San Francisco Forty-Niners v. Nishioka

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San Francisco Forty-Niners v. Nishioka
Seal of California.svg.png
Court:California Courts of Appeal
Text:Text of decision
A ballot initiative can be removed from the ballot before an election if the petition that was circulated to qualify the initiative contained false or misleading information.
Case history
Filed:June 9, 1998
Trial court:Superior Court of San Francisco
Trial court judge:Raymond D. Williamson, Jr.
Appellate court:California Courts of Appeal
Author:James Marchiano
Appellate decision:October 6, 1999
San Francisco Forty-Niners v. Nishioka is a legal decision reached by the California Court of Appeals in 1999 that disallowed a San Francisco initiative from appearing on the ballot. The court's reasoning was that the petitions that were circulated to qualify the initiative for the ballot contained misleading and false information. The plaintiff was the San Francisco Forty-Niners, a professional football team, and the defendant was Naomi Nishioka, the Acting Director of the San Francisco Board of Elections.


Naomi Nishioka, who was at the time the Acting Director of the San Francisco Board of Elections, received signed petitions requesting that an initiative be placed on the city's ballot. The signatures had been collected by a group led by Douglas Comstock. Comstock and his allies, Joel Ventresca and Barbara Meskunas, circulated petitions the intent of which was to repeal two propositions that the city's voters had approved in June 1997.

Approved ballot language

The approved ballot title and summary for the petition said:

"Repeal of Stadium Bond and Land Use Approvals
"Proposition D, adopted by the voters at the June 3, 1997 special election, authorizes the City to use lease financing to borrow up to $100 million to build a stadium at Candlestick Point.
"Proposition F, adopted by the voters at the June 3, 1997 special election, authorizes the City to enter into a lease of park lands at Candlestick Point for non-recreational purposes. Proposition F also changed various City laws relating to zoning and land uses so that a new stadium and an entertainment and shopping center may be built at Candlestick Point.
"This measure is an ordinance that would repeal Proposition D. This measure would also repeal the portions of Proposition F that changed the City’s zoning and land use laws."

Petition design

The circulated petition was printed as a 4-page flyer; its dimensions were 10x14.5 inches. The city attorney's ballot title and summary were printed on the inside right-hand page of the flyer, along with the full text of the initiative.

The front page of the petition was headed "Stop the Mall/Save the Park" in one-inch white type on a magenta background. According to the court's ruling:

Beneath that heading, in black half-inch and quarter-inch type, respectively, are subheadings "We can overturn the Stadium Swindle" and "Why San Franciscans Want to Save Candlestick Park." Beneath these headings and subheadings, the five numbered paragraphs of the notice of intention are reprinted verbatim in larger, and more readable, type than that on the inside page of the petition. Beneath the reprinted notice of intention is a half-page of political argument, closing with the exhortation, in black half-inch block capitals, "Please Sign the Petition." The format is such that anyone signing the petition would do so after reading the notice of intention information.

"Statement of intention"

A "statement of intention" also appeared in the 4-page booklet.

It said:

"Notice is hereby given by the persons whose names appear hereon of their intention to circulate the petition within the City of San Francisco for the purpose of rescinding the vote on Propositions D & F at the special election of June 3, 1997.
(1) The June 3, 1997 special election on Propositions D and F was fundamentally flawed, and resulted in a denial of the secrecy of the ballot for all San Francisco voters, and was further marred by numerous instances of electioneering and campaigning using municipal funds, and early, secret polling places opened with federal funds in areas thought to favor Yes on D and F.
(2) The election calls into question the relationship of the nonpartisan Department of Elections and the Office of the Mayor and his agents, whose agendas were to pass Propositions D and F regardless of appearance or fairness. This was compounded by questionable financial transactions, including campaign contributions and expenditures to elected and appointed officials with oversight of the election and the related investigation and possible cover-up.
(3) Legal issues surrounding the 2/3 majority required by Proposition 218 for the passage of bonds remain unresolved.
(4) The funding of the stadium/shopping mall was not truthfully presented to the voters and taxpayers of the City and County of San Francisco. Real cost estimates far exceed the $100 million, exclusive of interest, which the Mayor and proponents of Propositions D and F insisted would be the ’upper limit.’
(5) The integrity of San Francisco elections must be paramount. Confidence in the process and its outcome must be restored. Therefore, this [75 Cal.App.4th 642] measure would repeal Propositions D and F and require a future election on any proposal to site, re-site, or re-fund, a stadium/mall or any other stadium development in the City and County of San Francisco and would return Candlestick Point Park to its previous and appropriate park land use."

Lawsuit is initiated

The San Francisco Forty-Niners, once they learned of the form of the initiative petition that was being circulated, went to the Superior Court of San Francisco with a request that the court issue a writ of mandate to prevent city election officials from certifying the measure for the ballot, on the grounds that it contained false and misleading information.

Comstock, et al, filed a brief saying that the information in the petition was not false or misleading.

The Superior Court, however, sided with the Forty-Niners, writing, "This particular initiative has within it statements that are flat-out untrue, and are not denied by those people that have submitted it; or if they do deny them, they certainly didn’t bother to do so in the course of this proceeding" and that the initiative petition "contains false and misleading statements of fact" which "have been deliberately made by [appellants] ... to mislead the electors and to induce electors to sign [the] Initiative Petition."


Nielsen, Merksamer, Parrinello, Mueller & Naylor served as the attorneys for the San Francisco Forty-Niners.

External links