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HomeMy WebLinkAboutSpecial Election - March 5, 2002 - Ballot Measure HH - Amend (2) January 15, 2002— City C%,ancil Agenda - Page 2 Recess 1" ** The City Attorney Shall I3e4er ine if Any AAtiens Taken By The City CGunAil OFRell Call W ciry in Closed Session Shall Require A RepeFting On Those e e f 2. (City Council) Ratify Revised Ballot Argument Language of Ballot Measure HH for the March 5, 2002 Special Municipal Election Ballot -Amendment of Gas Tax by Removing Electric Power Plant Exclusion ( . ) Ratification by the City Council of revised language of Ballot Measure HH for the Special Municipal Election of March 5, 2002. Recommended Action: Motion to: Ratify revised Ballot Argument language for Ballot Measure HH as shown below: Amendment of Gas Tax by Removing Electric Power Plant Exclusion YES "Shall the ordinance repealing the Gas Tax exclusion for electric power plants be adopted?" NO The following material regarding Orange County Superior Court Case No. 01 CC015111, Subject: Ed Blackford v. Connie Brockway is included in the agenda packet for Item No. 2: *"Court document titled Stipulation and Order Re: Real Party in Interest-Huntington Beach City Council's Return on Writ of Mandate. "*Court document titled Certified for Publication in the Court of Appeal of the State of California—Fourth Appellate District—Division Three. "*Original language for Ballot Measure HH. Assistant City Attorney Field reported City Clerk announced Late Communication - Legislative Draft Version of Ballot Argument (as approved by Superior Court) Ratified 4-0-2 (Bauer, Houchen absent) 3. Informational Only: (City Council) Ballot Measure HH for the March 5, 2002 Special Municipal Election -Amendment of Gas Tax by Removing Electric Power Plant Exclusion — City Council Ballot Argument (Revised) ( ) ,,The revised City Council Ballot Argument is included in the agenda packet for Item No. 3. 0)- 15-a2 1N�v KMQoN MAC Argument IN FAVOR of a Measure HH Amendment of Gas Tax by Removing Electric Power Plant Exclusion Vote yes on Measure HH because it will keep your taxes down. By voting yes, you are voting to end the tax exemption the AES Corporation enjoys for the natural gas it consumes to produce electricity. The AES plant is ugly,pollutes our air, and our ocean. Any cost to AES will be passed on primarily to people outside of Huntington Beach. A yes vote for this Measure will make AES pay their fair share of city costs that occur by virtue of their presence. The AES plant has been a blight on Huntington Beach for over 40 years. Isn't it about time it contributes to our city? In the last election on this measure, AES spent nearly$300,000 to defeat it. Don't be fooled again. Vote yes on Measure HH. Pam Julien Houchen, Mayor, City of Huntington Beach Debbie Cook, Mayor Pro Tem, City of Huntington Beach Ralph H. Bauer, Council.Member, City of Huntington Beach Connie Boardman, Council Member, City of Huntington Beach Peter Green, Council Member, City of Huntington Beach" o C 70 2 '-i T N c-) 2- . G:Field:Plead ing:Blackford:Argument in Favor of Measure HH as approved by Superior Court Legislative Draft Version of Ballot Argument, As Approved by Superior Court N r N �? Vote yes on Measure HH because it will keep your taxes down. C-) o By voting yes, you are voting to r--equir-e end the tax exemption Cn F" GO C:); the AES Corporation ' utility tax paid by all residents- C) „a , us-i-posses in Huntington Beae 1 enjoys for the natural gas it consumes to produce electricity. c,,iTently, AES ;s the only business i Huntington Beaet, that a 'his tax The AES plant is ugly, pollutes our air, and our ocean. AES refused to sign oontraot fosse-of e4eet-rieity solely in Calif Fni ; Any cost to AES will be passed on primarily to people outside of Huntington Beach and Galif A yes vote for this Measure will make AES pay their fair share of city costs that occur by virtue of their presence. The AES plant has been a blight on Huntington Beach for over 40 years. Isn't it about time it contributes to our city? In the last election on this measure, AES spent nearly$300,000 to defeat it. Don't be fooled again. Vote yes on Measure HH. Pam Julien Houchen, Mayor, City of Huntington Beach Debbie Cook, Mayor Pro Tem, City of Huntington Beach Ralph H. Bauer, Council Member, City of Huntington Beach Connie Boardman, Council Member, City of Huntington Beach Peter Green, Council Member, City of Huntington Beach G:Field:pleading:B lack ford:Legislative Draft Version of Ballot Argument (2) January 15, 2002—City Council Agenda - Page 2 #esesrs I ** The City Attorney Shall DaterMine if Any AAtiens Taken By The City• ounGil OF Redevelopment Agenny in Closed Sesseen Shall Require A RenoRoll Call rtinn /ln Thecae i , Cook, r BeaFdmaR 2. (City Council) Ratify Revised Ballot Argument Language of Ballot Measure HH for the March_5, 2002 Special Municipal Election Ballot -Amendment of Gas Tax by Removing Electric Power Plant Exclusion ( . ) Ratification by the City Council of revised language of Ballot Measure HH for the Special Municipal Election of March 5, 2002. Recommended Action: Motion to: Ratify revised Ballot Argument language for Ballot Measure HH as shown below: Amendment of Gas Tax by Removing Electric Power Plant Exclusion YES "Shall the ordinance repealing the Gas Tax exclusion for electric power plants be adopted?" NO The following material regarding Orange County Superior Court Case No. 01 CC015111, Subject: Ed Blackford v. Connie Brockway is included in the agenda packet for Item No. 2: **Court document titled Stipulation and Order Re: Real Party in Interest-Huntington Beach City Council's Return on Writ of Mandate. **Court document titled Certified for Publication in the Court of Appeal of the State of California— Fourth Appellate District—Division Three. **Original language for Ballot Measure HH. Assistant City Attorney Field reported City Clerk announced Late Communication - Legislative Draft Version of Ballot Argument (as approved by Superior Court) -� Ratified 4-0-2 (Bauer, Houchen absent) 3. Informational Only: (City Council) Ballot Measure HH for the March 5. 2002 Special Municipal Election -Amendment of Gas Tax by Removing Electric Power Plant Exclusion—City Council Ballot Argument (Revised) ( . ) **The revised City Council Ballot Argument is included in the agenda packet for Item No. 3. Amendment of Utility Tax by Removing Electric Power Plant Exemption YES "Shall the ordinance requiring an electric power plant to pay the same Utility Tax as- NO do residents and businesses of the City of Huntington Beach by amending the Huntington Beach Municipal Code to remove Section 3.36.080(b) and make corresponding changes to Section 3.36.010(g), be adopted?" Original Ballot Measure HH Language 1/15/02 Special Meeting — Item 2 G:Election\2002\Amendment of Utility Tax 7 " � GILD GAIL HUTTON, City Attorney, Bar No. 57372 SUPERIOR COURT OF CALIFORNIA 1 SCOTT F. FIELD, Assistant City Attorney, Bar No. 105709 CENTRACOUNL JUOSTIOCE CENTER 2 Box 190, 2000 Main Street Huntington Beach, CA 92648 JAN 10 2002 3 (714) 536-5555 FAX (714) 374-1590 ALAN SLATER,Clerk of the Court 4 5 Attorneys for Real Parties In Interest By D S�Ez HUNTINGTON BEACH CITY COUNCIL 6 O 7 --� 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 7f-<c-r , 9 IN AND FOR THE COUNTY OF ORANGE cp .r <: >—TI�c� 10 W =_ 11 ED BLACKFORD ) Case No. 01 CC 15111 Cn co � 12 Petitioner, ) Honorable Derek W. Hunt Dept. C9 13 VS. ) 14 ) STIPULATION AND ORDER REGARDING CONNIE BROCKWAY, ) REAL PARTY IN INTEREST is ) HUNTINGTON BEACH CITY COUNCIL' Respondent. ) RETURN ON WRIT OF MANDATE 16 HUNTINGTON BEACH CITY ) 17 COUNCIL, PAM JULIEN, Mayor, ) 18 DEBBIE COOK, Mayor Pro Tem, ) Date: January 10, 2002 RALPH H. BAUER, Council Member, ) Time: 4:00 p.m. 19 CONNIE BOARDMAN, Council Member, ) Ctrm: 9 20 PETER GREEN, Council Member, ) ) - 21 Real Parties In Interest. ) 22 23 24 It is hereby stipulated by and between Scott Baugh of Manatt, Phelps & Phillips, counsel 25 for Petitioner, Ed Blackford, and Scott Field, Assistant City Attorney, City of Huntington Beach, 26 counsel for Real Party in Interest, Huntington Beach City Council, that pursuant to the Court of 27 Appeal Opinion, filed January 8, 2002; the Huntington Beach City Council shall submit the 28 following ballot question at the March 5, 2002 election: -1- SF: Plead: Blackford: Stip re Council's Return 1-10 STIPULATION AND ORDER REGARDING REAL PARTY IN INTEREST HUNTINGTON BEACH CITY COUNCIL'S RETURN ON WRIT OF MANDATE J an- 0-02 02:42pm From-Manatt, Pho' -&Phillips 1 T-124 P.003/005 F-202 1 Amebcierrt of Qas Tax by Removing Electric Power 2 Plana Exclusion YES 3 "Shall the ordinance repealing the Gas Tax exclusion for electric power plants be adopted?" NO A 5 6 Dated: January j o ,2002 GAIL kIUTTON, City Attorney By SCOTT F.FIELD e Assistant City Attorney 9 Attorneys for Real Party in Interest, 10 HUNTINGTON BEACH CITY COUNCIL 11 la Dated: January_L0, 2002 MANA.TT HELPS &PHILLIPS,LLP 13 By: SCOTT BAU 14 Attorneys for Petitioner 1b ED BLACKFORD 16 17 1e It is so ordered. 19 Date: JAN 1 0 2002 DEREK W. HUNT 20 HON. DEREK W.HUNT,JUDGE 21 32 23 24 25 26 27 28 -2- Sr. Plead: slackford: slip re council's Return 1-10 STIPULATION AND ORDER REGARDING REAL PARTY IN INTEREST +r,*+...++..nntn++t.r . ni r ov"r rim ThiOTT ,c T1m rmN7 nNT 117Dr7 M7 ld AAITI A'T'P 9'91'e4 06ST PL£ V T L HOU39 NO.LN I 1.NnH z+0 AL I 7 LZ:ET z00Z-0 T-NFJr Jan-10-02 . 02:42pm From—Manatt, Pti-IpWhi l l ips 1 T-124 P-003/005 F-202 1 Amendment o Qas Tax bY_ emoving Electric Power Plant Exclusion YES 2 3 "Shall the ordinance repealing the Gas Tax exclusion for electric power plants be adopted?" NO 4 5 Dated: January p ,2002 GALL BUTTON, City Attorney fi By 7 SCOTT F.FIELD e Assistant City Attorney 9 Attorneys for Real Party in Interest, 10 HUNTINGTON BEACH CITY COUNCIL 3.1 Dated; January, 2002 MANATT HELPS &PHILLIPS,LLP 3.2 By: 13 SCOTT BAU 14 Attorneys for Petitioner 15 ED BLA=ORD 16 17 1e It is so ordered. 19 Date: JAN 1 0 2002 DEREK W. HUNT . 20 HON.DEREK W.HUNT,JUDGE 21 22 23 24 25 26 27 28 3 -2- � . sF: _plead: Blackford: Sciv re Council' Return 1-10 STIPULATION AND ORDER REGARDING REAL PARTY IN INTEREST . rrn r rimmr nnT TmPTT jr n r.1-rMh7 nXT IZIUTT nr7hd ANln A'rP i I i PROOF OF SERVICE OF PAPERS 1 2 STATE OF CALIFORNIA ) ss. 3 COUNTY OF ORANGE ) 4 1 am employed in the County of Orange, State of California. I am over the age of 18 and not a party to the within action; my business address is 2000 Main Street, Huntington Beach, CA 92648. 5 6 On January , 2002, I served the foregoing document(s) described as: 7 HUNTINGTON BEACH CITY COUNCIL'S RETURN ON WRIT OF MANDATE 8 on the interested parties in this action by placing a true copy thereof in a sealed envelope addressed as follows: 9 to See attached service list. 11 a. [X] BY MAIL--I caused such envelope to be deposited in the mail at Huntington Beach, California. I am "readily familiar" with the firm's practice of collection and processing 12 correspondence for mailing. It is deposited with U.S.Postal Service on that same day in the 13 ordinary course of business, with postage thereon fully prepaid.. I am aware that, on motion of party served, service is presumed invalid if postal cancellation date or postage meter date is mc, 14 than 1 day after date of deposit for mailing in the affidavit. [Manatt,Phelps, Los Angeles only.] 15 b [ ] BY MAIL--By depositing a true copy thereof in a sealed envelope with postage 16 thereon fully prepaid in the United States mail at Huntington Beach, California, addressed to the address shown above. 17 C. [X] BY DELIVERY BY HAND to the offices of the addressees. 18 19 d. [ ] BY PERSONAL DELIVERY to the person(s)named above. 20 e. [ j BY FAX TRANSMISSION TO NO. 714 371-2550. 21 I declare under penalty of perjury under the laws of the State of California that the 22 foregoing is true and correct. 23 Executed on January ,2002, at Huntington Beach, California. 24 25 26 27 28 -3- SF: Plead: Blackford: Stin re Council's Return 1-10 STIPIILATTnN ANTI ()R T1FR I?1'I-e D nTXTfl_ n r- 1 Manatt, Phelps &Phillips, LLP 2 Donald R. Brown Scott R. Baugh 3 650 Town Center Drive Ste 1250 Costa Mesa, CA 92626 4 5 Manatt, Phelps & Phillips, LLP Donald R. Brown 6 11355 W. Olympic Boulevard Los Angeles, CA 90064 7 8 Ronald Davis 631 Frankfurt Avenue 9 Huntington Beach, CA 92648 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 l -4- J SF: Plead: Blackford: Stip re Council's Return 1-10 STIPULATION AND ORDER REGARDING REAL PARTY.IN INTEREST WT TN'T'TAT(:T(1\T I:TV e('LU rTTV rnT TAT(`TT IC DCTT TT)XT Filed 1/8/02 CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE HUNTINGTON BEACH CITY COUNCIL et al., G030042, G030075 Petitioners, (Super. Ct. No. 01CC15111) V. - OPINION o THE SUPERIOR COURT OF ORANGE =' COUNTY, Respondent; rn o ED BLACKFORD, c D Real Party In Interest. ED BLACKFORD, Petitioner, V. THE SUPERIOR COURT OF ORANGE COUNTY, Respondent; HUNTINGTON BEACH CITY COUNCIL, Real Party In Interest. Original proceedings; petitions for writs of mandate to challenge various orders of the Superior Court of Orange County, Derek W. Hunt, Judge. Writ petitions granted in part and denied in part. Gail C. Hutton, City Attorney, Scott F. Field, Assistant City Attorney, and Ronald Davis for Petitioners in G030042 and Real Parties in Interest in G030075. Manatt, Phelps & Phillips, Donald R. Brown and Scott R. Baugh for Real Party in Interest in G030042 and Petitioner in G030075. I. INTRODUCTION This proceeding involves writ petitions from both sides over a city ballot proposition. At the outset we stress that nothing we say in this opinion is intended to comment on the merits of the proposition. Anything that even sounds like we are commenting on the merits has been necessitated because the trial court struck out certain statements from a voters' pamphlet argument because they were supposedly"irrelevant," and there is no way one can analyze whether statements are relevant to a measure without some articulation of the probable nexus between the two. A. The City's Petition The first writ petition we consider is the city's challenges to the trial court's exclusions of a group of statements held to be irrelevant to the ballot measure. The measure is a proposition aimed at increasing taxes paid by Huntington Beach's one electric generating plant. The statute that governs the content of voter pamphlet arguments, Elections Code section 9295,1 does not mention relevancy as among the limited bases on which a trial court has authority to strike a statement. Rather, the statute only -- and that is the word used in the statute -- allows a trial court to strike a statement if it is "false, misleading, or I All statutory references in this opinion are to the Elections Code. 2 inconsistent with the requirements of this chapter" (that is, chapter 3 of the Elections Code, dealing with initiative and referendum in municipal elections), and even then there must be clear and convincing evidence the statement is false,misleading, or inconsistent with the requirements of the chapter. At most, relevancy is only indirectly touched on by section 9295 in its reference to consistency with the "requirements" of chapter 3 of the Elections Code. But the requirements of chapter 3 are very liberal: Section 9282 authorizes voter pamphlet arguments, and merely states that a proposed argument must be "for or against any city measure." The implication is as long as a statement is "for or against"a city measure, it is relevant enough, and it is not the province of the courts to blue-pencil statements merely on the basis that they do not believe them to be persuasive or cogent. As we show below, for a statement to be properly stricken as irrelevant, it must have absolutely no relationship to the city measure at issue. (See Patterson v. Board of Supervisors (1988) 202 Cal.App.3d 22, 32.) In applying that test, courts must be extremely reticent in undertaking the essentially political task of playing copy editor .vith one side's wording of a voters' pamphlet argument. In the political arena, after all, one person's relevant argument is another person's nonsense. Only when there is "no relationship" to the measure (see ibid.) does the trial court have the authority to strike it. Here,the statements that the trial court struck as irrelevant certainly do bear a relationship-to the city's tax initiative. It was error for the trial court to order them stricken, and we grant the requested writ to require that those statements be put back. B. Ed Blackford's Petition The second proceeding is Ed Blackford's challenges to a variety of orders allowing various statements in the ballot itself and in the voters' pamphlet to stand. Ed Blackford is president of AES Corporation,which owns the electric generating plant which is the target of Huntington Beach's tax increase measure. 3 l/ Here are the highlights of what we conclude with regard to Blackford's petition: The use of the word "exemption" in the very title of the measure as it appears on the ballot itself is misleading and should be stricken. The word is a form of advocacy in what is necessarily a neutral forum. Likewise, the description of the measure on the ballot is inaccurate when it asks the voter whether an ordinance requiring AES to pay"the same utility tax paid by all residents and businesses in Huntington Beach" should be adopted. The reference to "same utility tax"is misleading using an objective standard of verifiability,because the plant is already paying the "same"tax as everyone else. The proposed tax is one that only the AES facility could pay. Moreover,the statement by the city in the voters' pamphlet that"any cost to AES will be passed on primarily to people outside of Huntington Beach and California"is objectively misleading to the extent that it implies that most of the power generated by the plant is sold outside of California. At least some of the power from the AES plant is sold in Huntington Beach and a significant amount is sold in California. Two of the five generators at the plant are dedicated to California customers through the state's independent system operator, and one of the plant's five generators can only come on line in the midst of a power alert. On the other hand,the city's statement in the voters' pamphlet that"A yes vote for this measure will make AES pay their[sic] fair share of city costs that occur by virtue of their presence"is just political rhetoric and should not be excluded. "Fair share" is,at least in the context of taxation, an elastic and ideological idea that is not susceptible to ! objective verification. One person's fair share is another person's theft. f i We also reject Blackford's challenge that the ballot is unfair because it j } contains two related measures that have the effect of taking the proceeds of the tax on AES and designating it for an infrastructure fund. Any unfairness inheres in the substance of what is put before the voters,not in the form or structure of the ballot itself. 4 Finally we decline to consider whether the tax measure, in combination with the two related measures, constitutes a special tax under Proposition 13, such that a.two- thirds vote is required for it to pass. The question is not now ripe. The measure may not even get 50 percent of the vote in the upcoming election.2 The requested writ will be denied as to that point,but without prejudice to bring up the issue later if the measure receives more than 50 percent of the vote but less than two-thirds. H. BACKGROUND No doubt most Orange County residents and visitors to the region who have had occasion to drive along Pacific Coast Highway have seen the seven-story electric generating plant in Huntington Beach that lies just on the nonbeach side of highway near Newberry Street. It has been there for the past 40 years, and was owned by Southern California Edison before the so-called deregulation of the electricity market in 1997. Deregulation forced Edison to sell the plant. AES Corporation bought it in 1998. It would be safe to say that, whatever else it entailed, deregulation meant that electricity rates paid by consumers would not be figured on a simple "cost-plus"basis, that is,with price figured on the basis of the costs of production plus some preordained profit margin. Now, like other commodities where prices fluctuate, costs of production might go up and the supplier would not be automatically able to pass on the cost to the consumer if market conditions didn't permit it. Since 1970 (that is, long before deregulation),Huntington Beach has imposed a 5 percent utilities tax on purchases of natural gas(and other utilities as well; including cable television). Basically it is a sales tax on your utility bill. The city tax, however,did not apply to purchases of natural gas by a"utility"for"the generation of 2 we hereby grant the city's request for judicial notice of the election results of the November 2000 election, in which substantively the same measure received less than 47 percent of the vote(32,200 votes yes,37,935 votes no). 5 10 electrical energy." The city has not imposed a tax on energy purchased in one form to make energy in another form. The owners of the plant, first Edison then AES, therefore did not pay any utility sales tax on the wholesale natural gas they bought to generate electricity,though they did pay the utility tax on its telephones, its electricity and its water. The AES plant was like a furniture manufacturer who might not pay a sales tax on the wood it uses as raw materials to make furniture for resale, but who, if it bought a finished desk for one of its employees from a local store, would pay sales task on that desk. The city council of Huntington Beach now wants to tax the wholesale natural gas purchases made by the plant owners for use in generating electricity. The theory, at least if we are to believe the city's position in this writ proceeding, was that given the simplistic cost-plus pricing that prevailed in the pre-1997 regulated market, any tax on the wholesale natural gas bought by the owners of the plant would merely be passed along to the consumer. In the wake of deregulation,however, the city council decided that a tax on the wholesale natural gas sold to the AES plant--which just happens to be the only electricity generating plant in the city--would not necessarily be passed on to the consumer, and would generate a tidy sum(the city claims the revenue would amount to$2 million a year). So the city council has now scheduled, for the upcoming March 5, 2002 election, a ballot measure removing the provision in the city utility tax that states that the *tax does not cover the sale of natural gas used to make electricity. The title of the measure as it appears on the ballot is: "Amendment of Utility Tax by Removing Electric Power Plant Exemption." The ballot statement beneath it is worded as follows. "Shall the ordinance requiring an electric power plant to pay the same Utility Tax as do residents and businesses of the City of Huntington Beach by amending the Huntington Beach Municipal Code to remove Section 3.36.080(b) and make corresponding changes to Section 3.36.010(g),be adopted?" ►i 6 Accompanying the measure on the ballot are two related measures. The first is entitled"Creation of Infrastructure Fund,"about which wording there is no dispute and the other is an"advisory"measure. The advisory measure is worded, in pertinent part, this way: "Should the utility tax paid solely by an electric power plant be placed into an Infrastructure Fund to be used only for the maintenance, construction, and repair of infrastructure . . . ." The city council has submitted an argument in favor of the tax measure, which we reproduce as appendix A. An argument opposing the measure was submitted by counsel for Ed Blackford(appendix B), and the city submitted a rebuttal to the argument opposing the measure (appendix C). In late November 2001, Blackford filed a petition for a writ of mandate seeking to strike as false or misleading almost every statement in the argument in favor of, and in the rebuttal to the argument against, the measure. After a hearing in mid-December, the trial court issued an order, dated December 13, 2001, doing mostly that: Almost every statement in the city's ballot argument, and one comment in the city's rebuttal argument, was ordered excised. The statements fell into two categories: One group of statements were judged to be"false or misleading." The balance were stricken on the basis that they were not"relevant."3 The city almost immediately brought this writ proceeding,which we expedited to meet an early January printer's deadline: Then, on December 20, 2001,just days after the petition was filed,the trial judge modified his order,basically allowing back in most of the statements that he had ordered stricken as false or misleading. The judge stood firm, however, on the statements stricken as irrelevant. 3 Said the judge,"Now,at the same time,it doesn't seem unreasonable to me that the material should be relevant to the issues at hand,that any statements whose only value is to raise feelings of hatred or passion should be inadmissible." 7 I� Here are the statements in the city's proposed ballot argument in favor of the tax that have been struck, and remain struck after December 20, as irrelevant: "The AES plant is ugly,pollutes our air, and our ocean." "The AES plant has been a blight on Huntington Beach for over 40 years." "In the last election on this measure, AES spent nearly$300,000 to defeat it." "AES refused to sign a contract for use of electricity solely in California." Additionally,the court also struck as irrelevant the words "unsightly AES plant"from the city's rebuttal argument,as contained in this sentence: "A vote for Measure_will keep your taxes and fees down since Measure_will generate over$2 million annually directly to Huntington Beach from the unsightly AES Plant, thus requiring less in fees and taxes from Huntington Beach residents for other city services." (We note i that in order to retain grammatical sense, the stricken phrase should also include the words "from the"before the words "unsightly AES plant.") The one statement that remained struck for being false and misleading is this one: "Currently,AES is the only business in Huntington Beach that does not pay this tax." The judge's December 20 semi-about face generated its own writ petition, this time from Blackford. Here are the statements, now challenged by Blackford,that the trial court restored on reconsideration,presumably as not being false or misleading: `By voting yes,you are voting to require AES Corporation to pay the same utility tax paid by all residents and-businesses in Huntington Beach," "any cost to AES will be passed on primarily to people outside of Huntington Beach and California,"and"A yes vote for this Measure will make AES pay their share of city costs that occur by virtue of their presence." We now address the city's and Blackford's challenges to the modified order. 8 III. DiscussION A. The City's Petition 1. Basic Principles Official voters' pamphlets are limited public forums provided by the government, so the government can constitutionally impose what would be an otherwise unlawful prior restraint of speech by way of precluding false or misleading statements. (See Patterson, supra, 202 Cal.App.3d at pp. 29-30; see also San Francisco Forty-Niners v. Nishioka (1999) 75 Cal.App.4th 637, 646-649 [no First Amendment right to include false or misleading information in initiative petition]; cf. Clark v. Burleigh (1992) 4 CalAth 474, 488-495 [judicial candidate's statement in ballot pamphlet was "nonpublic forum" in which speech could be subject to reasonable regulation].) However, because freedom of speech is still implicated, any restrictions must be narrowly drawn. (Patterson, supra, 202 Cal.App.3d at p. 30.) The statute at issue here, for example, expressly requires clear and convincing evidence before the trial court may interfere with a ballot argument, and the Legislature went out of its way to emphasize the narrowness of the scope of any proper challenges by appending the word"only" in front of the heightened evidentiary standard. The operative language in section 9295 is: "A peremptory writ of mandate or an injunction shall be issued only upon clear and convincing proof that the material in question is false,misleading,or inconsistent with the requirements of this chapter . . . ." (Emphasis added.) As mentioned above, section 9295 contains no express relevancy requirement. At the outer edges of course, as the trial judge intuited,both common sense and the reference to the general requirements of the chapter would imply some minimal relevancy requirement. But it is indeed a minimal requirement. As we have seen,the only statutory basis for an inferred relevancy requirement, section 9282,merely states that a proposed argument must be"for or against any city measure." Moreover, section 9282 emphasizes the breadth of what is allowed in ballot arguments by insuring that any such 9 argument is presented in the pamphlet as merely the "opinions of the authors,"which exists in juxtaposition to the "impartial analysis"which the city attorney must prepare showing the effect of the measure on existing law. (See § 9280.) Of course, at the extreme fringe, some statements will not pass even a minimal relevancy test. No one would doubt, of course, that with regard to a city measure to, say, extend the term limits on the city's mayor, a ballot argument submitted against the measure which dwelt on the personal shortcomings of a possible mayoral candidate, as shown by papers filed in divorce court by her soon-to-be ex-spouse,would be beyond the pale. (Those are, incidentally,pretty much the facts in Patterson,where arguments in opposition to a rezoning measure were a series of personal attacks on the potential developers of the property in question, lifted from divorce papers. It was idle scandal- mongering that bore"no relationship"to the measure, and was "totally unrelated"to the proposed rezoning. (See Patterson, supra,202 Cal.App.3d at p. 32.)) But as the absolutist language used by the Patterson court ("no relationship," "totally unrelated")reveals, the relevancy requirement is an extremely light burden to carry. Only if there is "no relationship"between the statement and the city measure does it fail. i Any other test would mean that courts would be forced to determine the substantive persuasiveness of the arguments. Indeed,the judiciary must be mindful that rough and tumble of politics is ill-suited to the imposition of the relatively stringent judicial standards of"relevancy." Imagine a presidential debate where each side was allowed to make formal relevancy objections to statements made by the other side, with the moderator, in the style of a trial judge,required to make a quick determination on the objection. Not only would the 1 objections drown out the substance debate,but it would soon become obvious that the moderator would become embroiled in the merits of the arguments presented by each side. (The possibilities could be comic, of course,e.g.; "Ms. Candidate, that last statement about your opponent's lack of experience in foreign policy doesn't prove anything about her (y 10 views on expanded free trade zones, and I am hereby ordering it stricken. The audience is hereby instructed,when they vote, to disregard it as irrelevant.11)4. 2. The Statements Stricken for Irrelevance Were Indeed Relevant It goes without saying that taxation involves policy choices. Some oxen are gored more than others. Courts do not generally second guess these choices, which often need not make a great deal of theoretical or economic sense. Perhaps some classes of taxpayers are hit with higher taxes simply because they aren't numerous or cuddly. Ballot pamphlet statements "may constitute the only legislative history of an initiative measure adopted." (Board of Supervisors v. Lonergan (1980) 27 Cal.3d 855, 866.) Here,the city council's ballot statements,with its references to ugliness, blight and pollution,show precisely why the city council wants to increase taxes on the plant. In a word, the city council just plain doesn't like the fact that the plant operates within the confines of the fair city of Huntington Beach. The AES plant is, after all, a prototypical "smokestack industry" that easily offends upscale sensibilities, and one which is saddled with the burden of being conspicuous in its pollution. Every beach-goer in the area can see the smoke coming from the generators: The AES plant, in short, is an easy target. It isn't very cuddly,and it can't move to Nevada. 4 Indeed,the limits of rhetoric suggest that application of stringent judicial standards of relevancy doesn't even work when it comes to the product of judges,much less that of politicians and their consultants. Judge Posner has called Oliver Wendell Holmes'dissent inLockner v.New York(1905) 198 U.S.45"the most famous opinion of our most famous judge"and"merely the greatest judicial opinion of the last hundred years." (See Posner,Law and Literature(Harvard 1988)at pp.281,285.) But it would not"not have received a high grade in a law school examination in 1905." (Id.at p.285.) "It is not logically organized,does not join issue sharply with the majority,is not scrupulous in its treatment of the majority opinion or of precedent .... It is not,in short,a good judicial opinion." (Ibid.) Indeed,at one point Holmes unfairly suggests that the majority wanted to privatize the post office(id.at p. 282),which is the kind of argument that,under the no-ad hominem standard used by the trial judge here,might have been stricken as"irrelevant." Yet the Lockner dissent remains a"rhetorical masterpiece." (Ibid.) If Holmes can get away with not joining issue"sharply"in a"great"opinion,-surely the authors of voter pamphlet arguments need not be held to rigorous standards of relevancy either. Authors of arguments in voter pamphlets should hardly be held to more stringent standards than Supreme Court judges. 11 I'w Many literate citizens have heard Justice Marshall's phrase, "the power to tax involves the power to destroy," lifted from the text ofMcCulloch v. Maryland(1819) 17 U.S. 316, 431, 4 L.Ed.2d 579, 607. But most of us are not typically aware of the context which generated the phrase. President Madison had helped create a federal bank, the Bank of the United States, and the various states just plain didn't like the idea of such an institution in their backyards. Call it financial "nimbyism" after the acronym for"not in my backyard." (E.g.,Families Unafraid to Uphold Rural El Dorado County v. Board of Supervisors (2000) 79 Cal.AppAth 505, 516 [prevailing nimbys were not automatically disqualified from attorney fee award by virtue of their nimbyism].) The present case, by the same token, may be described as goombyism, for"get out of my backyard"or at least, "if you stay here, you're going to pay for it." It appears from the trial court's comments that it was troubled by the"ad hominem" quality of the city's statements. Ad hominem arguments, of course, constitute one of the most common errors in logic: Trying to win an argument by calling your names ("Jane, you ignorant etcetera . . .") only shows the paucity of your own reasoning. (Of course, it happens all the time in real world politics.) Since the trial judge here had probably read Patterson with its reference to an"ad hominem attack,"it appears he ' concluded that the city council's arguments here wouldn't pass muster. (See Patterson, supra, 202 Cal.App.3d at p. 32.)5 f • I 5 The trial judge was probably also(and very understandably)concerned with a systemic problem inherent in election pamphlet cases: The possibility that one side or the other will subsequently exploit a judicial decision. Thus in the hearing of December 19,counsel for the city,in referring to the court's previous(and for the most part subsequently modified)order striking a number of statements as false or misleading,voiced the fear that the other side would"spin"the ruling into"The Superior Court of the County of Orange found my clients were deceitful liars." Perhaps it was that point that prompted the trial judge to subsequently modify his previous conclusions with regard to most of the statements found false and misleading. There is not much the judiciary can,or perhaps should,do about the problem. Judges shouldn't alter the decision making process(or,in our case,the construction of the opinion we would normally write anyway)out of the fear that one side will"spin"it to its own advantage. Sorry,that's just politics,and judges cannot control the use that might be made of their decisions. 12 11 Patterson, however, is distinguishable in that regard. Patterson involved a rezoning ordinance, and the ad hominem comments in question there were totally without relationship to that measure. But tax law is different. As we have said, it is a simple truism that legislative bodies make policy choices which are directed against different.taxpayers, and sometimes, if the truth be told, the basis for the choice is nothing more than some taxpayers are easy targets. There is a genuine "ad hominem" quality to tax policy. So when politicians openly acknowledge, in a ballot argument, why they have singled out a taxpayer for higher taxes,the electorate is the better informed. What we have here,perLonergan, is a refreshingly honest legislative history of the city's proposed measure. The following comments thus easily pass the minimal relevancy test because they reveal the essential policy choice behind the city initiative: "The AES plant is ugly,pollutes our air, and our ocean," "The AES plant has been a blight on Huntington Beach for over 40 years," and the reference to the "unsightly AES plant"in the rebuttal. The next comment, "In the last election on this measure,AES spent nearly $300,000 to defeat it"presents a somewhat more complex problem. At one level it tries to operate as a kind of preemptive strike,basically telling the voters that they should beware of anything they might see opposing the tax,because it will probably have been funded by what the city charadterizes as'an ugly unsightly polluting"blighter." But at another level there is the subtext that AES has enough money lying around to mount a well-funded campaign to oppose the tax,rather than just cheerfully accepting its fate. Given that the city measure is aimed solely at the AES plant(no other business would be affected), the proposed statement meets the standard of minimal relevance: First, once again, the statement reveals the depth of the city's animus toward the power plant--how dare AES spend money to oppose a tax increase. Second,the statement has rhetorical significance: It is argument by caricature. It paints, as the city no doubt 13 I d hopes, AES as a stock rich villain out of a Frank Capra movie. It evokes the kind of images that politicians have used to drum up support for tax increases from time immemorial. That leaves the final statement stricken as irrelevant, "AES refused to sign a contract for use of electricity solely in California." This statement, like the previous one, both reveals the city's motivation and seeks to counter possible opposition. While this statement meets a minimal relevancy test(basically it is an appeal to self-interest not unlike Antony's speech at Caesar's funeral6), it is, however, factually misleading, as we explain in part III.B.2.a. of this opinion below. 3. The One Statement the Trial Court Left Stricken for Being False and Misleading Really was Misleading In his December 13 ruling, the trial judge struck this statement in the city's voter pamphlet arguments for being false and misleading: "Currently, AES.is the only business in Huntington Beach that does not pay this tax:" On reconsideration, he still found it false and misleading. He was right. In determining whether statements are false or misleading, courts look to whether the challenged statement is subject to verifiability,as distinct from"typical hyperbole and opinionated comments common to political debate." (See San Francisco Forty-Niners, supra, 75 Ca1.App.4th at p. 649.) An"outright falsehood"or a statement that is "objectively untrue"may be stricken. (Ibid.) We need only add that context may show that a statement that,in one sense, can be said to be literally true can still be. 6 Antony held up the Caesar's will before the mob and said,in essence,"if you knew all the goodies Caesar had promised you,you'd all go crazy." Here's the original: "Have patience gentle friend,I must not read it;It is not meet you know how Caesar loved you. You are not wood,you are not stones,but men;And,being men,hearing the will of Caesar,It will inflame you,it will make you mad: `Tis good you know not that you are his heirs;For,if you should,O what will come of it!" Shakespeare,Julius Caesar,act III,scene 2. The speech is one of the most studied pieces of persuasive rhetoric of all time. And if the promise of a free lunch was relevant enough for Anthony,it is relevant enough for the Huntington Beach City Council. Basically,the city council is promising better city services because the people who will bear the real cost of the tax,including the consumers of AES'electricity,are elsewhere. �� 14 materially misleading; hence, the Legislature did not indulge in redundancy when it used both words. On the other hand, the standard, as defined by the Legislature, is necessarily a high one: Courts may intervene only if clear and convincing evidence shows the statement to be false or misleading. The statement that"Currently,AES is the only business in Huntington Beach that does not pay this tax"may be literally true,but in context it is misleading in light of objective facts. The key words are, of course,"this tax." In context"this tax" is defined by the statement immediately above,which refers to "the same utility tax paid by all residents." On this point there is verifiable falsity. AES does pay "the same utility tax paid by all residents." (Our emphasis.) It gets hit with Huntington Beach's 5 percent utility sales tax on its utility bills the same as everybody else. What it doesn't pay is a tax that only it could pay. So to say that AES is the only business that does not pay"this tax" is to mislead. It deliberately confuses the proposed tax with the existing tax. B.Blackford's Petition 1. Challenges to the Ballot Itself a. Exemption? The wording of a ballot is governed by different standards than govern arguments in voters' pamphlets. Voter pamphlets are governed by the strictures inherent in section 9295 --which the Legislature plainly intended to maximize freedom of speech short a very few specified categories, e.g.; false,misleading, or inconsistent with the requirements of chapter 3. Ballots, on the other hand, are hemmed in by the constitutional guarantees of equal protection and freedom of speech. (See Citizens for Responsible Government v. City ofAlbany(1997) 56 Cal.AppAth 1199, 1228-1229; see also Stanson v. Mott(1976) 17 Cal.3d 206,219 ["the First Amendment precludes the government from making public facilities available to only favored political viewpoints"].) These guarantees mean, in practical effect, that the wording on a ballot or the structure of the ballot cannot favor a 15 O particular partisan position. (See Citizens for Responsible Government v. City of Albany, supra, 56 Cal.AppAth at p. 1228.) For example, as our high court pointed out in Gould v. Grubb (1975) 14 Cal.3d 661, 670, automatically putting the incumbent's name first, in light of evidence that some voters tend to vote for the first name on the ballot just because it is the first name on the ballot, unfairly dilutes the weight of those voters who do not vote for the incumbent. The automatic reservation of the top line for incumbents thus contravened equal protection. For the same reason the Gould court precluded using automatic alphabetical order: Why should those with names that being with letters near the beginning of the alphabet get an advantage by virtue of the very structure of the ballot? (See id. at pp. 674-675.) The question in this case, then, is whether the word"exemption" is insufficiently neutral to appear in the title of the measure on the ballot. Blackford asserts that the word"exemption"carries the whiff of privilege about it. He would substitute the word"exclusion" in its stead, as more neutral. We agree. The word, in this context, is advocacy by other means. "Exemptions"--particularly in a tax context-- connote unfair influence and special treatment. It conveys the idea that AES'isn't paying any utility tax at all -- a proposition which, as we have seen, is simply not true. To return to our.hypothetical of the furniture maker: If there was a special tax on the sale of wood products,which didn't cover wholesale sales of wood to make furniture, it would be unfair to say that the furniture maker was"exempt"from the tax on the sale of finished wood products. There is a difference, after all,between wholesale raw materials and retail products made of those materials. And that is, substantively,the difference here: It is one thing for a consumer to receive energy from a utility to use to light a room, another for the utility itself to receive energy in one form(natural gas) so it can sell it to the consumer in another(electricity). To say that a wholesale consumer and producer is"exempt" from a tax paid by all retail consumers is not quite accurate. The tax extends to one thing; it just doesn't extend to another. �I 16 The title of the measure as it now stands reads, "Amendment of Utility Tax by Removing Electric Power Plant Exemption." Because of the extreme time constraints under which this proceeding is conducted(there is almost no time left for any further haggling over words), we will grant the writ to order the city to rewrite the title to conform with Blackford's suggestion that the word"exclusion"be substituted for"exemption." It should now read: "Amendment of Utility Tax by Removing Electric Power.Plant Exclusion." b. The "Same" Tax? The description of the measure as it appears on the ballot asks the voter whether the"ordinance"that requires the power plant to "pay the same Utility Tax as do residents and businesses of the City of Huntington Beach"should be adopted. Not only is this advocacy in the description of the measure on the ballot itself, it is substantively misleading. As we have indicated above,no business but AES could possibly pay a tax on wholesale natural gas used to generate electricity. Therefore what AES will pay if the measure passes is not the "same"tax at all. It is, substantively, a tax that will be unique to the AES plant because the AES plant is the only business in the city that buys energy to make energy in a different form for sale to consumers. By the same token,the corresponding language in the ballot argument("By voting yes,you are voting to require the AES Corporation to pay the same utility tax paid by all residents and businesses in Huntington Beach")is also misleading,and should have remained stricken. c. "Paid Solely" The statement in the advisory measure that asks the voters whether"the utility tax paid solely by an electric power plant be placed into an Infrastructure Fund" (our emphasis) is not misleading. The measure is aimed"solely" at AES. It is the only business that could be affected by the measure. 17 zz� 2. Challenges to Statements in the Voters' Pamphlet a. "Re fiusal"to Sign a Contract? As shown above, the city's voter pamphlet argument that "AES refused to sign a contract for the use of electricity solely in California"meets the standards of relevancy for voter pamphlet arguments. Arguments appealing to self-interest are always relevant. However, the statement is factually misleading. The AES plant has five units. The so-called"refusal" on the part of the corporation to sign a contract with the state only applied to two of those five units --units three and four. Two of the units are pledged to the state's independent system operator for use in California -- and therefore some of the juice certainly goes to California consumers and some of that presumably goes to Huntington Beach. (Moreover, even the part that doesn't go to Huntington Beach helps alleviate shortages and potential shortages elsewhere in the state, to the benefit of Huntington Beach residents.) The last unit,unit five, operates only when there is a staged alert due to a shortage declared by the independent system operator. By definition its energy can only be sold to California consumers. In short, there is no controverting the fact that at least some of AES' electricity will be sold in Huntington Beach and California,even though the implication of the statement is that AES only sells its electricity to out-of-state energy companies. That is verifiably not true. The pamphlet statement affirmatively misleads the reader(indeed, it would have misled us if we didn't have the benefit of papers filed by Blackford)into, believing that none of the electricity produced by the plant will be sold in California when some will. b.Passing On "Any"Costs to Out-of-Staters? By the same token, the facts about the generators --three of the five could end up producing electricity sold in California,.especially during a shortage --means that the statement in the voter pamphlet that"any cost to AES will be passed on primarily to 18 people outside of Huntington Beach and California" is at least partially misleading. True, the word"primarily" saves the statement as regard to people in Huntington Beach-- it is unlikely the residents of the city could consume enough power to be "primarily" affected by any tax increase on the plant. (And in any event we do not have "clear and convincing" evidence that the electricity produced by the plant is "primarily" consumed by Huntington Beach residents such as to make the statement verifiably false as to them.) But the word all-encompassing word"any,"in combination with the more general word"primarily," certainly misleads the reader as to the effect on California residents generally. "Any" is one of those powerful, reassuring, absolutist words that creates a bright line and easily subject to objective falsification. The fair import of the sentence as it now stands is that the bulk of"any"cost caused by the tax will be "passed on" to out-of-state residents, a statement which is inconsistent with the dedication of three of five generators to the California independent system operator. The statement must therefore be modified to strike the words "and California" from it. c. Fair Shares On the other hand,the statement that"A yes vote for this measure will make AES pay their fair share of city costs that occur by virtue.of their presence"is not subject to objective verifiability. You can get a Ph.D. in political science studying what"fair shares" are and still not come to any firm conclusion. The subject has occupied political philosophers since at least Aristotle,who,in addressing the subject of"distributive justice,"began a long tradition in political philosophy of thinking about exactly what do you mean by"fair"in"fair share." It is one of those topics that is particularly suited for the marketplace of ideas. The city's argument is thus, in section 9282 terms,mere opinion. 3. Challenges to the Related Measures a. Advocacy.by Linkage 19 Blackford objects to the linkage of two other ballot measures to the tax increase measure. One proposes to create an infrastructure fund; the other will ostensibly advise the city that any revenue from the "utility tax paid solely by an electric power plant" should go into that infrastructure fund. Blackford's theory is that the very relatedness of the three measures is a kind of subtle partisanship in the ballot form. The issue is a close one, because it is reasonably obvious that the city is trying to use the two related but apparently uncontroversial measures (who could, in theory, be against merely designating an infrastructure fund?)to influence the voters as to the third, more controversial measure, which involves a tax increase on one particular business. Gould v. Grubb, supra, 14 Ca1.3d 661,however, indicates that before the form or structure of a ballot is subject to constitutional infirmity it must have a "real and appreciable" impact on the equality, fairness, and integrity of the electoral process. (Id. at p. 670.) Here,the subtle advocacy and partisanship in the very existence of the two accompanying measures is not an aspect of the electoral "process,"but is,rather, a matter of their substance. The fact that some measures on a ballot make other measures appear more desirable doesn't make the ballot or electoral process itself unfair. What Blackford is really objecting to is that the city has tried to design its tax measure to be more desirable than might otherwise be the case. Suppose,for example,that the city tried to do the whole thing in one measure rather than three. (E.g.,a single measure that said, "let's increase the taxes on the AES plant and restrict all the proceeds to just an infrastructure fund.") There would be no partisan impact beyond the very content of the measure itself. The ballot qua ballot would be just as neutral as ever. The three measures here are substantively equivalent? 7 We express absolutely no opinion as to whether the relatedness of the three measures violates any rule other than the one against partisanship in the ballot form itself. Our opinion is completely without prejudice to any substantive challenge to,or defense of,any or all of the three measures. �,/ 20 b. Two-Thirds Required? Finally, Blackford suggests that the three measures,related to each other as they are, constitute a"special tat"under Proposition 13, and therefore a two-thirds vote will be necessary to pass them. The issue is not ripe now in this writ proceeding. There is no reason it cannot wait until after the election. Of course, our opinion is completely without prejudice to either party on the issue. IV.DISPOSITION Rather than sort through the court's December 20, 2001 order(which itself only partially modified the court's December 13,2001 order)paragraph by paragraph, the easiest way to handle this is to let a peremptory writ issue commanding the Superior Court simply to vacate its December 20, 2001 order in its entirety, and enter a new and different order which does the following: (1) Strikes no statements or language from the city's voters' pamphlet arguments as irrelevant. (2) Strikes "Currently, AES is the only business in Huntington Beach that does not pay this tax" from the city's voter pamphlet argument as misleading. (3) Strikes the word"exemption"from the title of the ballot measure as it appears on the ballot as misleading and substitutes the word"exclusion." (4) Strikes the words"requiring an electric power plant to pay the same tax as do residents and businesses of the City of Huntington Beach by" from the description of the measure on the ballot. (5) Strikes the sentence `By voting yes,you are voting to require the AES Corporation to pay the same utility tax paid by all residents and businesses in Huntington Beach"from the city's voters' pamphlet argument as misleading. (6) Strikes the sentence "AES refused to sign a contract for use of electricity solely in California" from the city's voter pamphlet argument as misleading. 21 2,10 (7) Strikes the words "and California" as misleading from the following statement in the city's voter pamphlet argument: "any cost to AES will be passed on primarily to people outside of Huntington Beach and California." (8) Leaves the rest of the ballot and voters' pamphlet arguments untouched. In the interests of justice, each side will bear its costs from this proceeding. SILLS, P. J. WE CONCUR: . t RYLAARSDAM,J. MOORE, J. t �1 22 Amendment of Utility Tax by Removing_ Electric Power Plant Exemption YES "Shall the ordinance requiring an electric power plant to pay the same Utility Tax as NO do residents and businesses of the City of Huntington Beach by amending the Huntington Beach Municipal Code to remove Section 3.36.080(b) and make corresponding changes to Section 3.36.010(g), be adopted?" Original Ballot Measure HH Language 1/15/02 Special Meeting — Item 2 z� G:Election\20021Amendment of Utility Tax � �iSJo�. S�Q,Cia,1 fMe���hc� Argument IN FAVOR of a Measure HH Amendment of Gas Tax by Removing Electric Power Plant Exclusion Vote yes on Measure HH because it will keep your taxes down. By voting yes, you are voting to end the tax exemption the AES Corporation enjoys for the natural gas it consumes to produce electricity. The AES plant is ugly,pollutes our air, and our ocean. Any cost to AES will be passed on primarily to people outside of Huntington Beach. A yes vote for this Measure will make AES pay their fair share of city costs that occur by virtue of their presence. The AES plant has been a blight on Huntington Beach for over 40 years. Isn't it about time it contributes to our city? In the last election on this measure, AES spent nearly$300,000 to defeat it. Don't be fooled again. Vote yes on Measure HH. Pam Julien Houchen, Mayor, City of Huntington Beach Debbie Cook, Mayor Pro Tem, City of Huntington Beach Ralph H. Bauer, Council Member, City of Huntington Beach Connie Boardman, Council Member, City.of Huntington Beach Peter Green, Council Member, City of Huntington Beach" o r= ti Trrl N n G:Field:Plead ing:Blackford:Argument in Favor of Measure HH as approved by Superior Court it�vt�f•d L.pJ}1 ct-E REBUTTAL TO ARGUMENT SUPPORTING MEASURE [LETTER] CITY OF C HU�T.f�i}►OPd BEACH, CA CITY OF HUNTINGTON BEACH p 2001 NOV 2 1 1_' 3• 0 Q We've spent our careers opposing higher taxes here in Orange County. Take 1 our word for it — Measure [letter] is a double tax that will increase utility bills for r Huntington Beach residents. o Z The City Council wants you to believe Measure [letter] isn't a tax increase. 13 That's ridiculous. It's just another attempt by the city to collect more taxes from y residents. In fact, the city was recently sued for collecting illegal taxes. i Z When Huntington Beach's utility tax was adopted, AES was exempted to avoid 1z double-taxing businesses and residents. The threat of double taxation is as true �? today as it was then. That's why you should oppose Measure [letter]. �L If this irresponsible measure passes, residents will be taxed twice for electricity �Z —first on their utility bills and again when taxes are passed on to consumers. I y Huntington Beach doesn't need another hidden tax. Instead, it needs a council that spends tax dollars efficiently with accountability for how local tax dollars are 13 spent. t Two years ago voters overwhelmingly rejected an identical proposal put on the z ballot by the city council — Measure Q. Now, the council wants voters to believe Measure [LETTER] is different. It isn't. Measure [LETTER] is an unfair double 1-1 tax on Huntington Beach residents. o ti With California's energy crisis, now is not the time to raise electricity rates. We 14 need lower electricity rates, not higher ones. 0 Please join the National Taxpayers Alliance and us and vote no on Measure 3 [LETTER]. t Vote "NO" on Measure [LETTER] — a hidden "double tax" that will raise local 3 utility bills. o i (' a Reed Royalty Dana Rohrabacher President Member of Congress OC Taxpayers Association Scott Baugh Former Assemblyman, Huntington Beach Nov-27-01 02:07pm From-Manatt, PhelpsPhillips 1 T-827 P.001/002 F-532 11/27/2001 12:11 YA4 a4a Lau ruse ,�... .. . 11/�lI'lk7111 1t7::'d 1143741557 CITY CLERK PAGE 04 STATEMENT TO BE. FILED BY AUTHOR OF ARGUMENT IN REBUTTAL TO PRIMARY ARGUMENT IN FAVOR OF (AMENDMENT OF UTILITY TAX BY REMOVING ELECTRIC POWER PLANT EXEMPTION) All arguments concerning measure fled pursuant to Division 9, Chapter 3 (beginning with § 9200) of the Elections Code shall be accompanied by the following form statement to be signed by each proponent and by each author, if different, of the argument_ The undersigned proponent(s) or authors(s) of the rebuttal argument to primary argument in favor of ballot measure PROPOSED ORDINANCE at the Special Municipal Election for the City of Huntington Beach, to be held on March 5, 2002, hereby state that the argument is true and correct to the best of their knowledge and belief. t C, Acr, l S-+' k-�14;�A-E C U'L 1 lY Tvk-Cif":� Name of Organization Sign me Flint Name Date B:e1ec6arV20Mrnvrcnhsc1ty tm4form of statement—udw tax•r0UtW15.dac li; L1JLGG1 1G: 6 f147/41��£ ClIY CLERK PAGE '04 STATEMENT TO BE FILED BY AUTHOR OF ARGUMENT IN REBUTTAL TO PRIMARY ARGUMENT IN FAVOR OF (AMENDMENT OF UTILITY TAX BY REMOVING ELECTRIC POWER PLANT EXEMPTION) All arguments concerning measure filed pursuant to Division 9, Chapter 3 (beginning with § 9200) of the Elections Code shall be accompanied by the following form statement to be signed by each proponent and by each author, if different, of the argument, The undersigned proponent(s) or authors(s) of the rebuttal argument to primary argument in favor of ballot measure PROPOSED ORDINANCE at the Special Municipal Election for the City of Huntington Beach, to be held on March 5, 2002, hereby state that the argument is true and correct to the best of their knowledge and belief. CiTi : l-C --ra�,� �.- �.� aES Rems. Alcic�. L n s-t' V,S VrjC Q- u 1 L I it 7-A-K-f-S Name of Organization Sign Name Print Name Date It- 2.'1 - a s g!election/2002/msrch/utlllty tax/form of statement—utility tax-rebuttals.doc Nov 27 01 12: 10p Reed Royalty [ 9491 240-0304 p . l 11/27/2001 12:09 FAX 949 250 7010 MrNAIIV T--- Mpages -RK PAGE 04 Post-it's Fax Note 7671To Cu.IDept.Phone#Fax# STATEMENT TO BE FILED BY AUTHOR OF ARGUMENT IN REBUTTAL TO PRIMARY ARGUMENT IN FAVOR OF (AMENDMENT OF UTILITY TAX BY REMOVING ELECTRIC POWER PLANT EXEMPTION) All arguments concerning measure filed pursuant to Division 9, Chapter 3 (beginning with § 9200) of the Elections Code shall be accompanied by the following form statement to be signed by each proponent and by each author, if different, of the argument. The undersigned proponent(s) or authors(s) of the rebuttal argument to primary argument in favor of ballot measure PROPOSED ORDINANCE at the Special Municipal Election for the City of Huntington Beach, to be held on March 5, 2002, hereby state that the argument is true and correct to the best of their knowledge and belief. k-lnc, u -re Name of Organization 1g, Nam Print Name Date g clectioni2002imerch/utility tax/form of statement-utility lax•rebuttab.goc FULL TEXT OF MEASURE HH IMPARTIAL ANALYSIS BY CITY ATTORNEY CITY OF HUNTINGTON BEACH MEASURE HH d First. Section 3.36.010 of the Huntington Beach Municipal Code is hereby ANALYSIS amended to read as follows: m This measure, if approved by the voters, would have the effect of requiring 3_36.010 Definitions. Except where the context otherwise requires, the an electric power plant to pay the same utility tax as do residents and m definitions given in this Section govern the construction of this chapter: businesses of the City of Huntington Beach. F- (a)"City" means the City of Huntington Beach. This measure, if approved by the voters,would operate in the fallowing two W respects: (b)"Month" means a calendar month. i N 1. It would amend Huntington Beach Municipal Corte Section 3.36.G10, by (c)"Person" means any domestic or foreign corporation, firm, association, deletingthe definition of cot ' syndicate, joint stock company, partnership of any kind, joint venture, potation"from the list of definitions club,Massachusetts business or common law trust,society, individual or contained in subsection (g)of Section 3.36.010. municipal corporation. 2. It would amend Huntington Beach Municipal Code Section 3.36.080, by deleting subsection (b), renumbering subsection (c) to subsection (b), m (d) "Service supplier" means any entity which receives taxes paid and l � 2 and renumbering subsection (d)to subsection (c). remits same as imposed by this chapter. co (e) "Service user' means a person required to pay a lax imposed by this The most important change would be the deletion of subsection (b) from chapter. Section 3.36.080. Subsection (b)of Section 3.36.080.as it presently exists, excludes, from the utility tax, ". . . (c)harges made for gas to be used in the 0 Tax Administrator' means the Finance Director of the City.(f)" y. generation of electrical energy by an electrical corporation." C (g) "Telephone corporation, electrical iun, gas corporation, and CONCLUSION water corporation"shall have the same Tneanings as defined in Sections 70 This measure, if approved by the voters, would change existing law by Ln 234, 2t8, 222, and 241 respectively, of the Public Utilities Code of the deleting the exclusion presently enjoyed by an electric power plant from State of California, as said Sections existed on January 1, 197G. paying the same utility tax as do residents and businesses of the City of "E `w^ater corpora lion"shall be construed to Huntington Beach. include any organization, municipality or agency engaged in the selling or supplying of water to a service user,.however-as sr< GAIL l iUTTON, City Attorney specifitd by Public dts� de Section 218, dues uut-h i cta d e rology urprodo�irrg pIIwerfl urTrotlTerltrarra verTtiorral puvversc3ur fir lt�e gerreratTffrraf eteiirii:ity' Second. Section 3.36.080 of the Huntington Beach Municipal Code is hereby amended to read as follows: 3.36.080 Gas tax—Exclusions. There shall be excluded frorn the base on ' which the tax imposed in this Section is computed: A cn (a)Charges made for gas which is to be resold and delivered through mains CT) or pipes; ` S m (b)Chaiges madre lui gas to be used in ftiu etgctri�t errp by a,i etevb icafi car pui atiu, VA D Mb) Charges made by a gas public utility for gas used and consumed in r, '- the conduct of the business of as public utilities: and �` � g p �,_.l �it I A (dXc) Charges for gas used in water pumping by water corporation. A URIGINAL CITACI,ONnJUUDICIAL FOR COURT USE ONLY NOTICE TO DEFENDANT: (Aviso a Acusado) (SOLO PARA USO DE LA CORTE) C �?11'Y CLERK / OU, dL ONNIE BROCKWAY vZ �/ CITY OF 01 HUNTINGTON BEACH CITY COUNCIL, PAM M11 h"PMayor;(b V&JA 17 COOK, Mayor Pro Tem, RALPH H. BAUER, Cou C M mber, CQNNIE�� BOARDMAN, Council Member, PETER GREEN, �un if lklb6r', W Real Parties in Interest YOU ARE BEING SUED BY PLAINTIFF: (A Ud. /e esta demandando). r������✓r ��.,, �'�'��'� ED BLACKFORD .L,D J-'3' 75 You have 30 CALENDAR DAYS after this Despues de que le entreguen esta citacion judicial usted Summons is served on you to file a typewritten tiene un p/azo de 30 DIAS CALENDARIOS para presentar response at this court. una respuesta escrita a maquina en esta corte. A letter or phone call will not protect you; your Una carta o una /lamada telefonica no le ofrecera typewritten response must be in proper legal form proteccidn; su respuesta escrita a maquina tiene que if you want the court to hear your case. cumplir con las formalidades legates apropiadas si usted quiere que la corte escuche su caso. If you do not file your response on time, you may Si usted no presenta su respuesta a dempo, puede perder lose the case, and your wages, money and el caso, y le pueden quitar su salario, su dinero y otras property may be taken without further warning cosasde su propiedad sin_aviso adicional por parte de la from the court. corte. There are other legal requirements.You may want Existen otros requisitos /ega/es. Puede que usted quiera to call an attorney right away. If you do not know l/amar a un abogado inmediatamente. Si no conoce a un an attorney, you may call an attorney referral abogado, puede Ilamar a un servicio de referencia de service or a legal aid office (listed in the phone abogrados o a una oficina de ayuda legal(vea el directorio book.) telefonico). The name and address of the court is (El nombre y direccion de la corte es) CASE NUMBER:(NGmero del Caso) ORANGE COUNTY SUPERIOR COURT 01CC15111 CENTRAL JUSTICE CENTER 700 Civic Center Drive West Santa Ana, CA 92702-1994 The name,address, and telephone number of plaintiffs attorney,or plaintiff without an attorney, is: (El nombre,la direccion y el numero de telefono del abogado del demandante, o del demandante que no tiene abogado, es) MANATT, PHELPS & PHILLIPS, LLP (714) 371-2500 DONALD R. BROWN (Bar No. CA 156548) (714)371-2550-- Facsimile 650 Town Center Drive/Suite 1250 Costa Mesa, CA 92626 DATE: NOV-2 ®®� ALA S1LA� ER Clerk,b Deputy (Fecha) (Actuario) ✓ A (Dele ado i 3 9 ) [SEAL] NOTICE TO THE PERSON SERVED: You are served 1. ❑ as an individual defendant. 1 2. ❑ as the person sued under the fictitious name of.(sp if �'k C ,4�i 3. El on behalf of.(specify): / under ❑ CCP 416.10(corporation) ❑ CCP 416.10(r li ElCCP 416.10(defunct corporation) ❑ CCP 416.10(conservatee) C ;`a<.....••°' ❑ CCP 416.10(association or partnership) ❑ CCP 416.10(individual) ❑ other: 4. ❑ by personal delivery on (date): Form Adopted by Rute 982 (See reverse for proof of Service) CCP a1 z.zo Judicial Council of California 982(a)(9)[Rev.January 1,19841 SUMMONS 2001©American LegalNet,Inc. PROOF OF SERVICE—SUMMONS 1. 1 served the (Use separate proof of service for each person served) a. ❑ summons ❑ complaint ❑ amended summons ❑ amended complaint ❑ completed and blank Case Questionnaries ❑ other(specify): b.on defendant(name): c. by serving ❑ defendant ❑ other(name and title or relationship to person served): d. ❑ by delivery ❑ at home ❑ at business (1)date: (2)time: (3)address: e. ❑ by mailing (1)date: 1: (2) place: ' ! 2. Manner,of service (check proper box): a. ❑ ' Personal service. By personally delivering copies. (CCP 415.10) b. ❑ Substituted service on corporation, unincorporated association (including partnership),or public entity. By leaving, during usual office hours, copies in the office of the person served with the person who apparently was in charge and thereafter mailing (by first-class mail, postage prepaid)copies to the person served at the place where the copies were left. (CCP 415.20(a)) c• ❑ Substituted service on natural person, minor,conservatee,or candidate. By leaving copies at the dwelling house, usual place of abode, or usual place of business of the person served in the presence of a competent member of the household or a person apparently in charge of the office or place of business,at[east 18 years of age,who was informed of the person served lat the place where the copies were left. (CCP 415.20(b)) (Attach separate declaration or affidavit stating acts relied on to establish reasonable diligence in first attempting personal service.) d. ❑ Mail and acknowledgment service. By mailing (by first-class mail or airmail, postage prepaid) copies to the person served,together with two copies of the form of notice and acknowledgment and a return envelope, postage prepaid, addressed to the sender. (CCP 415.30)(Attach completed acknowledgment of receipt) e. ❑ Certified or registered mail service. By mailing to an address outside California (by first-class mail, postage prepaid, requiring a return receipt) copies to the person served. (CCP 415.40) (Attach signed return receipt or other evidence of actual delivery to the person served.) f. ❑ Other(specify code section): ❑ additional page is attached. 3. The"Notice to the Person Served"(on the summons)was completed as follows(CCP 412.30,415.10,and 474): a. ❑ as an individual defendant. b. ❑ as the person sued under the fictitious name of(specify): c. ❑ on behalf of(specify): under: ❑ CCP 416.10(corporation) ❑ CCP 416.60 (minor) ❑ other: ❑ CCP 416.20(defunct corporation) ❑ CCP 416.70(conservatee) ❑ CCP 416.40(association or partnership) ❑ CCP 416.90(individual) d. ❑ by personal delivery on (date): 4. At the time of service I was at least 18 years of age and not a party to this action. 5. Fee for service: $ 6. Person serving: a. ❑ California sheriff, marshal,or constable. f. Name, address and telephone number and, if applicable, b• ❑ Registered California process server. county of registration and number: c. ❑ Employee or independent contractor of a registered California process server. d. ❑ Not a registered California process server. e. ❑ Exempt from registration under Bus.& Prof. Code 22350(b) I declare under penalty of perjury under the laws of the State (For California sheriff,marshal, or constable use only) of California.that the foregoing is true and correct. I certify that the foregoing is true and correct. Date: Date: (SIGNATURE) ` ( (SIGNATURE) f 982(a)(9)[Rev.January 1,1984) n 20 JI atVidler. r 9W ti I MANATT, PHELPS & PHILLIPS, LLP DONALD R. BROWN (Bar No. CA 156548) 2 650 Town Center Drive, Suite 1250 Costa Mesa, CA 92626 3 (714) 371-2500 (714) 371-2550 -- Facsimile 4 Attorneys for Petitioner 5 ED BLACKFORD 6 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 FOR THE COUNTY OF ORANGE COUNTY 10 11 ED BLACKFORD, Case No. 01 CC 15111 12 Petitioner, Honorable Derek W. Hunt Dept: C9 13 vs. 14 CONNIE BROCKWAY, NOTICE OF ALTERNATIVE DISPUTE RESOLUTION (ADR), EX PARTE 15 Respondent. POLICIES AND PROCEDURES AND CIVIL CASE MANAGEMENT PANEL 16 17 Petition Filed: November 26, 2001 18 HUNTINGTON BEACH CITY 19 COUNCIL, PAM JULIEN, Mayor, DEBBIE COOK, Mayor Pro Tem, 20 RALPH H. BAUER, Council Member, CONNIE BOARDMAN, Council 21 Member, PETER GREEN, Council Member, 22 Real Parties In Interest. 23 24 25 PLEASE TAKE NOTICE that pursuant to California Rules of Court, Rule 26 1590.1, a true and correct copy of Alternative Dispute Resolution (ADR) Information 27 Package is attached hereto as Exhibit "1." 28 MANATT,PHELPS& 70005300.1 PHILLIPS,LLP ATTORNEYS AT LAW COSTA MESA NOTICE OF ALTERNATIVE DISPUTE RESOLUTION(ADR) I PLEASE TAKE FURTHER NOTICE that a true and correct copy of the 2 Honorable Derek W. Hunt's Ex Parte Policies And Procedures is attached hereto as 3 Exhibit "2." 4 PLEASE TAKE FINAL NOTICE that a true and correct copy of Civil Case 5 Management Panel is attached hereto as Exhibit "3." 6 7 8 Dated: November 27, 2001 MANATT, PHELPS & PHILLIPS, LLP 9 10 By: 11 Donald R. Brown Attorneys for Petitioner 12 ED BLACKFORD 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MANATT,PHELPS& 70005300.1 PHILLIPS, LLP 2 ATTORNEYS AT LAW COSTA MESA NOTICE OF ALTERNATIVE DISPUTE RESOLUTION(ADR) " +} 1 MANATT, PHELPS & PHILLIPS, LLP DONALD R. BROWN (Bar No. CA 156548) 2 650 Town Center Drive, Suite 1250 FILED Costa Mesa, CA 92626 UPF-RIOR CoInt T OF CALIFORNIA 3 (714) 371-2500 COUNTY OF 6:RANI'GE 714) 371-2550 — Facsimile CEIN`Fi:%I,. `'"`r�'' ' 4 Attorneys for Petitioner NOV 2 6' ?R91 5 ED BLACKFORD AIAU ai.ATj_-R,Gfe�k of fn,Court 13yO ,DEAU o'Y 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA Ch Uj 9 FOR THE COUNTY OF ORANGE n 10 11 ED BLACKFORD, Case No. 0 1 cc 15111 12 Petitioner, PETITION FOR WRIT OF MANDATE 13 vs. JUDGE DEREK W. HUNT 14 CONNIE BROCKWAY, DEPT. G9 15 Respondent. 16 HUNTINGTON BEACH CITY 17 COUNCIL, PAM JULIEN, MAYOR, DEBBIE COOK, MAYOR PRO TEM, 18 RALPH H. BAUER, COUNCIL MEMBER, CONNIE BOARDMAN, 19 COUNCIL MEMBER, PETER GREEN, COUNCIL MEMBER 20 21 Real Parties In Interest. 22 23 24 Petitioner Ed Blackford respectfully petitions this Court for a writ o 25 mandate directed to respondent Connie Brockway, City Clerk for the City of Huntington 26 Beach, and by this verified petition alleges: 27 28 PMANATT,PHELPS& PHILLIPS,LLP ATroRNEYSAT LA- COSTA MESA PETITION FOR WRIT OF MANDATE 1 INTRODUCTION 2 1. This petition seeks a writ of mandate pursuant to Elections Code section 3 9295 requiring Respondent Brockway to delete from the voter pamphlet a portion of a 4 proposed ballot measure in Huntington Beach entitled "Amendment of Utility Tax by 5 Removing Electric Power Plant Exemption" (the "Utility Tax Measure"), as well as 6 certain portions of the proposed argument in favor of the Proposed Measure (the 7 "Argument in Favor"). 8 2. The Utility Tax Measure is based on an explicitly false premise that the 9 target of the measure, AES Huntington Beach, LLC ("AES"), which owns and operates a 10 power plant in Huntington Beach, does not already pay the same utility taxes as all other 11 businesses in Huntington Beach. Moreover, the Argument in Favor contains several false 12 and misleading statements that are improper in a ballot argument, and it also contains 13 pejorative and libelous attacks on AES and its power plant that undermine the integrity o 14 the electoral process. These defects in the Utility Tax Measure and the Argument in 15 Favor are prohibited by Elections Code section 9295, as more specifically alleged below 16 in this petition. 17 18 PARTIES 19 3. Petitioner is a resident of Huntington Beach and is also a qualified elector 20 within Huntington Beach. Petitioner is the President of AES. Attached hereto as Exhibit 21 "1" is Petitioner's declaration (the "Blackford Declaration") containing extensive factual 22 background and additional support for the allegations in this petition and the relief 23 requested herein. 24 4. Respondent is the City Clerk for Huntington Beach and is responsible for 25 submitting the Utility Tax Measure and the Argument in Favor for inclusion into the voter 26 pamphlet that will be sent to all Huntington Beach voters. Respondent is the elections 27 official required by Section 9295 to be named as the respondent in this petition. 28 MANATT,PHELPS& PHILLIPS, LLP ATTORNEYS AT ESA LAW COSTAOSTA MESA PETITION FOR WRIT OF MANDATE 1 5. Real party in interest Huntington Beach City Council (the "City Council") is 2 the governing legislative body for Huntington Beach. The Utility Tax Measure and the 3 supporting Argument in Favor was placed on the ballot by the City Council. 4 6. Real parties in interest Pam Julien, Debbie Cook, Ralph Bauer, Connie 5 Boardman and Peter Green are members of the City Council and authored the Argument 6 in Favor on behalf of the City Council, and are sued herein in their official capacities. 7 8 GENERAL ALLEGATIONS 9 7. This petition is timely filed within the 10-calendar-day examination period 10 for reviewing material to be included in the voter pamphlet, as provided by Section 9295. 11 8. The relief sought by this petition may be granted without interfering with 12 the printing or distribution of official election materials. 13 9. Petitioner is informed and believes that the real parties in interest, and each 14 of them, have submitted to Respondent the Utility Tax Measure and the Argument in 15 Favor for inclusion into, the voters pamphlet. A copy of the Utility Tax Measure is 16 attached hereto as Exhibit "2," at page 4 thereof. A copy of the Argument in Favor is 17 attached hereto as Exhibit "3". 18 10. The Utility Tax Measure and the Argument in Favor are based, inter alia, on 19 the false premise that AES has somehow received preferential treatment in the payment o 20 Utility Taxes, whereas in fact AES has received the same tax treatment as other 21 businesses, including utilities, operating in Huntington Beach. Reinforcing this deception, 22 the Argument in Favor suggests that revenue from the proposed tax on AES would be 23 used to remediate pollution (which itself is falsely attributed to AES), for beautification, 24 and other purported purposes related to AES. This suggestion is belied, however, by 25 another proposed measure by the same City Council, which states that the tax revenue 26 from the Utility Tax Measure would be used to finance infrastructure throughout the City, 27 entirely unrelated to the AES plant. A copy of the proposed measure regarding use of the 28 tax revenues from the Utility Tax Measure is attached hereto as Exhibit"4." MANATT,PHELPS& PHILLIPS,LLP ATTORNEYS ATLAW COSTA MESA PETITION FOR WRIT OF MANDATE 1 11. Petitioner is informed and believes and based thereon alleges that, if this 2 petition is not granted by the Court, the Utility Tax Measure and the Argument in Favor 3 will be printed as submitted by the Real Parties in Interest to the voters of Huntington 4 Beach. 5 12. If the Utility Tax Measure and the Argument in Favor are printed without 6 the improper statements deleted, the Real Parties in Interest will have been permitted to 7 use the official voter pamphlet, printed and mailed at taxpayer expense, for the purpose o 8 attacking and libeling AES and its power plant. This would constitute the use of taxpayer 9 funds for an illegal purpose, because the statements in question are false, misleading and 10 irrelevant to the merits of the Utility Tax Measure, and are therefore inconsistent with the 11 purpose of a ballot statement as required by Section 9282. In addition, the voters will be 12 provided with false or misleading information concerning the effect of a yes vote on the 13 Utility Tax, which is illegal under Section 9295. 14 13. If the Utility Tax Measure and the Argument in Favor are printed and 15 distributed to the voters without the improper statements deleted, the integrity of the 16 election will be irreparably damaged. 17 14. Petitioner has no plain, speedy or adequate remedy at law, other than the 18 relief sought in this petition, to prevent Respondent from printing and distributing illegal 19 statements in the Utility Tax Measure and the Argument in Favor. 20 15. Petitioner has engaged an attorney to pursue this action. If successful in this 21 action, Petitioner will be entitled to recover attorney fees under Code of Civil Procedure 22 Section 1021.5, in that this action will result in the enforcement of an important right 23 affecting the public interest, will confer a significant benefit on all of the voters in 24 Huntington Beach, and the necessity and financial burden of private enforcement of the 25 law by this action are such as to make an award of attorney's fees appropriate. Petitioner 26 will be entitled to recovery of his attorney's fees from the Real Parties in Interest, and 27 each of them. 28 MANATT,PHELPS& PHILLIPS,LLP ATTORNEYSLAW COSSTATA M MESESA PETITION FOR WRIT OF MANDATE 1 y 1 FIRST CAUSE OF ACTION 2 (Writ of Mandate based on Election Code Section 9295) 3 16. Petitioner re-alleges and incorporates by reference each and every allegation 4 contained in paragraphs 1 through 15 above. 5 17. The Utility Tax Measure states as follows: "Shall the ordinance requiring 6 an electric power plant to pay the same Utility Tax as do residents and businesses of the 7 City of Huntington Beach by amending the Huntington Beach Municipal Code to remove 8 Section 3.36.080(b) and make corresponding changes to Section 3.36.010(g), be 9 adopted?" 10 18. This statement falsely implies that AES — the only power plant in 11 Huntington Beach — does not already pay the same Utility Tax as do other residents and 12 businesses. in Huntington Beach. AES in fact does pay the same Utility Taxes, as 13 described in detail in the attached Blackford Declaration. 14 19. Section 9295 requires that a writ of mandate deleting statements from the 15 . Utility Tax Measure and the Argument in Favor be issued upon clear and convincing 16 proof that the statements are false or misleading. 17 20. Petitioner therefore requests that the Court issue a writ of mandate requiring 18 Respondent to modify the language of the Utility Tax Measure to delete the misleading 19 words, or to rewrite the measure in a way that is not false and misleading. 20 21 SECOND CAUSE OF ACTION 22 (Writ of Mandate based on Election Code Section 9295) 23 21. Petitioner re-alleges and incorporates by reference each and every allegation 24 in paragraphs 1 through 15 above. 25 22. The Argument in Favor includes the following statement: "Vote yes on 26 Measure —because it will keep your taxes down." 27 23. This statement falsely implies that passage of the Utility Tax Measure, 28 which would increase the tax burden on AES, would actually stabilize, if not decrease, MANATT,PHELPS& PHILLIPS,LLP ATTORNEYS LAW COSTAOSTA MESA PETITION FOR WRIT OF MANDATE 9 ` 1 taxes paid by residents of Huntington Beach. To the contrary, the Utility Tax Measure 2 would result in an increased tax burden within Huntington Beach. 3 24. Section 9295 requires that a writ of mandate deleting statements from the 4 Argument in Favor be issued upon clear and convincing proof that the statements are false 5 or misleading. 6 25. Petitioner therefore requests that the Court issue a writ of mandate requiring 7 Respondent to remove the foregoing statement from the Argument in Favor. 8 9 THIRD CAUSE OF ACTION 10 (Writ of Mandate based on Election Code Section 9295) 11 26. . Petitioner re-alleges and incorporates by reference each and every allegation 12 in paragraphs 1 through 15 above. 13 27. The Argument in Favor includes the following statement: `By voting yes, 14 you are voting to require AES Corporation to pay the same utility tax paid by all residents 15 and businesses in Huntington Beach." 16 28. This statement falsely implies that AES — the only power plant in 17 Huntington Beach — does not already pay the same Utility Tax as do other residents and 18 businesses in Huntington Beach. AES in fact does pay the same Utility Taxes. 19 29. Section 9295 requires that a writ of mandate deleting statements from the 20 Argument in Favor be issued upon clear and convincing proof that the statements are false 21 or misleading. 22 30. Petitioner therefore requests that the Court issue a writ of mandate requiring 23 Respondent to remove the foregoing statement from the Argument in Favor. 24 2 5 FOURTH CAUSE OF ACTION 26 (Writ of Mandate based on Election Code Section 9295) 27 31. Petitioner re-alleges and incorporates by reference each and every allegation 28 in paragraphs 1 through 15 above. MANATT,PHELPS& PHILLIPS, LLP ATTOWNEYSATLAw COSTO9TA MESA PETITION FOR WRIT OF MANDATE } T 1 32. The Argument in Favor includes the following statement: "Currently, AES 2 is the only business in Huntington Beach that does not pay this tax." 3 33. This statement falsely implies that AES does not already pay the same 4 Utility Tax as do other residents and businesses in Huntington Beach. AES in fact does 5 pay the same Utility Taxes. 6 34. Section 9295 requires that a writ of mandate deleting statements from the 7 Argument in Favor be issued upon clear and convincing proof that the statements are false 8 or misleading. 9 35. Petitioner therefore requests that the Court issue a writ of mandate requiring 10 Respondent to remove the foregoing statement from the Argument in Favor. 11 12 FIFTH CAUSE OF ACTION 13 (Writ of Mandate based on Election Code Section 9295) 14 36. Petitioner re-alleges and incorporates by reference each and every allegation 15 in paragraphs 1 through 15 above. 16 37. The Argument in Favor includes the following statement: "The AES plant is 17 ugly, pollutes our air, and our ocean." 18 38. This statement is misleading and false, because AES does not pollute the 19 ocean at all. This statement is also irrelevant, because until Huntington Beach is prepared 20 to enact an "ugly tax," the aesthetic value of AES's power plant, which has existed in 21 Huntington Beach for more than 40 years, has nothing whatsoever to do with the propriety 22 of increasing the Utility Tax paid by AES. 23 39. Section 9295 requires that a writ of mandate deleting statements from the 24 Argument in Favor be issued upon clear and convincing proof that the statements are 25 false, misleading or inconsistent with the purpose of a ballot statement as required by 26 Section 9282. Inconsistent statements include statements that are libelous and/or 27 irrelevant. 28 MANATT,PHELPS& PHILLIPS,LLP ATTORNEYS LAW COSTA MESA PETITION FOR WRIT OF MANDATE osrw es 1 40. Petitioner therefore requests that the Court issue a writ of mandate requiring 2 Respondent to remove the foregoing statement from the Argument in Favor. 3 4 SIXTH CAUSE OF ACTION 5 (Writ of Mandate based on Election Code Section 9295) 6 41. Petitioner re-alleges and incorporates by reference each and every allegation 7 in paragraphs 1 through 15 above. 8 42. The Argument in Favor includes the following statement: "AES refused to 9 sign a contract for the use of electricity solely in California." 10 43. This statement is misleading and false, because it was the State o 11 California, not AES, that refused to sign such a contract. This statement is also irrelevant, 12 because whether such a contract was signed has no logical connection whatsoever to the 13 propriety of increasing the Utility Tax paid by AES. 14 44. Section 9295 requires that a writ of mandate deleting statements from the 15 Argument in Favor be issued upon clear and convincing proof that the statements are 16 false, misleading or inconsistent with the purpose of a ballot statement as required by 17 Section 9282. Inconsistent statements include statements that are libelous and/or 18 irrelevant. 19 45. Petitioner therefore requests that the Court issue a writ of mandate requiring 20 Respondent to remove the foregoing statement from the Argument in Favor. 21 22 SEVENTH CAUSE OF ACTION 23 (Writ of Mandate based on Election Code Section 9295) 24 46. Petitioner re-alleges and incorporates by reference each and every allegation 25 in paragraphs 1 through 15 above. 26 47. The Argument in Favor includes the following statement: "Any cost to AES 27 will be passed on primarily to people outside of Huntington Beach and California." 28 MANATT,PHELPS& PHILLIPS,LLP ATTORNEYS AT LAN'COSTA MESA PETITION FOR WRIT OF MANDATE 1 48. This statement is false and misleading, because the majority, if not all, of the 2 energy produced by AES is sold to users within California, including residents and 3 businesses in Huntington Beach. 4 49. Section 9295 requires that a writ of mandate deleting statements from the 5 Argument in Favor be issued upon clear and convincing proof that the statements are false 6 or misleading. 7 50. Petitioner therefore requests that the Court issue a writ of mandate requiring 8 Respondent to remove the foregoing statement from the Argument in Favor. 9 10 EIGHTH CAUSE OF ACTION 11 (Writ of Mandate based on Election Code Section 9295) 12 51. Petitioner re-alleges and incorporates by reference each and every allegation 13 in paragraphs 1 through 15 above. 14 52. The Argument in Favor includes the following statement: "A yes vote for 15 this measure will make AES pay their fair share of city costs that occur by virtue of their 16 presence." 17 53. This statement is false and misleading, because AES already pays its fair 18 share of city costs. 19 54. Section 9295 requires that a writ of mandate deleting statements from the 20 Argument in Favor be issued upon clear and convincing proof that the statements are false 21 or misleading. 22 55. Petitioner therefore requests that the Court issue a writ of mandate requiring 23 Respondent to remove the foregoing statement from the Argument in Favor. 24 25 NINTH CAUSE OF ACTION 26 (Writ of Mandate based on Election Code Section 9295) 27 56. Petitioner re-alleges and incorporates by reference each and every allegation 28 in paragraphs 1 through 15 above. MANATT,PHELPS& PHILLIPS, LLP ATTORNEYS AT LAW COSTA MESA PETITION FOR WRIT OF MANDATE 1 57. The Argument in Favor includes the following statement: "The AES plant 2 has been a blight on Huntington Beach for over 40 years." 3 58. This statement is misleading, false and irrelevant, because AES has served 4 California and the City of Huntington Beach for more than 40 years. Moreover, the 5 accusation that AES plant is a "blight" is inflammatory and pejorative, and has nothing 6 whatsoever to do with the propriety of increasing the Utility Tax paid by AES. 7 59. Section 9295 requires that a writ of mandate deleting statements from the 8 Argument in Favor be issued upon clear and convincing proof that the statements are 9 false, misleading or inconsistent with the purpose of a ballot statement as required by 10 Section 9282. Inconsistent statements include statements that are libelous and/or 11 irrelevant. 12 60. Petitioner therefore requests that the Court issue a writ of mandate requiring 13 Respondent to remove the foregoing statement from the Argument in Favor. 14 15 TENTH CAUSE OF ACTION 16 (Writ of Mandate based on Election Code Section 9295) 17 61. Petitioner re-alleges and incorporates by reference each and every allegation 18 in paragraphs 1 through 15 above. 19 62. The Argument in Favor includes the following statement: "Isn't it about 20 time it [AES] contributes to our city?" 21 63. This statement is false and misleading, because AES already pays its fair 22 share of city costs, including taxes, and has served the community for more than 40 years. 23 64. Section 9295 requires that a writ of mandate deleting statements from the 24 Argument in Favor be issued upon clear and convincing proof that the statements are false 25 or misleading. 26 65. Petitioner therefore requests that the Court issue a writ of mandate requiring 27 Respondent to remove the foregoing statement from the Argument in Favor. 28 MANATT,PHELPS& PHILLIPS,LLP ATTORNEYSMESA PETITION COSTA Mesw PETITION FOR WRIT OF MANDATE 1 ELEVENTH CAUSE OF ACTION 2 (Writ of Mandate based on Election Code Section 9295) 3 66. Petitioner re-alleges and incorporates by reference each and every allegation 4 in paragraphs 1 through 15 above. 5 67. The Argument in Favor includes the following statement: "In the last 6 election on this measure, AES spent nearly $300,000 to defeat it." 7 68. This statement is irrelevant, because it has nothing whatsoever to do with 8 the propriety of increasing the Utility Tax paid by AES. 9 69. Section 9295 requires that a writ of mandate deleting statements from the 10 Argument in Favor be issued upon clear and convincing proof that the statements are 11 false, misleading or inconsistent with the purpose of a ballot statement as required by 12 Section 9282. Inconsistent statements include statements that are libelous and/or 13 irrelevant. 14 70. Petitioner therefore requests that the Court issue a writ of mandate requiring 15 Respondent to remove the foregoing statement from the Argument in Favor. 16 17 TWELFTH CAUSE OF ACTION 18 (Writ of Mandate based on Election Code Section 9295) 19 71. Petitioner re-alleges and incorporates by reference each and every allegation 20 in paragraphs 1 through 15 above. 21 72. The Argument in Favor includes the following statement: "Don't be fooled 22 again." 23 73. This statement is misleading, false and irrelevant, because it essentially 24 asserts that AES engaged in misrepresentations in connection with the last ballot measure 25 on this issue, and there are no facts whatsoever to support such an accusation. Moreover, 26 this accusation has nothing whatsoever to do with the propriety of increasing the Utility 27 Tax paid by AES. 28 MANATT,PHELPS& PHILLIPs, LLP ATTORNEYS ' COSIosTA Mesw MESL PETITION FOR WRIT OF MANDATE 1 74. Section 9295 requires that a writ of mandate deleting statements from the 2 Argument in Favor be issued upon clear and convincing proof that the statements are 3 false, misleading or inconsistent with the purpose of a ballot statement as required by 4 Section 9282. Inconsistent statements include statements that are libelous and/or 5 irrelevant. 6 75. Petitioner therefore requests that the Court issue a writ of mandate requiring 7 Respondent to remove the foregoing statement from the Argument in Favor. 8 9 WHEREFORE, Petitioner prays that: 1. This Court issue an alternative writ of mandate commanding 10 Respondent to delete the false, misleading and irrelevant (and thus inconsistent) 11 statements in the Utility Tax Measure and the Argument in Favor, or to show cause before 12 this Court at a time an place specified by this Court why she has not done so and why a 13 peremptory writ should not issue; 14 2. After the hearing on this petition, this Court issue a peremptory writ 15 commanding Respondent to delete the false, misleading and irrelevant (and thus 16 inconsistent) statements in the Utility Tax Measure and the Argument in Favor; 17 3. This Court require a return to this petition, and set this matter for a 18 hearing, at the earliest available dates, so that the issuance of the writ will not 19 substantially interfere in the printing and distribution of the voter pamphlet; 20 4. Petitioner be awarded his costs and attorney fees incurred in bringing 21 this action; and 22 5. This Court grant Petitioner such other costs and further relief as it 23 deems just and proper. 24 25 Date: November 26, 2001 MAN , PH PS & , 26 By: D na R. Brown 27 A eys for Petitioner ED BLACKFORD 28 MANATT,PHELPS& PHILLIPS, LLP ATTORNEYS SLAW COSTASTA MESA PETITION FOR WRIT OF MANDATE NUV-26-2001 16:09 AES BEAVER VALLEY 724 773 2960 P.07/07 1 VERIFICATION 2 1 have read the foregoing PETITION FOR WRIT OF MANDATE,and,know its 3 contents. 4 I am a party to this action. The matters stated in it are true of my own knowledge ❑% except as to those matters which are stated on information and belief, and as to S those matters I believe them to be true. 6 ❑ 1 am of , a party to this action, and am authorized to make this verification for and on its behalf and I make this 7 verification for that reason. I have read the foregoing document(s). I am 8 informed and believe and on that ground allege that the matters stated in it are true. 9 I am one of the attorneys of record for , a party to this 10 ❑ action. Such party is absent from the county in which I have my office, and 1 11 make this verification for and on behalf of that party for that reason. C have read the foregoing document(s). I am informed and believe and on that ground allege 12 that the matters stated in it are true, 13 Executed at Monaca, Pennsylvania on this 26`h day of November, 2001. 14 I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. 15 16 17 Ed Blackford 18 19 20 21 22 23 24 25 26 27 28 ANATT.PHILVS dL rM,LLny.LLP A(TC:41VR Al L.W Qs A 14904 1 w 1 DECLARATION OF ED BLACKFORD 2 I, Ed Blackford, declare: 3 1. I am a resident of Huntington Beach, California and I am a registered voter 4 in the City of Huntington Beach. If called to testify, I would and could testify with 5 personal knowledge as to all of the following. 6 2. I am the President of AES, Huntington Beach, LLC ("AES"). I have held 7 that position since approximately May of 1998. I have been in the business of operating 8 plants and generating electricity for approximately 20 years. As President of AES, I have 9 been in charge of overseeing the operation and rebuilding of the electricity generating 10 facility located at the corner of Pacific Coast Highway and Newland Street in Huntington 11 Beach (the "Power Plant"). 12 3. All of the electricity produced at the Huntington Beach Power Plant is put 13 on the Southern California Edison Grid in Orange County. The vast majority of the 14 electricity, if not all, is consumed in Huntington Beach and Orange County. 15 4. In the process of generating electricity in Huntington Beach, AES uses 16 water from the ocean to cool the electricity generating units. The water is then returned to 17 the ocean. At no time during this process is any contaminant introduced to the ocean 18 water. 19 5. There are five units that produce electricity at the Huntington Beach Power 20 Plant. Units 1 and 2 can produce 430 megawatts per hour. Units 3 and 4 can produce 450 21 megawatts per hour. The fifth unit is a peaker plant,-which can produce 133 megawatts 22 per hour. Unit 5 operates only in the instance of staged alert due to an electricity shortage 23 when declared by the Independent System Operator ("ISO") and by direct request of the 24 ISO. 25 6. As a general rule, one megawatt will produce enough electricity to provide 26 power to 1,000 homes. Thus, the 430 megawatt output from units 1 and 2 can power 27 approximately 430,000 homes. However, AES does not sell the electricity produced in 28 units 1 and 2. AES is under a tolling agreement with a company called Williams Energy MANATT,PHFLPS& 70005282.3 PHILLIPS,LLP ATTORNEYS AT LAW COSTA MESA DECLARATION OF ED BLACKFORD 1 Services Company ("Williams"). I am familiar with the terms of the tolling agreement. 2 Under the tolling agreement, AES is paid a fee to convert natural gas to electricity. 3 7. Units 1 and 2 are classified by the State of California through the ISO as 4 reliability must run units that are essential for the electricity grid system in the State o 5 California. The ISO pays a fee to have the output from units 1 and 2 at the disposal of the 6 State of California upon order of the ISO. Thus, when needed and called upon by the 7 ISO, all electricity produced out of units 1 and 2 is sold in the State of California. 8 8. Units 3 and 4 were retired in 1995 by the Southern California Edison 9 Company. 'In 1998, AES purchased the Power Plant from Edison. Due to the California 10 power crisis, AES decided in early 2000 to return units 3 and 4 to service. 11 9. The California Energy Commission ("CEC") has jurisdiction over power 12 plant construction. In addition, the South Coast Air Quality Management District 13 ("AQMD") has jurisdiction over air emissions from power plants. AES had to obtain 14 permits from the CEC as well as the AQMD for the rebuilding and operation of units 3 15 and 4. 16 10. The permits issued by the CEC and the AQMD for units 3 and 4 were both 17 conditioned on AES selling the power produced in units 3 and 4 to the State of California. 18 The Department of Water Resources ("DWR") was assigned responsibility by the State o 19 California to enter into contracts for the purchase of electricity. AES agreed with the CEC 20 and the AQMD to sell the power produced in units 3 and 4 to the State of California 21 through the DWR. In or about March of 2001, AES sent the DWR a letter memorializing 22 a verbal agreement between AES and the DWR to sell the power from units 3 and 4 to the 23 -State of California. In or about June of 2001, the DWR and AES came to a final 24 agreement on how AES would be paid for electricity that AES sold to the State o 25 California. Within a few days of arriving at a final agreement on all terms, DWR decided 26 that it had already purchased too much power and informed AES that it no longer wanted 27 or needed the power produced out of units 3 and 4. AES was never provided with a 28 contract for signature. AES was prepared to sign and would have signed the final contract MANATT,PHELPS& 70005282.3 PHILLIPS, LLP 2 ATTORNEYS AT LAW COSTA MESA DECLARATION OF ED BLACKFORD 1 on the mutually agreed upon terms with the DWR. 2 11. Because the permits issued by the CEC and the AQMD were conditioned on 3 AES selling the power to the State of California, AES sought relief from those conditions. 4 On or about July 7, 2001, the CEC removed the condition that the power produced from 5 units 3 and 4 must be sold to the State of California because the inability to sell the power 6 to the State of California was not reasonably in the control of AES. The AQMD also 7 removed the condition in its permit. 8 12. Even though the conditions to sell power to the State of California have 9 been removed from the permits, AES stands ready, willing and able to sell the power to 10 the State of California. The State of California, however, has informed AES that it has no 11 interest in buying the power on a long-term basis. However, AES is free to sell the power 12 to the State of California through the wholesale market. AES made a decision to return 13 units 3 and 4 to service with the intent of selling all the power from those units in 14 California to meet California's growing electricity demand. AES expects that the 15 electricity produced from units 3 and 4 will be sold in California. 16 13. The state license issued by the CEC, under which AES is returning units 3 17 and 4 to service, is accomplished under an expedited review process because the State o 18 California has informed AES that it wants the power available in California. AES has not 19 entered into any agreements to sell the electricity produced by units 3 and 4 to anybody, 20 except for eleven contracts to businesses in Huntington Beach. 21 14. AES is ready and willing to sell the power from units 3. and 4 to the 22 residents and businesses in Huntington Beach beyond the 11 businesses that have already 23 signed up. Direct sales of power to retail customers in California is called "Direct 24 Access" in the utility industry. However, in September of 2001, the California Public 25 Utilities Commission banned the practice of Direct Access. The practice was banned out 26 of fear by officials from the State of California that the major utilities like Edison and 27 PG&E would lose too many customers. By holding the customers captive to Edison and 28 PG&E, those utilities would be able to generate a revenue stream to pay off their debt. In MANATT,PHELPS& 70005282.3 3 PHILLIPS,LLP ATTORNEYS AT LAW COSTA MESA DECLARATION OF ED BLACKFORD 1 ` 1 addition, a portion of the rates paid by those captive customers will be used to pay off the 2 bonds that the State of California is trying to issue to cover the cost of electricity 3 purchases made by the DWR. Thus, the State of California does not want, and will not 4 buy on a long term basis, power produced in units 3 and 4, and the State of California 5 (through the PUC) will not allow AES to sell the electricity from units 3 and 4 to 6 customers in Huntington Beach or anywhere else in California. However, electricity from 7 units 3 and 4 can be sold in the spot market in California. 8 15. AES pays the Utility User Tax ("UUT") in Huntington Beach just like all 9 other businesses and residents in Huntington Beach. AES pays the UUT on all of its retail 10 utility uses like telephone utilities, its electricity utilities supplied by Edison and its water 11 utilities supplied by the City of Huntington Beach. The exemption under which AES 12 operates is for the wholesale use of natural gas when used to provide another utility like 13 electricity. It is not an exemption for AES by name at all. It is the same type o 14 exemption that the Gas Company and the Water Corporation have. Natural gas consumed 15 internally to provide a utility like electricity, water, or gas to retail customers is exempt 16 from taxation whether it is a power plant or a natural gas supplier or a water supplier. 17 16. AES pays approximately one million dollars per year in property taxes for 18 its facility in Huntington Beach. AES also pays a business license fee and other 19 miscellaneous fees imposed by the City of Huntington Beach on all businesses operating 20 in Huntington Beach. 21 17. In conjunction with the AQMD, AES agreed in 2000 to put a state of the art 22 Selective Catalytic Reduction system ("SCR's") on units 1 and 2. This system reduced air 23 emissions from the operation of units 1 and 2 by 95%. As part of the agreement to go 24 forward with the SCR's, AES agreed to pay the City of Huntington Beach approximately 25 $250,000 towards a City planned improvement of Newland Street. The planned 26 improvement of Newland Street is of no value to AES. In addition, AES agreed to pay 27 approximately $300,000 toward landscaping improvements around the AES facility in 28 Huntington Beach. As part of the condition to rebuild and operate units 3 and 4, AES MANATT,PHELPS& 70005282.3 PHILLIPS,LLP 4 ATTORNEYS AT LAW COSTA MESA DECLARATION OF ED BLACKFORD r NOV-26-2001 16:09 AES BEAVER VALLEY 724 773 2960 P.06/07 1 agreed to pay approximately $500,000 in additional landscaping improvements around the 2 AES facility. Thus, AES has committed to approximately $800,000 in landscaping 3 improvements at the insistence of the City of Huntington Beach. 4 18. In addition, AES has agreed to pay one million dollars toward an ocean s monitoring study at the insistence of the City of Huntington Beach. I am generally 6 familiar with the beach bacteria problems that have plagued the City of Huntington Beach. I received in my office a copy of a press release issued by the Department of Parks and e Recreation, a copy of which is attached hereto as Exhibit "A." That press release 9 explained that there were potential sewage leaks from the state bathrooms on the state 10 beaches near the AES power plant. 11 19. AES regularly participates in charitable events in Huntington Beach. For 12 example in the past two years, AES donated $10,000 towards a tennis court resurfacing 13 project at Edison High School. AES donated $5,000 toward the Boys and Girls club in 14 Huntington Beach. AES donated $20,000 to the Take the Plunge fundraising drive to 15 rebuild the swimming pool at Huntington Beach High School. AES also donated $5,000 16 to the Huntington Beach Education Foundation. In addition, AES has given a variety o 17 donations other charities in Huntington Beach like the Leukemia & Lymphoma Society, 18 Project Self-Sufficiency, the Wetlands and Wildlife Center, the Bolsa Chiea Conservancy, 19 as well as St. Boneveture Church. 20 21 I declare under the penalty of perjury of the laws of the State of California 22 that the foregoing is true and correct. 23 Executed this 26`h day of November in Monaca,Pennsylvania 24 25 By: Y 26 Ed Blackford,Pr i ent AES,Huntinggi0each 27 28 ANATT,PNELPs Sc 70005282.1 5 PHILLIPS.LLN A f10101M AT LAW ee.*•Me•• DECLARATION OF ED BLACKFORD , CALIFORNIA DEPARTMENT OF PARKS AND RECREATION News Release 1 SI NCE 1864 For Immediate Release State Contact Local Contact: November 14, 2001 Roy Stearns Don Ito, Superintendent (916) 654-7538 (949) 497-1582 Sewer Line Repair Initiated At Huntington State Beach HUNTINGTON STATE BEACH —The California Department of Parks and Recreation and the Orange County Sanitation District have discovered a potential sewage leak in an underground sewage pipeline at one of the bathroom facilities at Huntington State Beach. Because of the potential leak, California State Parks has contracted with American Leak Detection to begin immediate repairs to the sewer line from the buildings (restroom, concession stand and kiosk) at Newland Street to the Orange County Sanitation District's main sewer line. The work will begin today. This work became necessary after California State Parks was informed by the Orange County Sanitation District of a potential leak in the system. Following the notification, just before the Labor Day Weekend, State Parks immediately closed the restroom building and installed portable toilets to prevent further potential leakage. Next, the sanitation district began immediate testing to further isolate the potential leak. The testing has indicated there has been a significant loss of water from the pipeline system at the location in question, strongly indicating the presence of a leak. Based on this information, State Parks immediately began the contract process to repair the system. It is anticipated that the repairs will be completed within 30 to 45 days. During this construction period, portable toilets will be available. We ask that park visitors bear with us and show patience, as we move quickly to insure that this potential pollution source be repaired as quickly as possible. -For energy efficient recreation - flex California State Parks on the Internet: <http://www.parks.ca.gov> your POw RESOLUTION NO. 2001-79 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF HUNTINGTON BEACH CALLING AND GIVING NOTICE OF THE HOLDING OF A SPECIAL MUNICIPAL ELECTION TO BE CONSOLIDATED WITH THE STATEWIDE PRIMARY ELECTION ON TUESDAY, MARCH 5, 2002, FOR THE SUBMISSION TO THE QUALIFIED VOTERS OF FOUR SEPARATE BALLOT MEASURES: TWO PROPOSED CHARTER AMENDMENTS; AN ADVISORY.MEASURE; AND A PROPOSED ORDINANCE FIRST MEASURE (PROPOSED CHARTER AMENDMENT) WHEREAS, the City Council of the City of Huntington Beach, California, desires to submit to the voters at a special Municipal Election a proposed charter amendment relating to the "Property Rights Protection Measure"; and WHEREAS, pursuant to authority provided by Article XI of the Constitution and Title 4, Division 2, Chapter 3 of the Government Code; and Division 9, Chapter 3, Article 3 (commencing at § 9255) of the Elections Code of the State of California, a petition has been filed with the legislative body of the City of Huntington Beach signed by more than fifteen percent of the registered voters of the city according to the county election department's last official report of registration to the Secretary of State to submit a proposed charter amendment to the voters; and WHEREAS, the City Council is authorized and directed by constitutional provision and statute to submit the proposed charter amendment to the voters; NOW, THEREFORE, THE CITY COUNCIL of the City of Huntington Beach, California, does resolve, declare, determine and order as follows: SECTION 1. That pursuant to Article XI of the Constitution and Title 4, Division 2, Chapter 3 of the Government Code; and Division 9, Chapter 3, Article 3 (commencing at § 9255) of the Election Code of the State of California, there is called and ordered to be held to be in the City of Huntington Beach, California, on Tuesday, March 5, 2002, a Special Municipal Election for the purpose of submitting the following proposed charter amendment, entitled the Property Rights Protection Measure: Property Rights Protection Measure YES "Shall the Charter of the City of Huntington Beach be amended by adding a new section thereto providing that only a property owner can establish the price or terms regarding that property's sale, lease,rental, exchange or NO transfer; and prohibiting the City of Huntington Beach from legislating or regulating the price or terms concerning the sale, lease, rental, exchange or transfer of property(for example, by the adoption of a rent control ordinance)?" Reso/calling election 2002 CA 10-15-01 1 Res.No.2001-79 SECTION 2. That the text of the proposed charter amendment submitted to the voters is attached as Exhibit A. SECOND MEASURE (PROPOSED CHARTER AMENDMENT) WHEREAS, the City Council of the City of Huntington Beach, California, desires.to submit to the voters at a Special Municipal Election a proposed charter amendment relating to the creation of an Infrastructure Fund; and WHEREAS, the City Council is authorized and directed by constitutional provision and statute to submit the proposed charter amendment to the voters; NOW, THEREFORE, THE CITY COUNCIL of the City of Huntington Beach, California, does resolve, declare, determine and order as follows: SECTION 3. That pursuant to Article XI of the Constitution, Title 4, Division 2, Chapter 3 of the Government Code; and Division 9, Chapter 3, Article 3 (commencing at § 9255) of the Elections Code of the State of California, there is called and ordered to be held in the City of Huntington Beach, California, on Tuesday, March 5, 2002, a Special Municipal Election for the purpose of submitting the following proposed charter amendment relating to the creation of an Infrastructure Fund: Creation of Infrastructure Fund YES "Shall the Huntington Beach Charter be amended to establish an"Infrastructure Fund" with all infrastructure revenues raised, and accrued interest, directed into the Fund; prohibiting the transfer or loan of Fund NO monies; requiring that General Fund expenditures for infrastructure not be reduced below 15% of General Fund revenues based on a five-year rolling average; and requiring that City Council designate an advisory board to annually review and audit the Infrastructure Fund?" SECTION 4. That the text of the proposed charter amendment submitted to the voters is attached to this resolution as Exhibit B. THIRD MEASURE (ADVISORY VOTE ONLY) WHEREAS, the City Council of the City of Huntington Beach, California, desires to submit to the voters at a Special Municipal Election an advisory measure concerning whether a utility tax paid solely by an electrical power plant should be placed into an Infrastructure Fund; and Reso/calling election 2002 CA 10-15-01 2 ' Res.No.2001-79 WHEREAS, the City Council is authorized and directed by statute to submit the following advisory measure to the voters; NOW, THEREFORE, THE CITY COUNCIL of the City of Huntington Beach, California, does resolve, declare, determine and order as follows: SECTION 5. That pursuant to the requirements of the City Charter, there is called and ordered to be held in the City of Huntington Beach, California, on Tuesday, March 5, 2002, a Special Municipal Election for the purpose of submitting to the voters the following advisory measure: Advisory Vote Only. Infrastructure Fund. Power Plant Utility Tax YES "Should the Utility Tax paid solely by an electric power plant be placed into an Infrastructure Fund to be used only for the maintenance, construction and repair of NO infrastructure such as storm drains, storm water pump --- stations, alleys, streets, highways, curbs and gutters, sidewalks, bridges, street trees, landscaped medians, parks, beach facilities, playgrounds, traffic signals,street. lights, block walls.along arterial highways and all public buildings and public ways?" FOURTH MEASURE (PROPOSED ORDINANCE) WHEREAS, the City Council of the City of Huntington Beach, California, desires to submit to the voters at a Special Municipal Election a proposed ordinance relating to the City's utility tax; and WHEREAS,the City Council is authorized and directed by statute to submit the proposed ordinance to the voters; NOW, THEREFORE, THE CITY COUNCIL of the City of Huntington Beach, California, does resolve, declare, determine and order as follows: SECTION 6. That pursuant to the requirements of the City Charter, there is called and ordered to be held in the City of Huntington Beach, California, on Tuesday, March 5, 2002, a Special Municipal Election for the purpose of submitting to the voters the following proposed ordinance: Reso/calling election 2002 CA 10-15-01 3 ' Res.No.2001-79 Amendment of Utility Tax by Removing Electric Power Plant Exemption YES "Shall the ordinance requiring an electric power plant to pay the same Utility Tax as do residents and businesses of the City of Huntington Beach by amending the NO Huntington Beach Municipal Code to remove Section 3.36.080(b) and make corresponding changes to Section 3.36.010(g), be adopted?" SECTION 7. That the text of the proposed ordinance submitted to the voters is attached to this resolution as Exhibit C. SECTION 8. The findings supporting the urgency for the adoption of Emergency Ordinance No. 3516 are: (a) the Superior Court recently ruled against the City of Huntington Beach in the case of Howard Jarvis Taxpayers'Assn. v. City of Huntington Beach, preventing the City from levying its retirement tax; (b) as a result of the Court's ruling, the City will suffer a loss of eight million dollars in budget revenues; (c) although the City has appealed the Court's decision, the City is not currently levying or collecting this tax; and (d) a report from the City's Infrastructure Committee has recommended that the City needs additional monies to.maintain and repair its system of public infrastructure. SECTION 9. That the ballots to be used at the election shall be in form and content as required by law. SECTION 10. That the City Clerk is authorized, instructed and directed to procure and furnish any and all official ballots, notices, printed matter and all supplies, equipment and paraphernalia that may be necessary in order to properly and lawfully conduct the election. SECTION 11. That the polls shall be open at seven o'clock a.m. of the day of the election and shall remain.open continuously from that time until eight o'clock p.m. of the same day when the polls shall be closed, except as s provided in § 14401 of the Elections Code of the State of California. . SECTION 12. That in all particulars not recited in this resolution,the election shall be held and conducted as provided by law for holding municipal elections. SECTION 13. That notice of the time and place of holding the election is given and the City Clerk is authorized, instructed and directed to give further or additional notice of the election, in time, form and manner as required by law. SECTION 14. That the City Clerk shall certify to the passage and adoption of this Resolution and enter it into the book of original Resolutions. ReWcalling election 2002 CA 10-15-01 4 Res.No.2001-79 PASSED AND ADOPTED by the City Council of the City of Huntington Beach at a regular meeting thereof held on the 15th day of October 2001. . Mayor ATTEST: APPROVED AS TO FORM: City Clerk ✓City Attorney REVIEWED AND APPROVED: INITIATED AND APPROVED: City AdmKstrator City Clerk Reso/calling election 2002 CA 10-15-01 5 Res.No.2001-79 Res.No.2001-79 EXHIBIT A A PROPOSAL TO ADD SECTION 803 TO THE CITY CHARTER OF THE CITY OF HUNTINGTON BEACH SECTION 1. Property Rights Protection Measure: The City Charter of the City of Huntington Beach is hereby amended to add a new Section 803 to read as follows: "Section 803. PROPERTY RIGHTS PROTECTION MEASURE. (a) The City shall not enact or enforce any measure which mandates the price or other consideration payable to the owner in connection with the sale, lease, rent, exchange or other transfer by the owner of real property. Any such measure is hereby repealed. (b) The word "mandates" as used in subsection(a) includes any measure taken by ordinance, resolution, administrative regulation or other action of the City to establish, continue, implement or enforce any control or system of controls on the-price or other terms on which real property in the city may be offered, sold, leased, rented, exchanged or otherwise transferred by its owner. The words "real property" as used in subsection (a) refer to any parcel of land or site, either improved or unimproved, on which a dwelling unit or residential accommodation is or may be situated for use as a home, residence or sleeping place. (c) This Section 803 shall not apply to: (1) any real property which contains serious health, safety, fire or building code violations, excluding those caused by disasters, for which a civil or criminal citation has been issued by the City and remains unabated for six months or longer; (2) any real property owned by a public.entity, and real property where the owner has agreed by contract with the public entity, including the City and any of its related agencies, to accept a financial contribution or other tangible_benefit including without limitation, assistance under the Community Redevelopment Law;. (3) any planning or zoning power of the City as relates to the use, occupancy or improvement of real property and to any real property which the City or any of its related agencies may acquire by eminent domain, purchase, grant or donation; (4) any power of the City to require a business license for the sale or rental of real property, whether for regulation or general revenue purposes; g:lelection/2002/marc►-katling election.doc 8 L l�hls�No.,4,-79 (5) any dwelling unit or accommodation in any hotel, motel or other facility when the transient occupancy of that dwelling unit or accommodation is subject to a transient occupancy tax; or (6) to impair the obligation of any contract entered into prior to the enactment of this Section 803 or otherwise required by State law." SECTION 2. Title or Proposal to Amend the City Charter: The proposal to amend the City Charter of the City of Huntington Beach to add a new Section 803 shall be known as the "Property Rights.Protection Measure". SECTION 3. Findings and Statement of Purpose of Property Rights Protection Measure: There is strong and convincing practical evidence which shows that price controls on the sale or rental of any residential accommodation does nothing to preserve or maintain affordable housing. In fact the evidence in Southern California appears to show that rent control destroys affordable housing and accelerates development pressures to turn older properties into new and higher density commercial and so-called"upscale"housing. To pick just one of many examples-- in the City of Santa Monica with its rent control regulations.Santa Monica has seen a decline in the number of family households with children which is larger than any other comparable city in Southern California without rent control. Under rent control, Santa Monica's elderly population (age 65 or over) declined by 1.7 percent between 1980 and 1990, whereas the elderly population of Los Angeles County rose by more than 15% over the same decade. The elderly population increased over this period in every comparable city without.rent control in Southern Califomia. The result of social experimentation with rent control in Southern California produces the following conclusion: Rent control does not provide more or better affordable housing for anyone--especially the elderly and young families. The imposition of rent control forces some property owners to change the use of their property and this change of use often can result in more development and pressures which cause the destruction of existing neighborhoods. Unnecessary and complicated government interference in private property transactions and homeownerships and rental decisions produces wasteful lawsuits and imposes needless costs on all taxpayers. We the people find that the best means to assure that our community and neighborhoods are preserved is to protect property rights and to allow owners to make their own decisions about the price and other terms on which they can sell or lease their residential property. SECTION 4. Severability: If any provision of Section 803 of the City Charter of the City of Huntington Beach, or the application to any person or circumstance is held invalid by a court of competent jurisdiction, such invalidity shall not affect other provisions or applications of Section 803 which can be given effect without the invalid provision or application, and to this end, the provisions of Section 803 are declared to be severable. g:'election/2002/march/calling election.doc 9 w Res.No.2001-79 Res.No.2001-79 EXHIBIT B Section 617 of the Charter of the City of Huntington Beach is hereby added to read as follows: Section 617. INFRASTRUCTURE FUND (a) All revenue raised by vote of the electors or imposed by vote of the City Council on or after March 5, 2002, by a measure which states that the revenue to be raised is for the purpose of infrastructure, as said term is defined in this paragraph, shall be placed in a separate fund entitled "Infrastructure Fund." The term "Infrastructure" shall mean long-lived capital assets that normally are stationary in nature and normally can be preserved for significantly greater number of years. They include storm drains, storm water pump stations, alleys, streets, highways, curbs and gutters, sidewalks, bridges, street trees, landscaped medians,parks, beach facilities, playgrounds, traffic signals, streetlights,block walls along arterial highways, and all public buildings and public ways. Interest earned on monies in the Infrastructure Fund shall accrue to that account. Monies in said Fund shall be utilized only for direct costs relating to infrastructure improvements or maintenance, including construction, design, engineering, project management, inspection, contract administration and property acquisition. Monies in said Fund shall not be transferred, loaned or otherwise encumbered for any other purpose. (b) Revenues placed in the Infrastructure Fund shall not supplant existing infrastructure funding. The average percentage of general fund revenues utilized for infrastructure improvements and maintenance, for the five- (5) year period of 1996 to 2001, is and was 14.95%. Expenditures for infrastructure improvements and maintenance, subsequent to 2001, shall not be reduced below 15%of general fund revenues based on a five- (5)year rolling average. (c) The City Council shall by ordinance establish a Citizens Infrastructure Advisory Board to conduct an annual review and performance audit of the Infrastructure Fund and report its findings to the City Council prior to adoption of the following fiscal-year budget. glelection/2002/marcl*alling election.doc 8 Res.No.2001-79 Res.No.2001-79 EXHIBIT C First. Section 3.36.010 of the Huntington Beach Municipal Code is hereby amended to read as follows: 3.36.010 Definitions. Except where the context otherwise requires, the definitions given in this Section govern the construction of this chapter: (a) "City"means the City of Huntington Beach. (b) "Month"means a calendar month. (c) "Person"means any domestic or foreign corporation, firm, association, syndicate,joint stock company,partnership of any kind,joint venture, club, Massachusetts business or common law trust, society, individual or municipal corporation. (d) "Service supplier"means any entity which receives taxes paid and remits same as imposed by this chapter. (e) "Service user"means a person required to pay a tax imposed by this chapter. (f) "Tax Administrator"means the Finance Director of the City. (g) "Telephone corporation, , gas corporation, and water corporation" shall have the same meanings as defined in Sections 234,249, 222, and 241 respectively, of the Public Utilities Code of the State of California, as said Sections existed on January 1, 1970. " "w(W)ater corporation" shall be construed to include any organization,municipality or agency engaged in the selling or supplying of GIGG ems e water to a service.useri. , el€ ty. Second. Section 3.36.080 of the Huntington Beach Municipal Code is'hereby amended to read as follows: 3.36.080 Gas tax--Exclusions. There shall be excluded from the base on which the tax imposed in this Section is computed: (a) Charges made for gas which is to be resold and delivered through mains or pipes; (b) Chapg@s made for-gas to be Ised in the,gener-ation 6f @1eGtr-iGa4 energy by an GIOGtr-iGal GeFper-aAie; (s3(b) Charges made by a gas public utility for gas used and consumed in the conduct of the business of gas public utilities; and (4)(c) Charges for gas used in water pumping by water corporation. Res. No. 2001-79 STATE OF CALIFORNIA ) COUNTY OF ORANGE ) ss: CITY OF.HUNTINGTON BEACH ) I, CONNIE BROCKWAY, the duly elected, qualified City Clerk of the City of Huntington Beach, and ex-officio Clerk of the City Council of said City, do hereby certify that the whole number of members of the City Council of the City of Huntington Beach is seven; that the foregoing resolution was passed and adopted by the affirmative vote of at least a majority of all the members of said City Council at a regular meeting thereof held on the 15th day of October, 2001 by the following vote: AYES: Green, Boardman, Cook, Julien Houchen, Garofalo, Dettloff, Bauer NOES: None ABSENT: None ABSTAIN: None City Clerk and ex-officio C erk of the City Council of the City of Huntington Beach, California Argument IN FAVOR of a Measure - Amendment of Utility Tax by Removing Electric Power Plant Exemption Vote yes on Measure because it will keep your taxes down. By voting yes, you are voting to require the AES Corporation to pay the same utility tax paid by all residents and businesses in Huntington Beach. Currently, AES'is the only business in Huntington Beach that does not pay this tax. The AES plant is ugly, pollutes our air, and our ocean. AES refused to sign a contract for use of electricity solely in California; thus, any cost to AES will be passed on primarily to people outside of Huntington Beach and California. A yes vote for this Measure will make AES pay their fair share of city costs that occur by virtue of their presence. The AES plant has been a blight on Huntington Beach for over 40 years. Isn't it about time it contributes to our city? In the last election on this measure, AES spent nearly $300,000 to defeat it. Don't be fooled again. Vote yes on Measure_ Pam Julien Houchen, Mayor, City of Huntington Beach Debbie Cook, Mayor Pro Tern, City of Huntington Beach Ralph H. Bauer, Council Member, City of Huntington Beach Connie Boardman, Council Member, City of Huntington Beach Peter Green, Council Member, City of Huntington Beach O • � C7 N ,c D STATEMENT TO BE FILED BY AUTHOR OF ARGUMENT IN FAVOR OF MEASURE (AMENDMENT OF UTILITY TAX BY REMOVING ELECTRIC POWER PLANT EXEMPTION) All arguments concerning measure fled pursuant to Division 9, Chapter 3 (beginning with § 9200) of the Elections Code shall be accompanied by the following form statement to be signed by each proponent and by each author, if different, of the argument: Tlie undersigned proponent(s) or authors(s) of the primary argument in favor of ballot measure PROPOSED ORDINANCE at the Special Municipal Election for the City of Huntington Beach, to be held on March 5, 2002, hereby state that the argument is true and correct to the best of their knowledge and belief. HUNTINGTON BEACH CITY COUNCIL Name of Organization Sign Name Print Name � Date Mayor �(.(/Yi�l J i bj� J-ZL4 I L- o 4 U c h� ��l 3 0/ Mayor Pro Tem p��� _e hke- ( y o l�l� Ol CouncilLAI- /� a 4 Member - Council Member Council �� d�� Ui� hlCr�YY1Gl� �f e Member g:e1ection/2002/marchlutility taxiform of statement-in favor.doc ARGUMENT IN FAVOR OF MEASURE— INFRASTRUCTURE FUND - POWER PLANT UTILITY TAX (ADVISORY VOTE ONLY) A yes vote on this advisory measure will send a message to the City Council that the citizens want the proceeds from the utility tax on the AES Plant to be spent toward meeting the city's infrastructure improvements needs. A 60-person citizen committee recently completed a 27-month study on how Huntington Beach can address our infrastructure needs. Infrastructure includes local sewer and drainage systems, streets, curbs, gutters, sidewalks, parks, beaches, and public alleys. Huntington Beach is one of the few cities in the United States to address this problem in a comprehensive manner. The citizen report shows that the financial need for infrastructure improvements and maintenance is real. This need for new revenue is due, in part, to the past actions of.our State Government, beginning in 1993, and continuing to the present day, of annually diverting $7,000,000 of City property taxes to fulfill State Government responsibilities. Let's all pull together to ensure that our infrastructure system (the heartbeat of Huntington Beach), which we all rely on in our daily lives, is adequately funded to meet the community's present and future needs. Together, we can build a healthy community! Vote yes on this advisory measure. Pam Julien Houchen, Mayor,City of Huntington Beach Debbie Cook, Mayor Pro Tem, City of Huntington Beach Ralph H. Bauer, Council Member, City of Huntington Beach Shirley Dettloff, Council Member, City of-Huntington Beach Peter Green, Council Member, City of Huntington Beach — r� C o - o rn N C7 co D 1 1 • 1 + l STATEMENT TO BE FILED BY AUTHOR OF ARGUMENT IN FAVOR OF MEASURE All arguments concerning measure filed pursuant to Division 9, Chapter 3 (beginning with § 9200) of the Elections Code shall be accompanied by the following form statement to be signed by each proponent and by each author, if different, of the argument: c7�f1S�R` � The undersigned proponent(s) or authors(s) of the primary argument in favor of ballot /11 F f}Su�measure` at the Special Municipal Election for the City of Huntington Beach, to be held on March 5, 2002, hereby state that the argument is true and correct to the best of their knowledge and belief. HUNTINGTON BEACH CITY COUNCIL Name of Organization Sign Name Print Name. Date Council _ 1 MemberVr�( Mayor Lc c ►') �s�►'l �C�1U(CcJ1J 1' /3 J I Mayor Pro Tem 1�yY//+e �0 le 'q Council Member Amllnv< Council Member g:election/2002/marchfinfrastructure fund/form of statement—in favor.doc Argument IN FAVOR of a Measure - Amendment of Utility Tax by Removing Electric Power Plant Exemption Vote yes on Measure because it will keep your taxes down. By voting yes, you are voting to require the AES Corporation to pay the same utility tax paid by all residents and businesses in Huntington Beach. Currently, AES is the only business in Huntington Beach that does not pay this tax. The AES plant is ugly, pollutes our air, and our ocean. AES refused to sign a contract for use of electricity solely in California; thus, any cost to AES will be passed on primarily to people outside of Huntington Beach and California. A yes vote for this Measure will make AES pay their fair share of city costs that occur by virtue of their presence. The AES plant has been a blight on Huntington Beach for over 40 years. Isn't it about time it contributes to our city? In the last election on this measure, AES spent nearly $300,000 to defeat it. Don't be fooled again. Vote yes on Measure Pam Julien Houchen, Mayor, City of Huntington Beach Debbie Cook, Mayor Pro Tern, City of Huntington Beach Ralph H. Bauer, Council Member, City of Huntington Beach Connie Boardman, Council Member, City of Huntington Beach Peter Green, Council Member, City of Huntington Beach G . G 1 _{-- Cr T: > r ^; r' 00 D STATEMENT TO BE FILED BY AUTHOR OF ARGUMENT IN FAVOR OF MEASURE (AMENDMENT OF UTILITY TAX BY REMOVING ELECTRIC POWER PLANT EXEMPTION) All arguments concerning measure filed pursuant to Division 9, Chapter 3 (beginning with § 9200) of the Elections Code shall be accompanied by the following form statement to be signed by each proponent and by each author, if different, of the argument: Th`e undersigned proponent(s) or authors(s) of the primary argument in favor of ballot measure PROPOSED ORDINANCE at the Special Municipal Election for the City of Huntington Beach, to be held on March 5, 2002, hereby state that the argument is true and correct to the best of their knowledge and belief. HUNTINGTON BEACH CITY COUNCIL Name of Organization Sign Name Print Name Date Mayor ` G ►, Am sub f t.l 4u ch uN Mayor Pro Tem b-eiVlJ!e, ( &o k 11 o 0/ Memberl fZ Council t� Member tC Council Member ArLI Q J ` `�' C�i3�1 Ul t e- d tAa yj — o g:election/2002/mardh utility tax/form of statement-In favor.doc