Residents seek to intervene in city charter lawsuit [Corrected]

Deadlines are deadlines — that's the edict two longtime Costa Mesa residents have chosen to uphold by intervening in litigation over whether their city's ballot initiative should be permitted despite being filed a day late, according to court documents.

In a last-minute hearing Tuesday morning, lawyers John B. Stephens and Katrina Foley filed a joint legal brief requesting to be involved in Costa Mesa's lawsuit against the Orange County Registrar of Voters. The lawsuit contends that an unintentional clerical filing delay last week should not keep Costa Mesa's initiative for a city charter off the June ballot.

"It's a bright-line rule," said Foley, a Newport-Mesa Unified school board trustee and former Costa Mesa councilwoman. She opposed the city charter initiative when it first came before the council last winter.

"You either filed within 88 days, or you didn't," she added. "Five other cities were able to meet the deadline. If we start giving exceptions on these election laws, where does it end?"

An earlier version of this article incorrectly identified John B. Stephens as an employment lawyer. He practices business litigation.

In court documents filed Tuesday, Stephens and Foley argue that ruling in favor of the city's lawsuit would be contrary to a previous court ruling, citing that: "The City Council, city attorney and petitioner [City Clerk Julie Folcik] well knew the election deadlines and they engineered the process to provide the least possible public participation in the debate regarding the proposed charter."

Stephens and Foley said they had difficultly retrieving a copy of the city's petition, though they requested it in writing and city officials confirmed that they would deliver it as soon as it was available. The pair was able to obtain the document from the Orange Country Superior Court website March 19, and retrieve the hearing details from the court clerk.

Orange County Superior Court Judge Franz Miller accepted the pair's brief, setting a string of mandatory, tight deadlines for both parties to meet in the coming week, in order to have the issue settled before the complicated, multilinguistic process of producing the June ballots begins April 1.

"There are hundreds of tasks that need to be completed each day to keep that project on schedule," said Orange County Registrar Neal Kelley. "We've already started the process, and once we get to April 1, we are at the point of no return. If we don't hit that deadline, we can't print the ballots on time."

Stephens said that Miller's deadlines are that all parties had to share their documents with lawsuit participants by noon Tuesday, and that he and Foley must file their formal intent to intervene by 10 a.m. Wednesday.

The court will decide Monday if Stephens and Foley — and all other interested parties — will be allowed to intervene. On March 27, the court will determine if the charter initiative will make it on the June ballot.

"There's a certain irony in arguing over missing a deadline," Stephens said, "when you have the judge issuing very strict deadlines for the case itself."

Richard Grabowski, one of the three Jones Day lawyers representing the city as outside counsel on the matter, said he thinks there has been plenty of time for public participation on the issue.

"We're not for or against the city charter," he said. "It really doesn't have anything to do with whether or not the charter is a good or bad idea. We are just interested in the democratic process of having the issue presented to voters. There have been multiple public hearings about this. It's time for the public to vote."

Councilman Steve Mensinger, an advocate of getting the charter initiative on the June ballot, said he is disappointed in Stephens and Foley. He considers their intervention as a way to keep the measure off the ballot.

"I find it unfortunate that an elected official and other members of our community are going to take advantage of a clerical error, thwarting the ability of the community to vote on an issue," he said.

Excusing clerical errors similar to Folcik's in this case is not uncommon in the courts, according to Mayor Pro Tem Jim Righeimer, who also supports the city charter initiative.

"The question people aren't asking is why are there people — who are mostly involved in labor unions — trying to stop the people of Costa Mesa from voting on the charter in June?" he said.

Mensinger and Righeimer both said that having the initiative on the June ballot is important, as it will immediately start saving the city money, should the voters approve it.

Stephens and Foley questioned the initiative's urgency, saying the November ballot would be less expensive and would attract a wider voting base.

"There is nothing magical that will happen between June and November that can't wait," Foley said.

In addition to Stephens' and Foley's efforts, a third resident — Mary Spadoni, represented by Strumwasser & Woocher LLP — also filed an intent to intervene and has requested to participate in the hearing.

Spadoni was unavailable for comment as of press time.

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