A Superior Court judge Tuesday denied Costa Mesa’s request that a proposed city charter be put on the June primary ballot even though the city missed the state-mandated filing deadline.
After a hearing featuring passionate arguments from both sides, Superior Court Judge Franz Miller ruled that the court doesn’t have authority to order election officials to ignore the legal filing deadline.
Miller said he didn’t believe “this court has the power under these circumstances to just say ‘accept it.’ ”
The decision means that the charter proposal — which is rooted in Costa Mesa’s long-running battle over outsourcing — will not go before voters until November’s general election at the earliest.
The City Council approved the contentious charter proposal on March 6 but missed the March 9 filing deadline because of a misunderstanding by City Clerk Julie Folcik. Days later, city officials took the issue to court, arguing that Folcik’s mistake shouldn’t derail the council’s decision.
“She cannot disenfranchise the will of the elected representatives of the citizens of Costa Mesa,” argued Richard Grabowski of the Jones Day law firm during Tuesday’s hearing., Jones Day is representing the city at a cost of nearly $500 an hour for each attorney.
Judge Miller, however, said Grabowski was confusing the citizens of Costa Mesa with its elected officials. Grabowski said he didn’t think there was a distinction between the two.
“Oh, I do,” Miller said. “That’s why sometimes City Council majorities turn into minorities.”
Grabowski also argued that Folcik, who is officially his client in the case, acted with “negligence” and “failed miserably” in her duties.
But lawyers representing themselves and a group of city residents who oppose the charter argued that the city was wrong to blame their missed deadline on the clerk.
“The city is throwing its clerk under the bus in one of the most cowardly moves I’ve seen as a litigator,” said John Stephens, an attorney and Costa Mesa resident.
Stephens said he witnessed Mayor Pro Tem Jim Righeimer submitting paperwork for the charter on the day it was due.
“For him to blame it on Julie Folcik,” Stephens said, “is despicable.”
The hearing’s most tense moment came when Grabowski argued that Stephens and other charter opponents don’t want the charter vote to ever take place.
“They are the forces of anti-democracy, frankly,” said Grabowski. The remark drew loud boos from both Stephens and members of the courtroom crowd.
Stephens apologized for joining the chorus of boos but said, “To be accused of something like that is repugnant.”
The city’s argument boiled down to trying to persuade the judge that a city employee’s error shouldn’t thwart a public vote.
“We can’t have government officials nullifying elections,” said Grabowski.
Judge Miller worked to focus the case on whether county election officials had a mandatory responsibility to accept the late filings and neglected that obligation. That’s the only scenario under which the court could intervene in the mandate or “mandamus,” Miller said.
Orange County Registrar Neal Kelley, the county’s top elections official, “does not have any discretion to accept a late filing,” said Katrina Foley, an attorney and former Costa Mesa city councilwoman. “No discretion, no mandamus.”
In the end, the opponents’ arguments persuaded the judge.
Soon after the ruling, the Costa Mesa City Council voted 4-1 to appeal the case, with Councilwoman Wendy Leece dissenting. The county elections office says it must know by Sunday whether to place the measure on the ballot.
After the court hearing, Foley asked Costa Mesa spokesman Bill Lobdell to affirm that her city doesn’t view her as a “force of anti-democracy,” as their attorney described her.
“It’s horrible to be degraded in such a way,” said Foley, who was a city councilwoman for six years and currently serves as a Newport-Mesa Unified School District trustee. The two were riding in an elevator with three local reporters and other court attendees.
During the elevator ride, Lobdell didn’t respond to Foley’s request and eventually reacted with a “no comment” when queried by a reporter.
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