HomeMy WebLinkAbout15 - Acceptance or Rejection of Greenlight Petition0
��WPORT CITY OF NEWPORT BEACH
AGENDA ITEM NO. 15
TO: HONORABLE MAYOR AND CITY COUNCIL
FROM: Homer L. Bludau, City Manager
DATE: January 11, 2000
SUBJECT: COUNCIL DIRECTION TO THE CITY CLERK REGARDING
ACCEPTANCE OR REJECTION OF GREENLIGHT PETITION BASED
ON CITY ATTORNEY'S ANALYSIS OF PETITION FORMAT
BACKGROUND
The City Attorney is out of town so I am bringing to Council's attention the issues raised
by the City Attorney in his memo regarding petition procedural flaws. I am doing so in
order that the City Council can give guidance to the City Clerk regarding whether the
petition should be accepted or rejected based on the City Attorney's legal assessment.
If the petition is rejected, the issue of an election date becomes mute. Based on a
telephone conversation with the City Attorney, while the Elections Code identifies the
City Clerk as the person who rejects or accepts the petition, Council can provide
direction as to that decision.
COUNCIL OPTIONS
The City Attorney and City Manager see three options available to the Council:
1. Find the petition substantially defective based on the City Attorney's
analysis and direct the City Clerk to reject the petition.
2. Decide the petition is not defective and establish a ballot measure
election date.
3. Not make a determination on the issues raised by the City Attorney and
establish an election date.
City Hall . 3300 Newport Boulevard • Post Office Box 1768 • Newport Beach, California 92659 -1768
CITY OF NEWPORT BEACH 0
OFFICE OF THE CITY ATTORNEY
December 29 1999
TO: Mayor and Mayor Pro Tern
FROM: Robert H. Burnham, City Attorney
RE: Greenlight Petition
Procedural Flaws
SUMMARY
At your request, I have analyzed the attached "Green Light Initiative"
petition (the "Petition ") in terms of compliance with the requirements of the
Elections Code (all citations are to the Elections Code unless otherwise noted).
I have concluded that the Petition fails to comply with the "format" requirements
of the Elections Code, that the failure is directly related to the rationale for those
requirements and the City Clerk is authorized to, and should, reject the Petition. Is
the event of a legal challenge, I believe that a court would, more likely than not,
rule that the Clerk's decision not to accept the petition was correct.
DISCUSSION
A.
Petition Format Requirements
The Elections Code includes certain format and content requirements for
initiative, referendum and charter amendment petitions. A proponent must not
only include certain information (such as the title and summary, text and notice
of intent) in a petition, but also organize the information in a specific format. In
addition to Section 9260, which applies only to charter amendments, the
Elections Code contains provisions concerning the format of an initiative or
referendum petition. For example, Sections 9105(d) and 9203(b) require a county
or municipal initiative petition to include the ballot title and summary above the
text and at the top of each page on which signatures are to appear. Section
9238(a) requires every page of a municipal referendum petition section to include
a heading. These format and text requirements, which typically require certain
information to be included in a petition, to appear in a specific format or to be In a
particular part of a petition, are designed to prevent voters from overlooking or
misconstruing crucial information regarding a proposed measure.
0 Section 9260 requires all city and city and county charter amendment
petitions to be in "substantially the following form ":
[ "]Petition for Submission to Voters of Proposed Amendment to the Charter
of the City of
To the city council of the City of
We, the undersigned, registered and qualified voters of the State
of California, residents of the City of , pursuant to
Section 3 of Article XI of the California Constitution and Chapter 2
(commencing with Section 34450) of Part 1 of Division 2 of Title 4 of
the Government Code, present to the city council of the city this
petition and request that the following proposed amendment to the
charter of the city be submitted to the registered and qualified voters
of the city for their adoption or rejection at an election on a date to
be determined by the city council.
The proposed charter amendment reads as follows:
. First. (setting forth the text of the amendment) (etc.
Signature Printed Name Residence Date
["].
Although I am unaware of any published appellate court opinions
interpreting Section 9260 several cases have examined similar format
requirements for State and local initiative and referendum petitions. The format
requirements in the Elections Code are intended "to provide sufficient
information so that registered voters can intelligently evaluate whether to sign
the initiative petition and to avoid confusion." Mervyn's v. Reyes, 69 Cal. App.
4th 93, 99, 81 Cal. Rptr. 2d 148,151 (1998); see also California Teachers' Assn v.
Collins, 1 Cal. 2d 202, 204, 34 P.2d 134,134 (1934).
The petition format requirements have an "underlying purpose of
minimizing the possibility prospective signers may misunderstand the purpose of
a petition." Nelson v. Carlson, 17 Cal. App. 4th 732, 740, 21 Cal. Rptr. 2d 485, 489
(1993). Thus, " iln determining whether a petition is valid despite a technical
frustrates the purpose of the technical requirement." Billig v. Voges, 223 Cal.
App. 3d 962, 968, 273 Cal. Rptr. 91, 96 (1990) (emphasis added).
B
Analysis of Petition
The Petition fails to conform to the requirements of Section 9260 in two
respects. First, Section 9260 requires that the text of the charter amendment
precede the signature blocks on the petition. In this Petition, the majority of the
text of the charter amendment follows the signature blocks. Second, the heading
printed at the top of the Petition, "Initiative Measure to Be Submitted Directly to
the Voters." should read "Petition for Submission to Voters of Proposed
Amendment to the Charter of the City of Newport Beach." While the required text
can be found in the Petition, the specific language is located in the middle of the
first page between the summary of the measure and the request to submit the
measure to the voters.
The charter amendment petition format provisions of Section 9260 require
that the text of the amendment come before the signature blocks. The format of
this Petition frustrates the purpose of the requirement - to allow voters to review
the entire text of a measure before signing a petition. When the signature block
on the petition is placed in the middle of the text, a voter is less likely to be aware
of those portions of the text printed on pages following the signature blocks. •
This could lead to voter confusion regarding both the content and breadth of the
proposed measure. See Chase, 187 Cal. App. 3d at 664, 232 Cal. Rptr. at 70.
In addition, Section 9260 requires each petition to include a heading that
immediately informs the voters that they are signing a charter amendment
petition, not just a regular initiative petition. The heading of this Petition reads:
"Initiative Measure to Be Submitted Directly to the Voters." The significance of
this flaw is moderated somewhat by the fact that the City Attorney's title which
describes the Petition as a measure to amend the charter is in bold, large type
immediately below the heading. Nonetheless, an argument can be made that a
voter might not have known the proposed measure is a charter amendment.
In Hayward Area Planning Ass'n v. Superior Court, 218 Cal. App. 3d 53, 266
Cal. Rptr. 745 (1990), the court held that a referendum petition substantially
complied with the Elections Code even though it did not include the heading
"Referendum Against an Ordinance Passed by the City Council." Unlike the
petition at issue in Hayward Area Planning Ass'n, which did not include a
heading, the Petition contains a heading that is appropriate for a different type of
ballot measure. There is authority for the proposition that the inclusion of a
misleading title or heading is a more serious defect than the failure to include a
title or heading. When proponents have included a title or heading that was
materially different from the appropriate title or heading, the courts have held that
the petition is not in substantial compliance with the Elections Code. Hebard, 65
. Cal. App. 4th at 1342, 77 Cal. Rptr. 2d at 358; Clark, 7 Cal. 2d at 251, 60 P.2d at
459; Boyd, 1 Cal. 2d at 472, 35 P.2d at 534. In addition, while Hayward Area
Planning Ass'n involved a referendum against an ordinance, the Petition is a
proposed charter amendment. Since a city charter operates as a limitation on a
city's powers and has the effect of a state enactment, Cal. Const. art. 11, § 3(a),
Miller v. Citv of Sacramento, 66 Cal. App. 3d 863, 136 Cal. Rptr. 315 (1977), a
defective charter amendment petition would likely have greater consequences
than a defective initiative or referendum petition. In contrast to the Elections
Code sections relating to municipal initiative and referendum petitions, the Code
sections relating to charter amendment petitions include a provision explicitly
stating that petitions that do not substantially conform to the form requirements
may not be accepted for filing. Cal. Elec. Code § 9267.
California courts have also decided several cases involving statewide
initiative and referendum petitions that did not comply with Elections Code
requirements. In two cases, the short title on the initiative petition described
certain aspects the proposed measure but failed to state that the measure
provided for a new tax. Clark v. Jordan, 7 Cal. 2d 248, 60 P.2d 457 (1936); Boyd v.
Jordan, 1 Cal. 2d 468, 35 P.2d 533 (1934). The California Supreme Court
concluded that the short title was misleading.
The Proponents of the Petition can be expected to rely on authority that
minor defects do not mean a petition fails to substantially comply with the
Elections Code. The Courts have held that an initiative petition consistent with
statutory requirements except for a short title printed in 12 point type instead of
18 point type and with a few extra words substantially complied with the
Elections Code. California Teachers' Ass'n v. Collins, 1 Cal. 2d 202, 204, 34 P.2d
134,135 (1934). In Hunt v. Jordan, 139 Cal. App. 3d 200, 36 P.2d 828 (1934), the
Court of Appeal held that an initiative petition with a short title containing 23
words instead of 20 words substantially complied with the Elections Code. In
Assembly v. Deukmejian, 30 Cal. 3d 638, 639 P.2d 939,180 Cal. Rptr. 297 (1982),
the California Supreme Court refused to remove several referenda from the ballot
even though the referendum petitions asked voters to affix their "address as
registered to vote" rather than their "residence address." However, the
Deukmejian court emphasized that other initiative and referendum petitions in
circulation at the time contained the same defect, which may have resulted from
an error in the Secretary of State's initiative handbook. Id. at 651, 639 P.2d at 947,
180 Cal. Rptr. at 305. The court held that the referendum petitions were valid in
spite of the defect because of "the unusual and unique circumstances of this
case." Id. at 652, 639 P.2d at 947, 180 Cal. Rptr. at 305.
On balance, I believe the defects in the Petition are more substantial than
those evaluated in California Teachers'. Hunt and Deukmejian A major portion
of the text of the measure is placed after the signature block and the Petition
contains an incorrect heading at the top of the first page. These flaws Impair the
el
voters' ability to quickly and easily ascertain precisely what they are being asked .
to sign. No evidence of voter confusion is required for a determination that a
petition is not in substantial compliance with the Elections Code. Hebard, 65 Cal.
App. 4th at 1343, 77 Cal. Rptr. 2d at 359.
The fact that certain required information appears somewhere in a petition
is generally not sufficient to cure the defect. For example, in several cases, the
courts have invalidated an initiative or referendum petition containing an
incomplete title, even though a voter could have figured out the purpose of the
measure by scrutinizing the entire petition. See Clark, 7 Cal. 2d at 251, 60 P.2d at
459; Boyd, 1 Cal. 2d at 473, 35 P.2d at 534; Hebard, 65 Cal App. 4th at 1342, 77
Cal. Rptr. 2d at 358. As stated in Hebard, 65 Cal App. 4th at 1342, 77 Cal. Rptr. 2d
at 358, an incomplete title is "not cured by the inclusion, on other pages
elsewhere in the petition materials, of the complete text" of the measure.
C
Clerk's Duty to Reject Petition
A municipal initiative, referendum or charter amendment petition that does
not substantially comply with Chapter 3 (commencing with section 9200) of the
Elections Code is invalid as a matter of law. Mervyn's, 69 Cal. App. 4th at 104, 81
Cal. Rptr. 2d at 154. Courts in California and in other states have held that a local
election official has a duty to reject a nonconforming initiative or referendum
petition. Myers v. Patterson, 196 Cal. App. 3d 130, 241 Cal. Rptr. 751 (1987); State
ex rel. Esch v. Lake Co. Bd. of Elections, 575 N.E.2d 835 (Ohio 1991); Beach v.
Saline, 300 N.W.2d 698 (Mich. 1981). Section 9267(again applicable only to
charter amendments) specifically provides that "Petitions that do not
substantially conform to the form requirements of this article shall not be
accepted for filing by the elections official."
Several California cases discuss an election official's decision to reject a
local initiative or referendum petition that did not substantially comply with the
statutory requirements. In Hebard v. Bybee, 65 Cal. App. 4th 1331, 77 Cal. Rptr.
2d 352 (1998), the court held that the city clerk properly rejected referendum
petition sections which contained the correct ordinance number but misstated
the title of the challenged ordinance. The courts have also affirmed a city clerk's
decision to reject a municipal initiative petition that did not contain a notice of
intent. Myers v. Patterson, 196 Cal. App. 3d at 136, 241 Cal. Rptr. at 753. In three
other cases, the courts upheld a city clerk's rejection of referendum petitions
where the petitions did not comply with the full text requirement of Section 9238.
Nelson, 17 Cal. App. 4th at 737, 21 Cal. Rptr. 2d at 486 -87; aft, 223 Cal. App. 3d
at 968, 273 Cal. Rptr at 96; Creighton v. Reviczky, 171 Cal. App. 3d 1225, 217 Cal.
Rptr. 834 (1985).
5
There appears to be only one published case in which a California
appellate court has overruled a city clerk's decision to reject a nonconforming
petition. In San Rafael Fireman's Ass'n v. City Council of San Rafael, 105 Cal.
App. 3d 358, 164 Cal. Rptr. 376 (1980), the proponents submitted a charter
amendment petition that did not contain the printed names of the petition signers,
affidavit of the petition circulator, and notice of intent. The court held that the
petition was not fatally defective because at the time it was circulated, the
Elections Code did not require charter amendment petitions to include the
printed names, affidavit or notice of intent. Id. at 362-64,164 Cal. Rptr. at 378 -79.
The Code has been subsequently amended so the case is no longer relevant to
the matter at hand.
SUMMARY
Under California law, a city clerk has a duty to reject a petition that does
not substantially comply with the Elections Code. Cal. Elec. Code § 9267. The
Petition does not strictly conform to content and format requirements and I
believe that a court would, more likely than not, rule that the Petition does not
substantially conform to the requirements of the Elections Code.
Robert H. Burnham
E
13
INITIATIVE MEASURE TO BE SUBMITTED DIRECTLY TO THE VOTERS
The city attorney has prepared the following title and summary of the chief purpose and points of the proposed measure:
"A MEASURE TO AMEND THE NEWPORT BEACH CITY CHARTER TO REQUIRE VOTER
APPROVAL OF CERTAIN AMENDMENTS TO THE NEWPORT BEACH GENERAL PLAN
The proposed measure, if approved, would amend the Newport Beach City Charter (Charter) to require voter
approval of certain amendments to the Newport Beach General Plan (General Plan). The Measure would require voter
approval of any amendment to the General Plan that has been adopted by the City Council and is defined as a "major
amendment" A "major amendment" is defined as one that would, individually or in combination with previous
amendments in the "same neighborhood ", generate more than 100 peak hour trips (trips], add mole than 100 dwelling
units (density), or add more than 40,000 square feet of floor area (intensity). To detertnme if any specific amendment is
"major ", the trips, density or intensity of that amendment are added to 80% of the tri ppss,. density or intensity resulting
from other amendments aReeting the "same neighborhood" that have been adopted by the City Council within the
preceding ten years. Amendments affect the "same neighborhood" if they affect the same SStatistical Area as shown on the
excerpt (page 89) from the Land Use Element of the General Plan that is attached to the petition.
Any major amendment" adopted by the City Council would not take effect until submitted to the electorate at the rust
=V 'major after adoption andd approved by a majority of those voting on the measure The City Council may
submit a "major amendment" to the electorate at a special election if the City and the applicant for the amendment agree
to share the costs of the special election. Each "major amendment" must be presented to the electorate as a separate and
distinct ballot measure that is worded so that a "Yes" vote approves the amendment and a "No" vote rejects the
amendment The voter approval requirement of the proposed Measure would apply to any "major amendment" unless
prohibited by state or federal law.
The proposed Measure includes six "Paragraphs" with various tides beginning with "Purpose" and ending with
"Severabflity ". If the proposed Measure is approved these "Paragraphs" would not become part of the City Charter but
do express t 'e' intent of the voters and would provide guidance in interpreting, implementing and administering the City
Charter. The proposed Measure is intended to apply to all "major amendments" initiated after the filing of the Notice of
Intent to Circulate Petition" (June 2l, 1999) except those amendments that have a "vested right" to proceed. The "peak
hour trips" generated by any amendment are to be calculated using the "most recent version" of the Trip Generation
Manual of the Institute of Transportation Engineers."
Petition for Submission to Voters of Proposed Amendment to the Charter of the City of Newport Beach.
To the city council of the City of Newport Beach: We, the undersigned, registered and qualified voters of the State of
California, residents of the City of Newport Beach, pursuant to Section 3 of Article XI of the Califomia Constitution and
Chapter 2 (commencing with or 34450) of Part 1 of Division 2 of Title 4 of the Government Code, present to the city
council of the city this petition and request that the following proposed amendment to the charter of the city be submitted
to the registered and qualified voters of the city for their adoption or rejection at an election on a date to be determined by
the city council.
The proposed charter amendment reads as follows:
First Amendment. Article IV of the City Charter of Newport Beach is amended by adding the following provisions as Section 423:
"Section 423. Protection from Traffic and Density.
Voter approval is required for any major amendment to the Newport Beach General
Plan. A "major amendment" is one that significantly increases the maximum amount
of traffic that allowed uses could generate, or significantly increases allowed density or
intensity. "Significantly increases" means over 100 peak hour trips (traffic), or over
100 dwelling units (density), or over 40,000 square feet of floor area (intensity); these
- - - - - - - - - - - (fhe proposed amendment is continued on the other side of this paper.) - - - - - - - - - -
NOTICE TO THE PUBLIC: THIS PETITION MAY BE CIRCULATED BY A PAID
SIGNATURE GATHERER OR A VOLUNTEER. YOU HAVE THE RIGHT TO ASK. This column for
All sieners of this oetition must be reeistered to vote in the ciry of Newmrt Reach_ Donne Cm,rev rmirnmia ,a m
DECLARATION,.dyCjRCULAJQk\ -Vb be complct #fter above signatures have been obtained.)
(PRINT your name -) ) 1, _ t. _ „ -butt r�gister�d ro vote in the City of Newport Beach,
Orange County, California. My residence address is j _ ;�;,. - - • ° ]>
1 circulated this petition and saw each o(thhee apps ded signatures be wn Each signature at this petition is, to the best of
my information and belief, the genuine s( ire f the person whose ix i t p rp s be. All signatures on this document were
obtained between * dates of and / Y iam mdq pc%Oty of perjury upder the
laws of the State oAC�tifi;mi" ip r correct. / ` A. //
Executed on 1 at 4 _, California. Signature _ A • - • • " ' "�
(Print N ' _
(Resi"ke Address ONLYa
-
(Signature
(Print` a ) /" _ 1
(Ci ) (Date'
(Residence Address OtbLY) n �.•, ,
2.
_ r
I iT
—� -
(Signature)
(Ity (Date)
(Print NpP ;l •
(Residence A00ress ONLY) '
3.
(Signature) i • , n n
��
(City) . . < (Date) �-
(Residence Address ONLY) �
=,u
_
(Prim Name)
(City (Date))�n
(Residence Address ONLY)
S.
(Signatum)
(City) (Date)
DECLARATION,.dyCjRCULAJQk\ -Vb be complct #fter above signatures have been obtained.)
(PRINT your name -) ) 1, _ t. _ „ -butt r�gister�d ro vote in the City of Newport Beach,
Orange County, California. My residence address is j _ ;�;,. - - • ° ]>
1 circulated this petition and saw each o(thhee apps ded signatures be wn Each signature at this petition is, to the best of
my information and belief, the genuine s( ire f the person whose ix i t p rp s be. All signatures on this document were
obtained between * dates of and / Y iam mdq pc%Oty of perjury upder the
laws of the State oAC�tifi;mi" ip r correct. / ` A. //
Executed on 1 at 4 _, California. Signature _ A • - • • " ' "�
Page two
----------------- (Propasedamendment,continued) -- • - - - - - - - - - - - - - - -
thresholds shall apply to the total of 1) Increases resulting from the amendment
.
itself, plus 2) Eighty percent of the increases resulting from other amendments
affecting the same neighborhood. and adopted within the preceding ten years.
"Other amendments" does not include those approved by the voters.
"Neighborhood" shall mean a Statistical Area as shown in the Land Use Element
of the General Plan, page 89, in effect from 1988 to 1998, and new Statistical Areas
created from time to time for land subsequently annexed to the City.
"Voter approval is required" means that the amendment shall not take effect
unless it has been submitted to the voters and approved by a majority of those
voting on it. Any such amendment shall be submitted to a public vote as a separate
and distinct ballot measure notwithstanding its approval by the city council at the
same time as one or more other amendments to the City's General Plan. The city
council shall set any election required by this Section for the municipal election
next following city council approval of the amendment, or, by mutual agreement
with the applicant for the amendment, may call a special election for this purpose
with the cost of the special election shared by the applicant and the City as they
may agree. In any election required by this Section, the ballot measure shall be
worded such that a YES vote approves the amendment and a NO vote rejects the
amendment; any such election in which the ballot measure is not so worded shall
be void and shall have no effect.
This Section shall not apply if state or federal law precludes a vote of the
voters on the amendment."
•
(End of amendment. But the proposed ballot measure also includes the following "Second" through "Seventh ".)
Second. Purpose. It is the purpose of the amendment to give the voters the power to prevent Newport Beach
from becoming a traffic-congested city, by requiring their approval for any change to the City's General Plan that
may significantly increase allowed traffic; and also to make sure that major changes do not escape scrutiny by
being presented piecemeal as a succession of small changes. .
Third. Findings. 1. In planning the growth of their city and protecting its quality of life, a prime
concern of the people of Newport Beach is to avoid congestion and gridlock from too much traffic.
2. The General Plan guides growth in the City of Newport Beach by designating land use categories for
all lands in the City, and providing limits on the allowed density and intensity of use for each land use category.
1. The General Plan already provides for additional growth in the City; if all development allowed by the
General Plan were to be built, the traffic generated in the City would increase by about 200%.
4. The people, whose quality of life is at stake, should have the power to disapprove any proposed
General Plan amendment that may significantly increase traffic congestion beyond that which could already occur
from development under the General Plan.
Fourth. Implementation. 1. It is the intent of the foregoing amendment to the City Charter of the City of
Newport Beach that, to the maximum extent permitted by law, it apply to all amendments to the General Plan
approved by the Newport Beach city council after the time of filing of the Notice Of Intent To Circulate Petition,
provided that it shall not apply to any amendment for a development project which has obtained a "vested right"
as of the effective date of the foregoing amendment to the City Charter. A "vested right" shall have been
obtained if:
Page two
0
(a) The project has received final approval of a vesting tentative map. As to such vesting tentative maps,
however, they shall be exempt only to the extent that development is expressly authorized in the vesting tentative
map itself; or
(b) The project has obtained final approval of a Development Agreement as authorized by the California
Government Code; or
(c) The following criteria are met with respect to the project:
(i) The project has received a building permit, or where no building permit is required, its final discretionary
approval, and
(ii) Substantial expenditures have been incurred in good faith reliance on the building permit, or where no
building permit is required, the final discretionary approval for the project; and
(iii) Substantial construction has been performed in good faith reliance on the building permit, or where no
building permit is required, on the final discretionary approval.
Phased projects shall qualify for vested rights exemptions only on a phase by phase basis consistent with
California law.
2. The city council is encouraged to adopt guidelines to implement the foregoing amendment to the City
Charter of the City of Newport Beach following public notice and public hearing, provided that any such
guidelines shall be consistent with the amendment and its purposes and findings. Any such guidelines shall be .
adopted by not less than six affirmative votes, and may be amended from time to time by not less than six
affirmative votes.
3. The City shall take all steps necessary to defend vigorously any challenge to the validity of the
foregoing amendment to the City Charter of the City of Newport Beach.
4. Peak hour trip generation rates shall be calculated using the most recent version of the Trip Generation
Manual of the Institute of Transportation Engineers. The city may fine -tune these rates, but not to less than 95%
of the rates in the Manual..
Fifth. Attachment. Attached to this petition is a copy of page 89 of the Land Use Element of the General Plan,
showing the "Statistical Areas" of the City of Newport Beach.
Sixth. Construction. Nothing herein shall be construed to make illegal any lawful use presently being made of
any land or to prohibit the development of any land in accordance with the provisions of the City's General Plan
in force at the time of filing of the Notice of Intent to Circulate Petition.
Seventh. Severability. If any part of this initiative is declared invalid on its face or as applied to a particular
case, such decision shall not affect the validity of the remaining parts, or their application to other cases. It is
hereby declared that each part of this initiative would have been adopted irrespective of the fact that any one or
more other parts be declared invalid. "Part" is generic, including but not limited to: Word, clause, phrase,
sentence, paragraph, subsection, section, and provision.
------------------- (End ofproposed ballot measure.)------------=-----
The following copy of the Notice of Intent to Circulate Petition Is printed here as required by Elections Code sections 9207 and 9256:
Notice of Intent to Circulate Petition
Notice is hereby given by the persons whose names appear hereon of their intention to circulate the
petition within the City of Newport Beach for the purpose of submitting to the voters a proposed amendment to
the Charter of the City of Newport Beach. A statement of the reasons of the proposed action as contemplated
in the Petition is as follows:
Future growth in Newport Beach is guided by the General Plan. To avoid gridlock, this limits growth to
what will produce about 20% more traffic than we have now. Even that limit is now in danger. Lobbyists are
putting heavy pressure on the city council to keep granting General Plan changes which will raise that limit ever •
higher. Requiring a vote of the people on any change which raises that limit significantly will take pressure off
the city council, and protect the people from unwanted increases.
Date of first publication: July 30, 1999. Signed: Evelyn R Hart, Philip L. Arst, Thomas E Hyans, proponents
Page three
9
•
u
�o
v
y.nn AO
Page four
---- _— _— _---- ----- -----'--^___ ----- ---------------------- ---------_-_____-----°-----^------
TO THE CIRCULATOR: Thank you for volunteering to help out.
• Please watch the signatures being written, so you can sign the "Declaration of Circulator'
underneath them. Where it says "obtained between the dates of and ," put
in the first date and the last date among the five signature dates. Then sign the declaration and
return the petition to the person who gave it to you, or mail it to
GREENLIGHT
P.O. Box 100
Balboa Island CA 92662 -0 100 Thank you.
r
CITY OF NEWPORT BEACH
OFFICE OF THE CITY ATTORNEY
January 11, 2000
TO: Mayor and Members of the City Council
FROM: LaVonne Harkless, City Clerk
Robert H. Burnham, City Attorney
RE: Proposed Ballot Measure /Charter Amendment
"Greenlight" Initiative
"RECEI AG NDA
PRINTED:"
-a0O O
The purpose of this memo is to attempt to answer some of the questions regarding
the proposed amendment to the City Charter.
1. WHEN CAN THE MEASURE BE PLACED ON THE BALLOT
The City Attorney has prepared a memo that answers this question and a copy is
attached. The short answer is that the measure can, without a doubt, be placed on the
ballot for the next general municipal election (November 2000). The measure probably
can be placed on the ballot at the next "established election date" (April 2000) and
possibly at a special election set at least 88 days after the call of the election. The
uncertainty relative to a special election stems from the provisions of Section 1002 that
requires all "municipal elections" to be held on "an established election date." The
uncertainty regarding the April 2000 date is based on the interplay between our Charter
and Sections 1003 and 1301 of the Elections Code.
2. WHO IS RESPONSIBLE FOR DETERMINING IF THE PETITION
COMPLIES WITH THE REQUIREMENTS OF THE ELECTIONS CODE
The City Clerk is responsible for determining if a petition to amend a city charter
substantially complies with the formatting requirements of the Elections Code. There is
no statute that prevents the City Clerk from asking for input from the City Council or
anyone else, but the Clerk is ultimately responsible to make the determination. The City
Clerk determined that the petition substantially complied with the Elections Code prior to
requesting verification of the signatures.
3. WHEN IS THE CITY COUNCIL REQUIRED TO TAKE ACTION TO
APPROVE THE CERTIFICATION AND SET THE DATE OF THE ELECTION.
The Elections Code requires the clerk to certify the results of the examination of
the signatures at the next regular meeting of the legislative body. While there is no
statutory mandate to do so, we believe that City Council should approve the certification
at the meeting of January 11, 2000.
The Elections Code does not establish a specific time within which the City Council
is required to take action after certification of a petition to amend a city charter. In this
regard, the provisions of the Elections Code relative to charter amendments differ from an
initiative ordinance. In the case of an initiative ordinance the legislative body is required
to take action within 30 days after presentation of the petition. While there is no case law
on the subject, we believe a court would rule that the legislative body must take action no
later than the date on which the measure may lawfully placed on the ballot at the next
general municipal election.
4. MAY THE CITY COUNCIL DIRECT THE PREPARATION OF A REPORT
ANALYZING THE IMPACT OF THE MEASURE
The Elections Code does not specifically authorize the preparation of a report
analyzing the impact of the measure or authorize the legislative body to delay setting an
election until presentation of the report. In the case of an initiative ordinance, the
legislative body is authorized to direct the preparation of an impact report and defer, for a
period of up to thirty (30) days, a decision whether to adopt the ordinance or set an
election. However, there is nothing in the Elections Code or State law that would prevent
the legislative body from directing the preparation of an impact report and that action
could be taken at any time.
ne Harkless, City Clerk
Robert Burnham, City Attorney
CITY OF NEWPORT BEACH
OFFICE OF THE CITY ATTORNEY
December 20, 1999
TO: Lavonne Harkless, City Clerk
FROM: Robert Burnham, City Attorney
RE: Proposed Charter Amendment
Timing of Election
You have asked for a legal opinion as to the City Council's options for
setting an election on the so- called "Greenlight Initiative" assuming you certify the
petition to the City Council. In my opinion the City Council may, consistent with
Section 1000 of the City Charter submit the matter to the voters at the general
municipal election held on November 7, 2000. The City Council probably has the
option of submitting the matter to the voters at a special election held at least 88
days after the date the election is ordered.
Two provisions of the Elections Code and Section 1000 of the City Charter have the
greatest impact on the options available to the City Council. Section 1415 of the
Elections Code (adopted in 1996) reads as follows:
"City or city and county charter proposals that qualify pursuant to Section
9255 shall be submitted to the voters at either the next regular general
election occurring not less than 88 days after the date of the order of
election, or at a special election called for that purpose or on any established
election date pursuant to Section 1000 occurring not less than 88 days after
the date of the order of election."
Section 9255 of the Elections Code (recodified in 1988) reads, in pertinent part, as
follows:
"(a) The following city or city and county charter proposals shall be
submitted to the voters at either a special election called for that purpose, at
any established municipal election date, or at any established election date
pursuant to Section 1000, provided that there are at least 88 days before the
election:"
Section 1000 of the City Charter was adopted by the voters in 1980. This section
reads as follows:
"Commencing with the election of November 2, 1982, General Municipal
elections for the election of officers and for such other purposes as the City
Council may prescribe shall be held in the City on the first Tuesday after the
First Monday of November in each even - numbered year, and consolidated
with the Statewide general election in the manner provided by the California
Elections Code."
DISCUSSION
A. General Municipal Election
The City Council clearly has the option to schedule the election on
November 7, 2000. This is the date the electorate has selected as the time for the
"next regular general municipal election" — the time for the election of candidates
and consideration of other important matters. Section 1415 specifically allows the
proposal to be presented to the voters at the next regular general election
(assuming that date is at least 88 days after the order of the election). Section 9255
allows the proposal to be submitted to the electorate at any established municipal
election date.
Based on a review of election material, the voters approved the change in
election date (from April to November) because of a desire for "a substantially
larger turnout of voters" and to "save more than $20,000 per election." (ballot
arguments). From a practical standpoint, selection of a November 7, 2000 election
would achieve these objectives.
B. Special Election
The City Council probably has the option of setting the measure for a special
election on any "established election date." The City Council very probably has
the option to call a special election on any other date that is at least 88 days after
the date the election is ordered. The caveat to these options is the inconsistency
and conflict between various provisions of the Elections Code and Section 1000 of
the City Charter.
1. Established Election Dates
Section 1000 of the Elections Code identifies the "established election
dates ". However, Section 1003 (which is in the same Chapter as Section 1000)
says "this chapter shall not apply" to "elections held in chartered cities ... in which
the charter provisions are inconsistent with this chapter" or "municipal... initiative,
referendum or recall elections." An argument can be made that none of the dates
specified in Section 1000 of the Elections Code are available because the City
Charter is inconsistent with Section 1000 of the Elections Code. An argument can
also be made that none of the dates specified in Section 1000 of the Elections Code
are available because the submission of a charter proposal to the voters pursuant
to petition is an initiative election. I believe that that a court would reject both
arguments but the potential exists for a contrary ruling.
2. Special Election
Sections 1415 and 9255 each appear to authorize the City Council to
place a charter proposal on the ballot at a special election called at least 88 days
after the order of election. However, Section 1001 of the Elections Code requires
all "municipal... elections... be held on an established elections date" except as
provided in Section 1003 (discussed above). If the arguments describe above are
rejected by the court there is a direct conflict between Section 1001, 1415 and 9255
of the Elections Code. I believe that a court would resolve the conflict by ruling
that Sections 1415 and 9255 prevail because they are specific to charter proposals.
However, a contrary ruling is possible and that would eliminate the option of
setting an election on a date other than an established election date.
3. General Municipal Election
Section 1301 of the Elections Code requires a "general municipal
election to be held on two of the four "established election dates" unless the City
Council has adopted an ordinance specifying another date. In my opinion, Section
1301 is not applicable to charter cities with specific charter provisions relative to
the date of the general municipal election. However, if a court were to rule
otherwise, the second Tuesday in each even - numbered year would be a general
municipal election date.
C. Related Elections Code Sections
Charter proposals differ from referendum and initiatives in terms of the
timing of elections. As you know, an election on an initiative or referendum must
be held within 103 days unless special circumstances exist. This requirement is
understandable given the nature of these measures. The Elections Code does not
impose a specific time constraint on charter proposals apparently because they
frequently represent a change to the "constitution" of a city. However, the
Legislature has ensured that charter proposals be submitted timely by requiring an
election be set no later than the next regular general municipal election that is
more than 88 days after the order of election (November 7, 2000 in our case). The
similarity between Sections 1415 and 9255 confirm that the Legislature intended to
adopt timeframes for elections on charter proposals that differ from those
applicable to initiatives and referenda.
SUMMARY
In summary, the City Council may set the election on the proposed charter
amendment on November 7, 2000 - the date of the next regular general municipal
election. The City Council probably has the option of scheduling a special election
either on any "established election date" or another date more than 88 days after
the election is ordered but these options may be subject to legal challenge.
Robert Burnham
• Agenda Item No. 15
January 11, 2000
Supplemental
CITY OF NEWPORT BEACH
OFFICE OF THE CITY CLERK
TO: Honorable Mayor and Members of the City Council
FROM: LaVonne M. Harkless, City Clerk
SUBJECT: COUNCIL DIRECTION TO THE CITY CLERK REGARDING ACCEPTANCE
OR REJECTION OF GREENLIGHT PETITION BASED ON CITY
ATTORNEY'S ANALYSIS OF PETITION FORMAT
Attached is a copy of an email I received from Scott Martin (through consultation with Paul
Marshal), Martin & Chapman Co., regarding the options that are available. In summary, they
have concluded that the options are:
• 1) Present certification to Council, and establish an election date.
2) Present certification to Council and by Council taking no action on it, the Council rejects
it.
It is also their opinion, as noted in the attachment, that the petition cannot be rejected after it has
been accepted for filing. The proper time to reject it would have been prior to the commencement
of the signature verification process.
For those of you who may not be familiar with this firm, Martin & Chapman Co. is an election
supplier /consulting company that has been in business in California since 1956. I have contracted
with and worked with this firm very closely for the twelve years that I have been involved in
local government (in my former city and in Newport Beach). Martin & Chapman Co. currently
provides election supplies and consulting services to over 200 cities, counties and districts in the
States of California and Nevada.
i . Lri. /�e
LaVonne M. Harkless, City Clerk
Encl: Copy of email message dated 1/6/2000
•
-'� i ... .. •,+)39da'a a'. -06-aa a::59. o, ?,
Scott Martin
From: SCOtt Martin [scottOmartinchapman.comj
Sent: Thursday, January 06, 2000 12:40 PM RECEIVED
•
To: Iharkles ®city.newpon. beacn.ca. us
. avonne '00 JAN -6 P 2 :47
Pall says you cannot reject a petition after you have accepted it for
?:ling. It should have been tejected at the filing time before sitlfrFICbrVFs THE CITY CLERK
were checked. He says that he doubts a Judge would invalidate the Ct;; iVi�4-WPIRT BEACH
based on the format differences, basically because those flaws did noc
prevent a voter from understanding the petition (it lye /ble read the entire
petition) - it was in "substantial compliance" based on the amount of text
involved.
He says the options are:
1. Present rertification to council. and establish an election date.
2. Present certification to council, they reject it by not acting on it.
Proponents cake ciCy to court to try to get it on the ballot. This taker
time and money.
Let „e Rnuw it yuu need more Information.
■
•
r1
L_J
Agenda Item No. 15
January 11, 2000
Supplemental
CITY OF NEWPORT BEACH
OFFICE OF THE CITY CLERK
TO: Honorable Mayor and Members of the City Council
FROM: LaVonne M. Harkless, City Clerk
SUBJECT: COUNCIL DIRECTION TO THE CITY CLERK REGARDING ACCEPTANCE
OR REJECTION OF GREENLIGHT PETITION BASED ON CITY
ATTORNEY'S ANALYSIS OF PETITION FORMAT
I received a phone call today (January 7, 2000), referred to me by the City Attorney's office, from
Dana Reed, a Newport Beach resident. Mr. Reed's phone call was to put me on notice that if the
Greenlight initiative petition is not rejected, he will file a lawsuit against the City.
• Although Mr. Reed is an attorney with the law firm of Reed & Davidson, Costa Mesa, he is only
representing himself as a citizen at this time. His office phone number is 714 - 641 -1688.
Mr. Reed has requested that I inform the Council and the City Attorney of this notice. I
requested that he put his notice in writing and submit it, however he indicated that the earliest he
would be able to do that would be on Monday, January 10, 2000.
LaVonne M. Harkless, City Clerk
" 1 �,VED AFTER AGENIOA
FIX11 'EV' _ 15
. Greenlight I :'
PO Box 100
Balboa Island, CA 92662
Mayor John Noyes & Members of the Newport Beach City Council January 6,2000
City of Newport Beach
3300 Newport Blvd. '
Newport Beach, CA 92658 -8915 4Xed edp� reee:aea
/v /a000 yq
Dear Mayor Noyes and Members of the City Council: !0).
The city attorney's opinion that the Greenlight "Protection From Traffic and Density" petitions
are invalid is without merit.
The enclosed letter (Attachment 1) from the law firm of Worden, Williams et al factually
demonstrates:
• The Greenlight initiative's petition format is closer to the requirements of overlapping
provisions of state law than the approach advocated by the city attorney.
• There is no basis in state law for a requirement that the entire text of the initiative precede
the signature section on paper pages that are limited by state law to a maximum size of 8
x 14 ".
Please bear in mind that substantive court challenges to the "Safe & Healthy Communities "
initiative have shown that the courts will not enjoin the opportunity for the voters to be heard,
even when constitutional issues, rather than mere nits, are involved.
Since the allegations are groundless, Greenlight calls upon the city council to set the earliest
possible date for a special election in April 2000.
We are concerned that the will of the people will not be adequately served if the election is
delayed until the November general election. The city currently has in process eleven major
projects (Attachment 2.) that require amendments to its General Plan. If the council passes these
before the voters have the opportunity to voice their opinions on their merits, the nature of the
city will be forever changed. Excessive traffic congestion will be created by developments that in
the case of the five high rise office buildings among others, bring little or no net revenues to the
city.
Should you not want to incur the additional expenses of conducting a special election, which are
minor compared to the havoc that could be created by the eleven proposed unplanned
developments, Greenlight offers a compromise plan. Greenlight requests that you officially
resolve to not pass any major amendments to the General Plan until the voters can be heard at an
election. All current entitlements and minor amendments to the General Plan could proceed
through the city's standard review process. The major amendments, as defined by the Greenlight
initiative for developments listed in the attachment to this letter, would have to wait until the
voters are heard.
We look forward to appearing before you at the January 11, 2000 city council meeting.
Greenlight representatives are of course, available for individual questions beforehand.
Greenlight thanks you for serving as volunteers and hopes to work with you in a cooperative
manner to help our common goal of a better city,
Sincerely,
Greenlight Proponents
Ali
vel n Hart ` Philip Arst X1'(1 Thomas Hyans
CC: Lavonne Harkless Daily Pilot
Robert Burnham Orange County Register
Homer Bludau Greenlight
Attachment l: Letter Scott Williams of Worden, Williams, Richmond, Brechtel & Gibbs to
Grcenlight dated January 5, 2000. 0
Attachment 2: List of eleven major development projects currently being processed by the city of
Newport Beach
0
8
• Attachment 2
0
Eleven Major Developments Being Processed by the City
that Require Major Amendments to the Newport Beach General Plan
1. Newport Dunes Hotel
2. Koll Center Newport - office building
3. Newport Center -Block 500 - office building
4. Newport Center - Fashion Island — retail space addition
5. Newport Center -Block 700 - office building
6. Newport Center -Block 800 - office building(s)
7. Corporate Plaza -West - office building
8. Newport Center -Block 600 - residences
9. Banning Ranch- (Being built in County, City has waived TPO traffic controls, prior to annexation)
10. Rockwell (Conexant) Two high -rise office buildings
11. Coastline Community College — Community College remote campus
FROM :WORDEN WILLIAMS RICHMOND ESE 755 5158
T H E LAW O F F I C E S O F
WORDEN, WILLIAMS, RICFIMOND,
Bm- CIITEL & GTBBS
A PROPESSIONAI. CORPORATION
January 5, 2000
Via Facsimile (949) 721 -8227
Greenlight
P.O. Box 100
Balboa Island, CA 92662
2000,01-05 16101 #38S P.02/06
462 STEVENS AVENUE . SUITE 102
SOLANA BEACH . CALIFORNIA 92076
Re: City Attorney Memorandum Dated December 29, 1999
Dear Ladies and Gentlemen:
VOICE [818] 7ce•ee94 •
FAX [819] 759 -5199
I have reviewed the City Attomey's Memorandum dated December 29, 1999 addressed to
the Mayor and the Mayor Pro Tern, City of Newport Beach and have the following initial
comments. •
First, I would like to make clear that neither Mr. Burnham nor anyone from his staff
contacted me with regard to any of the issues addressed in the Memorandum, nor of the fact that
apparently the Mayor and Mayor Pro Tom had requested the City Attorney's review. Thus,
neither I nor, to my knowledge, any of the proponents of the charter amendment have had any
opportunity whatsoever to provide any input to the City Attomey's office with regard to his
review.
The substance of the Memorandum is that the Greenlight petition falls to substantially
conform to the requirements of the Elections Code in two respects. One is that the words
"Initiative Measure To Be Submitted Directly To The Voters" are located at the top of the first
page of each section of the petition, instead of the words "Petition For Submission To Voters Of
Proposed Amendment To The Charter Of The City of Newport Beach_" The City Attomey's
Memorandum contends that the petition therefore violates Elections Code § 9260.'
Section 9260 reads as follows:
"The petition shall be in substantially the following form:
Petition for Submission to Voters of Proposed Amendment •
to the Charter of the City (or City and County) of
K:IC4IE:dMGREALS�0REAIA01.1Q
FROM :WORDEN WILLIAMS RICHMOND
.w
•
858 755 5176 2000.01 -05 16:02 Aa65 r.U:6/U*
Greenlight
January 5, 2000
Page 2
Unfortunately, the City Attorney did not refer to Elections Code § 9256, which in turn
refers to Elections Code §§ 9202, 9203, 9204, 9205, 9206, and 9207. These sections, by way of
the reference made in Elections Code § 9256, impose additional requirements for charter
amendment petitions. One of these is the requirement that a ballot title and summary be prepared
by the City Attorney and that each section of the petition bear a copy of the title and summary.
Elections Code § 9203 states as follows:
"... (b) The elections officials shall fivnish a copy of the ballot title and summary
to the person filing the proposed measure. The person proposing the measure
shall, prior to its circulation, place upon each section of the petition, above the text
of the proposed measure and across the top of each page of the petition on which
signatures are to appear, in roman bold face type not smaller than 12- point; the
ballot title prepared by the city attorney.
To the city council (or other legislative body) of the City (or City and County) of
We, the undersigned, registered and qualified voters of the State of
California, residents of-the City (or City and County) of pursuant to
Section 3 of Article Xl of the California Constitution and Chapter 2 (commencing
with Section 34450) of Part 1 of Division 2 of Title 4 of the Government Code,
present to the city council (or other legislative body) of the city (or city and
county) this petition and request that the following proposed amendment to the
charter of the city (or city and county) be submitted to the registered and qualified
votcls of the city (or city and county) for their adoption or rejection at an election
on a date to be determined by the city council (or other legislative body).
The proposed charter amendment reads as follows:
First. (Setting forth the text of the amendment). (etc.)
Signature
Y ACLW'.MMGREALSIGR&1Ls0L 161
Printed Name
Residence Date
FROM :WCRDEN WILLIFMS RICHMOND 868 76S 5158 2000,01 -05 18:02 4385 F.04/00
Greenlight •
January 5, 2000
Page 3
The heading of the proposed measure shall be in substantially the following
form:
Initiative Measure to be Submitted Directly to the Voters
The city attorney has prepared the following title and summary of the chief
purposes and points of the proposed measure:
(Here set forth the title and summary prepared by the city attorney. This
title and summary must also be printed across the top of each page of the
petition whereon signatures are to appear.)' (emphasis added)
The Greenlight petition thus complies precisely with the requirements of both § 9260 and
9203(b). The language required by § 9203(b) is at the top of each page of the petition on which
signatures are to appear. The language required by § 9203(b) is followed by the precise language
required by Elections Code § 9260. Indeed, had the words "Petition For Submission To 'Voters
Of Proposed Amendment To The Charter Of The City of Newport Beach" appeared at the very
top of each section of the petition as suggested by the City Attorney, opponents of the petition •
might then contend that the petition violated § 9260 since the heading would then be followed by
the City Attorney's ballot title and summary instead of by the rest of the language set forth in §
9260!
The Memorandum also contends that the petition heading is so misleading that the voters
would not know that the proposed measure is a charter amendment. The term "initiative
measure" is commonly understood to mean ballot measures initiated by the people to be voted on
by the people. There is nothing in the term which excludes proposed charter amendments, and
indeed a voter proposed charter amendment is a type of initiative measure as the term is
commonly understood. Further, approximately 1/4 inch below the allegedly offensive heading, in
large bold print, are the words "A MEASURE TO AMEND THE NEWPORT BEACH CITY
CHARTER TO REQUIRE VOTER APPROVAL OF CERTAIN AMENDMENTS TO
THE NEWPORT BEACH GENERAL PLAN." Under these circumstances, the City
Attorney's conclusion that a voter might not have known the proposed measure is a charter
amendment, or could have been mislead, is at best strained.
The City Attorney's Memorandum also contends that the petition violates § 9260 on the
ground that all of the text of the proposed amendment must physically precede the signature lines.
The Memorandum contends that the format of the Greenlight petition "frustrates the purpose of
the requirement - to allow voters to review the entire text of a measure before signing a petition."
The Memorandum cites the case of Chase v. Brooks (1986) 187 Cal.App.3d 657, 232 Cal.Rptr.
65.
Y-\C1MNM'.GRLALS %GRLk1-e0 1.861
r KUI1 !WUKVtIV WILLIN19�1 F,ILh9UNU
.Vv
�J
658 7SS S19'c 2000.01 -0S 16:03 9385 F.05/06
Greenlight
January 5, 2000
Page 4
The Chase v. Brooks case is not on point. In that case, the referendum petition did not
include the full text of an exhibit to the ordinance being challenged by the referendum petition. In
the present case, the petition unquestionably includes the full text of the proposed amendment)
Further, the notion that the formatting of the Greenlight petition would not allow voters to
review the entire text of the measure or lead to voter confusion is clearly incorrect. The signature
lines are preceded by:
1. The City Attorney's detailed ballot title and summary set forth in bold type and
required by § 9203(a) to be a "true and impartial statement of the purpose of the proposed
measure."
2. The required language from § 9260.
3. The title of the proposed charter amendment ( "Protection from Traffic and
Density") in large bold type.
4. The first five lines of text of the proposed charter amendment, all in large bold
type.
5, The statement "The proposed amendment is continued on the other side of this
paper." (further, the other side of the paper is printed so that the continued text can be read
easily by simply flipping up bottom of the page.)
Contrary to the City Attorney's Memorandum, the formatting of the Greenlight petition is
consistent with § 9260 and could not conceivably confuse voters or prevent them from reviewing
the entire text of the measure. In fact, this type of formatting is commonly employed generally in
initiative petitions in order to minimize the potential for voter confusion and comply with the legal
requirement of § 9203(b) that the "title and surmnary must also be printed across the top of each
page of the petition whereon signatures are to appear."
In sum, the Greenlight petition complies with both the literal and substantive requirements
of state law. Contrary to the Memorandum, the City Clerk's duty is to accept the petitions for
filing, and the City Council's duty is to set the matter for election by a vote of the people. The
Courts of the state have long jealously guarded the right of the people to use their reserved
legislative powers to make or repeal law, including charter amendments. The Court cases also
hold that the people should have the opportunity to vote on a proposed measure before its
sufficiency or validity is challenged in a court of law.
K- -XUM4TSMRW,WRE.ALSUr.Y61
FROII :WORDEN WILL IAMS RICHMOND
w
658 755 S196 2000,01 -05 16:04 #aaE P.06 /OS
Greenlight
January 5, 2000
Page 5
Further, if legal action is necessary to enforce the City's duties with regard to the petition,
attorneys fees and legal expenses are clearly recoverable against the City pursuant to the "Private
Attorney General Doctrine" embodied in Code of Civil Procedure § 1021.5 because of the
important public interest involved. The court in these cases has the discretion to increase the
attorneys fees recovery by a multiplier in an appropriate case.
I sincerely hope that the City Clerk and City Council will choose the appropriate course of
action and set the matter for an election at the earliest available time, so that the people of the
City of Newport Beach can vote on this important matter rather than be further delayed. Please
do not hesitate to contact me if you have any questions.
Very truly yours,
WORDEN, WILLIAMS, RICHMOND,
BRECHTEL & GIBBS, APC
W. SCOTT WILLIAMS
WSW:Ig
K,,\C W iy'rs\G REALS',GRE4LA 1.861
0
C
•
"RECE IED AFTER AGENDA O v
PRMTEV,
GreenLight
P.O. Box 100
Balboa Island, CA 92662
Mayor John Noyes & Members of the Newport Beach City Council
3300 Newport Blvd. OFF: T i- C; T Y CAN
Newport Beach, CA 92663 C T'r F : _:YP3 ?T 8ErC!i
Ref: Agenda Item 15 for 1 /11 /00 "Council direction to the city clerk regarding acceptance or
rejection of Greenlight petition based upon city attorney's analysis of petition format"
Honorable Mayor Noyes and Members of the City Council:
This is to recommend that you drop Agenda item #15 without any discussion or testimony to
avoid placing the city in the position of contemplating an illegal act.
The City Clerk is the Elections Officer of the city. She has the sole responsibility to accept or
reject initiatives, and other matters pertaining to elections. Section 9267 of the California
Elections Code clearly states this responsibility of acceptance of petitions as hers.
Petitions that do not substantially conform to the form requirements of this article shall not
be accepted for filing by the elections official. 1
The subsequent internal processing and validation of the petitions conformed to State Law for
properly filed and accepted petitions. These steps are described in the attached "Summary of
steps involved in processing the petitions
In a letter to the undersigned dated January 3, 2000 the City Clerk wrote
"Please be advised that pursuant to Election Code 9266 and 9114, on January 3, 2000, the
Registrar of voters of the County of Orange, has certified and found the petition entitled
"Protection From Traffic and Density lnitiative" to be sufficient.
Based on the timing of the County's certification, 1 will prepare a staff report for the January 11,
2000 City Council meeting to certify the petition to the city Council and will ask that the Council
take action at that meeting to set the election date. "2
The initiative meets all requirements of applicable portions of the State Election Code, has been
accepted for filing by the City Clerk and is therefore certified. No further action to reject the
initiative may be taken by the city and to even contemplate doing so would be to contemplate
breaking the law. We again urge you to drop this agenda item without any reports, discussion or
actions.
Sincerely,
GreenLight
(Original signed)
Philip L. Arst
California Elections Code
Z Letter LaVonne M. Harkless to Philip L. Arst dated January 3, 2000
Cncl Ltr Ill -11.1
CC: LaVonne Harkless
Robert Burnham
The Daily Pilot
Summary of steps involved in processing the petitions
The City Clerk, acting in her professional capacity as City Elections Official, accepted the
initiative petitions in early December. Her action was justified by her own examination of the
initiative petitions, and the fact that the City Attorney had seen and handled the initiative petition
drafts numerous times over the preceding year. He had in fact written a Ballot Title and a
Summary for the initiative.
It is not logical that Mr. Burnham would not have reported any errors in format on the initiative
petitions and instead waited until after the work had been done to collect signatures.
The city clerk then counted the signatures and verified the fact that they contained 10,251
signatures. Her examination and this total justified sending the initiative petitions to the County
Registrar of Voters for signature validation.
The city clerk then went to you, the city council and stated that they had been received and
obtained a budget appropriation of $18,000 to have the county registrar validate the signatures.
The verbiage of the staff report raised no qualifications as to validity except whether the number
of validated signatures was sufficient.
"If the petition is signed by not less than 15 percent of the registered voters of the city according
to the county election department's last official report of registration to the Secretary of State,
the city charter proposal shall be submitted to the voters. The registration figure reported to the
Secretary of State's office is the figure in effect at the time the Notice of Intent is published. The
number of registered voters for the City of Newport Beach as
reported to the Secretory of State's office on February 10, 1999 was 45,187, therefore the
proponents will need 6,778 verified signatures for this to qualms for the ballot. " 3
The county registrar validated the signatures and also looked over other portions of the
initiatives, primarily the circulators section to insure that they were validly circulated.
In a letter dated January 3, 2000, the County registrar of voters certified the initiative petition
count.
a Staff Report for Agenda Item 18 of City Council meeting of Dec. 13, 1999
Cncl Ltr III -11.1