NEVADA CITY, Calif. March 8, 2016 – Nevada County officials are considering their options after a judge ruled the impartial analysis of Measure W to be flawed. At today’s hearing, Nevada County Superior Court Judge Candace Heidelberger mostly agreed with plaintiff Forrest Hurd and ordered Nevada County to fix five errors in the impartial analysis of Measure W. In court language: The Order to Show Cause (OSC) re the preliminary injunction is granted.

County Counsel Alison Barratt-Green commented on the ruling, stating: “We are disappointed with today’s ruling and are confident the appellate court would not uphold the decision. We are carefully considering how to proceed to assure the constituents of Nevada County will have the right to Vote on this important issue in June.”

The decision to appeal or not will have to be made quickly. The Elections Office stated previously their intent to start laying out the ballot for the June primary election after the candidate filing period is over. The layout process could begin March 18th at the earliest and ballots should be ready to be printed by April 1, 2016.

5 errors needing correction, according to the court

Should Nevada County decide to appeal the ruling and win, the impartial analysis will stand as is. If Nevada County were to fail in their quest to keep the language as is, the following five errors would need correction:

  1. The Analysis states that Measure W would “codify the above restrictions on marijuana cultivation.” Petitioner argues that the restrictions are already codified by Ordinance 2405, so Measure W would not be doing any codifying of the already existing regulations.The Court agrees with Petitioner. Ordinance 2405 is already codified. Measure W seeks to amend two provisions that have already been codified. Thus, the language in the Impartial Analysis on this point is misleading.
  2. The Analysis infers that Measure W would be upholding Ordinance 2405. But, Measure W has no effect on Ordinance 2405.Again, this Court agrees with Petitioner. Measure W seeks only to amend two provisions that are already in effect. The Impartial Analysis infers that a “yes” vote would uphold Ordinance 2405. However, a “yes” vote will have no effect on Ordinance 2405. Thus, the Impartial Analysis is misleading.
  3. The Analysis infers that the voter would be maintaining existing law. But, it is actually amending two sections.As set forth above, the Court agrees with Petitioner. Ordinance 2405 is the law at this point. Measure W amends two sections and adds one provision, but does not uphold any other provisions.
  4. The Analysis makes it confusing as to what a “no” vote means. The Analysis discusses Resolution 16-082 and that if the voters vote “no,” then the Board would take some kind of action. Petitioner argues that this is confusing because the language should be limited to talking about only what a “yes” means and only what a “no” means.Petitioner again is correct in his interpretation. The Impartial Analysis improperly intertwines Resolution 16-038 and Resolution 16-082. However, only Measure W [Resolution 16-038] is before the voters. Addressing the Board’s intent resolved on another Resolution is confusing and improper.
  5. While not addressed in the Petition, the Court notes that the Impartial Analysis does not clearly delineate that a brand new provision, Article III, is also being voted upon by the public. The Impartial Analysis must make clear that two provisions are being amended and one provision is being added. The effect of the measure on existing law is not properly and clearly set forth in the Impartial Analysis as required by Elections Code §9160.

The plain English version

With the disclaimer that this reporter is not a lawyer, here is the plain English translation of the 5 points:

  1. The Nevada County Board of Supervisors passed Ordinance 2405 (the outdoor cultivation ban) at their January 12th meeting. Measure only addresses 2 of the 5 sections already in effect.
  2. The ballot measure will only add language restricting the permissible use to the cultivation of medical marijuana. The measure is not a Yea or Nay vote on the urgency ordinance.
  3. Measure W makes cosmetic changes to two sections of the current ordinance. See the side-by-side comparison here.
  4. At their January 12th meeting, supervisors voted 4-1 to ban all outdoor growing of marijuana. Resolution 16-038, also adopted by a 4-1 vote that same afternoon, became Measure W on the June ballot. The BOS – collectively and individually – from the dais, while meeting with constituents and in comments to the media has stated: “You’ll get to vote on this.” Even by the most elastic definition of “this,” you – the voters – don’t get to vote on “this.”
  5. The blank check provision? Article III of Measure W reads: “The People of the County of Nevada affirm that the Board of Supervisors may adopt, without a vote of the people, such additional ordinances, resolutions or other regulations as may be necessary to reasonably interpret and clarify the provisions of this Ordinance, so long as such interpretations or clarifications (even if contrary to a prior interpretation or clarification) is not inconsistent with the language and original intent of this Ordinance. The People of the County of Nevada further affirm that voter approval shall be required to repeal or substantially amend the Ordinance in a manner that is inconsistent with its original intent.”