times of san diego - local news and opinion for …...judgment of the honorable kenneth j. mendel,...

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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. )

)

_________________________________________________________

PETITION FOR WRIT OF MANDATE,

EMERGENCY STAY ORDER,

OR OTHER EXTRAORDINARY RELIEF

ELECTION MATTER

Stay Requested and Emergency Orders Requested by August 10, 2018

__________________________________________________________

San Diego Super. Ct., Case No. 37-2018-23393-CU-WM-CTL

Honorable Kenneth J. Medel, Dept. 66, (619) 450-7066

Related Appeal filed July 11, 2018 (unnumbered)

________________________________________________________

Craig A. Sherman, Esq. State Bar No. 171224

CRAIG A. SHERMAN, A PROFESSIONAL LAW CORPORATION

1901 First Avenue, Suite 219, San Diego, CA 92101

Tel: (619) 702-7892; Fax: (619) 702-9291

[email protected]

Attorney for Petitioners

mailto:[email protected]

TO BE FILED IN THE COURT OF APPEAL APP-008 COURT OF APPEAL CASE NUMBER:

COURT OF APPEAL FOURTH APPELLATE DISTRICT, DIVISION ONE

ATTORNEY OR PARTY WITHOUT ATTORNEY: STATE BAR NO. 171,224 SUPERIOR COURT CASE NUMBER:

NAME Craig A . Sherman 37-2018-23393-CU-WM-CTL FIRM NAME CRAIG A. SHERMAN , APC STREET ADDRESS: 1901 First Avenue, Suite 219 c ITY San Diego STATE: CA ZIP CODE 92101 TELEPHONE NO .. 619-702-7892 FAX NO. 619-702-9291 E-MAIL ADDRE SS [email protected] ATTORNEY FOR (name): Appellants , DAVE SOUTHCOTT, et al.

APPELLANT/ DAVE SOUTHCOTT, et al. PETITIONER:

RESPONDENT/ Julian-Cuyamaca Fire Protection District, et al. REAL PARTY IN INTEREST:

CERTIFICATE OF INTERESTED ENTITIES OR PERSONS

(Check one) : IT] INITIAL CERTIFICATE D SUPPLEMENTAL CERTIFICATE

Notice: Please read rules 8.208 and 8.488 before completing this form. You may use this form for the initial certificate in an appeal when you file your brief or a prebriefing motion, application, or opposition to such a motion or application in the Court of Appeal, and when you file a petition for an extraordinary writ. You may also use this form as a supplemental certificate when you learn of changed or additional information that must be disclosed.

1. This form is being submitted on behalf of the following party (name): Appellants DAVE SOUTHCOTT, et al.

2. a. IT] There are no interested entities or persons that must be listed in this certificate under rule 8.208.

b. CJ Interested entities or persons required to be listed under rule 8.208 are as follows :

(1)

(2)

(3)

(4)

(5)

Full name of interested entity or person

CJ Continued on attachment 2.

Nature of interest (Explain):

The undersigned certifies that the above-listed persons or entities (corporations, partnerships, firms, or any other association, but n_ot including government entities or their agencies) have either (1) an ownership interest of 10 percent or more in the party if it is an entity; or (2) a financial or other interest in the outcome of the proceeding that the justices should consider in determining whether to disqualify themselves, as defined in rule 8.208(e)(2).

Date: July 17, 2018

CRAIG A. SHERMAN (TYPE OR PRINT NAME)

Form Approved for Optional Use Judicial Council of California APP-008 [Rev. January 1, 2017]

• (SIGNATURE OF APPELLANT OR ATTORNEY)

CERTIFICATE OF INTERESTED ENTITIES OR PERSONS Page 1 of 1

Cal. Rules of Court, rules 8.208, 8.488 www.courts.ca.gov

2

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TABLE OF CONTENTS

Page

I. INTRODUCTION AND NECESSITY OF PETITION

WRIT OF MANDATE, IMMEDIATE STAY ORDER, OR

OTHER EXTRAORDINARY RELIEF FOR A TIME SENSITIVE

NOVEMBER 6, 2018 BALLOT AND ELECTION MATTER . . . . . . . . .8

A. Nature of the Emergency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11

1. Petitioners have no other plain, speedy and adequate remedy

in the ordinary course of law . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11

2. Petitioners Will Suffer Irreparable Injury if Such Relief is Not

Granted. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11

B. Nature of the Action. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .13

1. This Proceeding Does Not Raise Any Factual Issues, But

Presents Solely a Question of Law. . . . . . . . . . . . . . . . . . . . . . . . . .13

2. This Case Directly Involves the Public Interest. . . . . . . . . . . . . . . .16

C. Summary of the Parties and the Claims and Issues Presented . . . . . . .16

II. PETITION FOR WRIT OF MANDATE AND REQUEST FOR AN

IMMEDIATE STAY ORDER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .18

III. PRAYER FOR RELIEF. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .22

IV. VERIFICATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .24

V. MEMORANDUM OF POINTS AND AUTHORITIES . . . . . . . . . . . . . .25

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 . . . . . . . . . . . . . . . . . . . . . .25

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TABLE OF CONTENTS (continued)

Page

1. There is a Critical Difference Between a Local Agency

Resolution Making a Decision to Proceed with Dissolution

and the Proceedings Involved with LAFCO Regarding

Whether and How it Might Allow Dissolution . . . . . . . . . . . . . . . . .27

2. The Trial Court Did Not Follow the Standard of “Extraordinary

Deference” Accorded to the Public’s Right of Referendum. . . . . . .29

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. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .31

4. Further Cases Argued by Respondents are Inapplicable to the

Present Case. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .34

5. The Trial Court Did Not Resolve All Doubts in Favor of the

Right of Voters to Referendum . . . . . . . . . . . . . . . . . . . . . . . . . . . . .36

B. THE REGISTRAR OF VOTERS MAY NOT SUBSTITUTE ITS

JUDGMENT FOR THAT OF THE COURTS; THE REGISTRAR FAILED TO FOLLOW THE LAW BY RESCINDING ITS QUALIFICATION OF THE REFERENDUM PETITION AND NEEDS TO HEED TO FURTHER RULINGS OF THIS COURT

BY WAY OF MANDATE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .38

VI. CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .40

VII. CERTIFICATION OF WORD COUNT COMPLIANCE . . . . . . . . . . . .41

DECLARATION OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .42

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TABLE OF AUTHORITIES

California Case Law Page

Andal v. Miller,

(1994) 28 Cal.App.4th 358, 360-361 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10

Associated Home Builders etc., Inc. v. City of Livermore,

(1976) 18 Cal.3d 582, 591. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .30, 36

Citizens for East Shore Parks v. State Lands Commission,

(2011), 202 Cal.App.4th 549, 573. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .30

Farley v. Healey,

(1967) 67 Cal.2d 325, 326-327. . . . . . . . . . . . . . . . . . . . . . . . . . . . .10, 15, 38

Ferrini v. City of San Luis Obispo,

(1983) 150 Cal.App.3d 239, 242-243, 245. . . . . . . . . . . . . . . . . . . .31, 32, 33

Friends of Mount Diablo v. County of Contra Costa,

(1977) 72 Cal.App.3d 1006, 1009-1010, 1011-1013 . . . . . . . . .31, 33, 34, 35

Fry v. Saenz,

(2002) 98 Cal.App.4th 256, 262 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .30

Gayle v. Hamm,

(1972) 25 Cal.App.3d 250, 258. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .30, 36

Hill v. Superior Court of County of Sacramento,

(1911) 15 Cal.App. 307, 313. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11, 16

Independent Energy Producers Assn. v. McPherson,

(2006) 38 Cal.4th 1020, 1024-1025 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9

L.I.F.E. Comm. v. City of Lodi,

(1989) 213 Cal. App. 3d 1139, 1145-1146. . . . . . . . . . . . . . . . . . . . . . .34, 35

Las Tunas Beach Geologic Hazard Abatement Dist. v. Superior Court,

(1995) 38 Cal.App.4th 1002, 1010, 1012 . . . . . . . . . . . . . . . . . . . . . . . .34, 35

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TABLE OF AUTHORITIES (continued)

California Case Law (continued) Page

Ley v. Dominguez,

(1931) 212 Cal. 587, 593. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .31

Lippman v. City of Oakland,

(2017) 19 Cal.App.5th 750, 756 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .39

Martin v. Smith,

(1959) 176 Cal.App.2d 115, 117. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .16, 30

Pala Band of Mission Indians v. Bd. of Supervisors,

(1997) 54 Cal.App.4th 565, 573-574 . . . . . . . . . . . . . . . . . . . . . . . . . . .30, 36

Palmer/Sixth Street Properties, L.P. v. City of Los Angeles,

(2009) 175 Cal.App.4th 1396, 1405 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .30

Simpson v. Hite,

(1950) 36 Cal.2d 125, 130. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .37

Weinstein v. County of Los Angeles,

(2015) 237 Cal.App.4th 944, 965 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .16

California Statutes Page

Cal. Code of Civil Procedure § 35 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10

Cal. Code of Civil Procedure § 1085 . . . . . . . . . . . . . . . . . . . . . . . . . . .29, 39

Cal. Elections Code § 9340. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .13

Cal. Elections Code §§ 9340, 9144. . . . . . . . . . . . . . . . . . . . . . . . . .25, 36, 37

Cal. Elections Code § 9144. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .13, 19

Cal. Elections Code §§ 9144-9145 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6, 27

Cal. Elections Code § 13314, subd. (a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . .10

Cal. Elections Code § 13314, subd. (a)(3) . . . . . . . . . . . . . . . . . . . . . . . . . .10

Cal. Government Code § 56611, subd. (a) . . . . . . . . . . . . . . . . . . . . . . . . . .28

Cal. Government Code § 56650 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .27, 37

7

TABLE OF AUTHORITIES (continued)

California Statutes (continued) Page

Cal. Government Code § 56651 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .28

Cal. Government Code § 56652 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .29


Cal. Government Code § 56654, subds. (a), (b) & (c) . . . . . . . . . . . . . . . . .27


Cal. Government Code §§ 56700-56711 . . . . . . . . . . . . . . . . . . . . . . . . . . .28

Cal. Health and Safety Code § 13801. . . . . . . . . . . . . . . . . .25, 31, 35, 36, 37

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I.

INTRODUCTION AND NECESSITY OF PETITION

WRIT OF MANDATE, IMMEDIATE STAY ORDER, OR

OTHER EXTRAORDINARY RELIEF FOR A TIME SENSITIVE

NOVEMBER 6, 2018 BALLOT AND ELECTION MATTER

Dave Southcott, Brian Crouch, Mike Hatch, Eva Hatch, and Julian

Volunteer Fire Company Association (collectively “Petitioners”) file this

emergency request to this Court of Appeal to grant a writ of mandamus directing

the County of San Diego Registrar of Voters (“Registrar”) to place the duly

qualified, and legally proper, voter-signed referendum petition to revoke or

endorse the April 10, 2018 Resolution 2018-03 (“Referendum Petition”) made by

the Julian-Cuyamaca Fire Protection District (“JCFPD”) to dissolve the local Fire

District.1

Petitioners also seek an immediate stay order of the Decision and

Judgment of the Honorable Kenneth J. Mendel, rendered in the San Diego

Superior Court, Case No. 37-2018-0023393-CU-WM-CTL, during the time that

Petitioners and this Court are provided the opportunity properly and fully

1 The Registrar has certified that the Referendum Petition contains the

necessary amount of verified signatures to qualify for the November

general election ballot, but the Registrar has refused to follow itsS

ministerial duty to place the Referendum Petition on the ballot because

Judge Kenneth Medel erroneously ruled in Case No. 37-2018-0023393-

CU-WM-CTL that the Resolution NO. 2018-03 is not subject to a

referendum.

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adjudicate the legal question, efficacy, and practical effect of the Referendum

Petition.

Lastly, Petitioners also seek appropriate writs of mandate and/or

extraordinary relief against the JCFPD, San Diego County, and San Diego Local

Agency Formation Commission to immediately suspend all actions in

furtherance of the dissolution of the JCFPD based on a timely May 8, 2018

presentation and filing of the Referendum Petition with the JCFPD.

With an apparent and current stated August 10, 2018 deadline that a

formal request or court order must be obtained to ensure the Referendum Petition

is placed on the November 6, 2018 general election ballot, time is of the essence

for an immediate stay order and for this writ to be decided to prevent Petitioners’

loss of rights before a full appeal and decision can be heard.

Case law supports that courts should allow items to appear on ballots, and

let the voters decide, prior to adjudging and legal efficacy of the matter – which

can be maintained and decided later. (See Independent Energy Producers Assn. v.

McPherson, (2006) 38 Cal.4th 1020, 1024-1025 [finding that a challenge to

whether a measure is the type that may be adopted through the initiative process

has a preference to be included on the ballot because the issue will not become

moot by an election].) As stated in Independent Energy Producers Assn. v.

McPherson:

in such a case a court should take into consideration the availability

of postelection relief in deciding whether it is preferable to resolve

the issue in the often charged and rushed atmosphere of an

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expedited preelection review, or instead to leave the challenge for

resolution with the benefit of the full, unhurried briefing, oral

argument, and deliberation that generally will be available after the

election.

(Id. at 1025.)

The requested relief and the original jurisdiction of this appellate court

proceeding (for a writ of mandate or other appropriate extraordinary relief) is

appropriate pursuant to Elections Code section 13314, subdivision (a)(1) and the

holdings of the California Supreme Court and Court of Appeal decisions in

appellate court decisions Farley v. Healey, (1967) 67 Cal. 2d 325, 326-327, and

Andal v. Miller, (1994) 28 Cal.App.4th 358, 360-361.

The issues and nature of the requested relief in this Petition also qualify

for immediate action and calendar preference pursuant to Code of Civil

Procedure section 35, and Elections Code section 13314, subdivision (a)(3).

As detailed below, this Petition meets all of the factors for this Court to

review the underlying legal issue and grant the requested writ(s) of mandate and

any other relief necessary to dispense with proper justice as requested and

alleged herein.

/ /

/ /

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A. Nature of the Emergency

1. Petitioners have no other plain, speedy and adequate remedy in

the ordinary course of law

Election disputes are matters in which writ relief is appropriate because of

the lack of a plain, speedy and adequate remedy through the usual appeal

process. (Hill v. Superior Court of County of Sacramento, (1911) 15 Cal.App.

307, 313 [An appeal “should not be considered a speedy and adequate remedy in

election contests in which the public are so largely interested. . .”].)

Here, although Petitioners have initially attempted adjudication by obtaining

and filing an appeal of the trial court’s judgment, Petitioners have no plain, speedy

or adequate remedy to seek a writ of mandate against the Registrar because less than

30 days exist before expiration of Registrar’s August 10, 2018 deadline for

submission of the Referendum Petition for the November 6, 2018 general election.

(Ex. A and Ex. E, Exhibits in Support of Petition for Writ of Mandate, Vol. 3, pp.

498, 518.)2 There is simply no other method to resolve the legal question whether

the Registrar, based on the decision of the trial court, is undertaking unlawful action

by refusing to place the Referendum Petition on the November 6, 2018 ballot.

Similarly, although Petitioners expediently sought writ relief against JCFPD

in the San Diego Superior Court (AA 10, 91-94, AA 354:17, 354:23-355:2; AA 374-

2 Citations to “Exhibits” in support of this Petition are contained

in Volume 3 of the Exhibits in Support.

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376)3 as soon as the JCFPD (and real parties Court and LAFCO) refused to suspend

Resolution No. 2018-03, a judgment did not issue in that case until June 28, 2018.

(AA 475-476) Petitioners filed a notice of appeal as soon as Petitioners became

aware of the judgment (Ex. E, Exhibits in Support of Petition for Writ of Mandate,

Vol. 3, p. 521 [¶ 10]) and have concurrently prepared an appellants’ appendix, open

brief, and motion for calendaring preference to have that appeal heard as

expediently as possible.4 In the event that appeal can be decided on the same

expedited timeline as requested herein (before August 10, 2018), including

Petitioners’ willingness to waive the right of a reply brief and oral argument, then

such an approach might be plausible. However, the backlog in the administrative

offices of the Fourth District Court of Appeal and Superior Court are preventing

Petitioners from getting a case number and effectuate any Court of Appeal filings.

(Ex. E, Exhibits in Support of Petition for Writ of Mandate, Vol. 3, p. 522 [¶ 12].)

There appears to simply be no time for a traditional appeal of the

judgment for briefing, argument, and a decision made before by August 10,

3 Volumes 1 and 2 of the Exhibits in Support of this Writ are the same

as the Appellant’s Appendix prepared for the underlying appeal and

therefore contain “AA ___” as the page number designations. 4 Appellants’ appendix, open brief, and motion for calendaring

preference are being lodged as exhibits to this writ petition as they

contain relevant and related information necessary for this Court’s

consideration and adjudication of this Petition and the relief

requested herein. (Open brief and motion for calendar preference

attached as Ex. E and Ex. F, to Exhibits in Support of Petition for

Writ of Mandate, Vol. 3, p. 502 and p. 529 et seq.)

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2018. Thus, Petitioners include in this Petition a request for immediate stay of

the judgment in the trial court in Case No. 37-2018-0023393-CU-WM-CTL, and

writs of mandate to JCFPD, LAFCO, and County to suspend dissolution activity

because there is no plain, speedy, or adequate remedy through the standard

appeal process.

2. Petitioners Will Suffer Irreparable Injury if Such Relief is Not Granted

Upon the May 8, 2018 presentation of the Referendum Petition to the

JCFPD and its board president and secretary, the JCFPD was legally required to

immediately cease and suspend all activities in furtherance of Resolution No.

2018-03, 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, the JCFPD and its officers and legal counsel continue

to pursue and promote dissolution efforts under Resolution No. 2018-03, by

making one more applications and agreements with Real Party agencies in

furtherance, and with intent to, implement and finalize the dissolution of the

JCFPD. (AA 115-117, 122-140; see also AA 143, 363)

County’s takeover efforts of the JCFPD are being preliminarily put into

place as of June 1, 2018. (AA 129 [¶ 18]). Without an immediate stay, the

JCFPD will be fully dissolved before the time a traditional appeal can be

14

decided. This is an irreparable injury because buildings, infrastructure, and

equipment will already have been transferred, sold, or disposed of. Petitioners

and their long-standing supportive petitioner entity, the Julian Volunteer Fire

Company Association, will also be rendered worthless and divested of its right to

meaningfully proceed with its other district tax benefit voter initiative that has

already qualified for the November 6, 2018 ballot. (Ex. B, Exhibits in Support of

Petition for Writ of Mandate, Vol. 3, p. 499.) The failure and refusal of having

the Referendum Petition appear on the November ballot calls into question and

improperly prejudices the efficacy and validity of the concurrent tax increase

initiative to save and not dissolve the JCFPD. (Id.)

Further, if this Court agrees with Petitioners that the Resolution 2018-03

is predominantly a policy and legislative action, the Referendum Petition should

be able to immediately proceed to a vote because it was timely submitted to the

JCFPD, thereafter the JCFPD timely submitted the Referendum to the Registrar

of Voters, and thereafter the Registrar certified that the Referendum Petition has

sufficient signatures to qualify for the November ballot. (Ex. B, Exhibits in

Support of Petition for Writ of Mandate, Vol. 3, p. 520 [¶ 7].)

The failure and refusal of having the Referendum Petition on the

November 6, 2018 ballot will additionally compel a special election at significant

cost.

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B. Nature of the Action

1. This Proceeding Does Not Raise Any Factual Issues, But Presents

Solely a Question of Law

As related to the questioned and appealed Judge Medel decision that the

Registrar is relying upon, whether the Registrar here may impede the right of

JCFPD voters, to propose initiative measures (or referenda), is a legal question of

whether the Registrar has exceeded its ministerial duty, which is a legal question.

(Farley v. Healey, (1967) 67 Cal.2d 325, 327; see also Weinstein v. County of

Los Angeles, (2015) 237 Cal.App.4th 944, 965 [question of ministerial duty

subject to de novo review].) There are no factual disputes that the Registrar

certified that the Referendum Petition as qualified for the November 6, 2018

ballot, and then withdrew said finding based on its legal opinion that the

Referendum Petition is moot. (Ex. B and Ex. C, Exhibits in Support of Petition

for Writ of Mandate, Vol. 3, pp. 525, 526.)

The sole dispute and legal issue in the Superior Court Case is whether

Resolution No. 2018-03, as a decision affecting the constituent and voters of the

JCFPD, is a locally-controlled legislative and policy decision (subject to

referenda) or is it an administrative subject and action that is a matter of

statewide concern (not local control). As briefed below in Section V.A.3,

Petitioners maintain, as they did in the trial court, that Resolution No. 2018-03 is

a legislative decision and matter and therefore the Referendum Petition is a valid

16

matter for the ballot. This was similarly and correctly identified by the trial

court: the primary legal issue in this case relates to case authority and statutory

authority that the district’s actions in this case are not subject to the referendum

process by law. (AA 350:13-17; see also AA 439.)

2. This Case Directly Involves the Public Interest

This case involves the election matter of a referendum, otherwise known

as “the peoples’ veto,” which is a constitutional and statutory right and check on

government, which the courts have the duty to “jealously guard this right of the

people and to prevent any action which would improperly annul that right.”

(Martin v. Smith, (1959) 176 Cal.App.2d 115, 117.) California courts have

acknowledged that election issues implicate the public interest. (Hill v. Superior

Court of County of Sacramento, supra, 15 Cal.App. at p. 313.)

C. Summary of the Parties and the Claims and Issues Presented

Petitioners Dave Southcott, Brian Crouch, Mike Hatch, Eva Hatch, are

individuals who are members of, or are associated with, the Julian Volunteer Fire

Company Association, all of whom have an interest in the preservation of local

control of the JCFPD. Respondents are Julian-Cuyamaca Fire Protection District

(JCFPD), Jack Shelver, in his official capacity as Board President of the JCFPD,

and Marcia Spahr, in her official capacity as District Secretary of the JCFPD.

17

Jack Shelver is the primary backer and proponent of the dissolution of the

JCFPD. On April 10, 2018, the JCFPD adopted Resolution No. 2018-03 move

forward and file an application of dissolution of the JCFPD with LAFCO. (AA

117, 150-151 [Sherman Decl. ¶ 10, Ex. H].)

The JCFPD is moving quickly to dissolve and transfer control of the

JCFPD to real party in interest County, through a dissolution process applied for

on April 11, 2018 by JCFPD to real party in interest LAFCO. (AA 156-157,

[Sherman Decl. ¶ 10, Ex. H at pp. 7-8, Application to LAFCO date-stamped

April 11, 2018].)

Respondent San Diego County Registrar of Voters initially certified that

the Referendum Petition was qualified for the November 6, 2018 ballot on June

26, 2018, but subsequently rescinded qualification on June 28, 2018. (Ex. B and

Ex. C, Exhibits in Support of Petition for Writ of Mandate, Vol. 3, pp. 525, 526.)

There are two legal claims at issue. The first is that Respondent Registrar

exceeded its authority and violated its ministerial duty to place the Referendum

Petition on the November 6, 2018 ballot, after certifying that sufficient valid

signatures were submitted by Petitioners. The second legal claim is that the

Referendum Petition is valid because Resolution 2018-03 is a legislative action,

and, upon its submittal, as an operation of law, Respondent JCFPD and real

parties in interest County and LAFCO must suspend all dissolution activities.

18

II.

PETITION FOR WRIT OF MANDATE AND

REQUEST FOR AN IMMEDIATE STAY ORDER

By this verified petition, Petitioners aver as follows:

1. JCFPD prepared, published, and posted an agenda for a regular

JCFPD meeting for Tuesday, April 10, 2018. Item 13 on the agenda which

pertained to dissolution of the JCFPD through the adoption of Resolution No. 2018-

03. (AA 117, 150-151)

2. Resolution No. 2018-03 is not an application for dissolution. (Cf. AA

150-151 [resolution made April 10, 2018]; AA 156-157 [application dated and filed

April 11, 2018].)

3. JCFPD’s application for dissolution (“Application”) was filed on April

11, 2018, the day after the passage of Resolution 2018-03. (AA 156-157)

4. Subsequent to JCFPD’s decision and resolution on April 10, 2018,

Petitioners organized a referendum petition drive and gathered sufficient signatures

to rescind Resolution 2018-03. (AA 256-257 [¶¶ 6-9].)

5. Petitioners and supporters prepared and circulated petitions within the

geographical boundaries of the JCFPD obtaining signatures of registered voters as

set forth in the Referendum Petition. (AA 259-261)

6. On May 8, 2018, the Referendum Petition was presented to

JCFPD’s board president Jack Shelver and board secretary Marcia Spahr by

19

Petitioners within thirty days of the adoption of Resolution No. 2018-03, at

the start of the May 8, 2018 meeting, at approximately 10:00 a.m. during the

morning public communication (non-agenda public comment) portion of the

meeting. (AA 257, 115)

7. Since May 8, 2018 JCFPD has continued to pursue its dissolution

efforts under Resolution No. 2018-03 by making one or more applications and

agreements with real party in interest agencies in furtherance, and with intent to,

implement and finalize the dissolution of the JCFPD. (AA 115-117, 122-140

[¶¶ 5-9]; see also AA 143, 363)

8. JCFPD made an agreement for County to transfer interim control of

administration and fire services while dissolution is being completed. (AA 81-90,

122-125, 257 [¶ 10].)

9. On May 10, 2018, in light of the statutory suspension rule under

California Elections Code § 9144, counsel for Petitioners wrote the executive

director and legal counsel for LAFCO asking and directing said agency to cease and

desist the administrative processing of JCFPD’s application. (AA 136-137)

10. On May 11, 2018, counsel for LAFCO delivered a letter to Petitioners

counsel in which LAFCO indicated that it rejected the Petition for Referendum and

would continue actions to dissolve the JCFPD. (AA 138-140 [¶ 7].)

11. On May 11, 2018, counsel for Petitioners wrote to County seeking

compliance with the Referendum Petition’s legal effect of suspension of Resolution

2018-03 by County removing Agenda Item No. 2 from its May 15, 2018 agenda to

20

proceed with dissolving the JCFPD by reorganizing the Julian-Cuyamaca Fire

Protection District into County Service Area No. 135. (AA 116, 141-142, 143)

12. County refused responded that it would be immediately move forward

with dissolution activities. (AA 116)

13. County has taken additional steps to facilitate dissolution including

replacement of JCFPD equipment and personnel with County and CalFire

“management takeover” during the interim dissolution time period. (AA 126-135,

143) County’s takeover efforts were preliminarily put in place on June 1, 2018.

(AA 129 [¶ 18].)

14. Counsel for Petitioners gave notice of Petitioners Ex-Parte

Application to respective legal counsel for JCFPD, LAFCO, and County at

approximately 12 p.m. on May 14, 2018, the same day the lawsuit in the underlying

suit was filed. (AA 10, 91-94)

15. Petitioners’ ex parte request for an alternative writ and stay was heard

by the trial court the next day on May 15, 2018. (AA 91; transcript at AA 337-356)

16. Both JCFPD and LAFCO were represented by counsel at the hearing.

(AA 340)

17. The trial court denied Petitioners’ ex parte application based on a legal

finding that Resolution 2018-03 was a local administrative action within exclusive

LAFCO jurisdiction not subject to referendum. (AA 350, 319 [minute order].)

18. At Petitioners request, the trial court scheduled an expedited writ of

mandate hearing for June 8, 2018 with Petitioners agreeing to rely on their ex parte

21

application as their moving papers. (AA 354:17, 354:23-355:2; AA 374-376 [notice

of motion])

19. Further responsive briefing for the June 8, 2018 hearing followed with

Respondents and Real Parties filing oppositions (AA 382-389 [JCFPD’s

Opposition]; AA 394-400 [LAFCO’s Opposition]), and Petitioners filing a reply

brief (AA 410-420).

20. After issuing a Tentative Ruling on June 6, 2018 (AA 456-457), on

June 8, 2018 the trial court heard argument and ruled against Petitioners because the

trial court found that Resolution 2018-03 was an administrative act not subject to

referendum. (AA 473:10-13.)

21. Upon request, the trial court was made aware of Petitioners’ 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)

22. The trial court adopted its Tentative Ruling as its final statement of

decision in its subsequently issued June 8, 2018 Minute Order. (AA 458-459)

23. The trial court issued its judgment on June 28, 2018. (AA 475-476)

24. Petitioners filed their Notice of Appeal on July 11, 2018. (AA 479-

480)

25. JCFPD submitted the Referendum Petition to the San Diego County

Registrar of Voters and on June 26, 2018 the Register certified that the Referendum

Petition qualified for the ballot. (Ex. B, Exhibits in Support of Petition for Writ of

Mandate, Vol. 3, p. 525.)

22

26. On June 27, 2018, the Registrar withdrew his qualification of the

Referendum Petition based on a finding that it was legally moot because Judge

Medel had issued a ruling that the subject was not a proper matter for a referendum.

(Ex. C, Exhibits in Support of Petition for Writ of Mandate, Vol. 3, p. 526.)

III.

PRAYER FOR RELIEF

WHEREFORE, petitioners Julian Volunteer Fire Company Association,

Brian Crouch, Mike Hatch, Eva Hatch, and Dave Southcott pray that this Court:

1. Pending its complete and formal ruling and decision on the

underlying appeal, Petitioners request this Court to immediately stay the June 28,

2018 judgment of Honorable Kenneth J. Mendel so that a timely and proper

presentation and adjudication of Referendum Petition can be made by way of

ballot and vote of the electorate, and rights of referenda fulfilled;

2. Petitioners request a writ of mandate from this Court to the San

Diego County Registrar of Voters ordering the Registrar to prepare and place the

Referendum Petition, challenging the April 10, 2018 Resolution No. 2018-03 of

the Julian-Cuyamaca Fire Protection District, on the November 6, 2018 general

election ballot;

3. Petitioners request a writ of mandate to the Julian-Cuyamaca Fire

Protection District, the San Diego Local Agency Formation Commission, and the

23

County of San Diego to immediately suspend all efforts to dissolve the Julian-

Cuyamaca Fire Protection District based on the legal effect of the May 8, 2018

timely presented Referendum Petition, challenging the April 10, 2018 Resolution

No. 2018-03 of the Julian-Cuyamaca Fire Protection District; and

4. Grant such other and further relief as may be just and proper.

Dated: July 17, 2018

Respectfully submitted,

CRAIG A. SHERMAN, A PROFESSIONAL

LAW CORPORATION

______________________________

Craig A. Sherman, Esq.


DAVE SOUTHCOTT ET AL.

IV.

VERIFICATIONS

I, DAVE SOUTHCOTT, have read and know all the contents of the

underlying facts contained in the above writ petition and request for stay or other

extraordinary relief. I am also informed and believe, and on that ground allege,

that the matters stated herein are true. I declare under the penalty of perjury under

the laws of California that the above foregoing is true and correct and that this

verification was executed on the below stated date in San Diego, California.


DAVE SOUTHCOTT

I, BRIAN CROUCH, have read and know all the contents of the underlying

facts contained in the above writ petition and request for stay or other

extraordinary relief. I am also informed and believe, and on that ground allege,

that the matters stated herein are true. I declare under the penalty of perjury under

the laws of California that the above foregoing is true and correct and that this

verification was executed on the below stated date in San Diego, California.


BRIAN CROUCH

24

25

V.

MEMORANDUM OF POINTS AND AUTHORITIES

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

Respondents and real parties in interest, at no time in the underlying case

Superior Court case, have questioned the argument of Petitioners that the JCFPD

is a local agency that is subject to referendum pursuant to the California

Elections Code and the Bergeson Fire District Law. (Elections Code §§ 9340,

9144; Health and Safety Code § 13801). The trial court did not deny Petitioners’

requested writ of mandate on those grounds. (AA 458-459) Instead, the dispute

in this case arises over Respondents’ contentions that the decision to make and

commencing a LAFCO application is administrative act and therefore out of the

reach of voters’ oversight and right of referendum that they have over the actions

of their elected JCFPD board. As argued by opposing parties “The District’s act

of applying to LAFCO for dissolution was administrative rather than legislative”

(AA 365:17-18) and “the District cannot compel dissolution nor can it compel

LAFCO to approve the application of dissolution.” (AA 378:21-22)

26

Respondents confuse fruits with vegetables by their arguments to the trial

court that Petitioners are challenging the process of dissolution. The trial court

agreed with Respondents and Real Parties, finding that:

The District cannot compel dissolution nor can it compel LAFCO to

approve the application of dissolution. Because only LAFCO has

the power to dissolve the District, the District’s resolution to dissolve

is administrative and such an administrative act is not subject to

referendum as a matter of law.

(AA 459)

The trial court erred in determining that Resolution No. 2018-03 was an

administrative act based on the undisputed premise that District “cannot compel

dissolution” nor “compel LAFCO to approve an application of dissolution.” (Id.)

This is facially incorrect because Petitioners simply did not challenge any part of

the LAFCO dissolution process. (AA 18 [Petition at ¶ 34])

By its ruling, the trial court ignored the actual issue in this case – that the

decision made by the JCFPD board of directors, to make a dissolution

application, is a legislative and policy decision subject to a referendum. (AA

458-459) In fact, JCFPD’s decision was made in the form of a Resolution (No.

2018-03) and is the resolution for which the Referendum Petition was circulated

and filed. (AA 190) The Petition was not brought against the subsequent April

11, 2018 application or process involved with LAFCO. (AA 10-26)

27

1. There is a Critical Difference Between a Local Agency Resolution

Making a Decision to Proceed with Dissolution and the Proceedings

Involved with LAFCO Regarding Whether and How it Might Allow

Dissolution

The Cortese-Knox-Hertzberg Local Government Reorganization Act of

2000, Division 3, commencing with section 56000 of the California Government

Code (hereafter “CKH”), is the procedural framework for general district

reorganization. This is not in dispute. However, what Respondents and Real

Parties argue, and where the trial court failed to correctly interpret the law, is

deciding at what point the LAFCO administrative procedure takes over and

becomes an issue of statewide concern, such that decisions of the local JCFPD

can deny the electorate therein a right of referenda.

There are two methods for a district to make the legislative decision to

seek dissolution in the process described by CKH. The first is by a petition of

voters or by resolution of application by the board of a district. (Government

Code § 56650.) A petition of voters is a legislative act, as evidenced by the

process by which initiatives and referenda are placed on the ballot. (See e.g.

Election Code §§ 9144-9145; see also e.g. Government Code § 56654, subds.

(a), (b) & (c).) As stated in the Government Code section 56654, subdivision

(a): “A proposal for a change of organization or a reorganization may be made by

the adoption of a resolution of application by the legislative body of an affected

local agency. . .”.

28

The follow-on legislated process allows that “Any petitioner or legislative

body desiring to initiate proceedings shall submit an application to the executive

officer of the principal county.” (Government Code § 56658, subd. (a); see also

Government Code § 56611, subd, (a).) Further, the petition filing and eligibility

requirements, pursuant to making an initial LAFCO application, mirror

requirements for initiatives and referendum in the election code –recognizing that

the decision to apply for dissolution is a legislative act. (See Government Code

§§ 56700-56711)

LAFCO argued to the trial court that “the District cannot compel

dissolution nor can it compel LAFCO to approve the application of dissolution.”

(Cf. AA 378:21-22) This statement is inapplicable, contorted, and need not be

disputed because LAFCO’s process occurs only after a legislative action or is

made to file an application. (Government Code § 56651 [commission

proceedings not initiated with the passage of a resolution for dissolution].)

However, the trial court adopted Respondents’ argument that “The District

cannot compel dissolution nor can it compel LAFCO to approve the application

of dissolution.” (AA 459) The trial court incorrectly applied irrelevant post-

application proceedings of LAFCO as if it applied to JCFPD’s prior and

unrelated legislative and policy decision, made by its board, on behalf of its

constituents, whether the JCFPD wanted to dissolve. (Id.)

Contrary to the trial court’s finding, the subject Resolution No. 2018-03

bears out that it is legislative. In fact, Resolution 2018-03 is not even the actual

29

application to LAFCO. Rather, said legislative Resolution No. 2018-03 is a

decision to allow the preparation and submission of the application required by

LAFCO pursuant to Government Code section 56652, which then creates the

initiation of a LAFCO matter with all its incumbent procedures. (See title of

application at AA 156-157 [“Application for Expansion of Latent Powers in

Association with Julian/Cuyamaca Fire Protection District Special District

Dissolution”].)

In this Petition, Petitioners request this Court consider the undisputable

fact that Resolution No. 2018-03, approved on April 10, 2018, and the

application submitted by District to LAFCO on April 11, 2018, are different acts

and documents – the first legislative and the latter administrative. This

distinction is critical because it demonstrates that the policy and legislative

Resolution was passed prior to administrative application and the initiation of

LAFCO dissolution proceedings.

2. The Trial Court Did Not Follow the Standard of “Extraordinary Deference”

Accorded to the Public’s Right of Referendum

The trial court’s Decision does not mention or heed to the standard of

deferential review involved in cases involving inquiry whether a referendum

petition is allowed or not. (AA 458-459) Because the issues here are pure issues

of law, this Court applies de novo review. In considering whether an agency

followed the correct procedure in a writ of mandamus case pursuant to Code of

30

Civil Procedure section 1085, this Court employs a de novo standard of review.

(See Citizens for East Shore Parks v. State Lands Commission, (2011), 202

Cal.App.4th 549, 573, modified (Jan. 27, 2012, No. A129896)

___Cal.App.4th___ [2012 Cal. App. LEXIS 76]; Palmer/Sixth Street Properties,

L.P. v. City of Los Angeles, (2009) 175 Cal.App.4th 1396, 1405; Fry v. Saenz,

(2002) 98 Cal.App.4th 256, 262.) In reviewing the legal issue here, whether

Resolution No. 2018-3 is subject to referendum, the standard is extraordinary

deferential in favor of Petitioners. The starting point of inquiry, in deciding the

validity of the Referendum Petition and related actions involved in dissolving the

JCFPD, is that all doubts must be resolved in favor of the people’s reserved right

of referendum. (Associated Home Builders etc., Inc. v. City of Livermore, (1976)

18 Cal.3d 582, 591; Pala Band of Mission Indians v. Bd. of Supervisors, (1997)

54 Cal.App.4th 565, 573-574 [“The state constitutional right of initiative or

referendum is ‘one of the most precious rights of our democratic process.’”]; see

also Gayle v. Hamm, (1972) 25 Cal.App.3d 250, 258.) Courts have the duty to

“jealously guard this right of the people and to prevent any action which would

improperly annul that right.” (Martin v. Smith, (1959) 176 Cal.App.2d 115, 117.)

Well-settled law requires “extraordinarily broad deference” to the voters’

ability to bring initiatives and referenda. (Id.) This extraordinary level of

deference is warranted because “the power of initiative and referendum, as

exercised in this state, is the exercise by the people of a power reserved to them,

and not the exercise of a right granted to them. Section 1, article IV, of the

31

Constitution expressly so provides.” (Ley v. Dominguez, (1931) 212 Cal. 587,

593, italics in original.)

The trial court’s finding that Resolution No. 2018-03 is not subject to

referendum must be judicially reviewed and resolved in favor of Petitioners’

right of referendum with this Court giving “extraordinary deference” to that

right. Nothing of the opposition comes close to overcome the presumption and

deference to be accorded. Tellingly, Respondents’ briefing to the trial court did

not cite a single case where an initial legislative resolution or application to

dissolve a district – prior to becoming a LACFO issue or administrative matter –

is a statewide concern. (Cf. AA 386-388, 396-398) The Resolution of the JCFPD

to dissolve is not yet part of the LAFCO administrative jurisdiction. This is an

initial matter controlled by local districts and the persons entitled to petition, and

control, their local fire district as intended by the State Legislature. (Health and

Safety Code § 13801.)

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

The Decision of the trial court principally relied on two cases to determine

that Resolution 2018-03 is not subject to referendum. (AA 458, citing Ferrini v.

City of San Luis Obispo (“Ferrini”), (1983) 150 Cal.App.3d 239; and Friends of

Mount Diablo v. County of Contra Costa (“Mount Diablo”), (1977) 72

32

Cal.App.3d 1006.) Neither case stands for the proposition that a resolution of an

independent local fire district, deciding to apply for dissolution, is an

administrative action.

In their opposition briefs, Respondents and Real Parties cited Ferrini for

the proposition that “Courts have repeatedly held that local agency actions

regarding reorganizations under LAFCO’s authority are not subject to

referendum.” (AA 396:23-24; see also AA 386-387[District Opp. at 5:16-24 &

6:1-7, citing Ferrini at pp. 242-243].)

Respondents did not define “local agency actions” or explain to the trial

court how Ferrini has direct application to Resolution 2018-03. (Id.) There is

good reason they did not try to do so – because there is none. The facts and

opinion in Ferrini do not involve or address a resolution by an independent local

district deciding whether or not to seek dissolution. The court in Ferrini

considered a matter whereby the citizens of the San Luis Obispo could not have a

charter vote trying to control a LAFCO annexation matter involving uninhabited

land after an application had been made to it by the landowner. (Ferrini, supra,

150 Cal.App.3d at p. 242 [decided under MORGA, the statutory predecessor to

the CKH].) Notably, there was no challenge to the initial decision to apply for

annexation. (Id. at p. 245.) Rather, the Ferrini case concerned and addressed that

voters of a city do not have a right, or initiative ability, to enact a separate charter

amendment as a way to upend and stop an already-filed annexation proceeding.

(Id. at p. 245.) The rejection of San Luis Obispo voters’ ability to suspend an

33

annexation application, after it had already been made, would be akin to voters

of the County of San Diego filing a voter initiative to prevent LAFCO from

joining JCFPD to a new County Service Area after the LAFCO application had

been properly made. The trial court erroneously found the decision in Ferrini

applies to and controls the outcome of this case.

The Mount Diablo case is similarly inapplicable to this current action. In

Friends of Mount Diablo v. County of Contra Costa, (1977) 72 Cal.App.3d 1006,

petitioners sought to challenge the county’s decision to approve the LAFCO

reorganization of an already-filed LAFCO application. (Id. at pp. 1009-1010)

The court found that such a decision was an administrative action not subject to

referendum because a referendum, at that midstream stage of the LAFCO

administrative proceedings would interfere with the policy of the State on a

subject of statewide concern. (Id. at pp. 1011-1013.)5 Tellingly, the court

specifically noted that petitioners had a right to challenge the initial rezoning

ordinance via referendum, but they did not. (Id. at p. 1009.) Here, Petitioners are

timely challenging the initial legislative decision of JCFPD whether or not it

should cease from being a local fire district – an occurrence and act prior to the

LAFCO proceedings – a matter that is subject to referendum.

5 The court also noted that the resolution challenged by the petitioners

in that case was purely a final administrative action because the

Contra County Board of Administrators had only the power to approve

or disapprove, without ability to modify, according to specific

provisions of the DRA. (Id. at p. 1009.)

34

Here, there is no doubt that the Referendum Petition challenges the initial

legislative decision to apply for dissolution. (AA 117, 151-152, 256-257, 259)

The trial court erroneously ruled that the decision of Friends of Mount

Diablo applied in this case as a bar to Petitioners’ right of referendum.

4. Further Cases Argued by Respondents are Inapplicable to the Present Case

In their briefing and at oral argument, Respondents and Real Parties

argued two other distinguishgable and inapplicable cases – Las Tunas Beach

Geologic Hazard Abatement Dist. v. Superior Court (“Las Tunas”), (1995) 38

Cal.App.4th 1002, and L.I.F.E. Comm. v. City of Lodi (“Lodi”), 213 Cal. App. 3d

1139. (AA 378, citing Las Tunas; AA 471:16-22, citing Lodi].)

LAFCO cited and briefed Las Tunas Beach Geologic Hazard Abatement

Dist. v. Superior Court (“Las Tunas”), (1995) 38 Cal.App.4th 1002, for the

proposition that the CKH is the exclusive method for dissolution of any district.

(AA 397-398, citing Las Tunas at p. 1012.)

Admittedly, a city cannot create an alternative dissolution procedure for a

geologic hazard abatement district (GHAD) because the process of dissolving a

GHAD, once initiated, is subject to CKH. (Las Tunas at p. 1012.) However, the

court of appeal in Las Tunas did not create a blanket rule that the CKH occupy

the field of all district formations, dissolutions, and annexations, nor could it. In

fact, the Las Tunas court found that, for the formation of a GHAD, the

35

generalized procedures of the CKH did not apply because the GHAD statutory

scheme had its own specific formation procedures. (Id. at p. 1010.)

The legal issue presented in Las Tunas, whether a city can create

alternative dissolution procedures for a GHAD, is beside the point here. There is

no dispute that the CKH has a general process of dissolution (once initiated and

filed), but that has nothing to do with a local agency’s legislative decision,

present in this case, whether or not to make an application for dissolution. This is

especially where the Legislature specifically enacted a statutory paradigm

whereby decisions of a local fire district are locally controlled and not being

subject to a statewide interest or control. (Health and Safety Code § 13801)

Respondents and Real Parties do not provide any contrary authority that

the JCFPD is specifically identified by the Legislature as being a district where

“Local control over the types, levels, and availability of these services is a long-

standing tradition in California which the Legislature intends to retain.” (Id.)

JCFPD’s initial resolution and decision to retain or dissolve such local fire

control is a legislative local decision. The fact that subsequent dissolution

procedures remain solely within the CKH has no effect on the rights and controls

of the electorate of their local Fire District.

The issue in the Lodi decision, as with Mount Diablo, involved whether

citizens of a city had authority to enact separate laws or zoning, during already-

filed annexations, as a veto power, thus interfering with the annexation process.

(Lodi, supra, 213 Cal.App.3d at pp. 1145-1146 [“a local ordinance allowing city

36

voters to pass judgment on proposed annexation proceedings is inconsistent with

the statutory scheme for annexation.”].)

None of the cases cited by the opposition, or adopted by the trial court,

address the question and issue whether the initial decision of a local district to

dissolve and file a LAFCO application, is a legislative act subject to referenda.

on whether to seek to dissolve.

5. The Trial Court Did Not Resolve All Doubts in Favor of the

Right of Voters to Referendum

As a case of first impression involving initial dissolution decisions, along

with statutory authority that the electorate of a local Fired District (such as the

JCFPD) have a right to referendum6, those rights should be heavily guarded

resulting in a reversal in favor of Petitioners here.

On the issue of whether the Referendum Petition is subject to referendum,

all doubts must be resolved in favor of the electorate and petitioners. (Associated

Home Builders etc., Inc. v. City of Livermore, supra, 18 Cal.3d at p. 591; Pala

Band of Mission Indians v. Bd. of Supervisors, supra, 54 Cal.App.4th at pp. 573-

574 [“The state constitutional right of initiative or referendum is ‘one of the most

precious rights of our democratic process.’”]; see also Gayle v. Hamm, supra, 25

Cal.App.3d at p. 258.)

6 Elections Code §§ 9340, 9144; Health and Safety Code § 13801,

discussed immediately below.

37

There are yet additional reasons and doubts in favor of Petitioners for the

issuance of a writ of mandate and stay order (and ultimate reversal) of the trial

court Decision. First, the Elections Code and the Bergeson Fire District Law

(Cal. Elections Code §§ 9340, 9144 and Health and Safety Code § 13801) both

declare that the JCFPD is a legislative body whose resolutions are legislative

actions and that the Legislature intended that fire districts like JCFPD are

legislative bodies under local control.

Second, and most telling, the CKH itself delineates and acknowledges that

a district or a local agency invokes the CKH application and administrative

processing via a legislative process, by way of either petition or resolution, as

the manner to decide whether to seek dissolution. (Government Code § 56650.)

Based on the undisputed acts of Petitioners’ timely preparing and

presenting the subject Referendum Petition, the intention of the Legislature that

local fire districts are local independent bodies of a legislative nature, and the

fact that deciding whether or not to initiate a dissolution proceeding is a policy

and legislative decision (not an administrative matter under any cited or other

case law precedence), there is substantial and serious doubts against the trial

court’s finding that Resolution No. 2018-03 is administrative and not subject to

referendum.

A declaration of policy is an exercise of legislative power. (Simpson v.

Hite, (1950) 36 Cal.2d 125, 130.) The decision of the JCFPD to dissolve the

38

JCFPD was a policy decision and based on a resolution akin to an ordinance with

findings made by the District. (AA 150-151)

With the numerous doubts and erroneous case law interpretations made by

the trial court in this case, the extraordinary deference standard favors construing

and preserving Petitioners’ right of referendum for the Fire District voters as to

whether they want to continue as a local fire district.

B. THE REGISTRAR OF VOTERS MAY NOT SUBSTITUTE ITS

JUDGMENT FOR THAT OF THE COURTS; THE REGISTRAR

FAILED TO FOLLOW THE LAW BY RESCINDING ITS

QUALIFICATION OF THE REFERENDUM PETITION AND NEEDS

TO HEED TO FURTHER RULINGS OF THIS COURT BY WAY OF

MANDATE

The California Supreme Court has spoken decisively on the duties of a

registrar of voters. (Farley v. Healey (1967) 67 Cal.2d 325, 327 [a registrar of

voters exceeds its authority in undertaking to determine whether the proposed

initiative was within the power of the electorate to adopt].) The facts here are

similar. The Registrar, after first qualifying the Referendum Petition for the

November 6, 2018 ballot, later determined to disqualify the Referendum Petition

based on the Registrar’s interpretation of the legal impact of the judgment in the

trial court in Case No. 37-2018-0023393-CU-WM-CTL. (Ex. B and Ex. C,

Exhibits in Support of Petition for Writ of Mandate, Vol. 3, pp. 525, 526.) In

doing so the Registrar exceeded its authority, and thus is subject to a writ

39

ordering the Registrar to place the Referendum Petition on the ballot pursuant to

Code of Civil Procedure section 1085. (See Lippman v. City of Oakland, (2017)

19 Cal.App.5th 750, 756 [Writ of Mandate under Code of Civil Procedure § 1085

“is a method for compelling a public entity to perform a legal and usually

ministerial duty.”].)

Further, as discussed above on page 1 of Section I, case law supports that

courts should allow items to appear on ballot, and let the voters decide, prior to

adjudging and legal efficacy of the matter – which can be maintained and

decided later. (Independent Energy Producers Assn. v. McPherson, (2006) 38

Cal.4th 1020, 1024-1025.)

Thus, this Court should issue a writ of mandate to compel the Registrar to

place the Referendum Petition on the November 6, 2018 ballot.

40

VI.

CONCLUSION

For the above reasons, and with the question and issue in this case

involving rather straightforward legal issue, Petitioners request reversal of the

Decision and Judgment of the trial court with direction to enter a new judgment

consistent with this Court’s opinion.

Respectfully Submitted,



LAW CORPORATION

/s/Craig Sherman .




41

VII.

CERTIFICATION OF WORD COUNT COMPLIANCE

Counsel of record for Petitioners, Craig A. Sherman, hereby certifies that

pursuant to California Rules of Court, Rule 8.486, subd. (a)(6) and Rule 8.204,

subd. (c), that the above PETITION FOR WRIT OF MANDATE,

EMERGENCY STAY ORDER, AND OTHER EXTRAORDINARY RELIEF

has been produced using 13-point Roman type, and contains 7,145 words

(including footnotes, headings, and citations, but excluding the verification and

this word count certificate), which is less than the 14,000 words permitted by this

rule, as counted by the word counter of the computer program used to prepare

the brief.



LAW CORPORATION

/s/Craig Sherman .




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COURT OF APPEAL, STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT, DIVISION ONE

DECLARATION OF SERVICE

Southcott, et al. v. Julian-Cuyamaca Fire Protection District, et al.

Court of Appeal Case No. ________

San Diego Superior Court Case No.: 37-2018-23393-CU-WM-CTL

I, PAUL BEST, declare that:

I was at least 18 years of age and not a party to the case; I am employed

in the County of San Diego, California. My business address is 1901 First

Avenue, Suite 219, San Diego, California, 92101.

On July 17, 2018, I electronically filed the below listed documents with

the Clerk of the Court for the Court of Appeals, Fourth Appellate District,

Division One, by using the appellate EFS system, described as:

PETITION FOR WRIT OF MANDATE, IMMEDIATE STAY ORDER,

OR OTHER EXTRAORDINARY RELIEF

Participants are authorized and have agreed to accept e-service in this

case and will be served by the appellate EFS system:

Gena B. Burns, Esq.

8100 La Mesa Boulevard, Suite 200

La Mesa, CA 91942

[email protected]

Counsel for Respondents

JULIAN-CUYAMACA FIRE

PROTECTION DISTRICT, JACK

SHELVER, AND MARCIA SPAHR

Holly O. Whatley, Esq.

790 E. Colorado Boulevard, Suite 850

Pasadena, CA 91101-2109

[email protected]

Counsel for Respondent

SAN DIEGO LAFCO

Timothy M. Barry, Esq.

Suedy Alfaro, Esq

Office of County Counsel

1600 Pacific Highway, Room 355

San Diego, CA 92101

[email protected]

[email protected]

Counsel for Respondents

COUNTY OF SAN DIEGO and

L. MICHAEL VU, REGISTRAR OF

VOTERS





43

I further declare that I have served the below participants by placing a

copy of the above listed document(s) in a separate envelope, with postage fully

pre-paid, and depositing each in the U.S. Mails at San Diego, CA:

Hon. Kenneth J. Medel

San Diego Superior Court

Department 66

330 West Broadway

San Diego, CA 92101

I declare under the penalty of perjury under the laws of the State of California

that the above foregoing is true and correct.

Executed on July 17, 2018 at San Diego, California.

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