Rejected!
My self imposed gag order can now be lifted. For the past two Monday’s Joe Holtzman and myself were in courtroom C-27 on the 8th floor of the Orange County Superior Court in support of Mission Viejo Council member Cathy Schlicht.
This trial could have been avoided by Mission Viejo’s City Clerk Karen Hamman who responded to council member Schlicht that she found nothing wrong in Cathy’s challenge to Frank Ury’s (Measure D) ballot statement.
Note: “The Right to Vote initiative,” Measure D, will appear on the June 8th ballot.
Cathy filed a Writ of Mandate against “Karen Hamman, in her official capacity as City Clerk of the City of Mission Viejo and Neal Kelley, in his official capacity as Orange County Registrar of Voters along with Frank Ury, City Council Member of the City of Mission Viejo as a Real Party in Interest.”
Letter from our City Clerk Karen Hamman to council member Schlicht:
“Pursuant to my duties as the city’s Election Official, I have conducted an independent review of both Arguments for the Mission Viejo ‘Right to Vote Initiative.” I have also reviewed the information you provided in your letter dated March 5, 2010 and your email on March 8, 2010.
I did not conclude that there are statutory grounds for a challenge of the Argument Against the Measure and therefore I will not seek a writ of mandate to require amendments to the ballot argument.” Source. March 8, 2010 letter from City Clerk Karen Hamman to Cathy Schlicht.
City staff bias? When campaigning for our city council two years ago Cathy’s ballot designation as “Independent Business Woman” was challenged by Lance MacLean resulting in the City Clerk filing a Writ of Mandate on Aug 21, 2008 along with issuing a press release of said action. Rather than fight Cathy modified her designation.
In this court case the city has not said a word to anyone. That may explain why no reporter representing the Register was in court or in contact with Cathy about the case.
The bar is set very high in that the burden of proof rests totally on the Petitioner who must provide “clear and convincing proof.” Even city documents were challenged by the defendant’s attorney as hearsay. Judge Rodriguez referred to the word hyperbole, in permitting some of Franks inflammatory text to remain. Hyperbole–“exaggeration for effect, not to be taken literally.”
Apparently Mr. Ury decided to go it alone and not share his proposed text with his peers on the city council before it’s submission. Did our mayor even ask to see a draft before it was submitted? His anger is now going to cost Mission Viejo taxpayers thousands of dollars for the time and effort of two RW&G trial attorney’s as well as their pre trial research in challenging Ms. Schlicht’s Causes of Action that could have been avoided.
The RW&G attorney even challenged council member Schlicht’s ability as a standing petitioner. Petitioner attorney Brad Morton introduced supporting evidence from RW&G’s Bill Curley our City attorney to Ms. Schlicht stating that anyone can file.
At one point in the trial RW&G attorney David G. Alderson called Frank’s use of inflamatory words ad hominem political rhetoric.
Judge Luis A. Rodriguez agreed with Cathy on some of the false and misleading ballot statement words of Mr. Ury and ruled that they be deleted.
Noon today was the deadline for submission of the final text to the ROV. Judge Rodriguez’s revisions have now been incorporated into the argument.
DELETED (by Judge Rodriguez from the original text. Reference to the Casta Del Sol golf course.)
“Under state law, it CAN NEVER be developed with housing. EVER!”
Also DELETED “Businesses wishing to expand their facilities would have to go to a full vote of the people at their own expense.”
The following report of the court case is from the Mission Viejo Dispatch.
Schlicht Wins: Judge Finds Ury Misleading
by MissionViejoDispatch.com on April 2, 2010
A Superior Court judge ruled this week Councilman Frank Ury provided false or misleading information in an official ballot statement. Ury had been designated by the City Council in February to submit a written statement opposing Measure D, known as the Right To Vote Amendment. If “D” passes in the June general election, local voters would gain power to ratify or reject actions by the City Council making major changes to Mission Viejo’s master plan.
Prior to filing a court petition, Councilwoman Cathy Schlicht asked the City Clerk to challenge Ury’s statement, which had been submitted on March 1. City Clerk Karen Hamman is the City’s election official. Hamman and City Attorney Bill Curley declined to seek any remedy, so Schlicht filed a public interest lawsuit petitioning the Court to instruct Hamman and OC Registrar of Voters Neal Kelley to remove any false or misleading language before printing and distributing official election materials.
The Court conducted a day-long trial on Monday. On Thursday, April 1, Judge Luis Rodriguez signed an Order granting Schlicht’s petition. The Superior Court Clerk then certified a Writ of Mandate commanding the Mission Viejo Clerk and OC Registrar to delete specified language.
Challenges to ballot statements face a high hurdle because case law permits hyperbole as expected discourse in the “rough and tumble” political arena. In addition courts have held that personal opinion, even false opinion, is permissible in ballot statements. Furthermore, these cases require “clear and convincing proof” from the petitioner that statements are ”false, misleading or inconsistent with the election code.” That is a higher burden than in normal civil cases, which only require a preponderance of proof. These factors appeared to make the judgment in favor of Schlicht very significant.
The Judge struck a statement by Ury which would have told voters that state law prevented housing from ever being constructed on the Casta del Sol Golf Course. Schlicht argued no such state law existed, alleging a portion of the golf course was not in a flood control channel nor in the dam inundation area below Upper Oso Reservoir and Lake Mission Viejo.
Judge Rodriguez also found the Councilman false or misleading when Ury stated businesses wishing to expand would have to go to a full vote of the people at their own expense under Measure D. Strike number three against Ury came when the court found it false or misleading to say taxpayers would be “forced” to pay for any subsidized housing approved for Mission Viejo.
After the ruling Schlicht stated, “I think the court’s finding would cause voters to question the entire Ury statement. Although the court couldn’t eliminate Ury’s opinion, I believe virtually his entire remaining opinion in the ballot statement if false and misleading.”
Ury’s defense was paid for by the City Treasury and conducted by two litigators from the City Attorney’s 40th-floor law firm in Los Angeles. Schlicht was represented by local lawyer Brad Morton.
A judge’s decision that Ury lied should come as no surprise. Ury usually gets away with constant lying because so few people go to the trouble of challenging him.
So, Ury lied and Karen Hammond supported his lies. If she is supposed to be an objective employee, what’s wrong with this picture?
Mission Viejo’s city hall is one SICK place.
Funny thought…. “The Judge struck a statement by Ury which would have told voters that state law prevented housing from ever being constructed on the Casta del Sol Golf Course.”
Didn’t Ury and the council vote on a moratorium to block development on the golf course a couple of years ago?
Congrats to Larry Gilbert and the MV Dispatch for acutely detailing what took place during the approx. 10 hours Judge Luis Rodriguez heard this case.
I was there during the two days this case was heard. The real facts are the Frank Ury blatantly attempted to mislead the voters of Mission Viejo and the Judge stopped that.
Of course it was not the first time Frank Ury mislead the voters–remember in his last ballot statement he said Crown Valley Porkway was done—and indeed it was not until many months later that the project was completed.
One final note–as I left the courtroom I told the cities TWO attorneys that “No matter how much you poured perfume on Ury’s bag of “dung”–it still smelled and the Judge thought so also.”
Frank Ury should be forced to pay the cities legal costs and reimburse the Orange County Superior Court.
Joe. We shall have to scrutinize the upcoming Check Registers to see how much this case has cost the taxpayers. Frank is still angry because his sidekick is no longer in the center chair.
boy talk about spin. The judge actually agreed that voters were lied to in order to get this on the ballot. That kills any argument for this measure you’d like to make. Ury may have costs us thousands but the Measure D folks are costing us hundreds of thousands. I’d rather see the money Dale Tyler et. al, have wasted this year go to feeding the homeless or something actually worthwhile and Christian in nature.
Nice to see Ury get what he deserves. He is one nasty, crooked politician.
So, Ury got his start in the 1990s by lying to parents who supported him for school board. Voters dumped him after one term because he lied to everyone. Then he lied to get on the city council, saying he was going to bury the power lines. Then he lied in his ballot statement when he said CVP was finished. Great to hear he’s been busted for lying on another ballot statement.
Little Big Man–I was there and the Judge never said anything of that kind. Period— So drop your spin on someone else who just might buy off on your dribble.
Interestingly enough even the cities lawyers said Ury’s statements were “Hyperbole–”exaggeration for effect, not to be taken literally.”
Ury got caught and no matter how much perfume you put on his statement it still smells like the dung it is.!!!
Oh goodie! Another round of pious whining from the Mission Viejo Mafia. How sad and pathetic that you would actually sit in a courtroom for ten hours to listen to the wheels of justice spin needlessly because some malcontents in Mission Viejo have too much free time on their hands. I’m still waiting for that old crow, Connie Lee perform her perp walk for the outright voter fraud she committed in the recall election. I take comfort in knowing that you crotchety old fools have at least one foot in the grave. You folks must have spent your lives getting your butts kicked to and from school everyday. That’s the only reason I can think of why you people act the way you do. Douchebaggery from every corner of your world.
Be careful, Frankie will whine to the thugs of Orange County, “Wahhhhhhhh.” They’ll rush in and throw stink bombs to protect their little butt boy.
Woo-hoooo! Must have hit a nerve. The subject is butt boy losing the lawsuit.
“Fonzi” is MacLean.
Mr. Holtzman I hate to disagree, but I have compared the original rebuttal to the text the Judge approved. The judge struck out two sentences, one adjective, and one sentence fragment. Hardly what I would consider a loss for anyone. The fragment and the adjective were hyperbole, which is a standard practice one can find even in Mr. Gilbert’s writings. The two sentences were overly general in nature.
What’s interesting is that the judge didn’t rule against the intent behind any of the sentences in the rebuttal and upheld phrases like “the organizers lied,” “a huge job killer,” “the authors of measure D conned the voters,” “measure D excludes housing,” and “brought to you by the same group of radical, irresponsible activists.” That is the language the Judge upheld as accurate. Hard to see a win in there no matter how hard you squint.
LBM.
After I submit my Public Comments to our City Clerk tonight I will post it here for all to see.
Unless you have a copy of the court transcript or was in the 8th floor courtroom, which you were not, anything you have to add is purely speculation or third party hearsay.
Joe Holtzman and I were there throughout the entire trial. Dale Tyler was there part of the day.
Except for the attorney’s and court staff there no other parties present.
I can read public records Mr. Gilbert and can easily compare the original rebuttal against the one the Judge ruled on. Again, three out of 23 challenges is not a win. Isn’t Dale Tyler being investigated by the Orange County District Attorney for lying to voters? I’m supposed to just take his word for anything?
Besides being able to read public documents, it’s easy enough to compare the judge’s ruling to the main page of the protectmissionviejo web site that posted the entire text of Mr. Ury’s rebuttal on its main page.
LBM. “Glad” to see you at the meeting last night. I was surprised that you didn’t have anything “complimentary” to say about me. Perhaps it is because Trish called your name before mine. However, there is always the next meeting. I can’t wait to read more of your commentary.
Folks.
As promised I am now posting my 3 minute Public Comments speech delivered just about an hour ago as promised.
The mayor and city manager were lost for words.
“Mission Viejo resident Larry Gilbert’s Public Comments at the April 5, 2010 city council meeting.
Submitted to the city clerk as part of the public record.
Mayor Kelley. I was in Superior Court last Monday.
Did you challenge councilman Ury’s argument against the Right to Vote initiative before he submitted it to our city clerk?
His lies just cost us around $15,000 at a time when you are proposing library services cuts tonight.
In addressing council member Schlicht’s Superior Court challenge to Frank Ury’s Measure D Ballot Argument the city manager’s TWT claims the city winning 20 out of 23 challenges whatever that refers to. Cathy’s Writ of Mandate only contained 6 Causes of Action.
Let me cite another 23-20 outcome where the Arizona Cardinals racked up 23 first downs in the 2008 Super Bowl yet lost to the Pittsburg Steelers who had only 20. Dennis. Don’t get caught up in numbers. We can both play that game. It’s results that count.
Frank Ury’s biggest argument against the Right to Vote Initiative was that voters were conned into signing the original petitions. He argues that housing could not be built on the Casta Del Sol Golf Course. In the opening statements, of his original Ballot Argument, he wrote: “Under state law it CAN NEVER be developed with housing. EVER!”
That’s not what attorney Brad Morton argued and the judge agreed. Housing can be built on part of the golf course property.
As such that entire text was ordered removed by Superior Court Judge Luis Rodriguez last Monday. Dennis. That key point was significantly changed.
Another key victory for our residents was the judge overruling and deleting Frank’s text that read: “Businesses wishing to expand their facilities would have to go to a full vote of the people at their own expense.” That text is now gone.
A third point, found in 6.1, regarding subsidized housing in which the judge removed the word “forces” Mission Viejo taxpayers to pay for it. The taxpayers are not forced to pay for subsidized housing.
And my response to an email from Frank Ury, where he refers to his text that the judge did not remove the wording as to conning voters, let me share the courtroom dialogue. Even city attorney Alderson called it ad hominem hyperbole. As a child I recall the old phrase that “sticks and stones can break my bones but words can never hurt me.” And that Mission Viejo voters is what the judge ruled. There is nothing illegal with Frank’s using abusive, insulting hyperbole which is why his offensive language was not deleted.
South OC Chamber of Commerce spokesman Michael Suydam issued a press release containing the original text yet refused my verbal request to consider amending his document based on the judge’s ruling. And they continue to be recipients of MV Grant Funding.”
LBM.
That website was probably created by Frank prior to our court appearance.
The judge threw out Frank’s biggest point in opposing Measure D. Housing CAN BE ADDED on the Casta Golf Course no matter how much he tried to emphasize that it couldn’t. Frank got caught in a lie that was not written off as hyperbole by the judge.
I commend Brad Morton and Cathy Schlicht for filing the Writ of Mandate.
The entire burden of proof rested on Brad on behalf of the Petitioner where he had to provide clear and convincing legal arguments in order to have any wording removed. And he did!
LBM.
What does Dale Tyler have to do with this post? He was there for part of the trial. Brad Morton and Cathy Schlicht spent many hours pouring over city documents and case history in preparation and presenting their case. Dale’s fingerprint were not there at all. At most he was all alternate witness whose services were not required.
I caught the city council meeting on TV tonight and it seemed to me that when mr. Leckness read the actual rebuttal it clearly got the message across. It doesn’t matter what they cut out. After hearing the council talk I will vote no. Also someone ought to explain to Ms. Schlict that she is part of a team on the city council. If she doesn’t like what they do she can go on record. She seems to want to overturn the council decisions. She is one vote, if things don’t go her way it looks like she sues. How sad for our city. Let the council do their job.
You are correct. “You don’t get it.”
In case you are not a resident or follower of our city council let me say that the biggest complaint, relating to the text which Judge Rodriguez removed, was the potential reuse of our Casta Del Sol Golf Course. He allowed all of the hyperbole to remain which might be throwing you off base. i.e the words conned, etc.
The reuse of the golf course is the biggest concern of the local senior residents. Frank Ury was very emphatic, as highlighted in my speech and his original draft, that housing could NEVER, EVER be built on the golf course. He lied. The bar is very high for any petitioner in these cases. Brad Morton provided clear and convincing evidence to that false statement by Mr Ury.
As to Cathy. This entire episode could have been avoided. I am currently drafting my next post which addresses that fact. Stay tuned.
Mr. Gilbert, From what I read it was basically “editing” The cleanup of the language did not change the message at all. In fact it looked more concise. I am really trying to figure out how and why you can call that a win. Ms. S sued the city and the overall effect on the ballet is the same. The voters won’t know the nitty gritty, just the argument. You also sold your Recall episode as a win, however you won by less that 20 votes (I don’t remember how many). At what cost to the city…..$270,000 is one figure I saw.
Don’t get it.
Don’t overlook that fact that we saved $250,000 to $270,000 by removing Lance. That was the price tag applied by our city treasure Irwin Bornstein on Lance’s lifetime health care benefit. While at the last minute Lance said he would not take it, he could easily have reinstated that perk after being reelected for a third term in November of this year.
He was the proponent of our spending close to $400,000 on a Rose Parade float that could never be justified. We are a 20 year old bedroom community, not a destination. Our TOT receipts were under $600,000 in that same year. Anaheim, which receives around $70 million per year, or whatever the actual TOT number, spent around $150,000 for their float. There is no comparison.
Tobacco Tins. Is there a statement coming this week?
PS: Warning! This is a no smoking blog. We don’t blow smoke on the Juice