Superior Court Judge rejects Ury’s MV Meas D ballot argument text


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 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.

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