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BY FACSIMILE AND FEDERAL EXPRESS
Deborah Rosenthal, Esq.
Cox, Castle & Nicholson
19800 MacArthur Boulevard, Suite 600
Irvine, CA 92612
Re: "The Reasonable Airport, Park and Nature Preserve Initiative"
Dear Deborah:
I write on behalf of the El Toro Reuse Planning Authority ("ETRPA") with regard to the above initiative. As you know, ETRPA is a joint powers authority that has long been involved in the issues involving potential civilian reuse of the former El Toro Marine Corps Air Station. ETRPA opposes any use of El Toro for aviation purposes, and it thus supported Measure W.
This new initiative violates mandatory state law requirements
governing both petitions for local initiatives and the content of the initiative
itself. The initiative cannot legally proceed with these numerous statutory
violations. If they are not corrected, the Registrar of Voters cannot legally
accept any submitted petitions and qualify the matter for the ballot. Indeed,
as discussed below, she will have a ministerial duty to reject any
petitions submitted for the initiative, for at least these reasons:
1. The Petitions Violate Elections Code Section 9101.
Elections Code section 9101 specifies that each petition
"shall . . . contain a full and correct copy of the notice of intention
and accompanying statement including the full text of the proposed ordinance."
The petitions for the initiative do not even come close to satisfying this mandatory requirement. They do not contain a copy of the notice of intention and accompanying statement. Neither do they include the "full text of the proposed ordinance."
The courts have consistently enforced these requirements
and refused to allow an initiative to proceed to the ballot where the petitions
were inadequate. In Mervyn’s v. Reyes, 69 Cal. App. 3d 93 (1998),
for example, the court barred a City from accepting petitions for an initiative
where the full text of the initiative was not included. The court held
that the proponents’ failure to include the full text of the initiative
in the petitions as a matter of law prevented the election from going forward.
That same rule applies here.
2. The Petitions Violate Elections Code Section 9105.
Elections Code section 9105(c) specifies that the "ballot
title and summary prepared by the county counsel shall appear upon each
section of the petition, above the text of the proposed measure . . . ."
The petitions fail to satisfy this additional requirement, since the ballot
title and summary do not appear "above the text of the proposed measure."
3. The Petitions Violate Elections Code Sections 9108 and 9104.
Elections Code section 9108 further specifies that each section of the petitions "shall bear a copy of the notice of intention . . . ." Elections Code section 9104 specifies precisely what must be included in the notice of intention, and among those are "the printed name, signature and business or residence address of at least one but not more than five proponents . . . .". The petitions violate these requirements too, since they do not include a notice of intention in any form whatsoever, and they do not include the name, signature and business or residence address of any proponent. The Registrar of Voters has "a duty to reject" any petitions that do not comply with this mandatory substantive requirement. Myers v. Patterson, 196 Cal. App. 3d 130, 136 (1987) (emphasis in original); San Francisco Forty-Niners v. Nishioka, 75 Cal. App. 4th 637, 644-45 (1999) ("The law is clear that election officials have a ministerial duty to reject initiative petitions which suffer from a substantial . . . statutory defect").
Indeed, the Attorney General has already ruled that initiative
petitions are invalid as a matter of law where they do not comply
with these requirements and that a local elections official "is required
to reject a petition that does not contain a notice of intent with the
name or names of the proponents of the initiative." Ops. Cal. Atty. Gen.
00-410 (June 9, 2000).
4. The Initiative Invalidly and Incorrectly Assumes That
Repeal Of Measure W Automatically Reinstates Measure A.
Measure W, of course, repealed Measure A. The new initiative purports to repeal Measure W, and it assumes that this repeal automatically reinstates Measure A. That assumption is incorrect as a matter of law.
For example, Section 2(C) declares that "[b]y repealing Measure W, this Initiative reinstates the Orange County /El Toro Economic Stimulus Initiative (Measure A) which designated MCAS, El Toro for aviation and compatible uses in the Orange County General Plan." The first paragraph of Section 3 likewise declares that "[b]y repeal of Measure W, the designation of MCAS, El Toro for a commercial airport and other provisions of the Orange County/Economic Stimulus Initiative (Measure A) will be restored to the Orange County General Plan . . . ."
These declarations are wrong. Government Code Section
9607 specifies that "[n]o statute or part of a statute, repealed by another
statute, is revived by the repeal of the repealing statute without express
words reviving such repealed statute or part of a statute." Thus, since
Measure W explicitly repealed Measure A, under Section 9607 Measure A can
be revived only with "express words" reviving its terms. The new initiative
does not do so, but simply assumes—quite incorrectly—that Measure A would
be reinstated simply by the repeal of Measure W. This error is a major
flaw in the initiative and would require its invalidation.
5. The Initiative Fails To Include The Full Text Of Measure A.
The erroneous assumption that Measure A would automatically be reinstated by a repeal of Measure W also violates the cardinal rule of initiative law that an initiative must include the "full text" of the statute it purports to enact. This rule is explicit in Government Code Section 9101 which specifies each petition must "contain a full and correct copy of . . . the full text of the proposed initiative."
The new initiative does not include the full text of Measure A, even though it purports to reinstate it. This is an additional major flaw that invalidates the initiative. Mervyn’s, 69 Cal. App. 4th 93 (relying on an "unbroken line of initiative and referendum cases" holding that the full text of any measure to be enacted into law must be included).
There are also numerous other major flaws in the initiative. However, each one of the errors noted above is, by itself, enough to bar the County Registrar of Voters from accepting any submitted petitions, and enough to invalidate the Measure. When coupled together, these major errors necessarily mean that the initiative is invalid and cannot legally be put on the ballot.
ETRPA accordingly urges your clients to abandon the initiative. If the initiative is not withdrawn, the proponents will spend an enormous amount of wholly wasted time and money seeking to qualify the measure, only to find that it cannot legally be accepted by the Registrar and put on the ballot.
Yours very truly,
RICHARD C. JACOBS