cu16-081626 hurd v. county of nevada, et al.ruling on osc re prelim inj.march 17 2016.pdf

8/19/2019 CU16-081626 Hurd v. County of Nevada, et al.RULING ON OSC re PRELIM INJ.March 17 2016.pdf

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SUPERIOR COURT OF THE STATE OF CALIFORNIACounty of Nevada

B. S OIT THOMSEN,Presiding Judge

THOMAS M ANDERSON Judge

CANDACE S. HEIDELBERGER,udge

YVETTE DURANT,Commissioner

201 Church StreetNevada City, C 95959

530) 265-1311

LINDA J. SLOVEN,ssistant Presiding Judge

ROBERT L TAMlEITI Judge

S. ROBERT TICE-RASKIN, ud

G. SEAN METROKA,Court Executive Officer

Amanda Uhrhammer and Scott McLeran, Office of the County [email protected]

To:

From:

Subject:

Date:

No. of Pages

Heather Burke and Charnel James, Plaintiff s [email protected]

[email protected]

The Union Newspaper, Brian Hamilton, [email protected]

Nevada County Superior Court, Civil Division

Case No. CU16-081626, Hurd v. County of Nevada, et al.

March 17, 2016

q~-- including cover sheetPlease see the attached Ruling on OSC Re Preliminary Injunction; Order Thereon


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FILEDM R 7 2 16 J

Superior Court of theState of CaliforniaCounty of Nevada

IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA

IN AND FOR THE COUNTY OF NEV ADA

FORREST HURD,

Petitioner

vs.

COUNTY O NEV ADA AND GREGORY DIAZ,Election Official,

CASE NO.: CU16-081626

RULING ON OSC rPRELIMINARYINJUNCTION;ORDER THEREON

Res ondents1 s 1 1 ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~

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The above-entitled matter came on for hearing before the undersigned on March 17,

2016, at 1:00 pm, in Dept. 4. Attorney Heather Burke appeared for and with Petitioner.

Assistant County Counsel Amanda Uhrhammer and Deputy County Counsel Scott McLeran

appeared for Respondents. Following argument, the Court now rules as follows:

Petitioner s OSC re Preliminary Injunction is denied.

Background

In 2012, Ordinance 2349 was passed by the County to regulate the location and size of

indoor and outdoor medical marijuana cultivation.


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1 On January 12, 2016, the County passed Urgency Ordinance 2405. This ordinance

2 amended sections G-IV 5.2, 5.3, 5.4, and 5.5 of the County Code. In sum, it banned all

3 outdoor medical marijuana cultivation.

4 Due to the passing of Ordinance 2405, Section 5.4(C) currently provides that5 cultivation may be undertaken only by (1) a qualified patient who occupies a legal residence

6 on the parcel being grown on as the primary place of residence; (2) a primary caregiver on

7 behalf of his qualified patient but only on a legal parcel with a legal residence which is

8 occupied by the patient or primary caregiver as his primary place of residence; 3) in

9 conformance with all state and local laws.

1 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

12 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

14 parcels zoned for residential or rural uses, 12 plants per parcel and one contiguous cultivation

15 area; (3) commercial cannabis activity in any amount or quantity on property located within

16 the county is prohibited.

17 Now, the County seeks to present Measure W (Resolution 16-038) to the voters for the

18 June 7, 2016 election. This section amends only G-IV 5.4(C) and 5.4(E) of the County Code

19 and adds a provision entitled Article III.

2 Measure W s proposed 5.4(C) provides that marijuana may only be cultivated: 1) on a

21 legal parcel improved with a permanent, occupied, legally permitted residence; (2) by a

22 qualified patient on the same parcel that he/she occupies as his/her primary place of residence;

23 (3) by a primary caregiver on behalf of his/her qualified patient on the same parcel that the24 caregiver or patient occupies as his/her primary place of residence; ( 4) only for medical

5 purposes in accordance with federal, state and local laws; (5) in conformance with all

26 applicable state and local laws, including all regulations and restrictions adopted by the Board.

27 Measure W s proposed 5.4(E) sets forth limitations that limits apply: 1) outdoor

28 cultivation in any amount is prohibited; (2) indoor of more than 12 plants per legal parcel is2


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1 prohibited; (3) indoor cultivation may occur only on legal parcels located in an area zoned

2 primarily for residential or rural uses; (4) indoor cultivation on any other parcel is prohibited;

3 (5) indoor cultivation is prohibited in non-permitted structures, structures that are exempt from

4 permitting, or any portion of a structure designed or intended for human occupancy; (5)

5 commercial cannabis activities in any amount or quantity are prohibited.

6 Additionally, Measure W has an Article III that is being added to the code provisions.

7 This Article III provides that the Board may adopt, without a vote o the people, such

8 additional regulations as may be necessary to interpret and clarify the provisions of the

9 Ordinance.

1 After Measure W (Resolution 16-038) was approved to go the voters, there was

11 confusion by the public about whether or not Measure W would replace or repeal Ordinance

12 2405. Accordingly, Resolution 16-082 was passed by the County. This Resolution states, I f

3 the Ballot Measure [Measure W] is not approved by a majority o the registered voters voting

14 on the measure, it is the intent o the Board o Supervisors to reject the Ballot Measure, to

15 repeal the ban on outdoor cultivation of marijuana and to consider and adopt other outdoor

16 regulations at the next available meeting ...

17 On February 29, 2016, Petitioner filed a Petition for Writ o Mandate challenging the

18 Impartial Analysis language to be included with the ballot. Thereafter, on March 8 2016, this

19 Court granted a preliminary injunction enjoining the County from printing and distributing the

2 Impartial Analysis originally drafted until five errors noted by the Court were corrected.

21 The County then prepared and published a revised Impartial Analysis. Petitioner now

22 seeks a preliminary injunction enjoining printing and distribution o the ballots with the newly

23 revised Impartial Analysis.

24 Legal Authority

25 Elections Code §13314 permits a voter to seek a writ o mandate alleging that an

26 error or omission has occurred, or is about to occur, in the placing o a name on, or in the

27 printing of, a ballot, sample ballot, voter pamphlet, or other official matter, or that any neglect

28 o duty has occurred, or is about to occur. [ II] (2) A peremptory writ o mandate shall issue3


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only upon proof of both of the following: [ r] (A) That the error, omission, or neglect is in

2 violation of this code or the Constitution. [ r] (B) That issuance of the writ will not

3 substantially interfere with the conduct of the election.

4 Elections Code §9160(b) provides: The county counsel or district attorney shall

5 prepare an impartial analysis of the measure showing the effect of the measure on the existing

6 law and the operation of the measure. The analysis shall include a statement indicating

7 whether the measure was placed on the ballot by a petition signed by the requisite number of

8 voters or by the board of supervisors. The analysis shall be printed preceding the arguments

9 for and against the measure. The analysis may not exceed 500 words in length.

1 Elections Code §9190 provides: (a) The county elections official shall make a copy of

11 the materials referred to in Sections 9119, 9120, 9160, 9162, and 9167 available for public

12 examination in the county elections official's office for a period o f 10 calendar days

13 immediately following the deadline for submission of those materials (b) (1) During the

14 IO-calendar-day public examination period provided by this section, any voter of the

15 jurisdiction in which the election is being held, or the county elections official, himself or

16 herself, may seek a writ of mandate or an injunction requiring any or all of the materials to be

17 amended or deleted. The writ of mandate or injunction request shall be filed no later than the

18 end of the IO-calendar-day public examination period. (2) A peremptory writ of mandate or

19 an injunction shall be issued only upon clear and convincing proof that the material in question

2 is false, misleading, or inconsistent with this chapter, and that issuance of the writ or

21 injunction will not substantially interfere with the printing or distribution of official election

22 materials as provided by law

23 Burden of Proof24 Respondent County contends that the burden of proof for this hearing is clear and

25 convincing evidence and that the Court's prior determination that the standard of

26 preponderance of the evidence is incorrect.

27 Respondent is correct. The proper standard for this Court to apply is clear and

28 convincing evidence as set forth in Elections Code §9190.


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2 Waiver

3 In the prior OSC r Preliminary Injunction, Petitioner did not challenge the inclusion

4 of the word federal in the original Impartial Analysis. Although that language did not5 change from the original Impartial Analysis to the revised Impartial Analysis, Petitioner now

6 challenges that language.

7 Thus, the Court is presented with the question of whether or not that failure to

8 challenge the language the first time waived any such challenge. Unfortunately, neither party

9 provided this Court with any statutory or legal authority on the waiver issue.

1 The Court is not particularly swayed by the argument that Petitioner did not notice the

11 word federal in the first application. Nonetheless, as Petitioner correctly pointed out in her

12 brief, any new elector could challenge the language during the 10 day viewing period.

13 Therefore, this Court will address the application on the merits.

14 Discussion of the Federal Language

15 Petitioner contends that the language of the revised Impartial Analysis is misleading

16 because it presumes that some measure of cannabis cultivation for medical purposes will be

17 authorized under those regulations enumerated in the Revised Summary. Petitioner contends

18 that a reference to federal law, which contains no exemptions for the cultivation of marijuana

19 for medical purposes, is prejudicial and misleading.

2 Petitioner is incorrect. The revised Impartial Analysis states that existing law Allows

21 marijuana cultivation only for medical purposes in accordance with federal, state, and local

22 laws This statements is, indeed, correct. Section G-IV 5.4G of the existing law does

23 reference federal law and specifically states that federal law provides no exemptions for the24 cultivation of marijuana for medical purposes.

25 The revised Impartial Analysis is correct. There are no misleading statements. Thus,

6 the revised Impartial Analysis does not need to be revised again.

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1 To the extent that Petitioner seeks to remove the word "federal" from the actual ballot

2 Measure itself, such issue is not before the Court. Rather, any direct or as-applied

3 Constitutional challenges should be filed after the election when the issue becomes ripe.

4 Discussion of the Intent Language5 Petitioner next argues tha t "respondents have very publicly bound themselves to some

6 unknown action, should Measure W fail, which confuses the Revised Bal lot Summary and

7 question to such an extent that further amendments cannot fix what is fatally broken." [Page

8 11 of the x Parte Application.]

Petitioner's argument is without merit. This Court previously ruled that the County's

1 intertwining of two Resolutions, when only one is being voted upon, was confusing and

misleading. Such reference to the Resolution 16-082, which is not on the ballot, has properly

12 been removed by the County in the revised Impartial Analysis. The document itself is no

13 longer confusing and misleading. Accordingly, the preliminary injunction is denied on these

14 grounds.

15 Interference with Conduct of Election

16 Elections Code §13314 also requires that the Court find that the issuance of a writ

17 would not substantially interfere with the conduct of the election. While the Court is not

18 ruling on the under ying petit ion itself, the Court finds that, had the Court found grounds to

19 grant the preliminary injunction, such order would cause substantial prejudice at this late date.

2 The Court notes that the arguments presented herein could have been, but were not, presented

21 at the prior Preliminary Injunction hearing

22 Further, if the Court were to grant any preliminary injunction, a second revision and a

23 second 10 day viewing of any changes would have to be opened. The ballots, according to

24 Sandra Sjoberg, Assistant Clerk-Recorder, must be sent to the printer, at the latest, on April 1

25 2016. There is simply insufficient time to correct any purported errors, and then allow for

6 viewing and printing. The Court finds no errors, and has denied the preliminary injunction.

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However, as and for an additional ground for denying the preliminary injunction, the

2 Court finds that there would be substantial interference with the election process at this

3 juncture.

4 OSC re Contempt5 In a footnote on page of the Ex Parte Application for TRO filed y Petitioner on

6 March 14, 2016, Petitioner requested that the court issue an OSC directed at the County for

7 failure to comply with the Court Order on Preliminary Injunction. This request is denied.

8 The Court enjoined the County from printing or distributing the ballots with the original

9 Impartial Analysis. Thereafter, the County did not print or distribute the ballots. In fact, the

1 County swiftly revised the language of the Impartial Analysis adequately responding to each

11 of the Court's five areas of concern. The County complied with this Court' s prior order.

12 Thus, Petitioner's request is denied.

3 Conclusion

14 Based on the foregoing, the request for a Preliminary Injunction is denied. The Court

15 finds that the Impartial Analysis properly shows the effect of the measure on the existing law

16 and the operation of the measure. Further, the Court finds that the language of the revised

17 Impartial Analysis is not untruthful, is not confusing, is not misleading, and is impartial.

18 Final Comments

19 The Court notes that this Ruling on Preliminary Injunction does not address the

2 validity or Constitutionality of either Ordinance 2405 or Measure W. Whether or not a

21 complete outdoor ban is permissible under the law is not before this Court. Any challenges to

22 the Constitutionality of the Measure or the Ordinance may be brought after the election.

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DATED: March 17, 2016 f 2 t t µ 3 ~ ~ ~CANDACE HEIDELBERGERJudge of the Superior Court

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DECLARATION OF SERVICE BY MAIL

I G. SEAN METROKA Court Executive Officer County of Nevada being a citizen of the

United States a resident of the County of Nevada and not a party to the cause o hereby certify

that I mailed copies of the

RULING ON OSC RE PRELIMINARY INJUNCTION;ORDER THEREON

of which the original is on file n Case No. CU16-081626 on the following named persons:

Heather BurkeLaw Offices of Heather L Burke230 Main Street Second FloorNevada City C 95959

Charnel JamesLaw Office ofCharnel James500 Olive StreetMarysville C 95901

Amanda UhrhammerAssistant County Counsel950 Maidu Avenue Suite 240Nevada City CA 95959

aud that the envelope with prepaid postage was sealed and placed for collection and mailing n

the United States Post Office at Nevada City California on .2 _ 1-_-_ ~{_~---

G. SEAN METROKACourt Executive O ff i c e r . _Nevada County S

cu16-081626 hurd v. county of nevada, et al.ruling on osc re prelim inj.march 17 2016.pdf

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