For the past few months I have ignored the ongoing cries coming from Lance MacLean supporters that one or more of the MacLean recall workers were not residents of our city and that all of the petitions which they collected should be discarded. We heard that same broken record at the Mission Viejo city council meeting just this past Monday.
A few weeks ago, after receiving an email urging residents to contact the office of the DA to complain about the petition gathering, I took a different approach.
Thanks to whomever provided the DA contact information.
My phone call with this investigator was based on a scenario which I share now that has nothing to do with the case law which I shall add in a few minutes.
This is a simple scenario. If a 90 year old man is sitting in a wheelchair in front of a Mission Viejo supermarket watching and monitoring a hired worker be it from Santa Ana or Sacramento with a clip board stopping people as they leave the store to get them to sign the petitions, and whereas that 90 year old registered voter from Mission Viejo signs the bottom of the petition page under penalty of perjury to having witnessed the signing, than, in my opinion, there is absolutely nothing wrong with hiring someone from out of town to perform that task. That’s my unofficial legal opinion.
However recent case law has made this a mute point.
Following is from a recent case right here in lower Orange County in which a three member Appellate Court found that sections 9209 and 9238 of the California Election Code, relating to the residency requirements of petition gatherers, was “Unconstitutional” due to a 1st Amendment argument.
Sadly we have seen reports of these charges against the recall proponents being repeated in the OC Register where the following case data should have been included.
The following is from ballotpedia.org. Dan Avery supporters. I have not touched a single stroke in the following text and have added the link at the end of this post.
Folks. Matt, Jerbal, Girbil, paid lobbyist, or whatever we know him as, is trying to divert attention away from the real causes of action in this recall election. This lame attempt from a Republican hack county blog shows how weak their case to defend Lance MacLean. Put the proponents of the recall on the defensive as you simply have no way to defend Lance’s performance in office.
Gilbert Note: I voted to recall Lance. Does that surprise anyone?
Preserve Shorecliff Homeowners v. City of San Clemente
From Ballotpedia
Preserve Shorecliff Homeowners v. City of San Clemente is a January 16, 2008 decision of the California Court of Appeal. In a 3-0 decision written by Judge David Sills, the appellate court ruled against the plaintiffs and upheld a lower court decision which had found that parts of the California Election Code are unconstitutional according to the U.S. Supreme Court ruling, Buckley v. American Constitutional Law Foundation. At issue was a petition drive conducted in San Clemente to place Measure I on the ballot. Measure I is a veto referendum challenging an ordinance passed by the San Clemente City Council in July 2006. On April 30, 2008, attorneys for “San Clemente Residents for Responsible Government” (SCRRG), filed a motion in California Superior Court seeking recovery of attorney fees in the amount of $116,434.45. The motion will be heard on June 10. SCRRG is the group sponsoring the San Clemente Shorecliffs Building Height and View Referendum. The motion asks that the attorney fees be paid by “Preserve Shorecliffs Homeowners”, which is the group that unsuccessfully contested the signatures filed to qualify Measure I for the ballot.
The parts of California election code determined by both the lower and the upper court to be unconstitutional were Sections 9209 and 9238. These sections require petition circulators who are circulating city-wide veto referendum petitions to be residents of the city in which they are circulating the petition.
The appellate court found that under “Buckley v. ACLF”, these California election code sections are an impermissible restriction on the pool of available petition circulators. These parts of the code are now nullified as unconstitutional, and the city ordinance that was the subject of the referendum attempt may now proceed to a vote.
The San Clemente Shorecliffs Building Height and View Referendum subsequently appeared on the June 3, 2008 ballot in Orange County.
http://ballotpedia.org/wiki/index.php/Preserve_Shorecliff_Homeowners_v._City_of_San_Clemente
Larry you are legally wrong and ducking other important points,
The case law you cite does not reference recalls. Recall election statutes are specific and have not been legally challenged.
And you ignore:
Connie lee admitting she paid gatherers under the table to avoid election laws
That recall treasurer Dale Tyler submitted campaign reports 6 weeks late, triggering an FPPC investigation. That he conveniently left out ALL out of city signature gatherers initially. Why?
There is more here than just the signatures and you know it.
Legal Hawk.
I did address the late filing for which the FPPC may impose a fine. Have you heard back from them? I haven’t!
Larry is exactly right.
Municipal atatutes creating city residency requirement for circulators of municipal referendum petitions and initiative petitions are unconstitutional. (Preserve Shorecliff Homeowners v. City of San Clemente, 158 Cal.App.4th 1427 (2008)).
The court held that statutes creating city residency requirement for circulators of municipal referendum petitions and initiative petitions unconstitutionally decrease the potential pool of circulators, in violation of the First Amendment free speech guarantees.
The court reasoned that the state’s “dominant” interest (making sure the circulators complied with the law) could readily be served by a lesser restriction of having state residency, so that circulators would be within the state’s “subpoena service” powers.
Legal Hawk argues a difference without a distinction.
Legal Hawk.
A late filing or failure to include addresses, while a requirement of the official document package, is not the federal crime that you are trying to create.
How long has it been since you contacted the FPPC?
What’s taking so long? Do you have any breaking news from the FPPC that needs coverage?
You are blowing smoke.
In my view a worst case scenario will be a fine of $100 if in fact it even happens. I filed against Susan and Sherri several years ago and all they had to do regarding an in-kind donation was to amend their returns. As such I have had personal dealings with the FPPC on a campaign document issue.
Legal Hawk.
In my humble opinion of the law the First Amendment cannot be trumped solely because its a different form of election
I am an attorney and this is a straight forward question.
The legal standard announced in Shorecliff turns on the burden to free speech, not on whether the issue was initiative, referendum, or recall. The court relied on more than cases than Buckley, including:
Krislov v. Rednour, 226 F.3d 851 (7th Cir.2000) (residency requirement in candidate nominating papers was unconstitutional)
Lerman v. Board of Elections in the City of New York, 232 F.3d 135 (2d Cir.2000) (residency requirement for witness to candidate nominating papers was unconstitutional)
KZPZ Broadcasting, Inc. v. Black Canyon City Concerned Citizens 199 Ariz. 30, 13 P.3d 772 (Ct.App.Ariz.2000) (political subdivision restrictions on circulators was unconstitutional)
Residency requirements involve limitations on political expression. Such limitations are subject to exacting scrutiny. (Meyer v. Grant, 485 U.S. 414 (1988)). Residency requirements like those in question can’t be justified where less restrictive means are available. State residency requirements are sufficient to safeguard the state’s interest.
Larry, I personally know that at least 2 different people have tried to respond to this. It would seem that you are blocking them all. Is that in keeping with the Rotary 4 way test? (which you claimed elsewhere on this blog that you adhered to) Let’s see what they have to say.
Victoria,
I must call B.S. on that. I blocked two people. Your husband Dan and someone calling herself Miss Havisham. I blocked them both for the same reason. They insist on coming here and threatening us. Dan also emailed several threats to me.
If you want to come on here and post civilly, as you just did, that is fine. But come on here and make threats and you are out of here!
Larry, if Connie Lee is so legally perfect, then where is she to defend herself? She has disappeared. The DA is investigating because she paid people illegally to get signatures. She admitted that she paid people cash under the table to avoid employment laws. What say you Larry?
To address the issues–the court has decided the issue. It is now a NON issue.
Well–well–well Dan is BLOCKED. It is too bad since I wanted to know about his SDS days.
Where is Connie???
I didn’t realize that it was my assignment to monitor her daily routine.
While not related to this post I just returned from covering an event on behalf of Art with gubernatorial candidate Steve Poizner.
My point in mentioning this is that there are other stories to cover that do require my leaving this keyboard, especially as Jon Fleischman was also there and I would not want anyone to claim that I was plagiarizing material from his web site.