Posted by frank, a resident of the Pleasanton Heights neighborhood, on Feb 15, 2008 at 8:35 pm

The briefs being filed during the last three days have set a record somewhat. You will see this if you are following the Register of Actions for case RG07361370 at the Alameda Superior Court website. Another should appear by tomorrow or next business day (Tuesday?)

The Lin's Petition for Writ of Mandate and Ayala's two part Demurrer and Motion to Strike (the anti-SLAPP counter lawsuit) have been joined to a single hearing date of February 22.

To simplify matters, the most relevant and central issue is whether the referendum petition needed to include the entire Development Plan documents in order to be legal under Election Code when it went out for signatures. The other complaints of a poison pill and false statements are secondary. Ayala's lawyers say that the petition contained everything required. Lin's lawyers say it did not. Both cite case law to support their claims.

My earlier research into the case law cited by each side suggested to me that the Lin's have a stronger case. However, the most recent filings by Ayala's lawyers seem to be more focussed upon the issue of "ripeness". They are not being so assertive on the central issue, but rather arguing vigorously that the Lin's complaint, when filed, was not "ripe".

"Ripeness" is a technicality and does not address really whether Ayala and her troops did bad to Lin. On December 14 when the Lin's filed their lawsuit, the City Clerk had already sent the petition and its signatures off to the county to validate signatures. The Clerk did NOT deny the petition at that time because of insufficiencies such as claimed in the lawsuit. Lin's lawsuit says she should have.

Ayala's lawyers claim that this was too early. The Lin's should have waited until the Clerk officially certified the petition which she would have done once the county notified her that there were sufficient, valid signatures. Therefore, Ayala's lawyer say the lawsuit is not "ripe". The Lin's lawyers say the lawsuit became "ripe" at the moment she sent the petition off to the county and did not at the first moment she had the opportunity deny the petition because it lacked sufficiency under Election Code.

Get it?

Both sides cite case law regarding tests for "ripeness".

Common sense suggests that once the City Clerk received the petition and did not at that time find any insufficiency, then to maintain their rights in the situation the Lin's had to file their suit. To wait is simply damaging to their position. This is a technicality. Can it be that Ayala's lawyers really know that their case is weak and are hinging their fortunes on a technicality?

The judge will decide. If it goes against the Lin's, my bet is it will be immediately appealed because the details of this case suggest to me that the appellate court will be friendly to resolving the central issues, not the technicalities.

Posted by Karen, a member of the Vintage Hills Elementary School community, on Feb 17, 2008 at 9:10 am

Frank, thanks for the highly technically discussion. I checked my trusty on-line legal dictionary and found this definition, "ripe: The mandate contained in Article III of the Constitution that requires an appellate court to consider whether a case has matured into a controversy worthy of adjudication before it can hear the case."

It sounds like the Lin's are trying to state this case is a new situation that has never occurred before and may require special judicial review. What is new about collecting signatures to put an issue on the ballot? Wouldn't Ayala and group have precedents for the previous developments here in town that went to a vote by referendum, without signature gathers having to haul around the development agreement and PUD, EIR and all the rest of the stack? Didn't the city attorney take into consideration the ridiculousness of hauling a huge stack of documents around to collect signatures?

To go one step further, when an item is approved to go to a vote of the people, there is summary information in the voter's pamphlet regarding the subject manner and pro/con discussions. The amount of material is a few pages, not stacks. If the voter's pamphlet can boil an issue down to a few pages, so can the signature collectors, and "don't sign" folks.

Posted by frank, a resident of the Pleasanton Heights neighborhood, on Feb 17, 2008 at 8:28 pm

Yes, Karen, highly technical arguments. And it gets tougher. Here's even more...

On the issue of "ripe". Quotes from Lin's briefs.

"A two-pronged test is used to determine the ripeness of a controversy: (1) whether the dispute is sufficiently concrete so that declaratory relief is appropriate, and (2) whether the parties will suffer hardship if judicial consideration is withheld. (See Farm Sanctuary, Inc. v. Department of Food & Agriculture, 63 Cal.App.4th 495,501-02 (1998). The case law is clear that the City Clerk has a ministerial duty to reject for filing all referendum petitions that, on their face, do not comply with the full-text requirements of Elections Code § 9238(b). (See Billig v. Voges, 223 Cal.App.3d 962,970 (1990).) Petitioners' claims ripened the moment that the City Clerk failed to discharge her ministerial duty to reject the facially deficient Referendum Petition. Once the Clerk commenced processing, the facts were sufficiently formed to permit an intelligent judicial determination as to whether (i) the Referendum Petition conforms to the requirements of the Elections Code, and (ii) whether the City Clerk had a ministerial duty to reject the Referendum Petition. Accordingly, Petitioners' claims satisfy the first prong of the ripeness test."

"Real Parties contend that Petitioners' claims will not ripen unless and until the Referendum Petition is successful, which is contrary to the well-established requirements for a preelection challenge."

There is more to the argument if you bother to read it. To decide for yourself if the writers of the brief are correct, you have to read counter arguments in Ayala's briefs as well as read all the respective case law citations found in both.

Regarding the central complaint of Lin and the size of the plan. I quote from Nelson v. Carlson (1993) 17 Cal.App.4th 732. This case law is prominently cited in the Lin's complaint. The case was very similar to ours but occurred in Dana Point in 1993.

"[4b] The failure to attach to the referendum petition the exhibit containing the plan presents a fatal defect in this case. The resolution's focus was on the adoption of the plan and that document was incorporated into it. Without the plan individuals reviewing the petition had no way of informatively evaluating whether to sign it.

In Billig, the ordinance was 22 pages long. In Chase, the exhibit in question was a lengthy legal description of real property. In the present case, the general plan is several hundred pages long and roughly two and one-half inches thick. Given the size of a general plan, the question arises whether [17 Cal.App.4th 740] attaching it to a referendum petition would realistically assist someone considering whether to sign the petition.

No case has considered a document as voluminous as the plan considered here. We conclude plaintiffs were required to attach the plan to their referendum petition. This conclusion enforces the express requirements of section 4052. As Billig noted, the meaning of the term "text" in section 4052 is clear. By it "the Legislature intended referendum petitions must contain the exact wording of the challenged measure." (Billig v. Voges, supra, 223 Cal.App.3d at p. 967.) Here, the plan was the resolution's focal point and was expressly made a part of it. Section 4052 delineates no exception to the requirement that the petition contain the text of the challenged legislation. If the Legislature had wanted to allow an exception for bulky ordinances or resolutions it could have provided for that situation. So far the Legislature has not done so."

So, it's too bad if the document was thick as far as the appellate court judges were concerned. If you want a referendum to obey Election Code, you deal with it, no short cuts. The main difference with the present case vs. the Dana Point case is our Pleasanton city attorney did not in the ordnance draft explicit language saying that the plan was attached. Maybe he was lazy, like the petitioners. However, it is unlikely that the perceived deficiencies of our city attorney in drafting ordnances will save Ayala's case, since it is the duty of the petitioner of the referendum to obey Election Code, not the city attorney by virtue of how he drafts ordnances. There are separate case law citations in this regard.

All of the above is not me opinionating, but the writings of attorneys and judges.

Who knows, though, how this judge will rule.....