Trial Court: Santa Clara County Superior Court Trial Judge: Hon. Kevin E. McKenney (Santa Clara County Super. Ct .No. 112CV220781)
The opinion of the court was delivered by: Elia, Acting P. J.
CERTIFIED FOR PUBLICATION
The petitioners in this proceeding are four registered voters and taxpayers in Santa Clara County. All are either present or retired employees of the City of San Jose, and two are residents and voters in San Jose. Petitioners seek an order overturning the superior court's denial of their mandate petition challenging the ballot title and ballot question for Measure B, which is to be placed on the ballot for the June 5, 2012 election. Petitioners contend that both the current ballot title, "PENSION REFORM," and the ballot question are impermissibly partisan and misleading.
Real parties in interest are the City of San Jose (City), the City Council (which adopted the ballot question and title), the City Clerk (sued in his official capacity), and the Registrar of Voters for Santa Clara County (sued in his official capacity).
Recognizing the urgency of the matter, we issued a Palma notice (Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 180), advising the parties that this court was considering issuing a peremptory writ of mandate in the first instance.*fn1 We prohibited the submission of the ballot title and question to the printer until further order of this court. We also invited, and have received, expedited opposition from real parties in interest and a reply from petitioners. Having considered the parties' positions on the appropriateness of the ballot title and question, we agree with petitioners that the ballot title and text are impermissibly partisan, and we will therefore issue a peremptory writ in the first instance.
On March 6, 2012, the City Council adopted Resolution No. 76158, to place a proposed amendment to the City Charter on the June 5, 2012 election ballot. The proposed measure, designated as "Measure B," would modify retirement benefits for current employees and retirees and establish a more limited retirement plan for future employees.
Citing Elections Code sections 9295 and 13314,*fn2 petitioners sought a writ of mandate in superior court, alleging that the ballot question and the City Clerk's "Impartial Analysis" were misleading and biased in favor of passage, rather than neutral as required by sections 10403, 9051, and 9280.*fn3
On April 4, 2012, after expedited briefing, the superior court issued its order granting some relief by approving two stipulated amendments.*fn4 It further found, however, that petitioners had "failed to establish by clear and convincing proof that the challenged language was false, misleading, or not partial [sic]." Accordingly, the court denied the balance of the petition.
The current version of the challenged measure bears the title "PENSION REFORM" and posits the question as follows: "To protect essential services, including neighborhood police patrols, fire stations, libraries, community centers, streets and parks, shall the Charter be amended to reform retirement benefits of City employees and retirees by: increasing employees' contributions, establishing a voluntary reduced pension plan for current employees, establish pension cost and benefit limitations for new employees, modify disability retirement procedures, temporarily suspend retiree COLAs during emergencies, require voter approval for increases in future pension benefits?"
Petitioners contend that the ballot question drafted by the City Council, including its title, violates sections 10403 and 9051 "because it is not impartial, but instead is written in a manner that would greatly prejudice voters in favor of the measure."*fn5 The title, they argue, "casts the initiative in a positive light and is a powerful cue to the voters to vote for it." The first sentence of the ballot question "presents voters with the Hobson's choice of either preserving [sic] essential services or lowering pension benefits."
When a measure is to be placed on the ballot for an upcoming municipal election, it must be subjected to a 10-day public examination period, during which any voter in the jurisdiction may seek a writ of mandate to delete or amend the language of the measure. (§ 9295, subd. (b)(1).) The writ of mandate, however, may be issued "only upon clear and convincing proof that the material in question is false, misleading, or inconsistent with the requirements of this chapter, and that issuance of the writ or injunction will not substantially interfere with the printing or distribution of official election materials as provided by law." (§ 9295, subd. (b)(2); see also § 9092 [same writ review procedure and standard for statewide election materials] and § 9190 [same writ review procedure and standard for county election materials].)
In their opposition real parties argue that any delay caused by alteration of the ballot question would substantially interfere with the conduct of the June election. However, in order to attend to the urgent issues presented by this matter we were compelled to stay the superior court's April 4, 2012 ruling, which we accomplished the following day, April 5, 2012, by directing that the challenged ballot materials not be submitted to the printer "until further order of this court." We have accelerated the briefing process by allowing each party only one day to submit points and authorities, and we have expedited our own resolution of the issues presented. Thus, any delay beyond our April 5 stay order has been kept to a minimum. While we recognize real parties' legitimate concern for the ability of the ...