Judge: Charter proposal will not be on June ballot

SANTA ANA — Costa Mesa's city charter proposal will not be allowed on the June ballot, an Orange County Superior Court judge ruled Tuesday evening.

Judge Franz Miller denied the city's petition ordering the county registrar to put the proposal on June's ballot, despite the city missing the proposal's filing deadline. The judge said there wasn't sufficient evidence of the irreparable harm the city insists it could suffer if the charter measure were not placed before voters in June.

"I just don't think the court has the power under these circumstances to say, 'Accept it,' [to the registrar]," Miller said.

City Clerk Julie Folcik, who filed the lawsuit, made an unintentional clerical delay that resulted in the city missing the March 9 deadline. She turned in the paperwork on the next business day, March 12.

Folcik was not at the hearings Monday or Tuesday. Attorneys from the Jones Day law firm represented the city during the proceedings.

The decision was a win for four Costa Mesa residents: lawyers John B. Stephens and Katrina Foley, and Mary Spadoni and William "Billy" Folsom, who were represented by an attorney. They were permitted Monday to intervene in the lawsuit.

Their edict was simple: Deadlines are deadlines, and they must be met.

"The court cannot issue a mandate to accept an untimely filing in violation of the law," Foley said Tuesday, adding that the law ensures everyone is treated fairly.

The residents also questioned whether it is legal for Folcik, who isn't a Costa Mesa resident, to bring the petition forward when there wasn't a council vote to litigate the issue.

"The city is now throwing the city clerk under the bus in the most cowardly move by a litigant ... I've ever seen," Stephens said.

The judge, though, said Folcik acted in her official capacity and is considered the same as the city.

Richard Grabowski, a Jones Day attorney, argued that the court shouldn't allow Folcik to strip the Costa Mesa citizens of their right to vote. He also cited precedent that allows the court to fix mistakes made by public officials who failed to carry out their official duty.

"If you have public officials, acting in a public capacity, they are not allowed to thwart the public process," he said.

Grabowski argued it is part of the democratic process for the measure to go on the June ballot after being approved by the city's elected officials. He also alleged that the four residents would be happy if the measure never got on the ballot.

"They are the forces of anti-democracy, frankly," he said.

Grabowski's statement was met with booing by Stephens, who later called it repugnant.

"I would say it's quite the opposite," Foley said. "Because of Mr. Stephens and I, we are ensuring democracy."

Foley, a Newport-Mesa Unified school board member, said they are trying to keep the proceedings from being secret.

Robin Leffler, president of Costa Mesans for Responsible Government, said in a prepared statement that residents are concerned that the council is making hasty decisions without consideration of the necessary procedures and processes.

"This trial has cost the city significant money, wasted time and energy, and added to the reputation this council has for being litigation happy," she said. "Citizens need time to understand all the consequences of changing from a general law to a charter city. A charter vote, if any, deserves to be a part of the general election in November, not a primary or special election."


Appeal planned, Jones Day representation

During a special meeting Tuesday evening, the City Council voted 4 to 1 in a closed session to appeal the judge's decision, with Councilwoman Wendy Leece dissenting.

The council also voted to change to the petition's plaintiff from Folcik to the city, Leece said to the Daily Pilot after the closed session.

It is unclear whether there is enough time to appeal the ruling, as the registrar must begin assembling the ballots in early April.

During the open portion of Tuesday's special meeting, the council authorized with a 4-1 vote for Jones Day to represent the city in the petition lawsuit. It was the only agenda item for the open portion.

The authorization came even though Jones Day lawyers have already been present since mid-March at court proceedings for Julie Folcik v. Orange Country Registrar of Voters.

Leece again cast the lone dissenting vote.

"I will not be supporting this motion," she said to the council. "The deadline was missed and now we're in court again. We're in court on another matter. I do not want to spend taxpayer money to pursue this. It was a technical error."


Twitter: @britneyjbarnes

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