IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

PETITION FOR WRIT OF MANDATE *

By this petition, petitioners Allan Songstad, Bill Campbell, Debbie Cook, Pat Bates and Mike Alvarez allege and show as follows:

1. FACTUAL AND PROCEDURAL BACKGROUND.
1. Amendments to the General Plan Adopted by Measure A.

In 1993, the United States Congress voted to close the U.S. Marine Corps Air Station El Toro in Orange County, California. On November 1994, Orange County voters narrowly approved an initiative measure ("Measure A") titled "Orange County/El Toro Economic Stimulus Initiative." Measure A amended the General Plan to restrict the use of the entirety of El Toro to airport and airport compatible uses. (P.A., Tab 7, pp. 0384, 0443-0445 [Thornton Decl., ¶ 5, Exh. D].) In reliance on Measure A, a slim (3-2) majority of the Board of Supervisors has proposed a re-use plan to establish an LAX-style international airport at El Toro.

2. Measure F and Litigation Challenges to Measure F by Nestande Real Parties.

In March 2000, Orange County voters dramatically and irrevocably reversed course on El Toro. Sixty-seven percent of Orange County adopted an initiative measure ("Measure F") titled "The Safe and Healthy Communities Initiative." Measure F required a two-thirds vote of the electorate for the approval of airports, hazardous waste landfills and certain jail projects in the County. Real Parties filed both pre-election and post-election challenges to Measure F. (P.A., Tab 7, pp. 0380 [Declaration of Richard C. Jacobs [hereinafter "Jacobs Decl."], ¶ 8].) The Orange County Superior Court rejected the pre-election challenges. Following passage, on December 1, 2000, the Superior Court invalidated Measure F on the grounds, among others, that Measure F violated the "single subject" rule because it applied to airports, hazardous waste landfills, and certain jail projects. The Superior Court’s decision is on appeal. (P.A. 7, pp. 0380 [Jacobs Decl., ¶ 8].) Importantly, the Court emphasized that "if the county or its citizens want to prohibit the El Toro [airport] project, it has the option of repealing Measure A." (P.A., Tab 7, p. 0380 [Jacobs Decl., ¶ 8].) The Initiative proposes to repeal Measure A and amend the General Plan precisely as suggested by the Superior Court.

3. The Orange County Central Park and Nature Preserve Initiative.

The Initiative amends the Orange County General Plan ("General Plan") (1) to repeal all language added by Measure A, and (2) to replace Measure A’s provisions with non-aviation land uses at El Toro. The Initiative applies the existing Open Space Reserve ("OSR") land use category to the central portion of El Toro, and establishes and applies two new land use categories – Nature Preserve ("NP") and Education/Park Compatible ("EPC") – to the remaining portions of El Toro. (P.A., Tab 7, pp. 0384, 0387-0389 [Thornton Decl., ¶ 2, Exh. A].)

On June 14, 2001, petitioners filed a Notice of Intention to Circulate Petition with respondent Registrar of Voters Lever. (P.A., Tab 7, p. 0384, 0411 [Thornton Decl., ¶ 3, Exh. B].) On June 29, 2001, respondent Lever provided the petitioners with a ballot title and summary prepared by respondent County Counsel Watson pursuant to the provisions of Elections Code section 9105. (P.A., Tab 7, p. 0384, 0412 [Thornton Decl., ¶ 4, Exh. C].) After publishing the Notice of Intention to Circulate, petitioners began circulating the petition for signatures.

4. Proceedings Below.

On July 3, 2001, the Nestande Real Parties filed the petition for writ of mandate below. (P.A., Tab 1, p. 0001-0011.) On July 31, 2001 the respondent Superior Court held a hearing on the Nestande petition and issued an oral ruling granting the petition for writ of mandate on the grounds that the reference to "other open space uses" in the Title portion of the Title and Summary prepared by respondent Watson was misleading. (Robert D. Thornton Decl., ¶ 8.)

2. APPELLATE COURTS REGULARLY ISSUE WRITS OF MANDATE TO PROTECT THE RESERVED RIGHT OF INITIATIVE.

Appellate courts often exercise their original jurisdiction when petitioners seek writs of mandate to protect the voters’ constitutional right of initiative. (See, e.g., Farley v. Healey (1967) 67 Cal.2d 325, 326-327 [62 Cal.Rptr. 26]; Perry v. Jordan (1949) 34 Cal.2d 87, 90-91 [207 P.2d 47]; Duran v. Cassidy (1974) 28 Cal.App.3d 574, 578-579 [104 Cal.Rptr. 793]; Bayless v. Limber (1972) 26 Cal.App.3d 463, 466 [102 Cal.Rptr. 647].) A remedy by way of appeal from the contrary judgment of the Superior Court is inadequate. (Id.)

Writs of mandate are also authorized to consider issues of great public importance requiring prompt resolution. (See Anderson v. Superior Court (1989) 213 Cal.App.3d 1321, 1328 [262 Cal.Rptr. 405].) It is beyond dispute that the Constitutional right of the Orange County electorate to determine the future of El Toro is a matter of great public importance. The future of El Toro is the most hotly-debated land use and quality of life issue in the County.

Mandate also lies to correct an abuse of trial court discretion. (See RLI Ins. Co. Group v. Superior Court (1996) 51 Cal.App.4th 415, 433 [59 Cal.Rptr.2d 111].) An abuse of judicial discretion occurs where the lower court’s exercise of discretion "‘exceeds the bounds of reason, all of the circumstances before it being considered.’ [Citation.]" (State Farm Mut. Auto. Ins. Co. v. Superior Court (1956) 47 Cal.2d 428, 432 [304 P.2d 13].) For the reasons discussed below, the lower court’s ruling exceeded its discretion and should be overruled.

3. REAL PARTIES, PETITIONERS BELOW, LACK STANDING TO CHALLENGE THE COUNTY COUNSEL’S TITLE AND SUMMARY AT THIS STAGE OF THE INITIATIVE PROCESS.

The lawsuit below should have been dismissed by the Superior Court for lack of standing. The Elections Code specifically authorizes only initiative "proponents" to challenge the County Counsel’s title and summary at this stage of the process. (See Elec. Code, § 9106.) The Superior Court, nevertheless, concluded that this authorization for proponents to sue was not exclusive, since section 9106 did not expressly preclude suits by others than proponents. Because section 9106 does not contain redundant language specifically disallowing suits by non-proponents, the court concluded that suits by opponents are allowed under the general mandate provisions of section 1085.

The Superior Court’s ruling on standing is mistaken for three reasons: (1) it undercuts the Legislature’s statutory scheme governing legal challenges in initiative elections; (2) it renders meaningless the enactment of section 9106, and the Legislature’s use of the word "proponents"; and (3) it violates the "specific over general" principle of statutory construction.

The Elections Code establishes a specific and detailed statutory scheme to address two separate policy goals: (1) protection of the citizen’s right of initiative, and (2) assurance of impartial election materials. Elections Code section 9106 is clear and unambiguous:

The proponent may seek a writ of mandate requiring the ballot title or summary prepared by the county counsel to be amended.

(Elec. Code, § 9106, emphasis added.)

The Elections Code does not ignore opponents of an initiative, such as the Real Parties. Instead, initiative opponents’ challenges are governed by a different section of the Elections Code. Of critical importance in this case the Elections Code requires the preparation by County Counsel of a second, separate, title and summary for inclusion on the ballot after the Initiative qualifies for the ballot.

Opponents may challenge the ballot materials (including the separate and distinct summary of the measure prepared by County Counsel pursuant to section 9160) "during the ten-calendar day" period before the Registrar submits the official election materials for printing on the ballot. (Elec. Code, § 9190.) The challenge below is premature because the measure has not yet qualified for the ballot and the ten-calendar day examination period specified in section 9190 has not commenced.

The plain language and structure of sections 9106 and 9190 can only be interpreted to mean one thing: initiative proponents alone have standing to challenge the title and summary at the beginning of the initiative process. Initiative opponents have standing to challenge the title and summary (and other ballot materials) only after the initiative measure has qualified to be placed on the ballot, and County Counsel has prepared the separate and distinct title and summary required by Elections Code section 9160.

The statutory structure reflects the Constitutional basis of the initiative right and the Legislature’s careful balancing of various public interests. The Elections Code provision giving only proponents the right to challenge the title and summary at this early stage of the initiative process reflects the political reality that most initiative measures are proposed precisely because the local legislative body has refused to adopt the legislation proposed by the initiative measure. The Legislature logically assumed that, in the case of county initiatives, the county counsel may be inclined to favor the views of his client (the majority of the board of supervisors) in drafting the initiative title and summary. Section 9106 guards against this potential conflict by giving a right of challenge specifically to the proponents. Thus, section 9106 protects the ability of the electorate to place initiatives on the ballot. Separately, in section 9190, the Legislature protects fair elections by allowing opponents to challenge improper ballot materials.

The Superior Court’s decision renders enactment of section 9106 a meaningless exercise, ignores the plain meaning of the statute and deletes the word "proponents" from section 9106, thereby violating the rule that courts are required to "‘give meaning to every word and phrase in the statute to accomplish a result consistent with the legislative purpose . . ..’" (California Teachers Assn. v. Governing Bd. of Rialto Unified School Dist. (1997) 14 Cal.4th 627, 634 [59 Cal.Rptr.2d 671], quoting Harris v. Capital Growth Investors XIV (1991) 52 Cal.3d 1142, 1159 [278 Cal.Rptr. 614].)

The Superior Court cited Code of Civil Procedure section 1085 as authority for the Nestande Real Parties to seek a writ of mandate to amend the title and summary. It is a settled principle of statutory construction that a specific statute enacted by the Legislature to cover a particular subject controls and takes priority over a general statute encompassing the same subject. (See Estate of Kramme (1978) 20 Cal.3d 567, 576 [137 Cal.Rptr. 542].) Thus, Elections Code section 9106 (authorizing a "proponent" to seek a writ of mandate in the specific situation of a challenge to the title and summary included on initiative petitions) controls and takes priority over the general standing provision in the traditional mandamus provisions of Code of Civil Procedure section 1085.

For these reasons, petitioners below did not have standing to challenge the County Counsel-prepared title and summary of the Initiative.

4. THE SUPERIOR COURT IGNORED THE HIGHLY DEFERENTIAL STANDARD OF REVIEW GOVERNING INITIATIVE MATTERS.

Even if this court determines that standing was proper in the underlying suit, the writ should issue because the lower court abused its discretion by ignoring the well-established deferential standard of review in initiative cases, and by using the wrong substantive standards to measure County Counsel’s compliance with the law.

The initiative right is "‘one of the most precious rights of our democratic process’ [citation]…. ‘[I]t has long been our judicial policy to apply a liberal construction to this power wherever it is challenged in order that the right be not improperly annulled. If doubts can reasonably be resolved in favor of the use of this reserve power, courts will preserve it.’" (Associated Home Builders, Inc. v. Livermore (1976) 18 Cal.3d 582, 591 [135 Cal.Rptr. 41] [holding voters have constitutional right to adopt zoning ordinances by initiative]; see also, Brosnahan v. Brown (1982) 32 Cal.3d 236, 241 [186 Cal.Rptr. 30] [upholding validity of Prop. 8].) Courts are obligated to "jealously guard" the initiative right. (Livermore, supra, 18 Cal.3d at p. 591.)

Pre-election review is particularly disfavored; Causing initiative proponents to miss the chance to qualify for the ballot interferes with the initiative right. Courts may not interfere with the initiative process prior to the election "in the absence of some clear showing of invalidity." (Brosnahan v. Eu (1982) 31 Cal.3d 1, 5 [181 Cal.Rptr. 100] [holding initiative measure to be in substantial compliance with Elections Code]; Save Stanislaus Area Farm Economy v. Board of Supervisors (1993) 13 Cal.App.4th 141, 150 [16 Cal.Rptr.2d 408] [standard for pre-election review is one that is "cognizant of the injury to the public that would result from an erroneous determination to keep an initiative off the ballot"].)

The unwillingness of the courts to second-guess initiative titles and summaries reflects the fundamental principle that "provisions relating to the initiative should be liberally construed to permit, if possible, the exercise by the electors of this most important privilege." (Epperson v. Jordan (1938) 12 Cal.2d 61, 66 [82 P.2d 445] [holding title adequate even though it "fails to mention [some] matters which…might seem of considerable importance"].) This is particularly the case where, as here, a large number of voters have signed the petition and there is limited time remaining to qualify the initiative for the ballot.

We are more strongly inclined to [uphold the sufficiency of the title] in view of the fact that the present initiative petition was prepared and is being circulated in good faith, that many thousands of signatures thereto have already been secured, and the time is short within which the large number of required signatures can be again secured.

(California Teachers Assn. v. Collins (1934) 1 Cal.2d 202, 205 [34 P.2d 134] [rejecting challenge to short title].)

Petitioners circulated the Initiative in good faith, relying on County Counsel’s Title and Summary. Over 129,000 voters have signed the Initiative to date (1.6 times the number necessary to qualify the Initiative), and time is very short to qualify the Initiative for the March 2002 ballot. (Kogerman Decl. ¶3.)

5. THE TITLE AND SUMMARY NEED ONLY DESCRIBE THE CHIEF POINTS OF THE INITIATIVE.

Elections Code section 9105 requires the county counsel to prepare a "title and summary" of the "purpose of the proposed measure" of less than 500 words. (Elec. Code, § 9105, subd. (b).) An unbroken line of cases holds that an initiative title and summary prepared by a county counsel or the Attorney General is sufficient if the "chief points" or "chief purposes" of the initiative are described. (Epperson v. Jordan, supra, 12 Cal.2d at p. 65; Amador Valley, supra, 22 Cal.3d at p. 243 [The title and summary "need not contain a complete catalogue or index of all the measure’s provisions and ‘if reasonable minds may differ as to the sufficiency of the title, the title should be held sufficient.’"].) The Superior Court ignored all of this case law and instead relied upon concepts of materiality governing seller disclosures in real estate transactions and "informed consent" in medical malpractice proceedings. (Robert D. Thornton Decl., ¶ 6.) In doing so, the Superior Court abused its discretion.

1. The History of Elections Code 9105 and Its Predecessors.

The current form of Elections Code section 9105 reflects an evolution away from short titles, and toward longer titles and summaries. A 1931 statute required initiative proponents to prepare and include in initiative petitions a "short title" of the initiative of less than 20 words. (See Epperson v. Jordan, supra, 12 Cal.2d at p. 66, emphasis added.) Extensive litigation concerning the accuracy and impartiality of short titles prepared by initiative proponents ensued. (Id.)

In 1937, the Legislature adopted the statutory predecessor to Elections Code 9105. The 1937 law dramatically altered the statutory scheme governing initiative titles in two respects. First, it transferred responsibility for drafting initiative titles from the initiative proponents to the Attorney General (for state measures) and to the county counsel (for county measures). Second, the 1937 amendment increased the length of the initiative title to 100 words – in recognition of the fact that the purposes of many initiative measures can not be adequately described in less than 20 words.

In 1994 the Legislature adopted the current language of section 9105 (1) to require the purpose of the initiative to be described in a title and summary, and (2) to increase the length of the title and summary to 500 words. No reported cases specifically address section 9105. This may well be due to the addition of section 9106 in the same legislation, barring suits by initiative opponents at the petition stage (as discussed in section 4 above). However, cases addressing the earlier statutes, and the similar title and summary requirement for ballot materials, provide clear authority for interpreting section 9105 requirements.

2. An Unbroken Line of Cases Holds That Titles and Summaries Need Only Describe the Chief Points of the Initiative And Need Not Contain a Complete Catalogue of the Initiative’s Provisions.

In cases interpreting the statutory predecessor to section 9105, the courts hold that an initiative title shall be a "summary of the chief purposes and points" of the measure. (Epperson v. Jordan, supra, 12 Cal.2d at p. 70.) "Only in a clear case should a title…[or summary] be held insufficient." (Id. at p. 66.)

[T]he "chief purpose" or "points" of a measure is obviously many times a question of opinion. If reasonable minds can differ as to whether a particular provision is or is not a "chief point" of the measure the determination of the attorney-general should be accepted.

(Epperson v. Jordan, supra, 12 Cal.2d at p. 70.)

The initiative title must be approved as long as it "substantially complied" with the requirements. (California Teachers Assn. v. Collins, supra, 1 Cal.2d at p. 205 [holding short title in substantial compliance]; see also, Fox Bakersfield Theatre Corp. v. City of Bakersfield (1950) 36 Cal.2d 136, 145 [222 P.2d 829] [holding tax initiative title and summary in substantial compliance and therefore adequate].) The courts are required to give substantial deference to the title and summary prepared by a county counsel. (See Epperson v. Jordan, supra, 12 Cal.2d. at p. 66 ["[A]ll legitimate presumptions should be indulged in favor of the propriety of the attorney-general’s actions."].) More recent cases reach the same result. The title and summary "need not contain a complete catalogue or index of all the measure’s provisions and ‘if reasonable minds may differ as to the sufficiency of the title, the title should be held sufficient.’" (Amador Valley, supra, 22 Cal.3d at p. 243.)

In Amador Valley, supra, 22 Cal.3d 208, the California Supreme Court upheld the Proposition 13 title and summary despite the fact that neither the title nor the summary mentioned the Proposition’s most important feature – the two-thirds vote requirement to increase property taxes and special taxes.

The summary’s omission of any reference to the two-thirds vote requirement was not critical for . . . the initiative measure was extensively publicized and debated . . . . [W]e ordinarily should assume that the voters . . . "have voted intelligently upon an amendment . . . the whole text of which was supplied each of them prior to the election and which they must be assumed to have duly considered."

(Amador Valley, supra, 22 Cal.3d at pp. 243-244, quoting Wright v. Jordan (1923) 192 Cal. 704, 713 [221 P.2d 915].)

Several cases review challenges to the separate and distinct analysis prepared for inclusion in the ballot materials. Even though the sections regarding ballot materials arguably impose more stringent requirements than are required of the initiative title and summary, the courts use the same deferential review. (See Lungren v. Superior Court (1996) 48 Cal.App.4th 435, 441 [55 Cal.Rptr.2d 690] [upholding the validity of a ballot title prepared by the state attorney general that did not explain that Proposition 209 prohibited affirmative action]; Brennan v. Board of Supervisors, supra, 125 Cal.App.3d at p. 96 [the ballot summary "while technically imprecise, omitted only auxilliary [sic] or subsidiary matters . . . ."])

Brennan v. Board of Supervisors is a particularly clear example of the courts’ reluctance to interfere with initiative elections despite imperfect elections materials. In Brennan, the trial court enjoined distribution of voters pamphlets containing the summary of a renter’s tax measure. Even though the Court of Appeal concluded that the summary was not "completely accurate" (emphasis in original), the Court concluded that the trial court erred in prohibiting distribution of the summary:

Even when viewed in the aggregate, the errors and misstatements cited by respondent neither ignore major points nor make the proposition misleading. Moreover, the digest referred to the complete text of the proposal, from which the voters could ascertain any exceptions to the rules summarized in the digest, and we must assume that the voters considered the text and thereby familiarized themselves with any omitted subsidiary matter.

(Brennan v. Board of Supervisors, supra, 125 Cal.App.3d at 96.)

In the present case, the Title and Summary accurately portray the major points of the Initiative; they neither ignore major points nor make the Initiative misleading. The trial court erred in issuing its writ invalidating the Title and Summary.

3. The Superior Court Ignored Applicable Law Governing Titles and Summaries and Instead Relied on Law Governing Real Estate Seller Disclosures and Informed Consent in Medical Malpractice Cases.

The most egregious example of the Superior Court’s abuse of its discretion is the fact that the Court admitted that it did not understand the law governing initiative titles and summaries and instead hypothesized that the "chief points" requirement is analogous to real estate sales disclosure requirements or the law governing informed consent in medical malpractice cases. (Robert D. Thornton Decl., ¶ 6.) The Superior Court’s reference to entirely irrelevant legal standards constitutes abuse of discretion on its face.

Real estate sales disclosure requirements and "informed consent" in medical malpractice proceedings have absolutely nothing to do with initiative titles and summaries. Real estate sales disclosures and "informed consent" are creatures of separate and distinct statutory and case law. The public policies behind seller disclosures in private real estate sales, and physician disclosures of the risks of medical procedures are entirely different from the public policy associated with initiative measures. At the simplest level, because initiatives involve constitutional rights reserved to the voters, courts are obligated to "apply a liberal construction to this power wherever it is challenged in order that the right be not improperly annulled. If doubts can reasonably be resolved in favor of the use of this reserve power, courts will preserve it." (Livermore, supra, 18 Cal.3d at p. 591.) "[I]f reasonable minds may differ as to the sufficiency of the title, the title should be held sufficient." (Amador Valley, supra, 22 Cal.3d at p. 243.)

In sharp contrast, real estate disclosures are governed by a statute that imposes "specific disclosure requirements upon covered residential real estate sellers." (Shapiro v. Sutherland (1998) 64 Cal.App.4th 1534, 1545 [76 Cal.Rptr.2d 101].) The applicable statute specifies the precise disclosure form to be used. (Id.; Civ. Code, § 1102.6.)

"Where the seller knows of facts materially affecting the value or desirability of the property which are known only to him and knows that such facts are not known to, or within the reach of the diligent attention and observation of the buyer, the seller is under a duty to disclose them to the buyer."

(Alexander v. McKnight (1992) 7 Cal.App.4th 973, 977 [9 Cal.Rptr.2d 453], quoting Reed v. King (1983) 145 Cal.App.3d 261 [193 Cal.Rptr. 130]; first emphasis in original; second emphasis added.)

First, if there is a disclosure document in the initiative electoral process, the document disclosing all material facts is the initiative itself; the entire text of the Initiative measure is printed on the Initiative petitions. (See, Elec. Code, § 9101.) The title and summary is designed only to communicate the chief purposes and points. Second, sellers in real estate transaction are required to disclose material facts known only to the seller and that cannot be obtained by diligent attention of the buyer. In this case, the key facts (concerning permitted uses in the Education/Park Compatible area) are prominently disclosed in the Summary and in the Initiative measure itself. Any voter deciding whether to sign the Initiative could quickly and easily determine "with diligent attention" the permitted uses in the Education/Park Compatible area. (Bailey v. County of El Dorado (1984) 162 Cal.App.3d 94, 100 [Trial court determination that initiative’s short title was misleading reversed by Court of Appeal, which assessed sufficiency of title in light of initiative text].)

The requirement that physicians obtain "informed consent" to medical procedures from "patients reflects that patients are . . . unlearned in the medical sciences . . . and that [the patient] has an abject dependence upon and trust in his physician." (Cobbs v. Grant (1972) 8 Cal.3d 229, 242-243 [104 Cal.Rptr. 505].) In recognition of the special trust relationship of a physician to her patient, physicians are required to "disclose to the patient all material information – that is ‘information which the physician knows or should know would be regarded as significant by a reasonable person in the patient’s position when deciding to accept or reject a recommended medical procedure’ – needed to make an informed decision regarding a proposed treatment." (Arato v. Avedon (1993) 5 Cal.4th 1172, 1186 [23 Cal.Rptr.2d 131].)

The law governing initiative titles and summaries is completely different. The courts repeatedly emphasize that the title and summary must only describe the chief points of the measure. Only "substantial compliance" is required. (Fox Bakersfield Theatre Corp. v. City of Bakersfield, supra, 36 Cal.2d at p. 145 [holding tax initiative title and summary in substantial compliance and therefore adequate].) The title and summary need not disclose auxiliary or subsidiary aspects of the initiative – even when they are important. (See Epperson v. Jordan, supra, 12 Cal.2d at p. 71.)

Elections Code section 9105 is not, in any event, a real estate disclosure or informed consent law. Unlike medical patients and real estate buyers, who transact business in private, insulated settings, voters obtain information in highly public, wide-open electoral processes, and have access to all the relevant information about the Initiative, "the whole text of which was supplied each of them prior to the election and which they must be assumed to have duly considered." (Amador Valley, supra, 22 Cal.3d at pp. 243-244, quoting Wright v. Jordan, supra, 192 Cal. at p. 713.) Finally, the courts make it clear that even where a title and summary omit important information, the initiative must be upheld if the voters had access to the relevant information from media coverage of the initiative. (See Amador Valley, supra, 22 Cal.3d at pp. 243-244; see also, Bailey v. County of El Dorado, supra, 162 Cal.App.3d at p. 100 ["The electoral process will provide respondents ample opportunity to educate the public as to the practical effect of adoption of the Initiative."].)

Just as the voters in Amador Valley were assumed to have read Proposition 13 and "voted intelligently" on it (despite the major errors in the ballot title and summary), the Initiative signers here must, as a matter of law, be assumed to have read the Initiative Summary and signed the Initiative intelligently. As was the case with Proposition 13, without doubt the Initiative will be extensively publicized and debated.

The Superior Court abused its discretion by relying on concepts and principles derived from the law of real estate sales and medical malpractice.

4. The Superior Court Cited Initiative Cases That Are No Longer Good Law and Are Not on Point to the Facts of the Initiative.

The only initiative title cases cited by the Superior Court (and the Nestande Real Parties) to support its ruling are no longer relevant. (See Boyd v. Jordan (1934) 1 Cal.2d 468, 472 [35 P.2d 533]; Clark v. Jordan (1936) 7 Cal.2d 248 [60 P.2d 457].) The Superior Court ignored the fact that the Supreme Court subsequently distinguished Boyd and Clark because the Legislature dramatically changed the statutory scheme governing short titles after these cases. "In [Boyd and Clark] the titles therein challenged were twenty-word short titles prepared by the proponents of the measures." (Epperson v. Jordan, supra, 12 Cal.2d at p. 66, emphasis added.) In 1937 the Legislature abolished the twenty word short title prepared by the initiative proponents and replaced it with a 100-word title prepared by the Attorney General. (See Epperson v. Jordan, supra, 12 Cal.2d at p. 65.) The Supreme Court in Epperson recognized that there is an enormous difference in the level of deference the courts should give to a title and summary prepared by initiative proponents and the title prepared by a disinterested party such as the county counsel.

The facts of Boyd and Clark are also completely inapposite to the facts of this case. The short titles considered in Boyd and Clark constituted an outright deception. The title in Boyd did not mention the word "tax" or the fact that the measure proposed an enormous gross receipts tax to pay all costs of government. The title in Clark only stated that certain taxes were repealed but failed to mention that a portion of the repealed taxes would be replaced with new taxes imposed on real property. Most importantly, unlike the title and summary at issue in this case, the short titles in Clark and Boyd were not accompanied by a longer summary that described the measures in greater detail.

6. THE COUNTY COUNSEL TITLE AND SUMMARY SUBSTANTIALLY COMPLIED WITH ELECTIONS CODE SECTION 9105 BY DESCRIBING THE CHIEF POINTS OF THE INITIATIVE AND BY DESCRIBING ALLOWABLE USES AT EL TORO IN THE SUMMARY.

The Title prepared by County Counsel fully discloses the chief purposes of the Initiative: to amend the General Plan to replace Measure A’s airport land use designations with non-aviation land use designations. To accomplish these chief purposes, as explained by the Summary, the Initiative amends the General Plan to authorize non-aviation, open space, nature preserve, and education/park compatible land uses at El Toro. The Summary references the essential provisions of the Initiative and alerts voters to the specific portions of El Toro that are affected by each land use overlay. (P.A., Tab 7, pp. 0375-0376.) The Summary goes beyond the requirements of Elections Code section 9105 to describe various other provisions from the Initiative. The uses allowed in the land use categories applied to El Toro are clearly and specifically set forth in the Summary. Thus, the Title and Summary provides a true and impartial statement of the "chief purposes and points" of the Initiative.

1. The Title and Summary Clearly Describes the Allowed Uses in the Education/Park Compatible Area.

The Superior Court identified only one alleged "defect" in the County Counsel’s title: County Counsel’s characterization of the uses allowed in the Education/Park Compatible area as "open space" uses.

The County Counsel title stated the following:

Ballot Title: Initiative to (1) amend the Orange County General Plan to designate unincorporated territory within the closed El Toro Marine Corps Air Station ("MCAS El Toro") for nature preserve, park and other open space uses, and (2) repeal the earlier initiative that designated much of the same area of MCAS El Toro for civil aviation uses.

(P.A., Tab 7, pp. 0375-0376.)

Immediately below this Title, the County Counsel’s Summary states the following:

Ballot Summary:
[T]his measure would . . . create two new categories – "Nature Preserve" and "Education/Park Compatible" – that would presently apply only to lands within MCAS El Toro.
This measure would designate unincorporated areas within MCAS El Toro for specified uses as follows:
. . .
Southern and southwestern areas would be designated for "education/park compatible" use. This could include educational uses and supporting research and development, including infrastructure improvements, health care facilities, child care facilities, transportation facilities, and housing, to support educational uses. Rail, bus and transit facilities would be permitted. Many of the recreational and cultural uses permitted in the "open space reserve" area also would be permitted in the "education/park compatible" area.

(P.A., Tab 7, pp. 0375-0376.)

Thus, the Summary portion of the Title and Summary clearly describes the uses allowed by the Initiative in the Education/Park Compatible area. Given this clear description, it is difficult to fathom how the Superior Court could conclude that the Initiative Title and Summary did not alert voters to the uses allowed in the "Education/Park Compatible" area.

The Superior Court focused on the phrase "open space" in the Title, without reference to the additional information provided by the Summary. First, even if it is correct to isolate the title from the summary, the Title itself relates the phrase "open space" to Orange County General Plan designations, and the phrase must be read in that context, and not as a mere abstraction.

Second, the statute does not support a reading of section 9105 that requires the title alone to independently achieve the purposes of the title and summary. The plain language of section 9105 indicates that the title and summary, considered together, describe the purpose of the initiative. Nothing in the language of section 9105 or its legislative history suggests that the obligation to describe the purpose of the initiative must be satisfied through the title alone.

There is no case law that holds that compliance with the "chief points" requirement must be satisfied on the basis of the title alone. If, in Amador Valley, the Proposition 13 title and summary complied with the law (despite its failure to describe the two-thirds vote requirement, the chief feature of the proposition), then the fact that the Title of the present initiative used a "short form" description of land uses, which were described in detail in the accompanying Summary, surely is not grounds to block the initiative process here. Likewise, if the Court of Appeal in Bailey v. County of El Dorado, supra, 162 Cal.App.3d 94, 100, held that the sufficiency of the Initiative title must be assessed in light of both the Initiative text and the educational effect of the electoral process, it is impossible to reasonably conclude that the sufficiency of the Title must be assessed without regard to the Summary that appears immediately beneath the Title.

The Superior Court erred by considering the Title only and by failing to consider the additional information provided in the Summary.

The Superior Court also indicated some discomfort with the idea that developed land uses can properly be called "open space." The Superior Court’s discomfort is unfounded.

The Initiative adds the Education/Park Compatible ("EPC") designation as an overlay category to the existing Open Space ("OS") category. The County Counsel’s Title and Summary properly describes this provision of the Initiative. The Title states that the Initiative amends the General Plan to designate El Toro for "nature preserve, park and other open space uses." This is precisely accurate. All of the uses for El Toro are set by the Initiative within the existing OS category of the General Plan. The Summary then details the uses allowed in each proposed designation, including the uses in the EPC category.

The Superior Court’s error is closely analogous to that overturned by the Court of Appeal in Bailey v. County of El Dorado, supra, Cal.App.3d 94, 100, where the court explained:

The [lower] court found that the electorate would be misled by the short title of the initiative: ‘An Ordinance Adopted by the Initiative Process to Require Permanent Buffer Zones Between Residential and Similar Uses and Mining Uses.’ However, by its terms the initiative provides for no more or less than is indicated in the short title: buffer zones between residential and rural-residential uses and mining uses. [Footnote omitted.] The fact that the buffer zones may be so extensive so as to, in practical effect, eliminate surface mining in the county does not render the short title to be so misleading as to require removal of the initiative from the ballot. In the body of the initiative, the extent of the buffer zones is clearly set forth. The electoral process will provide respondents ample opportunity to educate the public as to the practical effect of adoption of the initiative.

(Bailey v. County of El Dorado (1984) 162 Cal.App.3d 94, 100 [210 Cal.Rptr. 237])

Here, as in Bailey, the Title is accurate, and the additional explanation is present in both the Summary and the text of the Initiative. The Title and Summary properly described the proposed land uses at El Toro.

In any event, County Counsel’s characterization of the Education/Park Compatible uses as "other open space" is correct. The County (and thus the electorate) has the constitutional right to define land uses in the General Plan to fit local needs and circumstances. Local agencies and the voters have extremely broad discretion to determine the scope and content of the general plan. (DeVita v. County of Napa, supra, 9 Cal.4th at pp. 781-783, quoting, IT Corp. v. Solano County Bd. of Supervisors (1991) 1 Cal.4th 81, 89 [2 Cal.Rptr.2d 513] and Bownds v. City of Glendale (1980) 113 Cal.App.3d 875, 880 [170 Cal.Rptr. 342], emphasis added.) The term "open space" can properly encompass a variety of land uses.

The location of the EPC category as a special designation within the OS category is entirely consistent with the General Plan. The existing General Plan describes the Open Space category as "broad." (P.A., Tab 7, pp. 0384, 0429.) The existing General Plan provides that a variety of uses (similar to the uses authorized by the Initiative in the Education/Park Compatible area) qualify as open space uses under the General Plan:

Employment uses in conjunction with large open space areas if they are consistent with the open space character of the area. The intent is to create opportunities for low-intensity, high technology, industrial, research and development, office and educational uses and childcare facilities…

(P.A., Tab 7, pp. 0384, 0429, emphasis added].)

The uses allowed in the Education/Park Compatible area are similar to the current General Plan’s Open Space uses. This Court considered a similar General Plan designation in Fund for Environmental Defense v. County of Orange, supra, 204 Cal.App.3d 1538, 1554. In that case the Court held that a research park located in an undeveloped area was consistent with the "Research/Open Space Park" General Plan designation which allowed "a mixture of less intense industrial and long term open space uses." (Id.) Like the land use designation in Fund for Environmental Defense, the EPC designation is properly characterized as part of the Open Space category. County Counsel did not mislead by referring to open space uses in the Title.

Moreover, even if the Initiative did apply a "new" definition of open space (which Petitioners deny), the title , in isolation from the summary, is not required to explain the new definition. (Vandeleur v. Jordan (1938) 12 Cal.2d 71, 74-75 [82 P.2d 455] ["The fact that the title fails to indicate that certain terms … may be ‘new’ definitions, in no way detracts from the legal sufficiency of the title."].)

In any event, the petition signers have not been misled. County Counsel’s Summary details the land uses allowed in the EPC area:

Southern and southwestern areas would be designated for "education/park compatible" use. This could include educational uses and supporting research and development, including infrastructure improvements, health care facilities, child care facilities, transportation facilities, and housing, to support educational uses. Rail, bus and transit facilities would be permitted. Many of the recreational and cultural uses permitted in the "open space reserve" area also would be permitted in the "education/park compatible" area.

(P.A., Tab 7, pp. 0384, 0429.)

2. The Title and Summary Is Not Required to Include a Comparison Between the Existing General Plan and the Initiative. In Any Event, the Title and Summary Provides This Comparison.

The Superior Court, pursuing its use of the inapplicable "real estate/medical" standard, also suggested that the Title and Summary is required to compare the land uses in the Initiative against the land uses authorized by the existing General Plan. The statute does not require any such comparison. The title and summary prepared under Elections Code section 9105 is not designed to be a detailed analysis of an initiative. It must only describe the initiative’s "chief purposes."

The Superior Court’s conclusion is flatly incompatible with the purpose and structure of the title and summary provisions of the Elections Code. The title and summary may not exceed 500 words. (Elec. Code, § 9105, subd. (a).) Other provisions of the Elections Code ensure that the voters have an opportunity to be educated about the impact of the Initiative on the existing General Plan. (Elec. Code, § 9111 [report on impact of initiative]; Elec. Code, § 9160, subd. (c) [county auditor impact report]; Elec. Code, §§ 9161-9167 [ballot arguments].) There "is ample opportunity for the electorate to educate itself about the measure before a final decision is made." (Planning and Conservation League v. Lungren, supra, 38 Cal.App.4th at p. 509.) This is particularly the case here since there is already a vigorous public debate over the merits of the competing Central Park and airport plans for El Toro. (P.A., Tab 7, 0385, 0527.)

In any event, the County Counsel fairly described the treatment of El Toro in the existing General Plan. The Title states:

The Initiative repeals "the earlier initiative that designated much of the same area of MCAS El Toro for civil aviation uses."

(P.A., Tab 7, 0375-0376, emphasis added.)

By stating that Measure A designated "much" of El Toro for civil aviation uses, the Title and Summary disclose that the existing General Plan does not designate "all" of El Toro for aviation uses.

Even Real Parties admitted that Measure A restricts two-thirds of El Toro to airport-only uses. (P.A., Tab 3, pp. 0051-0052 Pets’. Memorandum, pp. 2-3 ["El Toro comprises . . . . 4,000 acres [of] unincorporated county lands. [M]easure A . . . created . . . the ‘El Toro Airport Planning Area,’ of approximately 2,600-2,700 acres . . . ."].) By any measure, 66% of El Toro is "much" of El Toro. The County Counsel’s characterization of the existing General Plan is not misleading.

The Superior Court, however, apparently relied on extraneous information not before the Court to assert that the existing General Plan designated 2,000 acres of parks at El Toro. (Robert D. Thornton, Decl., ¶9.) The Superior Court’s factual assertions are demonstrably erroneous. Measure A designated two-thirds of El Toro as an "Airport Planning Area." Lands in the Airport Planning Area are limited to "airport purposes." (P.A., Tab 7, pp. 0384, 0445 [General Plan, p. III-34].) Measure A requires that "[a]ny redesignation or land use…for El Toro lands outside the…Airport Planning Area shall be approved only upon a finding…that the uses authorized are compatible with the use of" El Toro for airport purposes. (P.A., Tab 7, 0384, 0443-0445 [General Plan, pp. III-32, III-34], emphasis added.) Thus, even though the General Plan identifies approximately one-fifth of El Toro as a "Proposed Regional Recreation Facility," Measure A clearly provides that the use of this area as a recreational facility is only allowed if such uses are found to be compatible with the use of El Toro as an airport.

The Superior Court’s reference to 2,000 acres of parks at El Toro may have been based on the County’s Reuse Plan. This Plan, however, is not part of the officially-adopted General Plan. In any event, the County is now in the process of revising the Reuse Plan. (P.A., Tab 7, pp. 0380-0382.)

The Superior Court’s erroneous factual assertions and reliance on extraneous information constitute an abuse of discretion. (Planning and Conservation League v. Lungren, supra, 38 Cal.App.4th at p. 509 [reversing trial court for considering extraneous material in challenge to title and summary].)

3. The Other Arguments Raised by the Initiative Opponents Below Are Equally Unavailing.

Real Parties, petitioners below, made several other claims regarding the sufficiency of County Counsel’s Title and Summary. The Superior Court did not base its decision on these other claims and limited its ruling to the alleged defects in the Title discussed above. The other claims by Real Parties, petitioners below, are equally unavailing. These arguments are discussed in detail in the trial court briefing. (See, P.A., tab 7, pp. 0364-0370.) For the Court’s convenience, responses to these other claims are briefly summarized below.

1. County Counsel Is Not Required To Address Funding Issues.

The County Counsel has no obligation to include the issue of funding in the Title and Summary. The voters are alerted to the fiscal impacts of initiatives through several other mechanisms in the Elections Code. For example, the voters will be alerted to any physical impacts of an initiative in the separate analysis prepared by the County Auditor included in the ballot materials. (Elec. Code, § 9160, subd. (c).)

2. The Initiative’s Amendment of the Open Space Reserve Overlay Does Not "Weaken" the Open Space Designations in the General Plan.

The Initiative does not change permitted land uses for any area other than El Toro. The Initiative amends the land use element of the General Plan to designate a portion of El Toro as Open Space Reserve (OSR). Within the OSR portion of El Toro, the Initiative describes the permitted uses including cultural and recreational uses, such as museums and libraries. While other portions of the County are covered by the OSR designation, none of these areas is affected by the Initiative because the allowable uses and all of these other areas are specifically limited by the General Plan. The Initiative does not modify any of the specific General Plan provisions applicable to other OSR areas.

3. Interim Uses at El Toro Are Clearly Described in the Title and Summary.

County Counsel’s Title and Summary is explicit with regard to the Initiative’s provisions regarding interim use of facilities at El Toro. The Summary prepared by County Counsel discloses to petition signers that the Initiative allows interim uses on El Toro pending park-compatible development, and specifically lists the interim uses that the Initiative authorizes.

7. THE SUPERIOR COURT’S DRACONIAN REMEDY IS COMPLETELY INAPPROPRIATE. NO PREVIOUS CASE HAS GRANTED THE REMEDY GRANTED BY THE SUPERIOR COURT’S WRIT.

The Superior Court’s ruling precludes the Registrar of Voters from accepting for filing any Initiative petitions containing the Title and Summary. The decision essentially annuls the Initiative process, nullifies the 129,000 signatures obtained to date, and prevents the Orange County voters from exercising their constitutional rights on the most important land use and quality-of-life issue in the County.

The Superior Court’s draconian remedy is inconsistent with the obligation of the courts to "jealously guard this right of the people." (Livermore, supra, 18 Cal.3d at p. 591, quoting Martin v. Smith (1959) 176 Cal.App.2d 115, 117 [1 Cal.Rptr. 307].)

The Superior Court ignored well-established precedent that courts should fashion remedies in initiative cases to preserve the voters’ constitutional rights. If the Court finds that the Title and Summary are not in substantial compliance with the "chief purposes and points" requirement, the appropriate remedy is to direct the County Counsel to address any shortcomings in the separate title and summary prepared by County Counsel as part of the election materials. (See, Elec. Code, § 9160.) This is precisely the relief provided in the very rare instances where trial courts found some fault with the title and summary. (See, e.g., Amador Valley, supra, 22 Cal.3d at pp. 242-243 [amended ballot title and summary regarding Proposition 13 incorporated into the voters pamphlet].)

8. CONCLUSION.

On August ___, 2001, I served the foregoing document(s) described as PETITION FOR WRIT OF MANDATE; MEMORANDUM OF POINTS AND AUTHORITIES; UPPORTING DECLARATIONSon interested parties in this action by placing ( ) the original (X) a true copy thereof enclosed in a sealed envelope as follows: