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FILED OCT 03 2014 ~y

Superior Court of the State of California County of Nevada

IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA

IN AND FOR THE COUNTY OF NEVADA

PATRICIA SMITH,

Petitioner,

vs.

COUNTY OF NEVADA AND GREGORY DIAZ, Election Official,

CASE NO.: CU14-080755

RULING ON APPLICATION FOR TRO and PRELIMINARY INJUNCTION; ORDER THEREON

18 Res ondents, 11-~~~~~~~~~~~~~~-'-~~~

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The above-entitled matter came on for hearing before the undersigned on October 3,

2014, Stephen Munkelt appearing for Petitioner and the Office of Nevada County Counsel,

Alison Barratt-Green, County Counsel and Sheri Chapman, Assistant County Counsel,

appearing for Respondents. Following argument, the Court issues its Ruling and Order as

follows:

Petitioner's Application for Temporary Restraining Order and Preliminary Injunction

is denied.

Elections Code 1 § 13314 permits a voter to seek a writ of mandate "alleging that an

27 error or omission has occurred, or is about to occur, in the placing of a name on, or in the

28 1 All further statutory references are to the Elections Code.

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1 printing of, a ballot, sample ballot, voter pamphlet, or other official matter, or that any neglect

2 of duty has occurred, or is about to occur. [11] (2) A peremptory writ of mandate shall issue

3 only upon proof of both of the following: ['II] (A) That the error, omission, or neglect is in

4 violation of this code or the Constitution. [11] (B) That issuance of the writ will not

5 substantially interfere with the conduct of the election."

6 ISSUE #1: Whether to apply §9051 or §13119.

7 The measure appears by voter initiative. The Board of Supervisors consolidated the

8 election with the general state election per § 10403. That section requires the Board resolution

9 to set forth "the exact form of the question, proposition, or office to be voted upon at the

10 election, as it is to appear on the ballot. The question or proposition to appear on the ballot

11 shall conform to this code governing the wording of propositions submitted to the voters at a

12 statewide election." County argues the controlling section is §9051. That argument would

13 seem to have implied support in McDonough v. Superior Court (City of San Jose) (2012) 204

14 Cal.App.4th 1169, 1172, fn #3; however, McDonough did not consider §13119. Both sections

15 "govern the wording of propositions submitted to the voters". §13119 is the more specific,

16 and, in this Court's view, the controlling statute, and is also consistent with the language in

17 §10403. The Court also notes that §13119 is rendered meaningless if not implemented.

18 Regardless of the specific code section applied, the Court notes that impartiality is

19 always required.

20 ISSUE #2: What is the result of failing to directly challenge Board of Supervisors

21 Resolution 14-140?

22 There are no reported cases concerning this issue cited by either party. McDonough,

23 supra, would seem to indicate that this is not an issue because the ballot title and summary

24 were directly attacked therein pursuant to §13314.

25 ISSUE #3: What is the Petitioner's burden of proof?

26 §13314 simply requires proof of (1) an error, omission, or neglect is in violation of this

27 code or the Constitution. and (2) that issuance of the writ will not substantially interfere with

28 the conduct of the election." This means proof by evidence more like! y than not.

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1 The Court earlier referred to clear and convincing evidence as the standard. This

2 appears incorrect. Other Elections Code provisions specifically call for clear and convincing

3 evidence, indicating a legislative awareness of the distinction between the greater and lesser

4 standards of proof. For example, §9190 (relating to state ballot arguments and materials),

5 §9295 (relating to municipal elections) and §13313 (relating to candidate statements and

6 naming) all specifically require clear and convincing evidence. Significantly, §13314 is but

7 one section removed from §13313.

8 ISSUE #4: Is the ballot language impartial?

9 As indicated at the hearing, this Court is of the view that the County missed the mark.

10 Language is impartial if it suggests or signals the County's view on how the vote should

11 proceed. McDonough, supra, at 1174. The use of the word "expand" when related to

12 marijuana cultivation represents a red flag to voters, yet the ordinance does not per se expand

13 cultivation. Rather, it repeals the existing square footage based system, replacing it with a

14 combined numerical plant system (outdoors) and square footage based system (indoors). This

15 may or may not result in increased cannabis production overall. Similar to McDonough, a

16 more accurate and neutral descriptor would be to "modify" current marijuana cultivation

17 ordinances. The setback language also suggests less protection for voters, and is not neutral.

18 Modifying setbacks to be consistent with State law might be more accurate. The Court is of

19 the view, however, that the resolution language does accurately and impartially reflect the

20 elimination of nuisance remedies, restrictions and regulations. The care and impartiality that

21 County Counsel put into the §9105(a) appears lacking. For this reason the Court finds

22 Petitioner has prevailed on the first element of §13314.

23 ISSUE #5: Has the Petitioner proven that the issuance of the writ will not

24 substantially interfere with the conduct of the election?

25 The evidence here favors the County. The largely undisputed declarations of Gregory

26 Diaz and Sandra Sjoberg show that there will be substantial disruption to the election process.

27 Further, unlike McDonough, supra, where the issue was raised two months prior to the

28 election, here ballots have already gone out and some have been voted and returned.

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1 Petitioner offered no reasonable means of solving this problem. Destroying returned

2 ballots and replacing them with new ones is a high risk proposition that would require

3 overseas voters to be notified of the problem and invited to re-vote.

4 In part, the lack of solution is a problem of the Petitioner's making. Petitioner did not

5 challenge Resolution 14-140 and waited to the eleventh hour to file this challenge. The

6 County has argued that Petitioner should be barred by !aches, but provided no authority for

7 that proposition.

8 Because Petitioner did not prevail on both prongs of the test, the Application for

9 Temporary Restraining Order and for Preliminary Injunction is denied.

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DATED: October 3, 2014. SEAN P. DOWLING

13 Judge of the Superior Cour

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