Judge: Residents can participate in charter lawsuit

SANTA ANA — An Orange County Superior Court judge ruled Monday that four Costa Mesa residents can have their say in litigation over whether their city's proposed charter should be allowed on the June ballot despite being filed late.

Judge Franz Miller decided lawyers John B. Stephens and Katrina Foley, and an attorney representing Mary Spadoni and William "Billy" Folsom, can intervene in Costa Mesa's lawsuit against the Orange County Registrar of Voters. Miller had tentatively ruled against permitting the intervention, but later changed his mind after hearing arguments from Stephens and Foley.

But concerning the lawsuit itself, Miller tentatively ruled against it, according to the court website. He will be hearing arguments at 1:30 p.m. Tuesday, however, before making his final decision.

"In any event [Costa Mesa] has shown no [irreparable] harm if election is delayed until November," Miller said in his tentative ruling, according to the court's website.

Opponents believe that the charter should go on the November ballot instead of June's, to give residents more time for review and debate.

Costa Mesa's lawsuit, filed by City Clerk Julie Folcik, asks the court to order Registrar Neal Kelley to allow the proposed city charter measure to go in the June election, despite an unintentional clerical filing delay. The deadline was March 9, but the paperwork was filed the next business day, March 12. Folcik had reportedly misinterpreted the county's directives to meet the deadline.

Kelley supports putting the initiative on the June ballot.

The intervention application was filed "to prevent the City Council majority from illegally rushing the proposed charter issue to the polls, thereby depriving all Costa Mesa citizens of the opportunity to consider, debate and analyze the proposed charter issue before casting their votes," according to court documents Stephens and Foley submitted.

Kelley will not take a position on the issue, according to court documents.

Foley, a Newport-Mesa Unified school trustee who once served on the council, said in a phone interview that she and Stephens are seeking judgment on whether it is legal for Folcik, who isn't a Costa Mesa resident, to even bring the petition forward when there wasn't a council vote to litigate the issue.

"Julie Folcik is an employee of the city. She does not have the right ... to bring a lawsuit on her own behalf," Foley said.

Foley said she and the interveners also believe the judge should not exempt the city from the registrar's deadline, but that those laws should be enforced as a "mandatory, statutory deadline with strict compliance."

During the hearing, Stephens argued that without them stepping forward, the litigation would have remained a secret to the community and justice wouldn't have been done. The charter opponents also lost time to campaign against the proposed initiative, he said.

John Vogt, one of three Jones Day attorneys representing the city as outside counsel on the matter, argued that the residents have no direct interest in the lawsuit and do not meet legal tests to become interveners. He also said there is no evidence that residents lost time for their opposition campaign.

He also denied that the proceedings were secret.

"This is the antithesis of a secret proceeding," he said.

The City Council is holding a special meeting at 5 p.m. Tuesday to vote on formally engaging Jones Day for legal services for the lawsuit, even though attorneys from the firm have already been representing the city in court.

Critics have questioned why the council hasn't voted on a contract prior to the city clerk filing the suit.

The city already has a contract with Jones Day for a different matter. The council voted in September to pay Jones Day $495 an hour to defend Costa Mesa against a city employee group's lawsuit that challenges the council's proposed employee outsourcing.


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