Preserve Shorecliff Homeowners v. City of San Clemente
On April 30, 2008, attorneys for "San Clemente Residents for Responsible Government" (SCRRG), filed a motion in California Superior Court seeking recovery of attorney fees in the amount of $116,434.45. The motion will be heard on June 10. SCRRG is the group sponsoring the San Clemente Shorecliffs Building Height and View Referendum. The motion asks that the attorney fees be paid by "Preserve Shorecliffs Homeowners", which is the group that unsuccessfully contested the signatures filed to qualify Measure I for the ballot.
The parts of California election code determined by both the lower and the upper court to be unconstitutional were Sections 9209 and 9238. These sections require petition circulators who are circulating city-wide veto referendum petitions to be residents of the city in which they are circulating the petition.
The appellate court found that under "Buckley v. ACLF", these California election code sections are an impermissible restriction on the pool of available petition circulators. These parts of the code are now nullified as unconstitutional, and the city ordinance that was the subject of the referendum attempt may now proceed to a vote.
The San Clemente Shorecliffs Building Height and View Referendum subsequently was on the June 3, 2008 ballot in Orange County.
Background to the decision
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In July 2006, the San Clemente City Council enacted a new city ordinance that prohibited homeowners in the part of San Clemente known as "Shorecliffs" from adding second-story additions to their homes. In California cities, residents have the right of veto referendum when they object to a newly enacted law. By collecting the signatures of 10% of the residents of the city, those who object to a law newly-enacted by a city council can force it to a vote of the people.
A pro-referendum group--that is, a group that objected to the newly-enacted city ordinance forbidding second-story additions--came together, calling itself "San Clemente Residents for Responsible Government." This group hired a professional petition drive management company called Monster Petition to collect the required 3,727 signatures. Ultimately, over 3,900 signatures were collected.
According to statewide California election code (sections 9209 and 9238), when signatures are collected on a city-wide veto referendum, the people who circulate the petition must be either be "a voter or ... qualified to register as a voter of the city" where the circulator is collecting signatures.
The paid circulators of the referendum petition seeking to nullify the Shorecliffs ordinance, when they collected their signatures, asked each person who signed the petition to also separately sign the "Declaration of Circulator" portion of the petition. In effect, by having residents of San Clemente sign both the petition and the "Declaration of Circulator" portion of the petition, the pro-referendum supporters sought to render irrelevant the fact that the people who asked residents of San Clemente to sign both forms were not, themselves, residents of San Clemente.
Once the signatures were filed, the supporters of the city ordinance--a group known as "Preserve Shorecliff Homeowners"--filed an action with the City Clerk of San Clemente, seeking to have the referendum certified as insufficient, so that it could not appear on a city ballot for a vote of the people.
Evidence presented during the hearing
The case was heard in February 2007. During the hearing, the pro-referendum group presented evidence that it had become the practice of city clerks in California to accept and count as valid those signatures where a resident of the town signed both as a voter and as a circulation, by signing the "Declaration of Circulator" form--in effect, witnessing their own signatures.
The trial judge ruled that the process of petition signers witnessing their own signatures violated California election code section 9238. However, the trial judge also found that if the Election Code had, indeed, been violated, disqualification of the petition was not "the proper remedy." If there were sufficient signatures on the petition of qualified San Clemente residents and voters, then the petition should be regarded as sufficient and able to proceed to a vote even if the election code pertaining to residency of petition circulators had been violated.
In May 2007, the trial judge declared that the petition for the referendum was legally valid and sufficient, and should proceed to be placed on a city-wide San Clemente ballot for a vote of the people.
The anti-referendum group then filed an appeal with the California Court of Appeal and on January 16, 2008, the court of appeals ruled against these plaintiffs and upheld the original decision of the trial judge.
- Complete text of the decision
- David Sills, presiding judge in Preserve Shorecliff Homeowners v. City of San Clemente