United States District Court, S.D. California
WILLIAM Q. HAYES, District Judge.
The matter before the Court is the Ex Parte Application for Temporary Restraining Order ("Application for Temporary Restraining Order"), filed by Plaintiff Bryan Pease. (ECF No. 3).
On March 18, 2014, Plaintiff filed a Petition for Temporary Restraining Order and Declaratory Relief to Remedy Violation of Civil Rights ("Petition") (ECF No. 1), the Application for Temporary Restraining Order (ECF No. 3), and a Proof of Service and declaration stating that the Summons and the Application for Temporary Restraining Order were served on Defendants City of San Diego ("City") and San Diego City Clerk Elizabeth Maland ("Maland") (ECF Nos. 3-2, 4).
Plaintiff asserts that he "is a serious contender for interim appointment to the San Diego City Council District 2 seat that was made vacant by the recent special mayoral election." (ECF No. 3 at 2). Plaintiff asserts that Defendant San Diego City Clerk Elizabeth Maland "is refusing to process the application papers of [Plaintiff] to be considered for the appointment, based on alleged failure to meet the technical terms of the durational residency requirement" of San Diego Municipal Code ("SDMC") 27.0119, which provides that "[n]o individual is eligible to run for or hold the office of a Councilmember... either by election or appointment, unless... that individual was a registered voter of the district at least thirty calendar days prior to the date nomination papers were filed by the candidate... or at least thirty calendar days prior to the date of filing an application for appointment to an elective office...." Id. at 3-4. Plaintiff contends:
The decision by city staff was based on [Plaintiff]'s most recent registration in District 2 having taken place on February 19, 2014, which was less than 30 days prior to the March 17, 2014 filing deadline for nomination papers. However, [Plaintiff] also lived in District 2 from 2004-2007 and was a registered voter in the district during that entire time period. Thus, [Plaintiff] was a registered voter of the district at least thirty calendar days prior to the date nomination papers were filed.'
Unlike Government Code section 25041, dealing with election eligibility for county boards, SDMC 27.0119 does not state that registration must have been for thirty days immediately' prior to filing papers. Because seven years is a longer period than thirty days, [Plaintiff] easily meets the requirement of SDMC 27.0119 that he was a registered voter of the district at least thirty calendar days prior to the date nomination papers were filed.'
Id. at 4 (quoting SDMC 27.0119(b)(2)). Plaintiff contends that "First Amendment rights to free speech and petitioning are at stake, and... residency requirements are evaluated under strict scrutiny." Id. Plaintiff contends that he "has complied with the exact requirements of the ordinance to the letter and should not be denied an opportunity to present his case to the City Council for why he would be a good choice for this appointment." Id. Plaintiff "requests a temporary restraining order preventing Respondents from refusing to accept Petitioner's application to be considered by the City Council for the interim District 2 seat by reason of Petitioner allegedly failing to meet the thirty day durational residency requirement." Id. at 5-6.
The Petition alleges two causes of action pursuant to 42 U.S.C. § 1983 and Monell v. Department of Social Services of the City of New York, 436 U.S. 658 (1978), for violation of Plaintiff's "First Amendment rights to petition his government and to seek appointment to the District 2 seat." (ECF No. 1 ¶ 21). The Petition requests declaratory and injunctive relief and attorney fees. The Petition alleges that "[t]he City Council will hold a hearing on April 14-15 [during] which candidates for the position will be considered. [Plaintiff] therefore requires emergency declaratory relief and a temporary restraining order to allow his application to be considered." Id. at 6.
In support of the Application for Temporary Restraining Order, Plaintiff submits his own affidavit which states that, on March 17, 2014, Plaintiff attempted to submit a completed application for appointment to Council District 2, but "City staff refused to process my application due to my most recent voter registration in District 2 having been on February 19, 2014." (Pease Decl. ¶ 4, ECF No. 3-1). Plaintiff states that he has "been a registered voter in District 2 for over three years, which was seven years prior to applying for this appointment. [Plainitff] lived at 230 Ivy Street, Apartment 2 and was registered to vote there from 2004 to approximately 2007." Id. ¶ 3. Plaintiff states that he has "only one residence, which is [his] home in Ocean Beach [in District 2], and [he has] lived there for over a year." Id. ¶ 6.
On March 28, 2014, Defendants filed an opposition to the Application for Temporary Restraining Order. (ECF No. 8). Defendants contend that the City "has consistently applied its residency requirements to all potential candidates for elective office since they were adopted." Id. at 5. Defendants contend:
[Plaintiff]'s strained interpretation is not supported by the ordinary meaning of the language of the SDMC, it runs counter to the Council's intent for enacting the requirements, and would produce absurd results, such as allowing for the appointment and/or election of candidates who did not live in the district that they seek to represent. [Plaintiff] has not, and cannot, establish the four requirements needed for a [temporary restraining order] to issue, and, therefore, his application must be denied.
Id. at 5-6.
Defendants submit Maland's declaration and numerous exhibits. Maland states that, pursuant to the SDMC, the deadline for filing the required application forms for appointment to fill the Council District 2 vacancy was March 17, 2014, by 5:00 p.m. (Maland Decl. ¶ 5, ECF No. 8-1). Maland states that, on March 17, 2014, at 4:16 p.m., Plaintiff "came into [Maland's] office... to file his application to be considered for appointment to fill the Council District 2 vacancy." Id. ¶ 6. Maland states that Plaintiff "had registered to vote at his current address on-line on February 19, 2014, which meant that, as of March 17, 2014, he had only been a resident and registered voter at his current address for twenty-six (26) days." Id. ¶ 8. Maland states that "[s]ince [Plaintiff] did not meet the City's minimum residency requirements set forth in the SDMC, [Maland] informed him that [Maland] would be unable to accept his application papers." Id. ¶ 10. Maland states that "[t]he residency requirement was uniformly and consistently applied to all potential candidates, including [Plaintiff], for the current Council District 2 vacancy, " and "the residency requirements contained in SDMC section 27.0119 have been uniformly and consistently applied in the same manner they were towards potential applicants for the ...