Mission Viejo petition gathering residency requirement Unconstitutional

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

About Larry Gilbert