Writ on Measure W – Ruling issued: Impartial analysis is flawed

NEVADA CITY, Calif. March 8, 2016 – The writ challenging Measure W, the marijuana cultivation prohibition ballot measure, has been partially granted.

After a short hearing this morning, Nevada County Superior Judge Candace Heidelberger issued her decision moments ago.

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The judge is asking the county to rectify 5 issues with the ballot and the impartial analysis. Until these points are rectified, Measure W may not appear on the June 7 ballot.

“The Court is not ordering that Measure W cannot be on the June 7 ballot; rather, it cannot be on the June 7, 2016 ballot as currently described in the Impartial Analysis.”

The ruling in full:

“Petitioner’s OSC re Preliminary Injunction is granted.

Background

In 2012, Ordinance 2349 was passed by the County to regulate the location and size of indoor and outdoor medical marijuana cultivation.
On January 12, 2016, the County passed Urgency Ordinance 2405. This ordinance amended sections G-IV 5.2, 5.3, 5.4, and 5.5 of the County Code. In sum, it banned all outdoor medical marijuana cultivation.

Due to the passing of Ordinance 2405, Section 5.4(C) currently provides that cultivation may be undertaken only by (1) a qualified patient who occupies a legal residence on the parcel being grown on as the primary place of residence; (2) a primary caregiver on behalf of his qualified patient but only on a legal parcel with a legal residence which is occupied by the patient or primary caregiver as his primary place of residence; (3) in conformance with all state and local laws.

Additionally, due to the passing of Ordinance 2405, Section 5.4(E) currently sets forth limits: (1) outdoor marijuana cultivation in any amount is prohibited and cultivation within any detached accessory structure that does not meet the definition of indoor shall also be 13 considered outdoor cultivation and is prohibited; (2) marijuana may be cultivated only on legal I parcels zoned for residential or rural uses, 12 plants per parcel and one contiguous cultivation area; (3) commercial cannabis activity in any amount or quantity on property located within the county is prohibited.

Now, the County seeks to present Measure W (Resolution 16-038) to the voters for the June 7, 2016 election. This resolution amends only G-IV 5.4(C) and 5.4(E) of the County Code and adds a provision entitled Article III.

Measure W’s proposed 5.4(C) provides that marijuana may only be cultivated: (1) on a legal parcel improved with a permanent, occupied, legally permitted residence; (2) by a qualified caregiver on the same parcel that he occupies as his primary place of residence; (3) by a primary caregiver on behalf of his qualified patient on the same parcel that the caregiver or patient occupies as his primary place of residence; (4) only for medical purposes in accordance with federal, state and local laws; (5) in conformance with all applicable state and local laws, including all regulations and restrictions adopted by the Board.

Measure W’s proposed 5.4(E) provides that: (1) outdoor cultivation in any amount is prohibited; (2) indoor cultivation of more than 12 plants per legal parcel is prohibited; (3) indoor cultivation may occur only on legal parcels located in an area zoned primarily for residential or rural uses; ( 4) indoor cultivation on any other parcel is prohibited; (5) indoor cultivation is prohibited in non-permitted structures, structures that are exempt from permitting, or any portion of a structure designed or intended for human occupancy; (5) commercial cannabis activities in any amount or quantity are prohibited.

Note that Measure W also has an Article III that is being added to the code provisions.

This Article III provides that the Board may adopt, without a vote of the people, such additional regulations as may be necessary to interpret and clarify the provisions of the Ordinance.

After Measure W (Resolution 16-038) was approved to go the voters, there was confusion by the public about whether or not Measure W would replace or repeal Ordinance 2405. Accordingly, Resolution 16-082 was passed by the County. This Resolution states, “If the Ballot Measure [Measure W] is not approved by a majority of the registered voters voting on the measure, it is the intent of the Board of Supervisors to reject the Ballot Measure, to repeal the ban on outdoor cultivation of marijuana and to consider and adopt other outdoor regulations at the next available meeting … ”

The Court notes, however, that Resolution 16-082 is not being presented to the voters. Rather, only Measure W (Resolution 16-038) is being presented to the voters and is the subject of the present litigation.

Legal Authority

Elections Code §13314 permits a voter to seek a writ of mandate “alleging that an error or omission has occurred, or is about to occur, in the placing of a name on, or in the printing of, a ballot, sample ballot, voter pamphlet, or other official matter, or that any neglect of duty has occurred, or is about to occur. [,JJ (2) A peremptory writ of mandate shall issue only upon proof of both of the following: [,JJ (A) That the error, omission, or neglect is in violation of this code or the Constitution. [,J] (B) That issuance of the writ will not substantially interfere with the conduct of the election.”

Elections Code §9160(b) provides: “The county counsel or district attorney shall prepare an impartial analysis of the measure showing the effect of the measure on the existing law and the operation of the measure. The analysis shall include a statement indicating whether the measure was placed on the ballot by a petition signed by the requisite number of voters or by the board of supervisors. The analysis shall be printed preceding the arguments for and against the measure. The analysis may not exceed 500 words in length.”

Burden of Proof

Elections Code§13314 simply requires proof that (1) an error, omission, or neglect is in violation of this code or the Constitution and (2) that issuance of the writ will not substantially interfere with the conduct of the election.” This means proof by evidence more likely than not.

In the opposition to the OSC re Preliminary Injunction, the County improperly ferences the need for “clear and convincing proof.” This heading is incorrect. This Court st examine the facts based on evidence more likely than not.

Verification of Petition

The opposition to the OSC re Preliminary Injunction argues that the verification of the petition is defective. However, the Court’s file contains a verification signed by Mr. Forrest Hurd. It is located on the last page of the document, on the last page after Exhibit D. Thus, the Court finds no defect. Furthermore, such verification substantially complies with the law. The County argues that Petitioner has failed to show irreparable or substantial harm. However, as set forth in the Tahoe Keys case, [(1994) 23 Cal.App.41 1459] such harm is equately demonstrated by improper public acts.

Discussion of the “Impartial Analysis”

In the underlying Petition for Writ of Mandate and in the present OSC re Preliminary junction, Petitioner alleges that the language of the Impartial Analysis of the ballot measure is untruthful, confusing, misleading and not impartial for the following reasons:

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.

While any one of these errors standing alone might not be sufficient to support a finding that the Impartial Analysis is misleading or confusing, the cumulative effect does support such a finding.

Interference with Conduct of Election

Elections Code § 13314 also requires that the Court find that the issuance of a writ would not substantially interfere with the conduct of the election. While the Court is not ruling on the underlying petition itself, the Court finds that there is no substantial interference with the conduct of the election. At the hearing on the TRO, Deputy County Counsel argued that the ballots are not going to the printer until March 18, 2016, and that the Board can schedule an emergency meeting to make changes and discuss the Impartial Analysis, if necessary.

Thus, there is still adequate time to correct the five errors set forth above prior to printing of the ballots and there will be no substantial interference with the conduct of the election.

Conclusion

Based on the foregoing, the Preliminary Injunction is granted. The County is prohibited from printing and distributing the proposed “Impartial Analysis” until the five errors set forth above are corrected and clarified.

Final Comments

The Court notes that this Ruling on Preliminary Injunction does not address the validity or Constitutionality of either Ordinance 2405 or Measure W. Whether or not a complete outdoor ban is permissible under the law is not before this Court. Petitioner’s challenge was to the language contained in the Impartial Analysis, and does not in any way place at issue in this action the language contained in Measure W itself. Additionally, any delay in placing Measure W on the ballot does not change the current ban on outdoor cultivation, because Ordinance 2405 continues to be the law. The Court is not ordering that Measure W cannot be on the June 7 ballot; rather, it cannot be on the June 7, 2016 ballot as currently described in the Impartial Analysis.”[end of court ruling]

Background

Foorest Hurd and supporters at today’s BOS meeting after the court ruling. Photo: YubaNet

The writ, filed on behalf of Forrest Hurd and his son Silas, contended the language of Measure W was confusing at best and probably misleading. Measure W was put on the June 7th ballot by the Nevada County BOS after their vote on January 12th to ban all outdoor marijuana cultivation by a 4-1 vote. They also voted to put a ballot measure on the June ballot dealing with the urgency ordinance. But a closer reading of the ballot measure showed that a No vote would not overturn the ban but rather leaving the ban in place and not adopt the cosmetic changes to two sections of the ordinance.

The BOS then passed a “clarifying resolution” which reads, in part, “If the Ballot Measure is not approved by a majority of the registered voters voting on the measure, it is the intent of the Board of Supervisors to reject the Ballot Measure, to repeal the ban on outdoor cultivation of marijuana and to consider and adopt other outdoor regulations at the next available meeting after the results of the election have been certified by the County Elections Official.” The resolution will not be listed on the ballot.

Hurd filed the writ contending the ballot measure would cause irreparable harm to him and his son. Silas, his 8-year old boy, suffers from intractable epilepsy and medical cannabis has proven to alleviate the number of seizures he experiences every day.

The impartial analysis of Measure W, arguments in favor and opposing the measure can be found here.