDD line (0) -0 or the Voice/TDD Cliforni Rely Service (00) 3- DECLARATION OF SERVICE BY MAIL: I declre tht I served this notice by enclosing true copy in seled envelope, ddressed to ech person whose nme is shown below, nd by depositing the envelope with postge fully prepid, in the United Sttes Mil t Sn ose, CA on December,01. CLERK OF THE COURT, by Henry Keniston, Deputy. cc: Thoms Wyne Hiltchk Cpitol Mll #00 Scrmento CA 1 cw-0 REV 1/1 PROOF OF SERVICE

12 CITY ATTORNEY S BALLOT TITLE AND SUMMARY FOR PROPOSED INITIATIVE SUBMITTED ON FEBRUARY, 01 TITLE: Inititive mending Cupertino s Generl Pln nd Hert of the City Specific Pln to: (1) llow 0,000 squre feet of office spce, 00 hotel units, nd 0 residentil units, nd height limit of feet for mixed-use development project t the Cupertino Oks Shopping Center ( Property ); () exempt the Property from some development stndrds; nd (3) require the City to promptly process nd pprove n ppliction for project tht includes specified community benefits nd is consistent with the terms of the proposed inititive. SUMMARY: As required by Stte lw, the City of Cupertino s Generl Pln estblishes permissible lnd uses, mximum development densities, nd intensities for ll properties within the City. The City recently completed multi-yer plnning effort for its new Generl Pln, Community Vision 01 00, guiding development through 00. The City hs lso dopted severl specific plns, which provide dditionl development guidnce for certin res of the City. The eight-cre Property, bounded by Stte Route, Stevens Creek Boulevrd, nd Mry Avenue, is within the Hert of the City Specific Pln. The proposed inititive mends the City s Generl Pln nd the Hert of the City Specific Pln including to: (1) dd n dditionl 0,000 squre feet of office spce nd n dditionl 00 hotel rooms to the development permitted within the Hert of the City re exclusively for the Property; () chnge the Mximum Residentil Density for the Property from units per cre to provision llowing 0 residentil units; (3) exempt the Property from the 1:1 slope line setbck requirement; () increse the mximum llowble building height from feet to feet nd chnge the lnd use designtion nd zoning to llow office uses; () remove the Neighborhood Center designtion; () llow for prceliztion (i.e., the division of the property into smller prcels tht my then be re-sold) of the Property; () remove the requirement tht the Property contin substntil retil component ; 1

13 () remove restrictions on the percentges of certin uses llowed long Stevens Creek Boulevrd nd the rer of buildings; nd () reduce the percentge of the required common outdoor spce tht must be lndscped. The inititive sttes tht its intent is to revitlize the Oks Shopping Center with mixed use project tht would generte n estimted $. million in new nnul tx revenues nd n dditionl $ million worth of specified community benefits, such s funds for construction of schools, public fcilities, nd trnsporttion, nd ffordble housing in excess of City requirements. It directs the City to promptly review development ppliction tht is generlly consistent with the inititive s ttched Site Pln nd promptly pprove development permit nd development greement tht would require the lndowner to provide community benefits nd menities in substntil conformnce with those specified. The inititive, which hs no expirtion dte, sttes tht the Generl Pln nd Hert of the City Specific Pln provisions it mends could be mended by the voters or, upon ppliction of the lndowner, by the City Council.