HomeMy WebLinkAboutMarch 2, 2004 - Accept the Certificate as to Verification of CITY OF HUNTINGTON BEACh
MEETING DATE: August 5, 2002 DEPARTMENT ID NUMBER: CK2002-6
Council/Agency Meeting Held: 06-05- a2
Deferred/Continued to:
*Approved ❑ Conditionally Approved ❑ Denied P City Clerk ignature
Council Meeting Date: August 5, 2002 Department ID Number: CK2002-6
CITY OF HUNTINGTON BEACH
REQUEST FOR COUNCIL ACTION
SUBMITTED TO: HONORABLE MAYOR AND CITY COUNCIL MEMBERS
SUBMITTED BY: Connie Brockway, City Clerk �� Y
PREPARED BY: Connie Brockway, City Clerk C-
SUBJECT: Accept the Certificate as to Verification of Signatures on Petition to
Amend Sections 300 and 704 of, and Add Sections 314, 315, 316,
317, 318 and 319 to the City Charter Relative to Decreasing the
Number of Elected Council Members from 7 to 5, Electing Council
Members by District Instead of as Currently by At-Large and Imposing
a Two Term Limit on Council Members Instead of the Current Two
Consecutive Term Limit.
Statement of Issue,Funding Source,Recommended Action,Alternative Action(s),Analysis,Environmental Status,Attachment(s)
Statement of Issue: The above referenced petition to amend the City Charter initiated by
Scott Baugh, proponent, has been examined by the Orange County Registrar of Voters and
found to have sufficient number of valid signatures of registered voters to qualify for
placement on the ballot at an election date to be determined by the City Council. Pursuant to
Elections Code S. 9114 the City Clerk is certifying to the City Council the results of the
County Registrar of Voters examination of said petition.
Funding Source: General Fund - Elections
Recommended Action: Motion: To accept Certificate as to Verification of Signatures on
Petition dated July 16, 2002 as provided by the County Registrar of Voters to the City Clerk.
Alternative Action(s): Not Applicable. 3
-a,
G:\RCA'S\2002rca\ck2002-6 verif of signatures-districts.DOT 7/19/2002 11:53 AM
RcQUEST FOR COUNCIL ACTIuN
MEETING DATE: August 5, 2002 DEPARTMENT ID NUMBER: CK2002-6
Analysis: On March 28, 2002 Scott Baugh, proponent, filed a Notice of Intent to Circulate
Petition on April 12, 2002. Mr. Baugh was provided a Ballot Title and Summary prepared by
the Office of the City Attorney. On May 2, 2002 the proponent, Mr. Baugh, published said
Notice, Ballot Title and Summary in The WAVE newspaper and commenced circulation of the
petition. On June 17, 2002 the petition was filed in the Office of the City Clerk for verification
of signatures. The County Registrar of Voters completed the signature verification on
July 16, 2002.
To qualify, a petition to amend the City Charter must have at least fifteen percent (15%) of
the 108,188 registered voters as last reported by the Registrar of Voters to the Secretary of
State — (16,228 signatures). The raw count of signatures was 22,064 (621 signatures not
checked).
Number of signatures examined: 21,443
Number of signatures verified: 16, 768
Number of signatures found invalid: 4,675
Number of signatures found invalid
because of being duplicates 334
Environmental Status: Not Applicable.
Attachmenys):
City Cleek's,
Page Number . 06 . s
1. County Registrar of Voters Certificate as to Verification of Signatures
on Petition
2. Elections Code Section 9114
RCA Author: C. Brockway x5404
G:\RCA'S\2002rca\ck2002-6 verif of signatures-districts.DOT-3- 7/26/2002 8:14 AM
z
w-
3•:
CERTIFICATE AS TO VERIFICA o AON
OF SIGNATURES ON PETITION
State of California)
)ss.
County of Orange)
I, Rosalyn Lever, Registar of Voters of the County of Orange, do hereby
certify that I am the county officer having charge of the registration of voters in
the County of Orange, and I have examined, or caused to be examined, the
attached petition submitted to the City of Huntington Beach entitled "Proposed
Amendment to the Charter of the City of Huntington Beach".
I further certify that from said examination I have determined the following
facts regarding this document:
Number of signatures examined: 21,443
Number of signatures verified: 16,768
Number of signatures found invalid: 4,675
Number of signatures found invalid
because of being duplicates 334
WITNESS my hand and Official Seal this 16th day of July, 2002.
.. ice.
® ROSALYN LEVER
REGISTRAR OF VOTERS
Orange County
ATTACHMENT #2
9111. DIVISION 9.MEASURES SUBMITTED TO THE VOTERS
ciency of the petition.
(Amended by Stats.2000,c.496,§I.)
9112. Report on county initiatives submitted to Secretary of State;time.
On or before April 1 of each odd-numbered year,the county elections
official of each county shall file a report with the Secretary of State containing
the following information:
(a)The number of county initiative petitions circulated during the pre-
ceding two calendar years that did not qualify for the ballot,and the number
of these proposed initiatives for which reports were prepared pursuant to
Section 9111.
(b)With respect to county initiative measures that qualified for the ballot
in the preceding two calendar years,the number that were approved by the
voters,and the number of these ballot measures for which reports were pre-
pared pursuant to Section 9111.
(c)With respect to county initiative measures that qualified for the ballot
in the preceding two calendar years,the number which were not approved
by the voters, and the number of these ballot measures for which reports
were prepared pursuant to Section 9111.
(Added by Stats.1994,c.920,§2.)
9113. Filing of petition.
The petition shall be filed by the proponents,or by any person or persons
authorized in writing by the proponents.All sections of the petition shall be
filed at one time.Any sections of the petition not so filed shall be void for all
purposes.Once filed,no petition section shall be amended except by order of
a court of competent jurisdiction.
When the petition is filed,the county elections official shall determine
the total number of signatures affixed to the petition.If,from this examina-
tion,the county elections official determines that the number of signatures,
prima facie, equals or is in excess of the minimum number of signatures
required, the county elections official shall examine the petition in accor-
dance with Section 9114 or 9115.If,from this examination,the county elec-
tions official determines that the number of signatures,prima facie,does not
equal or exceed the minimum number of signatures required,no further
action shall be taken.
(Added by Stats.1994,c.920,§2.)
_---�--� 9114. Examination of signatures.
Except as provided in Section 9115,within 30 days from the date of filing
of the petition, excluding Saturdays, Sundays, and holidays, the elections
official shall examine the petition,and from the records of registration ascer-
tain whether or not the petition is signed by the requisite number of voters.A
certificate showing the results of this examination shall be attached to the
petition.
In determining the number of valid signatures,the elections official may
use the duplicate file of affidavits maintained,or may check the signatures
against facsimiles of voters'signatures,provided that the method of prepar-
ing and displaying the facsimiles complies with law.
The elections official shall notify the proponents of the petition as to the
sufficiency or insufficiency of the petition.
If the petition is found insufficient,no further action shall be taken.How-
ever,the failure to secure sufficient signatures,shall not preclude the filing of
2002 240
® ROSALYN LEVER
Registrar of Voters
c Mailing Address:
P.O. Box 11298
Santa Ana, California 92711
•
REGISTRATION & ELECTIONS DEPARTMENT
1300 South Grand Avenue, Bldg. C
Santa Ana, California 92705
(714) 567-7600
TDD (714) 567-7608
FAX (714) 567-7627
www.oc.ca.gov/election
July16, 2002
Connie Brockway
City Clerk
City of Huntington Beach
P.O. Box 190/2000 Main St.
Huntington Beach, CA 92648
Dear Ms. Brockway:
Enclosed please find the Certificate as to Verification of Signatures for the
petition "Amendment to the Charter of the City of Huntington Beach".
If you need any further information, please feel free to contact me at (714) 567-
7568.
Very truly yours,
Marc aNielsen
Front ice Supervis
County of Orange
Enc:
RCA ROUTING SHEET
INITIATING DEPARTMENT: City Clerk's Office
SUBJECT: Accept the Certificate as to Verification of Signatures
on Petition to Amend Sections 300 and 704 of ,
and Add Sections 314, 315, 316, 317, 318 and 319
to the City Charter
COUNCIL MEETING DATE: August 5, 2002
RCA ATTACHMENTS STATUS
Ordinance (w/exhibits & legislative draft if applicable) Not Applicable
Resolution (w/exhibits & legislative draft if applicable) Not Applicable
Tract Map, Location Map and/or other Exhibits Not Applicable
Contract/Agreement (w/exhibits if applicable)
Signed in full by the CityAttorne Not Applicable
Subleases, Third Party Agreements, etc.
(Approved as to form by City Attorney) Not Applicable
Certificates of Insurance (Approved by the City Attorney) Not Applicable
Financial Impact Statement Unbudget, over$5,000 Not Applicable
Bonds (If applicable) Not Applicable
Staff Report (If applicable) Not Applicable
Commission, Board or Committee Report (if applicable) Not Applicable
Findings/Conditions for Approval and/or Denial Not Applicable
EXPLANATION FOR MISSING ATTACHMENTS
REVIEWED RETURNED FORWARDED
Administrative Staff ( ) ( )
Assistant City Administrator Initial
City Administrator Initial
City Clerk ( )
EXPLANATION FOR RETURN OF ITEM:
(Below Space:For City Clerks Use •
RCA Author: C. Brockway x5404
Aug-05-02 01 : 27P Vic Leipzig 714 848-5394 P.01
(ow"ou
G. Victor Leipig, Ph.D.
17461 Skyline Lane
Huntington Beach, CA 92647
(714) 848-5394 (Phone/FAX)
vicleipzig@aol.com
August 5, 2002
Mayor Debbie Cook
City of Huntington Beach
C-1
Dear Mayor Cook:
Under Item F-3 on tonight's agenda, the Council will consider various dates on which to
hold the election regarding a proposed charter amendment.
I encourage the Council to select a date far enough in the future to allow significant
public debate on this important issue.
Proponents of the amendment had successfully raised thousands of dollars toward its
passage. Opponents will need to work very hard to raise the kinds of funds necessary to
mount a meaningful public response.
According to the legal analysis included in your packet tonight,there are significant legal
flaws with the proposed amendment. I encourage the Council to direct the City
Attorney's office to conduct a thorough legal analysis of the amendment and make this
analysis public prior to whatever date is selected for the election.
I believe that dividing our community into political districts will result in a destructive
political process with a loss of focus on the well-being of the city as a whole.
My thanks to you and to all the Councilmembers for your dedicated service to our city.
Sincerely,
Victor Leipzig
m mw(cATm o
GINO J. BRUNO
6571 Montoya Circle
Huntington Beach, California 92647
714.847.1785
gbruno@socal.rr.com
August 5, 2002 _
N
Debbie Cook, Mayor
City Councilmembers
CITY OF HUNTINGTON BEACH -
2000 Main Street Jv,
Huntington Beach, CA 92648
Via_ E-Mail c'
RE: Agenda Items F-3, et seq.
Honorable Mayor and Councilmembers:
I am a 16-year resident of Huntington Beach, and a semi-retired lawyer. I have
serious concerns with the initiative that is the subject of Item F-3 on tonight's
agenda.
I would urge that the Council take appropriate action to determine whether the
initiative complies with the law before setting an election date. The initiative
should be carefully analyzed from a legal perspective, before it is placed on the
ballot.
I am especially concerned that the initiative fails to comply with the "single-
subject rule" required under article II, section 8, subdivision (d) of our California
Constitution. It reads simply:
(d) An initiative measure embracing more than one subject may not be
submitted to the electors or have any effect.
This initiative has at least three broad, and unrelated concepts: (i) should the
number of councilmembers be reduced from seven to five; (ii) should
councilmembers be elected from districts rather than at-large; and (iii) should the
provisions relative to term limits for the councilmembers be changed.
Each of these questions has arguments for and against, and each should be
entitled to independent voting by the electorate.
Debbie Cook, Mayor; City �,juncilmembers
RE: Items F-3, et seq.,Agenda of August 5, 2002
August 5, 2002
Page 2
The rationale for the "single-subject" rule is logical and clear, and can be
illustrated by the following: suppose a voter favors districting, but does not favor
reducing the number of council members from seven to five. How should he or
she vote?
Or suppose a voter favors limiting the number of years a councilmember may
serve in his or her lifetime, but does not favor districting, nor reducing the number
from seven to five. How should he or she vote?
In Chemical Specialties Manufacturers Assn. v. Deukmejian (1991) 227 CAM
663 the appellate court drew on the logic expressed by the California Supreme
Court, and said:
Our Supreme Court has stated that an initiative measure complies with
the single-subject rule only "if its provisions are either functionally related
to one another or are reasonably germane to one another or the objects
of the enactment." (Harbor v. Deukmejian (1987) 43 Cal.3d 1078, 1100
[240 Cal.Rptr. 569, 742 P.2d 1290]; see also Brosnahan v. Brown, supra,
32 Cal.3d at pp. 245, 247.) Whether an initiative satisfies this standard
may be determined by the extent to which its provisions are germane to
the general subject as reflected in the title and the field of legislation
suggested thereby. (California Trial Lawyers Assn. v. Eu (1988) 200
CAM 351, 358 [245 Cal.Rptr. 916] [hereafter CTLA], citing Perry v.
Jordan (1949) 34 Cal.2d 87, 93 [207 P.2d 47], and Fair Political Practices
Com. v. Superior Court (1979) 25 Cal.3d 33, 38 [157 Cal.Rptr. 855, 599
P.2d 46]; see also Brosnahan v. Brown, supra, 32 Cal.3d at pp. 246,
247.)
In Harbor v. Deukmejian, supra, the California Supreme Court said:
The single subject rule as applied to the initiative has the dual purpose of
avoiding logrolling and voter confusion. (Amador Valley Joint Union High
Sch. Dist. v. State Bd. of Equalization (1978) 22 Cal.3d 208, 231 [149
Cal.Rptr. 239, 583 P.2d 1281].) . . . . In a statement which is important to
the resolution of the issue before us, the majority observed that
proponents of initiative measures do not have "blank checks to draft
measures containing unduly diverse or extensive provisions bearing no
reasonable relationship to each other or to the general object which is
sought to be promoted. The single subject rule indeed is a constitutional
safeguard adopted to protect against multifaceted measures of undue
scope. For example, the rule obviously forbids joining disparate
provisions which appear germane only to topics of excessive generality
such as 'government' or 'public welfare."' . . . . [A]II seven justices agreed
that subjects of "excessive generality" would violate the purpose and
intent of the single subject rule.
Debbie Cook, Mayor; City -juncilmembers
RE: Items F-3, et seq.,Agenda of August 5, 2002
August 5, 2002
Page 3
In my view, each of these three concepts, (i) reduction in the number of
councilmembers, (ii) district versus at-large elections, and (iii) term-limit changes,
are separate and distinct, are disparate concepts, are not functionally related, are
not "germane" one to the other, and thus violate the "single-subject' rule
statutorily required of all initiatives.
I thus urge that you refer this initiative to counsel qualified to analyze and
measure its propriety under the law. Or, that you consider filing an action in
declaratory relief to ensure that this initiative and this initiative process comports
with the law.
It seems to me cheaper to investigate now, rather than defend later.
Thank you.
Very truly yours,
Gino J. Bruno
Gino J. Bruno
GJB:s
cowoL,
CAM.
Mark W. Bucher
ATTORNEY AT LAW
Via Fax
August 5, 2002
Mayor Cook and City Councilmembers
City of Huntington Beach
2000 Main Street, 2nd Floor
Huntington Beach, CA 92648
Re: Agenda Item F-3 and John Erskine Letter Dated July 31, 2002
Dear Mayor Cook and City Councilmembers:
I am an election law attorney representing the Huntington Beach F.A.I.R.
Districts Charter Amendment Committee. Yesterday I received a copy of a letter dated
July 31, 2002, authored by John Erskine purporting to explain substantive election law to
the City Council. Mr. Erskine claims to represent a committee formed to oppose the
F.A.T.R. Districts Charter Amendment. My understanding is that this committee was
formed at the leading and direction of Councilmember Ralph Bauer.
With regard to the Erskine letter, I would not normally respond to a letter that is
so self-serving and presented by a land use attorney who regularly lobbies the City of
Huntington Beach for development projects. Nonetheless, the letter is placed
prominently on your agenda as if it should have more weight than is otherwise due. The
VA.I.R. committee was concerned that silence on the content of the letter could be
construed as an admission somehow that his letter contains any substantive accuracy with
respect to election law.
The Erskine letter and the motives of the group he represents are really quite
transparent. Councilman Bauer is the leader of this group and he has engaged in every
effort to derail the proposed charter amendment, starting with a motion to the City
Council in April of this year to create a committee to oppose the measure. With the
letter, the group is engaging in political opposition to the charter amendment and
masquerading that opposition as a substantive legal opinion. The letter, however., is a
sham designed to mislead the City Council, create litigation, and achieve their goal of
denying the voters in Huntington Beach the opportunity to vote on the proposed charter
amendment on November 5, 2002. 1 trust that you will not succumb to these political
tactics by denying the voters an opportunity to vote on the proposed charter amendment
on November 5, 2002,
�q� CD M tAV,N[C41(:)N
18001 Irvine Blvd., Ste 105 a Tustin,CA 92780
Voice- (714)573-2201 * Facsmile,(714)573-2295 F
i
Email: markb@cniployers-resource.com
You should also know that I drafted the language that was submitted to the City
Clerk.regarding the petition referenced in Agenda Item F-3 and am therefore uniquely
qualified to address the assumptions, patchwork of guessing, and erroneous legal analysis
by Mr. Erskine. Each item raised in Mr. Erskine's letter is addressed specifically below.
1. Elections Code Section 21620
Mr. Erskine opines that the proposed charter amendment violates Elections Cade
Section 21620 in a variety of ways. His opinion, however, is incorrect. Section 21620 of
the Elections Code specifically provides that, "districts shall be as nearly equal in
population as may be according to the latest federal decennial census." Mr. Erskine
claims,
The charter amendment proposal thereupon violates the letter and spirit of
Election Code section 21620 by failing to base the establishment of
districts either on (a)the latest federal decennial census or, (b)the federal
raid-decade census or the official census of the city, if the city charter so
provides.
Mr. Erskine is apparently unaware of the fact that the proposed charter
amendment was drafted using the latest federal decennial census of 2000. The
assumptions to the contrary and, therefore, the legal opinions based thereon, are incorrect.
Mr. Erskine is also incorrect in suggesting that Elections Code Section 21620 was
violated because the districts are not"nearly equal in population as may be according to
the latest federal decennial census." The 2000 federal decennial census established that
there are 189,594 people living in Huntington Beach, If five districts are created for
Huntington Beach, the average number of people in each district would be 37,919. The
five districts in the proposed charter amendment have the following Number of people in
each district:
District. 1: 37,787
District 2: 38,723
District 3: 38,707
District 4: 37,945
District 5: 36,432
The foregoing numbers reflect the rule that in establishing "nearly equal
population" for each district, the numbers cannot exceed a 10%variation from the
average for the districts (i.e. the numbers cannot.be 5% over or under the average). With
the foregoing numbers, the greatest deviation from the average of 37,919 is District 5
which has 36,432 people, or a 3.9% deviation. Thus, we used the 2000 federal decennial
census and complied with the specific requirement in the Elections Code that the districts
shall be "nearly equal in population."
Mr. Erskine's final assertion with respect to Elections Code Section 21620, is that
we failed to consider the four factors listed in Section 21620, lie., (1) topography, (2)
geography, (3) cohesiveness, contiguity,integrity, and compactness of territory,and (4)
community of interest of the districts. Section 21620 of the Elections Code states that the
drafters of district boundaries "may give consideration"to the four factors listed above.
The word "may" is obviously a permissive word. The drafters of district boundaries are
not required to utilize the four factors listed above. Mr. Erskine's opinion that the
Elections Code was violated for failure to use the Four factors is incorrect.
Apart from the erroneous legal opinions relating to the Elections Code, the logic
used in the letter is also fraught with error. The letter states that the use of the four
factors "obviously has not been done in the case of the charter amendment's initial
establishment of districts, since the petition contains no reference to any of these factors."
The absence, however, of any mention in the petition of the four factors does not mean
the factors were not used. Indeed, the factors were used in establishing the proposed
districts.
In short,the proposed charter amendment is in full compliance with Elections
Code Section 21620. Nlr. Erskine's legal opinions to the contrary are so off base that
they appear to be a deliberate attempt to mislead the City Council.
II. Federal Voting Rights Act of 1965
The Erskine letter raises the specter that somehow the proposed charter
amendment violates the Federal Voting Rights Act of 1965. Mr. Erskine states,
However,the subject proposal to divide Huntington Beach into five
districts must also comply with applicable provisions of the Federal
Voting Rights Act of 1965.
Although Mr. Erskine raises the issue of the Voting Rights Act as if there is some
violation, he does not state how the proposed charter amendment violates the Act.
Nonetheless, the proposed charter amendment is in full compliance with the Act.
The Voting Rights Act of 1965 relates specifically to the"Denial or abridgment
of right to vote on account of race or color through voting qualifications or prerequisites."
Typical .litigation concerning the Voting Rights Act occurs when district lines are
designed to deprive minority groups the opportunity to have minority representation on
the legislative body. Specifically, the Act provides a vehicle for challenging
discriminatory election methods such as at-large elections and racially gerrymandered
districting plans.
As you know, the City of Huntington Beach has a growing Latino population that
is by far the largest minority group in Huntington Beach. District four in the proposed
charter amendment is 32%Latino. That number reflects the Latino population of
California. The suggestion or implication that minority groups are disenfranchised by the
proposed charter amendment has no basis in law or fact.
UL Notice of Intent
Mr. Erskine's letter also claims that the Notice of Intent contains "insidiously"
false and misleading information. In determining whether a petition is defective because
of errors in the notice of intent, the issue is whether the information in question is
substantive(as opposed to technical), whether the information is material, whether the
information is intentionally wrong, whether the information is false, and whether the
information is designed to mislead a reasonable voter into signin a petition. See
end erally, San Francisco I~orty Niners v. Nishioka, 75 Cal.App.4` 141.7 (1999).
Mr. Erskine takes issue with the statement that, "Citywide elections have resulted
in Councilmembers being elected with only 12% of the vote." In the 2000 election, one
of the current councilmembers was elected with 11.9% of the vote. This information
comes directly from the County Registrar of Voters. See, Exhibit"I" attached hereto.
Mr. Erskine attempts to contort the 12% figure by making a distinction between
"persons casting ballots"and "total votes cast," and he concludes that the 12% figure is
misleading. The obvious problem with Mr. Erskine's discussion is that the Notice of
Intent states "12% of the vote." It does not state 12% of the "persons casting ballots" as
Mr. Erskine wants it to read.
The use of manufactured factual contortions to arrive at a conclusion that"12% of
the vote" does not really mean "12% of the vote" should be rejected out of hand.
Mr. Erskine also takes issue with the statement that, "The present citywide
election system was last changed in the 1960's when the population of Huntington Beach
was 11,500," Mr. Erskine then concludes that the statement creates a"misleading
inference that the current selection process dates back to World War II.." It is a mystery
how Mr. Erskine gets to World War 11.
Nonetheless, the federal decennial census for 1960 established that as of 1960,
Huntington Beach had a population of 11,492 people. See, Exhibit"2 ', Therefore, in the
1960's,the population indeed started out at 11,492. Admittedly, the population grew
through annexations and was higher than. 11,492 when the charter was last changed in
1966. This technical point, however, could not be construed as materially false or
misleading. The substance of this section of the Notice of Intent is that Huntington
Beach has experienced tremendous growth since the 1960's when the population started
at 11,492. The population now stands at nearly 190,000.
In short, there is nothing material, intentional, or substantively false or misleading
in the statement at issue as required in San Francisco Forty Niners v, Nishioka, 75
Ca1.App.4tf' 1417 (1999). A ;Fair and reasonable reading of the Notice of Intent is that at-
large elections are appropriate for smaller populations and district elections are
appropriate for larger populations.
Finally, Mr. Erskine takes issue with the statement in the Notice of Intent that,
"The old citywide elections may have worked when Huntington Beach was just
Downtown and a couple of neighborhoods, but now it is 16 times larger and covers 28
square miles."
Mr. Erskine opines that the "16 times" language is false and misleading by stating
that, "Clearly, 28 square miles is not 16 times larger than 24 square miles." While I
would certainly agree with Mr. Erskine that 28 is not 16 times larger than 24, the Notice
of Intent does not state, as Mr. Erskine's analysis requires, that "16 times larger"relates
to area. When Huntington Beach was just"Downtown and a Couple of neighborhoods"
the population indeed stood at 11,500. The population is now 189,595, which is 16 times
larger. Moreover, even if one accepts Mr. Erskine's reading of this sentence, the issue is
not one that.could be construed as material, substantive, and intentionally false and
misleading as required by San Francisco Forty Niners v. Nishioka.
IV. Single Subject Rule
Finally, Mr. Erskine throws into the mix the garden-variety single subject rule.
The Huntington Beach City Charter contains 8 articles and 56 sections. The
substantive changes sought by the proposed charter amendment are contained in a single
section of the City Charter, i.e., section 300. The title of Section 300 states,
"CITY COUNCIL, ATTORNEY, CLERK AND TREASURER. TERMS."
Section 300 specifically relates to: 1.) the number of councilmembers (seven); 2).
how the councilmembers are to be elected (at large); and 3.)how inany terms the council
members can run (no more than two consecutive terms).
While it was rather obvious and apparent to our city leaders in the 1960's to place
all three of these topics into a single section because they are germane to each other, it is
not so apparent to the opponents. The California Supreme Court was unequivocal when
it stated that: "An initiative does not violate the single-subject requirement if, despite its
varied Collateral effects, all of its parts are `reasonably germane' to each other.
Legislature v. Eu, 54 Cal.3d 492 (1991).
The Notice of Intent is clear on the purpose of the proposed charter amendment;
namely, special interests have dominated city politics because of the high cost for
individuals to campaign citywide and because the current term, limit standard permits
those same special interests to fund a candidate(with high name identification) who has
already served two terms on the City Council.
Simply stated, the proposed charter amendment will permit individuals who are
not supported by special interests and who are not recycled incumbents to compete in
smaller districts and have a better chance of electoral success. This specific goal is not
the generic umbrella of"political issues,"that Mr. Erskine complains about. Rather,
district elections, five City Council members instead of seven and the length of their
terms all are germane to the issue of accountability and representation of the citizens of
Huntington Beach. Interesting enough, our city leaders in the 1960's took the same
position and concluded that these issues were all germane to each other.
V. The 30 Dav Review Period Does Not Apply to Charter Amendments
In Mr. Erskine's conclusion, there is one more fundamental deficiency in his
analysis of the Elections Code where he states, "we are of the opinion that the Council
has the discretion—and therefore the obligation—to examine fiscal and other impacts of
the charter amendment pursuant to Elections Code provisions allowing for 30-day reports
from staff, and/or a Council appointed charter revision commission."
Mr. Erskine's opinion, however, is irrelevant without any reference to legal
authority. Mr. Erskine fails to cite which part of the Elections Code gives the City the
authority to provide for a 30-day report because the Elections Code does not permit a 30-
day report for charter amendments. It appears that Mr. Erskine is referring to a 30-day
report provision in Section 9212 of the Elections Code. Section 9212 applies to
ordinances,not charter amendments and,therefore,is inapplicable in this matter.
Vl. Conclusion
From May 2, 2002 to June 17,2002, more that 22,000 people signed the petition
to put the proposed charter amendment on the ballot. The petitions were timely filed in
order to place them on the November 5, 2002 ballot. The City Council is required to
perform a ministerial duty in placing the charter amendment on the ballot, The City
Council may not take sides on the issue by trying to benefit the opponents over the
proponents.
The opponents clearly want to engage in tactics that delay, obstruct and otherwise
prevent the voters from voting on the issue in a timely manner. To join the opponents of
the charter amendment and delay the election until next year or later would.Necessarily
mean that the City Council is no longer performing a ministerial duty. Rather, the City
Council would be taking sides and giving the opponents more time to file lawsuits and
seek further delays.
Moreover,delaying the vote until next year or beyond would necessitate the
expenditure of more than $100,000 to conduct a special election. There is no need or
justification to spend that kind of money, and there is certainly no need or justification in
delaying the election beyond November 5, 2002. You are, therefore, .respectfully
requested to place the measure on the November 5, 2002 ballot.
Very Truly Yours,
Mark Bucher
CC: Gail Hutton, City Attorney
Connie Brockway, City Clerk
DAVID t-OUNW.JR 2,47a 3 7%
QmRISTOPnER PAE.VATT 2,D88 3.7%
MCFtARD R RAMDER 2.084
CITY OF HUNTINGTON OF-AQH
Mlld;MbElt,C41 Y COUNCIL
vote For 3
Ccmaet"Prearicig. 143 of 143
Von!Count Percentage
PAM JULIEN 23,855 14.1%
OEMIE COOK 24,913 122`y.
CONNIS SCAM 24 321 11 t%
SILL SORDIN 22.3to 1e-9%
ML COERPeft 16AA6 E 2%
MANE A 45MNING 11,390 5 8%
.tME3 A YOcNVG 11 181 5.5%
TMOMA'S f?ONL'Y P.da7 6 7y,
JC"N A 7t� 7,766 3-84/6
,JOEY RACANO 1.312 V3VA
CHUCK DOWNING 8 66S 9 4%
STEPrtEN GWC1A 5,757 2 9%
J WVIN DWYER 6,149 2.511A
GER&O CHAPMAN 4.T75 2 3%
NORM WESTWELL 4 041 2.0V'6
R05F.RT J JOHNSON 3.779 I l%
JOE CAAACHIO 3,412 1 7",6
�,c]u!sr►KER a,G17 1 516
MARK t1 SZULC 1,681 0 81%
MARK W LEWIS 1,623 0.5%
CITY OF HUNTINGTON REACH
CITY CLERK
Comp*m Picc4ncm- 143 of 143
Vote Count Parcenta®e
CONNIF SR=KWAY 53,491 100 0"b
CITY OF HUNTINGTON BEACH
Q TY TfI MURER
CQMPWeo PrQCIM3, 143 Of 143
Vote Count Percenvoge
SKM FREIDENRICn V.548 100.0%
CITY OF IRVIRE
MAYOR
CCMlOe o Ptl? 0CM 111 of 111
' ?tupJ/�vww.ot.c:♦.�ovlcls�'tlotl/I.lu*1E20n'csulY�tshua 8;4.'G2
A 'Leo %JL- .f ivty
CITY OF HUNTVYGTON BEACH
100-157 Square Vies
1M-27.1 Slquara AMU
IWO october Foftnd 11,492
1%1 April State Department of Fin oca 16,550
IN2 Aprw State DepwUnent of Finiance 24.700
October Federal U 143
1963 April Strata Department of Finance 42.300
Ocb%esr Federal $0,290
1964 Aprfl State Dapartment of Finance 56,104
CXUAW Fern" 84,228
Ives April State Department of Finance WOO
C)CWW Federal 75,053
19ti6 April GUte Goapertment of Fu>ancz 70,400
Ocwber Federal W,&w
1967 Apra State Department of Finance 90.300
Mtobw Fegtfral 04,377
1988 April State napartment of Finance 90.000
Oct" F"ed*ral 104,124
196e April State Depiklmant of FManCe 109'em
October Feesrai 112,021
1970 April 51tat9 Department of F'in nce, 118,400
Qctc>w F641efal 115.960
1971 April Stsde bepartment of Finance 126,9M
1972 February Stata Pepertment of Finance 137.000
November State Departmwnt of F'marvg 143,5W
1973 April Stale Department of Fk%swe 142,6W
1974 F•elbruory State Department of Foance 143.325
1975 January States Department of Financa 14e,400
1976 January State Department of Fironce 152,148
1977 January State Papartment of Fines 157,80tJ
1978 January State Departmont of Ffturaa 161,300
1979 January State Department of Finance 167,419
1.9t30 January Stata Depertinomt of Finance 172,200
Federal 170,
Q
J. �
l CITY OF HUNTINGTON BEACH
Inter-Department Communication -_
TO: CONNIE BROCKWAY, City Clerk ?
FROM: GAIL HUTTON, City Attorney y>
DATE: July 31, 2002 =
SUBJECT: RLS 2002-0421. Available Election Dates for a Charter Amendment
Proposal to Elect Councilmembers by District Rather than At-Large
INDEX: Elections; Procedures; General and Special Elections
FACTS
On August 5, 2002,the City Council will be asked to select an election date concerning a
charter proposal to amend the City of Huntington Beach's (sometimes "City") Charter, which
amendment would, inter alia, decrease the number of elected Councilmembers from seven to
five; impose a two-term limit on Councilmembers; and elect Councilmembers by district rather
than at large. The proponent of this proposal is Huntington Beach resident Scott R. Baugh. For
ease of reference, this proposal will hereafter be referred to as the "Charter Proposal." The
Charter Proposal contains a sufficient number of registered voters' signatures in order to qualify
for the holding of an election.
The Charter Proposal, if it receives a favorable vote, is to become effective with the
City's General Municipal Election to be held on November 3, 2004.
If the Council, on August 5, 2002, selects an election date, then August 51h, under the
state's Elections Code (sometimes "EC"), will be known as the "date of the order of election."
QUESTION
What are the appropriate, authorized election dates, available for selection by the City
Council, regarding a qualified City Charter amendment proposal to be submitted to the voters?'
ANSWER
Pursuant to California Elections Code §§ 9255 and 1415, the following six election dates
are available for selection by the City Council, regarding the Charter Proposal:
1. November 5, 2002 4. November 4, 2003
2. March 4, 2003 5. March 2, 2004
3. June 3, 2003 6. April 13, 2004
' City Charter§702 states that all City elections shall be held in accordance with the State of California's Elections
Code to the extent that it is not in conflict with the Charter. In terms of the issue of setting the Charter Proposal for r✓
an election,there are no conflicts between the City's Charter and the state's Elections Code.
rjw/02memos/Elect Councilmembers by District 7/31/02 /ab
b ►
i
Connie Brockway
July 31,2002
Page 2 of 5
All of these possible election dates "pre-date"the November 3, 2004 effective date of the
Charter Proposal (assuming it receives a favorable election vote). The Council is legally
obligated to select one of these dates.
ANALYSIS
Since the petition proposes significant changes to the City's Charter (its constitution), the
specific, applicable provisions of the California Elections Code dealing with election dates for
charter proposals are EC §§ 9255 and 1415.
Elections Code § 9255, enacted into law in 1994, states, in relevant part:
"§ 9255. Charter proposals; submission to voters
(a) The following city . . . charter proposals shall be submitted to
the voters at either a special election called for that purpose, at any
established municipal election date, or at any established election
date pursuant to (Elections Code) section 1000, provided that there
are at least 88 days before the election . . .
(3) An amendment . . . of a city charter proposed by a
petition signed by 15 percent of the registered voters of the city . . ."
In our opinion, the current Charter Proposal, which would make significant changes as to
how Councilmembers are elected, is a proposal that qualifies under EC § 9255(a)(3).
Elections Code § 1415, enacted into law two years later in 1996, states, in pertinent part:
"Charter proposals
City . . . charter proposals that qualify pursuant to (Elections Code)
section 9255 shall be submitted to the voters at either the next
regular municipal election occurring not less than 88 days after the
date of the order of election, or at a special election called for that
purpose or on any established election date pursuant to (Elections
Code) section 1000 occurring not less than 88 days after the date of
the order of election." (Emphasis added.)2
2 We note that several differences exist between Elections Code§9255(a)and Elections Code§ 1415. One of the
major differences,concerning"special elections," is that,under section 9255(a), 88 days must elapse between the
date of the order of election(in this case August 5,2002)and the date of the special election itself,while under
section 1415,this 88-day period is not a requirement. In our opinion,for the following reasons,section 1415 is the
controlling statute. First, section 1415 was enacted into law in 1996,two years after section 9255. Presumably,the
state Legislature was aware of the language of earlier section 9255 when it enacted section 1415 into law in 1996.
Second,section 1415 not only specifically refers to section 9255,but to section 9255 in such a way as to make
section 1415 the controlling section. And third,practically speaking, it really makes no difference which section
controls as the three election date"alternatives" in each section are essentially the same.
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E'
Connie Brockway
July 31,2002
Page 3 of 5
Under EC § 1415, three possible alternatives or options are available to the City Council
in setting an election date regarding the Charter Proposal: (1)the next regular general municipal
election occurring not less than 88 days after the date of the order of election; (2) at any special
election called for that purpose; or(3) on any established election date pursuant to EC § 1000
occurring not less than 88 days after the date of the order of election.
We will now separately discuss all three of these alternatives.
l. THE NEXT REGULAR GENERAL MUNICIPAL ELECTION OCCURRING
NOT LESS THAN 88 DAYS AFTER THE DATE OF THE ORDER OF
ELECTION
Under City Charter § 700, the City's general municipal elections are held on the first
Tuesday after the first Monday in November in each even numbered year.
The date of the next City General Municipal Election is November 5, 2002.
The City Council, if it so chooses, can set the Charter Proposal for the November 5, 2002
election. Eighty-eight days will have elapsed between August 5, 2002 (the date of the order of
election) and November 5, 2002.3
2. AT ANY SPECIAL ELECTION CALLED FOR THAT PURPOSE
Elections Code § 356 defines a"special election" as:
". . . an election, the specific time for the holding of which is not
prescribed by law."
At first blush, it would appear that the City Council is free to select whatever day, month
or year it desires for the special election date. In fact, under EC § 1415, 88 days does not have to
elapse between the date of the order of election (August 5, 2002) and the date of the special
election itself(see footnote 2, ante).
But there is an important limitation; that being EC § 1002. Section 1002 states that". . .
all . . . municipal. . . . elections shall be held on an established election date." (Emphasis added.)
EC § 1000 establishes five yearly election dates. This means that any "special municipal
election" must be held on one of the state's "established election dates."
"Established election dates"will be discussed under the third alternative.
In summary, the possible election dates for the Charter Proposal are the same under both
the second and third options.
s We note that August 9,2002,is the 88th day prior to November 5,2002.
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Connie Brockway
July 31,2002
Page 4 of 5
3. ON ANY ESTABLISHED ELECTION DATE PURSUANT TO (ELECTIONS
CODE) SECTION 1000 OCCURRING NOT LESS THAN 88 DAYS AFTER
THE DATE OF THE ORDER OF ELECTION
EC § 1000 sets forth the following five yearly established election dates:
• The second Tuesday of April in each even-numbered year(the next
election date would be April 13, 2004)
• The first Tuesday after the first Monday in March of each odd-numbered
year(the next election date would be March 4, 2003)
• The first Tuesday in March in each even-numbered year(the next election
date would be March 2, 2004)
® The first Tuesday after the first Monday in June of each odd-numbered
year(the next election date would be June 3, 2003)
• The first Tuesday after the first Monday in November of each year (the
next two election dates would be November 5, 2002 and November 4,
2003)
In summary, six possible election dates, under this third alternative, are available to the
City Council regarding the Charter Proposal: November 5, 2002; March 4, 2003; June 3, 2003;
November 4, 2003; March 2, 2004; and April 13, 2004. The six possible dates are also available
under the second alternative, regarding the holding of a special election.
4. THE APPLICABILITY OF CHARTER �§ 700 AND 701
The provisions of City Charter §§ 700 and 701 played little part in our analysis. Charter
§ 700 provides that the City's general municipal elections shall be held on the first Tuesday after
the first Monday in November in each even numbered year. As stated earlier, the City's next
General Municipal Election is November 5, 2002. Charter § 701 states that". . . (a)ll other
municipal elections that may be held by authority of this charter, or of any law(e.g., the state's
Elections Code), shall be known as special municipal elections." Thus, if the City Council sets
the Charter Proposal for one of the five available dates other than November 5, 2002, it shall be
deemed a special municipal election under Charter § 701, and, under Elections Code § 12001,
the Council must adopt a resolution calling the election.
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t�
Connie Brockway
July 31,2002
Page 5 of 5
CONCLUSION
Coalescing the three EC § 1415 alternatives together, the following election dates are
available for City Council consideration, regarding the Charter Proposal:
1. November 5, 2002
2. March 4, 2003
3. June 3, 2003
4. November 4, 2003
5. March 2, 2004
6. April 13, 2004
Please feel free to attach this opinion to your Request for Council Action concerning the
Charter Proposal.
GAIL HUTTON
ov
City Attorney
cc: Ray Silver, City Administrator
Bill Workman, Assistant City Administrator
rjw/02memos/Elect Councilmembers by District 7/31/02 /ab
LAW OFFICES
NOSSAMAN, GUTHNER, KNOX & ELLIOTT, LLP
WALTER L. NOSSAMAN SUITE 1800 JOHN T. KNOX
(1886-1964) 18101 VON KARMAN AVENUE WARREN G. ELLIOTT
OF COUNSEL
WILLIAM E. GUTHNER, JR. IRVINE, CALIFORNIA 92612-0177
(1932-1999) TELEPHONE (949) 833-7800
FACSIMILE (949) 833-7878
SAN FRANCISCO WASHINGTON, D.C.
THIRTY-FOURTH FLOOR SUITE 370-S
50 CALIFORNIA STREET 601 13T" STREET N.W.
SAN FRANCISCO, CA 94111-4799 JOHN P. ERSKINE WASHINGTON, D.C. 20005
(415) 398-3600 DIRECT DIAL NUMBER (202) 7 8 3-7 2 7 2
(949) 477-7633
LOS ANGELES EMAIL jerskine@nossaman.com SACRAMENTO
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445 SOUTH FIGUEROA STREET
LOS ANGELES, CA 90071-1602 July
ul 3l 2002 915 L STREET
Y 7 SACRAMENTO, CA 95814-3701
(213) 612.7800 (916) 4 4 2-8 8 8 8
REFER TO FILE NUMBER
VIA HAND DELIVERY
- ..
Mayor Debbie Cook and Councilmembers
City of Huntington Beach -
2000 Main Street, 2nd Floor
Huntington Beach, CA 92648 X}
Re: Analysis of Legal Defects in Proposed Amendment to Huntington Beach}'
City Charter(Agenda Item F-3, Council Meeting of August 5, 2002)
Dear Mayor Cook:
This firm represents Citizens Against Power Politics (C.A.P.P.), a broad-based,
grassroots citizens group composed of community and business leaders recently formed to
oppose the proposed Amendment to the Huntington Beach City Charter. The committee has also
been established as a Recipient Committee "Primarily Formed"to oppose the subject charter
amendment pursuant to the requirements of the Political Reform Act. C.A.P.P. representatives
have asked us to provide you with our legal analysis of the proposed charter amendment,which
is scheduled for consideration as Items F-3(a) and (b) on the Council's Agenda for August 5,
2002. Based upon our initial review,we believe that there are serious issues with respect to the
validity of the measure, both from a substantive and procedural standpoint, and we would request
that the City Council refer the matter to the City Attorney and/or outside legal counsel, for a
more exhaustive analysis of the questions raised herein. It may also be appropriate for the City
Council to consider a pre-election action for declaratory relief or other remedies that may be
identified upon further scrutiny of various charter amendment provisions, district boundaries, or
the vaguely defined and contradictory implementation mechanisms set forth therein.
I. Violation of Article II, Section 8, Subdivision(d) of the California
Constitution—Single-subject Rule.
Article II, section 8, subdivision(d) of the California Constitution provides that
"[a]n initiative measure embracing more than one subject may not be submitted to the electors
or have any effect." (Emphasis added.) The single-subject rule is a constitutional safeguard, and
220631_I.DOC 3
NOSSAMAN, GUTHNER, KNOX & ELLIOTT, LLP
Mayor Debbie Cook and Councilmembers
July 31, 2002
Page 2
its principal purpose is to avoid voter confusion and to prevent the subversion of the electorates'
will.I
In the present case, it is critical to review and resolve the substantive legal issue of
whether the proposed (Baugh) charter amendment violates the single-subject rule in a pre-
election review. To defer a decision until after an election will not only defeat the
constitutionally contemplated procedure reflected in the language of article II, section 8(d),but
could contribute to an increasing cynicism on the part of the electorate with respect to the
efficacy of the initiative process. (See Senate v. Jones,supra, 21 CalAth at p. 1154.)
The California Supreme Court has described the proper standard for applying the
single-subject rule as follows:
In articulating the proper standard to guide analysis [of the
single-subject rule], the governing decisions establish that
"[a]n initiative measure does not violate the single-subject
requirement if, despite its varied collateral effects, all of its
parts are `reasonably germane'to each other," and to the
general purpose or object of the initiative."
(Legislature v. Eu (1991) 54 Cal.3d 492, 512, original italics.)
However, the courts refuse to allow a characterization"so broad that a virtually
unlimited array of provisions could be considered germane thereto and joined in [a] proposition,
essentially obliterating the constitutional requirement." (Chemical Specialties Manufacturers
Assn. v. Deukmejian (1991) 227 Cal.App.3d 663, 671; see also Senate v. Jones,supra, 21 Cal.4th
1142 [initiative violated single-subject rule by characterizing the redistricting and compensation
of state officers as "political issues"].)
The charter amendment proposal attempts to connect three separate and distinct
issues -reduction of the number of Council members, election by and creation of districts, and a
change in Council term limits—potentially under the broad umbrella of"political issues"or
"political reform." While the proponents of the initiative may claim that the three subjects of the
initiative are"reasonably germane"because they are all part of reforming the Huntington Beach
election process, this argument is likely to fail because such a subject is much too broad. The
three subjects included in the initiative are not reasonably germane to each other and none of the
1 In Senate of the State of California v.Jones(1999)21 CalAth 1142,the California Supreme Court held that
where,in"the case of a challenge based upon the single-subject rule,it is clear from the text of the relevant
constitutional provision itself that,in an appropriate instance,pre-election relief not only is permissible but is
expressly contemplated." (Id.at p. 1153-54 [emphasis added];see also California Trial Lawyers Assn. v. Eu
(1988)200 Cal.App.3d 351,357 [recognizing that it is appropriate to resolve single-subject challenges prior to
an election].)
220631_1.DOC
NOSSAMAN, GUTHNER, KNOX &ELLIOTT, LLP
Mayor Debbie Cook and Councilmembers
July 31, 2002
Page 3
three provisions promote the overall purpose of the initiative or have a necessary and natural
connection with that purpose. (See, e.g., Senate v. Jones,supra, 21 Cal.4th 1142, 1157;
Chemical Specialties,supra, 227 Cal.App.3d 663, 667.) As an example, term limits are a
national political issue are a frequently debated topic, even among political groups that otherwise
agree with each other, and need to be treated separately from redistricting. In addition, a
reduction in the number of city council members from seven to five stands alone as a subject that
deserves separate pro and con arguments and debate. The number of Council members is a
distinct subject, separate and apart from the matter of whether or not districts should be
established in the City. The City Attorney's title and summary contained on the charter
amendment petition also supports the conclusion that the charter amendment proposal contains
multiple, unrelated subjects. These subjects are referenced as items (1)through(6) in the City
Attorney's summary and are separated by semi-colons.
To restate, the only conceivable, single legislative subject that all three categories
could possibly fall under would be "political reform of the city council," "political issues," or
"amendments to the Huntington Beach charter amendment." Based on applicable case law,we
believe that the charter amendment will not withstand legal challenge based on violations of the
California Constitution's single-subject rule.
II. False and Misleading Statements.
The"Notice of Intent to Circulate Petition,"required by section 9256 of the
Elections Code,requires a written statement setting forth the reasons for the proposed charter
amendment measure. The"Notice of Intent to Circulate Petition"prepared for the subject
charter amendment contains three statements of fact which we believe can be challenged as false
and misleading.2 In determining whether statements are false and misleading, a court will
determine whether the challenged statements are subject to verifiability as distinct from"typical
hyperbole and opinionated comments common to political debate." (Id.) The false and
misleading statements in the subject charter amendment proposal, which insidiously outline the
need to revamp the current (but supposedly antiquated) City Council structure and election
system, include the following:
(1) "Citywide elections have resulted in Councilmembers being elected with
only 12% of the vote, allowing special interest groups to elect their own Council member(s)who
may or may not be concerned about the issues of all neighborhoods."
This statement may be false and misleading if it is based on elections occurring
since 1966 (the year the City Council was increased from five to seven members). Since 1966,
Councilmembers have been elected with higher percentages, than stated in the "Notice of
2 (See,San Francisco Forty-Niners v. Nishioka(1999)75 Ca1.App.4`s 637,649;Huntington Beach City Council
v.Blackford(2002)94 Cal.App.4th 1417, 1432 [upholding trial court's deletion of false and misleading
statement because it was misleading in light of objective facts].)
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NOSSAMAN, GUTHNER, KNOX & ELLIOTT, LLP
Mayor Debbie Cook and Councilmembers
July 31, 2002
Page 4
Intent," of those persons casting ballots, as compared to total votes cast. It is extremely
misleading to petition signers and potential voters to compare the current election process which
affords registered voters the privilege of voting for, on an alternate basis,three or four
Councilmembers, with the subject charter proposal which would allow voters to choose only one
Councilperson every four years.
(2) "The present citywide election system was last changed in the 1960's
when the population of Huntington Beach was 11,500."
The City of Huntington Beach had five Councilmembers until 1966, the year
during which a formal charter revision process resulted in the City amending the charter to
provide for seven Councilmembers, all elected at large. The statement that the population was
11,500 is false and misleading because, in 1966 (the year"the present citywide election system
was last changed"), Huntington Beach had a population of 76,000. This continues the
misleading inference that the current election process dates back to World War II.
(3) "The old citywide elections may have worked when Huntington Beach
was just Downtown and a couple of neighborhoods, but now it is 16 times larger and covers 28
square miles."
Since the proponents have ostensibly used 1966 (the last time the system was
revised)when they refer to "the old citywide elections,"this statement is clearly false because in
1966, Huntington Beach was approximately 24 square miles. Clearly, 28 square miles is not 16
times larger than 24 square miles. If the proponents are referring to the 1900's when they refer
to "the old citywide elections,"this statement is also misleading because it deliberately confuses
the voter in comparing an admittedly antiquated system (of five Councilmembers) with the
current system set in place in 1966.
III. Violation of Elections Code Section 21620.
Elections Code section 21620 governs the establishment of districts within a
charter city. Elections Code section 21620 requires that newly established districts "shall be as
nearly equal in population as may be according to the latest federal decennial census or, if the
city's charter so provides, according to the federal mid-decade census or the official census of
the city."
After the initial establishment of the districts, the charter amendment proposal
states that the districts "shall continue to be as nearly equal in population as may be according to
the latest federal decennial census or, if authorized by the charter of the city, according to the
federal mid-decade census." (Elec. Code, § 21620.) However, the subject proposal to divide
Huntington Beach into five districts must also comply with applicable provisions of the Federal
Voting Rights Act of 1965. (Id.) In establishing the boundaries of these districts, the City
Council, by its own action or through an appointed Charter Revision Commission,may consider
220631_1.DOC
NOSSAMAN, GUTHNER, KNOX & ELLIOTT, LLP
Mayor Debbie Cook and Councilmembers
July 31, 2002
Page 5
the following factors: (1) topography, (2) geography, (3) cohesiveness, contiguity, integrity, and
compactness of territory, and(4) community of interest of the districts. (Id.) This obviously has
not been done in the case of the charter amendment's initial establishment of districts, since the
petition contains no reference to any of these factors.
Section 319 of the charter amendment proposal provides a description of the
boundaries of the initial districts that are to be effective—pursuant to Section 314—with the
election of 2004. The charter amendment proposal thereupon violates the letter and spirit of
Elections Code section 21620 by failing to base the establishment of districts either on(a) the
latest federal decennial census or, (b)the federal mid-decade census or the official census of the
city, if the city's charter so provides. Since the City of Huntington Beach Charter does not
provide guidance in this regard, the establishment of Council districts must be based on the latest
federal decennial census and there is no evidence whatsoever that the Baugh districts are
established according to such federal decennial census. Moreover, there is no evidence that any
of the additional factors enunciated in Elections Code section 21620—or any factors other than
the proponent's personal,political or client interests—served as the genesis of the proposed
district boundaries.
Conclusion.
We have provided an initial legal analysis of the proposed Huntington Beach City
Charter Amendment, and would respectfully suggest that before an election on such an
amendment occurs, a more thorough review of the validity of all aspects of the proposal be
undertaken. In addition,we are of the opinion that the Council has the discretion—and therefore
the obligation -to examine fiscal and other impacts of the charter amendment pursuant to
Elections Code provisions allowing for 30-day reports from staff, and/or a Council-appointed
charter revision commission. Members of C.A.P.P. and the undersigned will be present at your
meeting on August 5, 2002 to provide additional comments to the City Council and urge your
careful and deliberate consideration of these matters.
Thank you for your considering our views.
Sincerel
Jo P. Erskine
NOSSAMAN, GUTHNER, KNOX & ELLIOTT, LLP
JPE/rst
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Mayor Debbie Cook and Councilmembers
July 31, 2002
Page 6
cc: Ray Silver, City Administrator
Gail Hutton, Esq., City Attorney
Connie Brockway, City Clerk
220631_1.DOC