The Campbell city clerk acted properly in rejecting portions of a referendum petition it sought to place a major development project on the ballot, the Sixth District Court of Appeal has ruled.
The case emerged from the city's decision last December to change the land-use designation on a parcel of land commonly known as the "Winchester Drive-In Site" to permit development of a research park proposed by WTA Technology Park, a developer. The city council voted to change 20 of the 24 acres to business park designation, while changing the remaining four acres from commercial to public open space. In January, a group of local citizens opposed to the new project submitted petitions containing some 3,000 signatures seeking to place the Winchester Drive-In decision on the ballot as a referendum. The signatures were contained on 203 separate "sections" of the petition.
However, the sections were not consistently worded. In 179 of the 203 sections, the words "of four acres" (referring to the public open space portion of the project) were left off of the petition's recitation of the official title of the ordinance. These words were included in the remaining 24 sections of the petition. City Clerk Ann Bybee concluded that the 179 sections were defective and rejected the petitions even though they apparently contained enough valid signatures to qualify for the ballot.
The local citizens sued, seeking a writ of mandate ordering the city clerk to accept and certify all the sections. Santa Clara County Superior Court Judge John Herlihy directed the city clerk to accept the 24 valid sections and reject the 179 defective ones. This left the citizens with only 334 valid signatures - far short of the 1,901 required to qualify for the ballot. The citizens then appealed, making three arguments associated with Elections Code §9238, which governs the question of defective signature petitions.
The citizens argued that the petitions were valid because they contained the ordinance number as well as the defective ordinance title; because the petitions met the "substantial compliance" test even with the defective title; and because the trial court assumed "voter confusion" existed when there was no evidence of it.
The court rejected the citizens' argument on all three fronts. Regarding the notion that the petitions technically complied with the statutes because they contained the ordinance number, the appellate court agreed that the Elections Code requires that petitions include either number of title. But, the court said, "this does not mean that they were free to include an inaccurate title. ... By choosing to include both the number and title of the Ordinance, appellants had a duty to provide both of them correctly to the voters who would rely on the accuracy of the materials presented."
Regarding the substantial compliance argument, the citizens argued that the incomplete title "did not frustrate the purpose" of the Elections Code. But the court disagreed with this argument as well, suggesting that in the absence of the four-acre information, voters could read the title of the ordinance some five different ways. (The title of the ordinance also included the 19.58-acre designation of the remainder of the site.)
Finally, the citizens who appealed the city clerk's decision argued: "There could be no confusion in the minds of persons asked to sign the petition as to its purpose, namely, to rescind the industrial designation of the Drive-In property." But the court did not accept this argument either. "Here," the court concluded, "evidence of actual voter confusion was not necessary to the court's determination that the misstated title failed to satisfy the reasonable objectives of the statute."
The Case:
Hebard v. Bybee, No. H018240, 98 Daily Journal D.A.R. 8458 (filed August 3, 1998).
The Lawyers:
For Hebard and other citizens: Harry A. Oberhelman III, (408) 425-2041.
For Bybee and City of Campbell: William R. Seligmann, Dempster, Siligmann & Raineri, (408) 399-7766.
For WTA Technology Park LLC (Real Party In Interest): Myron L. Brody, Rosenblum Parish & Isaacs, (408) 977-0120
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