PETER ZEUGHAUSER, an individual taxpayer and voter of the City of Newport Beach; and EL TORO REUSE PLANNING AUTHORITY, Plaintiffs and Petitioners, v. CITY OF NEWPORT BEACH; CITY COUNCIL FOR THE CITY OF NEWPORT BEACH; AIRPORT WORKING GROUP; and Does I through XC, Defendants and Respondents (In Complaint for Injunctive and Declaratory Relief and Petition for Writ of Mandate).

No. VERIFIED COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF; PETITION FOR WRIT OF MANDATE  (Code of Civil Procedure Sections 526, 526a, 1060, 1085 and 1086)

1. Introduction

 

 

This Complaint and Petition arises from the Newport Beach City Council’s unauthorized expenditure of public funds for political campaign purposes in violation of California law. Under the California Supreme Court’s decision in Stanson v. Mott, 17 Cal. 3d 206 (1976), absent clear legislative authority a public entity is prohibited from expending public funds, or utilizing public resources, to promote or impede the qualification or passage of an initiative measure. This requirement is designed to ensure that a public entity does not expend public funds for an unauthorized purpose; that dissenting taxpayers are not compelled to finance political views with which they disagree; and that a public entity does not compromise the integrity of the initiative process by attempting to influence the resolution of issues that our state constitution leaves to the free election of the people.

Notwithstanding the principles set forth in Stanson v. Mott, on March 13, 2001, the Newport Beach City Council ("City Council") set aside $3.67 million to fund a massive public relations campaign designed to convince the Orange County electorate to reject a forthcoming ballot initiative known as the "Orange County Central Park and Nature Preserve Initiative" ("Park Initiative"). If passed, the Park Initiative would replace the County’s current plan for the former El Toro Marine Corps Air Station ("El Toro"), which is to use El Toro as a commercial airport, with a new plan to use that land for a public park. The City of Newport Beach ("City") is opposed to the Park Initiative because it favors use of El Toro as a commercial airport. Proponents of the Park Initiative began to circulate petitions to qualify that initiative for the March 2002 ballot on July 2, 2001.

On May 22, 2001, the City entered into a contract through which it announced its intention to direct $3.6 million to the Airport Working Group ("AWG"), a nonprofit public relations firm that has agreed to use these funds to develop and disseminate anti–Park Initiative campaign materials. As of the date of this filing, AWG has received at least $2.1 million in public funds pursuant to the May 22 City contract. Moreover, since that contract was entered into, and circulation of the Park Initiative began, AWG has expended City funds to broadcast, on three different Orange County cable television stations, three political campaign "spots" ("Bunny Spots I, II and III") that warn voters of the cost of the Park Initiative; and to create three political campaign brochures (the "Sucker Brochure," the "Weasel Brochure" and the "Airport Brochure") that similarly present a one-sided anti–Park Initiative and/or pro-airport message.

Bunny Spot I, which is clearly an "attack ad" aimed at the Park Initiative, includes the following text and imagery (audio voiceover transcription in bold type; video description in parentheses):

After four years and about 40 million taxpayer dollars, the supporters of the great park haven’t come up with a plan to pay for it. (Bunny eating flower. Flower turns into a hundred dollar bill as bunny is eating it. Text "Four Years and 40 Million Taxpayer Dollars" superimposed.)

The great park will mean a great tax. (The hundred dollar bill turns back into a flower. Bunny swallows flower. Audio of bunny burping.)

Let’s keep the El Toro airport planning process going.

We can’t afford not to.

Bunny Spot II is also an "attack ad," and includes the following text and imagery (audio voiceover transcription in bold type; video description in parentheses):

South County politicians have spent about $40 million to convince you that El Toro would make a great park. But the Orange County Register has a different name for it. The "great pork." (Scan of Orange County Great Park planning report with address labeled to "Mr. P. Rabbit, 2824 Burrow, Garden Grove, CA 92840") (Newspaper article—Comment section—entitled "Nimby Park" spread out on floor with carrot on it. Spans back to reveal bunny with spectacles reading newspaper in living room.)

Referring to the gobs of taxpayer funds that would be needed. (Closeup of newspaper identified as Orange County Register of May 6, 2001. Zooms to referenced with words "the Great Pork, referring to the gobs of taxpayer funds that would be needed.")

* * * *

Let’s keep the El Toro airport planning process going. We can’t afford not to. (Shot of bunny in bed, with newspaper on bedside stand that reads, "Nimby Park"). . . . (Paid for by Airport Working Group.)

Bunny Spot III contains a similar one-sided message. It includes the following text and imagery:

Great Park? (Closeup of bunny with spectacles twitching nose.)

Weasel park is more like it. (Closeup of article entitled "Weasel Park" identified as Orange County Register for June 17, 2001.)

The great park will mean a great tax. You can count on it. (Bunny eating flower. "Great Park" superimposed turns into "Great Tax" as flower turns into hundred dollar bill.)

Let’s keep the El Toro airport planning process going. We can’t afford not to. (Half screen of following text superimposed on bunny still eating dollar bill:

For more information on this massive waste of taxpayer funds, contact:

El Toro Educational Alliance. 888.722.2425. www.eltoronow.org. Paid for by Airport Working Group of Orange County, Inc.)

The Sucker Brochure, Weasel Brochure and Airport Brochure also consist of one-sided attacks on the Park Initiative and/or promotion of the airport plan. The Sucker Brochure reads in part:

"There’s a sucker born every minute."

* * * *

The politicians pushing "Great Park" have already spent $40 million in tax money claiming they can build a 4,700-acre park without a tax increase—which the Orange County Register calls "laughable."

* * * *

If you agree this is a sucker’s deal, call the City of Irvine to protest its Great Park scheme.

The Weasel Brochure, which features a picture of a weasel on its cover, reads in part:

In politics, "weasel words" are words that are deliberately fuzzy—words like "could," "maybe," "might" and "likely." They’re spoken to hide or soften the truth.

When you hear them, be careful.

Take the financial "study" that the city of Irvine is using to sell its "Great Park" scheme.

The Irvine study uses the weasel word "could" 44 times—as in "property taxes could be justified" to pay for Great Park

* * * *

There are over 278 "weasel words" in the Irvine Study. And every one could cost us a fortune. (Emphasis in original)

Finally, the Airport Brochure, which urges voters to support continuation of the current plan to build an airport at El Toro, reads in part:

Don’t Let Them Take Away Our Best Option

Some Local politicians want to block the El Toro Airport—so it can’t even be considered as an option to solve our county’s air transportation needs.

They’ve spent nearly 40 million dollars trying to take away your right to decide how we plan for Orange County’s future.

By planning now and having the option of an airport at El Toro, we can make sure Orange County prepares for the future. We will be in a better position to meet the growing demand for air travel, respond to our natural disasters and promote our thriving economy.

Keep the El Toro Option. Plan for the Future. (Emphases in original)

The City is aware of the limitation on public spending set forth in Stanson v. Mott, as its May 22 contract with AWG attests. That contract reads, in relevant part: "public funds may not be spent, directly or indirectly, to support or oppose the qualification, passage or defeat of a ballot measure." Despite this clear prohibition, the City and AWG not only have expended, but intend to continue expending, public funds to persuade voters to reject the Park Initiative.

This action has been brought to restrain this illegal use of public funds and to compel the return to the City of funds that have already been unlawfully expended. Plaintiffs and Petitioners respectfully request that the Court (i) declare that any expenditure by Defendants of City funds, after the Park Initiative began to circulate, in connection with Bunny Spots I, II or III, the Sucker Brochure, the Weasel Brochure, the Airport Brochure and any other material aimed at impeding the qualification or enactment of the Park Initiative or promoting reuse of El Toro as an airport, violated the rule set forth in Stanson v. Mott and constituted an unlawful expenditure under Section 526a; (ii) declare that any direct or indirect expenditure of City funds by AWG since May 22, in violation of the provisions of its contract with the City, including but not limited to expenditures in connection with Bunny Spots I, II and III, the Sucker Brochure, the Weasel Brochure, the Airport Brochure and any other material aimed at impeding the qualification or enactment of the Park Initiative or promoting reuse of El Toro as an airport, constituted a waste of public funds under Section 526a; (iii) enjoin all Defendants from directly or indirectly expending City funds in connection with Bunny Spots I, II and III, the Sucker Brochure, the Weasel Brochure, the Airport Brochure and any other material aimed at impeding the qualification or enactment of the Park Initiative or promoting reuse of El Toro as an airport; (iv) order the City and the City Council to obtain restitution of all City funds expended by the other Defendants, since the Park Initiative began to circulate, in connection with Bunny Spots I, II and III, the Sucker Brochure, the Weasel Brochure, the Airport Brochure and any other material that falls outside the limits established by Stanson v. Mott; (v) order the City and the City Council to obtain restitution of all City funds expended by AWG since May 22 in connection with Bunny Spots I, II and III, the Sucker Brochure, the Weasel Brochure, the Airport Brochure and any other material that violates the provisions of the May 22 contract; (vi) order the Airport Working Group and any applicable Doe Defendants to repay to the City all City funds expended, since the Park Initiative began to circulate, in connection with Bunny Spots I, II and III, the Sucker Brochure, the Weasel Brochure, the Airport Brochure and any other material that falls outside the limits established by Stanson v. Mott; and (vii) order the Airport Working Group to repay to the City all City funds expended, since May 22, in connection with Bunny Spots I, II and III, the Sucker Brochure, the Weasel Brochure, the Airport Brochure and any other material that violates the May 22 contract.

By this Complaint and Petition, PETER ZEUGHAUSER and EL TORO REUSE PLANNING AUTHORITY ("Plaintiffs/Petitioners") allege:

2. PARTIES

1. Plaintiff and Petitioner Peter Zeughauser ("Zeughauser") is, and at all relevant times was, an individual who has in the past year been assessed for and is liable to pay taxes in the City of Newport Beach, California. As a City taxpayer and resident, and an Orange County voter, Zeughauser has direct and beneficial interests in ensuring that the City of Newport Beach and its City Council faithfully abide by state law prohibiting the wasteful and/or unlawful expenditure of public funds, recouping for the City any funds illegally or wastefully expended and ensuring the integrity of the County initiative process.
2. Plaintiff and Petitioner El Toro Reuse Planning Authority ("ETRPA") is, and at all relevant times was, a joint powers authority duly formed and existing under the laws of the State of California. ETRPA is governed by a Board of Directors comprised of representatives of the Cities of Irvine, Lake Forest, Laguna Niguel, Laguna Hills, Dana Point, Mission Viejo, Laguna Beach, Laguna Woods and Rancho Santa Margarita. Petitioner ETRPA directly represents the interests of each of those Cities and their voting residents in this action. The purpose of ETRPA is to plan for and support a reasonable civilian non-aviation reuse of El Toro. ETRPA has a direct and beneficial interest in ensuring the integrity of the Orange County initiative process. This beneficial interest derives from ETRPA’s direct representation of the interests of the Cities by which it was formed, each of which is located within Orange County, and from its representation of hundreds of thousands of voters within those Cities, each of which has a direct and beneficial interest in the integrity of the County initiative process.
3. Defendant and Respondent City of Newport Beach ("City") is, and at all relevant times was, a charter city of the State of California duly organized and existing under the laws of the State of California.
4. Defendant and Respondent Newport Beach City Council ("City Council") is, and at all relevant times was, the governing body responsible for the operation and control of the City.
5. Defendant Airport Working Group, Inc. ("AWG") is, and at all relevant times was, a California nonprofit corporation organized pursuant to Internal Revenue Code Section 501(c)(3). AWG’s organizational purpose is to support commercial aviation reuse of El Toro.
6. Doe I is a private public relations firm and/or consulting firm that works with AWG to produce and disseminate public relations materials, including but not limited to Bunny Spots I, II and III, the Sucker Brochure, the Weasel Brochure and the Airport Brochure.
7. Does II through XC include but are not limited to persons who at relevant times were employees, agents and/or persons acting in concert with the City, City Council, AWG and/or Doe I. The names and capacities of Defendants or Respondents Does II through XC are currently unknown to Plaintiffs, who therefore sue such Defendants and Respondents by fictitious names pursuant to Code of Civil Procedure Section 474. Plaintiffs will amend this Complaint and Petition to insert the true names and capacities of such Doe Defendants or Respondents once they have been ascertained. Plaintiffs are informed and believe, and thereupon allege, that each of Does II through XC is responsible in some manner for the acts alleged herein, and unless restrained by order of this Court, they will continue to contribute to the illegal and/or wasteful expenditure of public funds, and continue to compromise the Orange County initiative process.

1. JURISDICTION AND VENUE

1. Plaintiffs bring this action as a Complaint for Injunctive Relief, Declaratory Relief and Restitution pursuant to Sections 526, 526a and 1060 of the Code of Civil Procedure, and as a Petition for Writ of Mandate pursuant to Sections 1085 and 1086 of the Code of Civil Procedure.
2. Venue is proper in this Court under Section 394 of the Code of Civil Procedure.

1. GENERAL ALLEGATIONS

1. In the mid-1990s, the federal government announced that it intended to close El Toro, and began to implement a process by which that former military base would be converted to civilian reuse. The United States Department of Defense’s Office of Economic Adjustment designated Orange County as the Local Redevelopment Agency (LRA) for El Toro. As the LRA, Orange County is currently in the process of evaluating a range of potential civilian uses for El Toro, both aviation and non-aviation. The Marine Base at El Toro closed in July 1999.
2. In 1994, the Orange County electorate approved, by a 51%-49% margin, an initiative known as "Measure A," which designated El Toro for civilian airport use.
3. On June 14, 2001, a group of Orange County citizens who support reuse of El Toro as a public park filed with the Orange County Registrar of Voters a notice of intent to circulate a petition in support of the Park Initiative. A true and correct copy of the Park Initiative is attached hereto as Exhibit A. The Park Initiative, which its proponents seek to qualify for the Orange County ballot in March 2002, would repeal Measure A; amend the Orange County General Plan to remove airport uses at El Toro; and establish a regional public park on the El Toro site. This public park would include open space, a nature preserve and park-compatible educational, cultural and recreational spaces.
4. Assuming the Park Initiative qualifies for the ballot, it will present Orange County voters with a clear binary choice. They may vote in favor of the Park Initiative and thereby supplant Measure A and the airport plan, or vote against the Park Initiative and leave Measure A intact.
5. The Park Initiative proponents’ plan, to repeal Measure A and replace the airport plan with a public park plan, has been widely discussed in the Orange County print media since as early as March 2000. Plaintiffs are informed and believe that Defendants City and City Council, who oppose the Park Initiative and support El Toro’s use as a commercial airport, were aware on or before March 13, 2001, that the Park Initiative was in development.
6. At a City Council meeting held on March 13, 2001, the council members, alarmed by the prospect of the Park Initiative, voted to set aside $3.67 million in City funds to defeat that initiative. A true and correct copy of the March 13 City Council agenda is attached hereto as Exhibit B. A true and correct copy of the March 13 City Council minutes is attached hereto as Exhibit C.
7. At the March 13 meeting, AWG expressed interest in conducting an anti–Park Initiative public relations campaign for the City. At or before that meeting AWG provided the City Council with written materials outlining its proposal. A true and correct copy of an excerpt from the materials AWG presented to the City Council on or before March 13 is attached hereto as Exhibit D.
8. AWG’s materials confirm that AWG intends to use City funds to create and implement a political campaign opposing the Park Initiative and promoting aviation reuse of El Toro. They stated, in relevant part:

 

 

The primary objective of the . . . Campaign should be to produce and distribute high quality, informative, persuasive communications to the most politically active citizens in the county. The group selected to receive this information must be large enough to result in a majority favorably viewing commercial aviation as the ultimate reuse of El Toro. With that simple proposition in mind, here are the objectives of our proposals: 1) Mobilize public opinion so that a majority can be counted on to defeat any proposal that would derail the El Toro reuse process. . . . 3) Educate the public on the need for El Toro Airport . . . . 8) Prove that the Millenium Plan and the Great Park are economically unsound and will cost the taxpayers money.

* * * *

Through regular mailings, blast e-mails, and briefing meetings we will make opinion leaders aware of the need for additional aviation capacity in Orange County . . . . Using multiple media tools, [we will] generate a coordinated campaign of cable television, direct mail, web-sites, [and] house-file mailings to recapture public opinion . . . . (Emphases added)

9. City Council Member Gary L. Proctor also confirmed at the March 13 meeting, on the record, that the City Council’s purpose in setting aside the $3.67 million was not to provide balanced information about the Park Initiative, but rather to defeat that Initiative:

 

 

The endgame is March of next year . . . . [I]f Measure A is taken off as the law in terms of the reuse of El Toro, then the inevitable is going to happen. We have to do everything we can to prevent that from occurring, and we need the two-airport system, and we need to convince the voting population of the appropriateness of that . . . . I’m going to move that this Council direct that the City Manager set aside $3,690,000. (Emphasis added)

A true and correct copy of a partial transcript of the March 13 meeting is attached hereto as Exhibit E. The March 13 statements made by AWG and the City Council establish that those parties’ intention was that the $3.67 million in public funds be used to oppose the Park Initiative and support aviation use of El Toro.

10. On March 27, 2001, the City Council approved an initial draft agreement with AWG, attached hereto as Exhibit F. The March 27 draft agreement included the following language, which acknowledges the limits on the expenditure of public funds to oppose a ballot initiative:

 

 

AWG also acknowledges that there is statutory and decisional law that prohibits the expenditure of public funds to, directly or indirectly, support or oppose the qualification, passage or defeat of a ballot measure absent express legislative authority. Accordingly, AWG warrants that the Grant Funds will not be spent, directly or indirectly . . . to support or oppose the qualification or passage of any ballot measure.

11. On May 22, 2001, the City Council authorized the City to execute a new contract with AWG to replace the March 27 agreement. A true and correct copy of that contract is attached hereto as Exhibit G. The May 22 contract includes the following language which, again, acknowledges the limits on the expenditure of public funds to oppose a ballot initiative:

 

 

GRANTEE acknowledges that public funds may not be spent, directly or indirectly, to support or oppose the qualification, passage or defeat of a ballot measure. (See Exhibit G ¶3(a))

12. The May 22, 2001, contract also included language indicating that any material prepared with grant funds could not be disseminated to the public "unless and until the material has been reviewed, and determined to comply with [the limitation set forth in ¶3(a)], by special counsel retained by the City Council." See id. ¶3(d).
13. Pursuant to the May 22 contract, the City agreed to pay to AWG a total of $3.6 million, payable in one lump sum of $1.8 million plus twelve monthly installments of $150,000 each, between June 1, 2001, and June 1, 2002. As of the date of this filing AWG has, on information and belief, already received $2.1 million in City funds pursuant to the May 22 contract. On information and belief, a portion of the $2.1 million in City funds has already been paid to Doe I, and possibly to other Doe Defendants, in exchange for the development and circulation of anti–Park Initiative/pro-airport materials, as set forth more fully below.
14. On June 29, 2001, the County issued a ballot title and summary for the Park Initiative pursuant to Elections Code Section 9103. This ballot title and summary was published in the Orange County Reporter on July 2 and 6, 2001. True and correct copies of the relevant proofs of publication are attached hereto as Exhibits H and I. On information and belief, proponents of the Park Initiative began to circulate that initiative, in order to obtain the signatures necessary to qualify it for the March 2002 ballot, on the evening of July 2, 2001.
15. Plaintiffs are informed and believe that, in the time since AWG and the City entered into the May 22 contract, and since circulation of the Park Initiative began, AWG has expended City funds to pay for the broadcast of anti–Park Initiative television messages (Bunny Spots I, II and III) on at least three different cable stations in Orange County: Adelphia Cable (serving, among others, the Cities of Anaheim, Brea, Seal Beach and Yorba Linda); AT&T Broadband (serving, among others, the Cities of Costa Mesa, Cypress and Tustin); and Time Warner (serving, among others, the Cities of Fountain Valley, Huntington Beach and Garden Grove). True and correct copies of Bunny Spots I, II and III are attached hereto, in chronological order on a single videotape, as Exhibit J.
16. The transcript and images of Bunny Spot I are as follows (audio voiceover transcription in bold type; video description in parentheses):

 

 

The City of Irvine says El Toro would make a great park.

(Butterfly on flower, empty swing at park.)

What they haven’t said is how much it will cost to build it and maintain it.

(Horse and rider in park.)

Maybe that’s why an Irvine City Council member called the financial estimates in the City’s own study "misleading junk."

(Newspaper article, zooming to referenced quote, with words "estimates are ‘misleading junk’" highlighted.)

After four years and about 40 million taxpayer dollars, the supporters of the great park haven’t come up with a plan to pay for it. (Bunny eating flower. Flower turns into a hundred dollar bill as bunny is eating it. Text "Four Years and 40 Million Taxpayer Dollars" superimposed.)

The great park will mean a great tax.

(The hundred dollar bill turns back into a flower. Bunny swallows flower. Audio of bunny burping.)

Let’s keep the El Toro airport planning process going.

We can’t afford not to.

(Full screen of text, which reads as follows: El Toro Educational Alliance. 888.722.2425. www.eltoronow.org. A project of Citizens For Jobs & The Economy and Airport Working Group Of Orange County. Paid for by the City Of Newport Beach.)

17. The transcript and images of Bunny Spot II are as follows (audio voiceover transcription in bold type; video description in parentheses):

 

 

South County politicians have spent about $40 million to convince you that El Toro would make a great park. But the Orange County Register has a different name for it. The "great pork." (Scan of Orange County Great Park planning report with address labeled to "Mr. P. Rabbit, 2824 Burrow, Garden Grove, CA 92840") (Newspaper article—Comment section—entitled, "Nimby Park" spread out on floor with carrot on it. Spans back to reveal bunny with spectacles reading newspaper in living room.)

Referring to the gobs of taxpayer funds that would be needed. (Closeup of newspaper identified as Orange County Register of May 6, 2001. Zooms to referenced with words "the Great Pork, referring to the gobs of taxpayer funds that would be needed.")

That’s the essence of pork—make others pay for your favored projects. (Shot of rabbit’s face with spectacles and twitching nose. Closeup of newspaper identified as Orange County Register for May 6, 2001. Closeup of referenced quote with words, "That’s the essence of pork—make others pay for your favored projects." Highlighted.)

What’s behind the great park is a great tax. You can count on it. (Shot of bunny with propark materials in background eating a flower. Flower turns into a hundred dollar bill as bunny is eating it. Text superimposed reads "Great Park . . . Great Tax" and "4 years and $40 million taxpayer dollars.")

Let’s keep the El Toro airport planning process going. We can’t afford not to. (Shot of bunny in bed, with newspaper on bedside stand that reads, "Nimby Park." Full screen of text superimposed, which reads as follows: For more information on this massive waste of taxpayer funds, contact: El Toro Educational Alliance. 888.722.2425. www.eltoronow.org. A project of Citizens For Jobs & The Economy and Airport Working Group Of Orange County. Paid for by Airport Working Group.)

18. The transcript and images of Bunny Spot III are as follows (audio voiceover transcription in bold type; video description in parentheses):

 

 

South County politicians promised they have a way to pay for the great park. Promised. (TV shown displaying pro-park materials. Spans back to reveal bunny with spectacles in lounge chair watching TV.)

But the City of Irvine’s financial analysis of who’s going to pay for the great park is just a lot of, well, weasel work. (Close up of "Final Report Review of Potential Revenue Sources for Funding prepared for City of Irvine September 2000" report cover.)

(Weasel talking into a microphone saying, "Primarily from uses that are interim in character.") Roughly, approximately, depending, maybe, generally. Yikes! The words "Roughly," "Approximately," "Depending," "Maybe" and "Generally" superimposed as camera zooms in on weasel.)

Great Park? (Closeup of bunny with spectacles twitching nose.)

Weasel park is more like it. (Closeup of article entitled, "Weasel Park," identified as Orange County Register for June 17, 2001.)

The great park will mean a great tax. You can count on it. (Bunny eating flower. "Great Park" superimposed turns into "Great Tax" as flower turns into hundred dollar bill.)

Let’s keep the El Toro airport planning process going. We can’t afford not to. (Half screen of following text superimposed on bunny still eating dollar bill:

For more information on this massive waste of taxpayer funds, contact:

El Toro Educational Alliance. 888.722.2425. www.eltoronow.org. Paid for by Airport Working Group of Orange County, Inc.)

19. Plaintiffs are also informed and believe that, in the time since AWG and the City entered into the May 22 contract, and since circulation of the Park Initiative began, AWG has used City funds to develop at least three anti–Park Initiative fliers: The Sucker Brochure, the Weasel Brochure and the Airport Brochure. A true and correct copy of the Sucker Brochure is attached hereto as Exhibit K. A true and correct copy of the Weasel Brochure is attached hereto as Exhibit L. A true and correct copy of the Airport Brochure is attached hereto as Exhibit M.
20. The text of the Sucker Brochure reads in part as follows (bold in original):

 

 

"There’s a sucker born every minute."

* * * *

Great Park Supporters hope P.T. Barnum was right.

The politicians pushing "Great Park" have already spent $40 million in tax money claiming they can build a 4,700-acre park without a tax increase—which the Orange County Register calls "laughable."

Great Park supporters promise a lush botanical garden, a world-class zoo, soccer fields, a concert shell, a 100-acre lake, a county library, educational facilities, swimming pools, museums, golf courses and miles of hiking and wilderness trails—all without a tax increase.

Great Park sounds "too good to be true" because it is.

* * * *

If you agree this is a sucker’s deal, call the City of Irvine to protest its Great Park scheme.

21. The text of the Weasel Brochure reads in part as follows (bold in original):

 

 

Weasel Park

Would you open your wallet—or run for the hills—if the financial plan for a start-up company was filled with what-ifs, maybes and other imprecise words rather than firm financial explanations?

You’d run for the hills.

Thanks to an analysis by [Great] park foes, we learn that the financial forecast is filled with weasel words—278, by their count. The forecast has plenty of "potentials" (46), "coulds" (44), "cans" (35), "shoulds" (22), "assumes" (16), as well as "likelys" (16), "estimateds" (12) and "probablys" (5).

Yikes.

But don’t worry. Trust Irvine Mayor Larry Agran, Supervisor Todd Spitzer and others who say a park akin to New York’s Central Park can be ours for free—no strings, no new taxes . . .

Maybe so. But then again, probably not.

GREAT PARK? GREAT TAX!

22. The text of the Airport Brochure reads in part as follows (bold in original):

 

 

Don’t Let Them Take Away Our Best Option

Some Local politicians want to block the El Toro Airport—so it can’t even be considered as an option to solve our county’s air transportation needs.

They’ve spent nearly 40 million dollars trying to take away your right to decide how we plan for Orange County’s future.

By planning now and having the option of an airport at El Toro, we can make sure Orange County prepares for the future. We will be in a better position to meet the growing demand for air travel, respond to our natural disasters and promote our thriving economy.

Keep the El Toro Option. Plan for the Future.

* * * *

To meet Orange County’s growing transportation needs, local voters [in Measure A] supported a new airport at El Toro.

* * * *

An airport at El Toro is the right plan to protect residents, taxpayers and families. It’s important to keep it as an option to meet our future air transportation needs.

23. Plaintiffs are also informed and believe that in the time since circulation of the Park Initiative began, the City and City Council have expended public employee time and other public resources to oversee its contract with AWG, and more generally to promote aviation reuse of El Toro and oppose the Park Initiative.
24. Plaintiffs have no plain, speedy and adequate remedy at law, and will suffer irreparable injury unless the Court issues the relief requested below. Unless enjoined by the Court, Defendants will continue to expend public funds in violation of Stanson v. Mott and Code of Civil Procedure Section 526a.
25. Issuance of the relief requested below will confer a significant benefit on the general public by preventing the unlawful and/or wasteful expenditure of public funds, restoring to the City all funds unlawfully and/or wastefully expended, and ensuring the integrity of the County initiative process.
26. This case involves the enforcement of an important right affecting the public interest, and the necessity and financial burden of enforcement are such as to make an award of attorneys’ fees appropriate. Absent enforcement by Plaintiffs, Defendants will continue to contribute to the unlawful and/or wasteful expenditure of public funds, and continue to compromise the integrity of the County initiative process.

(Unlawful Expenditure Of Public Funds Against City,
City Council, AWG And The Doe Defendants)

1. Plaintiffs incorporate by reference the allegations set forth in Paragraphs 1 through 35 above, as if set forth fully herein.
2. Code of Civil Procedure 526a forbids the unlawful expenditure of public funds by a governmental entity, and requires that third parties refund any public funds expended in violation of law.
3. Pursuant to the principles articulated in Stanson v. Mott, a governmental entity may not expend public funds, either directly or indirectly, to promote a particular position in an initiative campaign unless there is express, clear and unmistakable statutory language authorizing such an expenditure.
4. There is no clear and unmistakable legislation, under any provision of State or local law, that authorizes the City to expend public funds for the purpose of promoting a particular position in an initiative campaign.
5. The City’s contract with AWG, entered into on May 22, 2001, commits the City to paying $3.6 million in public funds to AWG in exchange for the development of political campaign materials opposing passage of the Park Initiative, and promoting an airport at El Toro.
6. Pursuant to the May 22 contract, after circulation of the Park Initiative began, AWG and Doe I utilized City funds to create and broadcast Bunny Spots I, II and III, and to create and disseminate the Sucker Brochure, the Weasel Brochure and the Airport Brochure.
7. Bunny Spots I, II and III, the Sucker Brochure, the Weasel Brochure and the Airport Brochure are all political campaign materials designed to convince voters to vote "no" on the Park Initiative and retain Measure A’s airport plan.
8. Under Code of Civil Procedure 526a, Plaintiffs are entitled to preliminary and permanent injunctive relief that will:

1. enjoin Defendants City, City Council, AWG, Doe I and any other applicable Doe Defendants from expending City funds in connection with Bunny Spots I, II and III, the Sucker Brochure, the Weasel Brochure, the Airport Brochure and any other material aimed at impeding the qualification or enactment of the Park Initiative or promoting reuse of El Toro as an airport;
2. order AWG, Doe I and any other applicable Doe Defendants to repay to the City all City funds expended or utilized, since the Park Initiative began to circulate, in connection with Bunny Spots I, II and III, the Sucker Brochure, the Weasel Brochure, the Airport Brochure and any other material that falls outside the limits established by Stanson v. Mott;
3. enjoin Defendants City and City Council from using the work time of any public employee in connection with attempting to prevent the qualification or enactment of the Park Initiative or promoting reuse of El Toro as an airport.

1. Wherefore, Plaintiffs pray for judgment as set forth below.

(Wasteful Expenditure Of Public Funds Against City,
City Council, AWG And The Doe Defendants)

1. Plaintiffs incorporate by reference the allegations set forth in Paragraphs 1 through 44 above, as if set forth fully herein.
2. Code of Civil Procedure 526a forbids the wasteful expenditure of public funds by a governmental entity, and requires that third parties refund any public funds wastefully expended.
3. Pursuant to the May 22 contract between the City and AWG, AWG is prohibited from spending City funds, "directly or indirectly, to support or oppose the qualification, passage or defeat of a ballot measure." See Exhibit G.
4. After the City and AWG entered into the May 22 contract, AWG utilized and/or expended City funds to produce and cause to be broadcast Bunny Spots I, II and III, and to produce and disseminate the Sucker Brochure, the Weasel Brochure and the Airport Brochure.
5. Bunny Spots I, II and III, the Sucker Brochure, the Weasel Brochure and the Airport Brochure are political campaign materials designed to convince voters to vote "no" on the Park Initiative.
6. AWG’s expenditure of City funds, in connection with these materials, constitutes a breach of AWG’s written contract with the City, which forbids the expenditure of funds "to support or oppose the qualification, passage or defeat of a ballot measure."
7. In committing this breach of contract, AWG has expended, and on an ongoing basis is expending, City funds for its own private purposes. The City has taken no action to prevent AWG’s expenditures in breach of the May 22 contract.
8. By standing idly by while AWG expends City funds for purposes prohibited by the contract (i.e., to produce and broadcast Bunny Spots I, II and III, and to produce and disseminate the Sucker Brochure, the Weasel Brochure and the Airport Brochure), and thereby permitting AWG to utilize public funds for its own private purposes, the City has, and on an ongoing basis is, wasting public funds.
9. Under Code of Civil Procedure 526a, Plaintiffs are entitled to preliminary and permanent injunctive relief that will:

1. enjoin Defendant AWG from wasting City funds by expending them, directly or indirectly, in connection with Bunny Spots I, II and III, the Sucker Brochure, the Weasel Brochure, the Airport Brochure and any other material prohibited by the May 22 contract;
2. order the City and City Council to obtain restitution of all funds directly or indirectly expended by AWG, since May 22, in connection with Bunny Spots I, II and III, the Sucker Brochure, the Weasel Brochure, the Airport Brochure and any other material prohibited by the May 22 contract;
3. order AWG, Doe I and any other applicable Doe Defendants to repay to the City all City funds expended since May 22 in connection with Bunny Spots I, II and III, the Sucker Brochure, the Weasel Brochure, the Airport Brochure and any other material prohibited by the provisions of the May 22 contract.

1. Wherefore, Plaintiffs prays for judgment as set forth below.

(Declaratory Relief)

1. Plaintiffs incorporate by reference the allegations set forth in Paragraphs 1 through 54 above, as if set forth fully herein.
2. An actual controversy has arisen and exists between Plaintiffs and Defendants City and City Council regarding their respective rights and duties under Code of Civil Procedure Section 526a and Stanson v. Mott. Specifically, these parties dispute whether the post-initiative-circulation expenditure of City funds, in connection with Bunny Spots I, II and III, the Sucker Brochure, the Weasel Brochure and/or the Airport Brochure, violated and continues to violate Section 526a and the principles articulated in Stanson v. Mott.
3. These parties also dispute whether the expenditure of City funds in connection with Bunny Spots I, II and III, the Sucker Brochure, the Weasel Brochure and/or the Airport Brochure, after the parties entered into the May 22 contract, violates the terms of that contract in a manner resulting in the waste of City funds.
4. Plaintiffs are therefore entitled to a judgment declaring that, after the Park Initiative began to circulate, the direct or indirect expenditure of City funds in connection with Bunny Spots I, II and III, the Sucker Brochure, the Weasel Brochure and the Airport Brochure constituted and continues to constitute an unlawful expenditure of City funds in violation of Stanson v. Mott.
5. Plaintiffs are also entitled to a judgment declaring that, after the parties entered into the May 22 contract, expenditure of City funds in connection with Bunny Spots I, II and III, the Sucker Brochure, the Weasel Brochure and the Airport Brochure, constituted breach of contract, and that the City’s failure to seek a remedy for that breach resulted and continues to result in the waste of City funds.
6. Wherefore, Plaintiffs pray for judgment as set forth below.

(Petition For Writ Of Mandate Against City, City Council,
AWG And The Doe Defendants)

1. Petitioners incorporate by reference the allegations set forth in Paragraphs 1 through 60 above, as if set forth fully herein.
2. Petitioners have a direct and beneficial interest in ensuring that Defendants do not expend City funds for political campaign materials, such as Bunny Spots I, II and III, the Sucker Brochure, the Weasel Brochure and the Airport Brochure, between the date of the Park Initiative’s circulation and the Orange County Election in March 2002. If Defendants are permitted to utilize City funds to pursue their political aims, the County voters’ decision with respect to the Park Initiative will have been unlawfully influenced, and the integrity of the voter ratification process irretrievably compromised.
3. As a City taxpayer, Plaintiff Zeughauser also has a direct and beneficial interest in preventing the City’s illegal and/or wasteful expenditure of funds in connection with broadcast of Bunny Spots I, II and III, and dissemination of the Sucker Brochure, the Weasel Brochure and the Airport Brochure. If the funds that have been illegally and/or wastefully expended are not recovered, the City will have lost revenue that could otherwise have been utilized for a lawful public purpose.
4. Petitioners are entitled to a writ of mandate directed to Defendants City, City Council, AWG, Doe I and all other applicable Doe Defendants, as follows:

1. compelling all Defendants to refrain from the expenditure of City funds in connection with Bunny Spots I, II and III, the Sucker Brochure, the Weasel Brochure, the Airport Brochure and any other material aimed at impeding the qualification or enactment of the Park Initiative or promoting reuse of El Toro as an airport;
2. compelling Defendants City and City Council to seek restitution from AWG, Doe I and all other relevant Doe Defendants of all City funds expended, since the Park Initiative began to circulate, in connection with Bunny Spots I, II and III, the Sucker Brochure, the Weasel Brochure, the Airport Brochure and any other material that violates the principles articulated in Stanson v. Mott;
3. compelling Defendants City and City Council to seek restitution from AWG of all City funds expended since May 22 in connection with the broadcast, creation and circulation of Bunny Spots I, II and III, the Sucker Brochure, the Weasel Brochure, the Airport Brochure and any other material that violates the provisions of the May 22 contract;
4. compelling Defendants AWG, Doe I and all other relevant Doe Defendants to pay restitution to the City of all City funds expended, since the Park Initiative began to circulate, in connection with Bunny Spots I, II and III, the Sucker Brochure, the Weasel Brochure, the Airport Brochure and any other material that violates Stanson v. Mott;
5. Compelling Defendant AWG to pay restitution to the City of all City funds expended since May 22 in connection with Bunny Spots I, II and III, the Sucker Brochure, the Weasel Brochure, the Airport Brochure and any other material that violates the provisions of the May 22 contract.

1. Wherefore, Plaintiffs pray for judgment as set forth below.

 

 

WHEREFORE, Plaintiffs and Petitioners pray that:

1. The Court enter judgment against all Defendants, declaring that they violated Code of Civil Procedure Section 526a and the principles outlined in Stanson v. Mott when, after the Park Initiative began to circulate, they directly and/or indirectly expended City funds in connection with Bunny Spots I, II and III, the Sucker Brochure, the Weasel Brochure and the Airport Brochure;
2. The Court enter judgment against Defendants City and City Council, declaring that they violated Code of Civil Procedure Section 526a’s prohibition against wasteful expenditures by standing idly by while AWG expended, and continues to expend, City funds for non-contractual (private) purposes, that is, to create and/or disseminate Bunny Spots I, II and III, the Sucker Brochure, the Weasel Brochure and the Airport Brochure;
3. The Court issue preliminary and permanent injunctions, and a peremptory writ of mandate against all Defendants, directing them to cease expending City funds, directly or indirectly, in connection with Bunny Spots I, II and III, the Sucker Brochure, the Weasel Brochure, the Airport Brochure and any other material that seeks to impede the qualification or enactment of the Park Initiative or promote reuse of El Toro as an airport;
4. The Court issue preliminary and permanent injunctions, and a peremptory writ of mandate, directing the City and City Council to obtain restitution from AWG, Doe I and any other applicable Doe Defendants, of all City funds directly or indirectly expended, since the Park Initiative began to circulate, in connection with Bunny Spots I, II and III, the Sucker Brochure, the Weasel Brochure, the Airport Brochure and any other material that violates Stanson v. Mott;
5. The Court issue preliminary and permanent injunctions, and a peremptory writ of mandate, directing the City and City Council to obtain restitution from AWG of all City funds directly or indirectly expended since May 22 in connection with Bunny Spots I, II and III, the Sucker Brochure, the Weasel Brochure, the Airport Brochure and any other material that violates the provisions of the May 22 contract;
6. The Court issue preliminary and permanent injunctions, and a peremptory writ of mandate, directing AWG, Doe I and any applicable Doe Defendants to pay restitution to the City in the amount of all City funds directly or indirectly expended since the Park Initiative began to circulate in connection with Bunny Spots I, II and III, the Sucker Brochure, the Weasel Brochure, the Airport Brochure and any other material that violates Stanson v. Mott;
7. The Court issue preliminary and permanent injunctions, and a peremptory writ of mandate, directing AWG, Doe I and any applicable Doe Defendants to pay restitution to the City of all City funds directly or indirectly expended since May 22 in connection with Bunny Spots I, II and III, the Sucker Brochure, the Weasel Brochure, the Airport Brochure and any other material that violates the provisions of the May 22 contract;
8. The Court award Plaintiffs their costs of suit;
9. The Court award Plaintiffs reasonable attorneys’ fees under Code of Civil Procedure Section 1021.5 and/or other applicable provisions of law;
10. The Court award such other and further relief as it deems proper.

DATED: July 26, 2001.