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135930 3 150 Post Street, Suite 405 4 San Francisco, CA 94108

BRADLEY W. HERTZ, State Bar No. 138564 JONATHAN S. MINTZER, State Bar No. 294264

Telephone: (415) 732-7700 5 Facsimile: (415) 732-7701 Bhertz@campaignlawyers.com

Attorneys for Petitioners JULIAN CAMACHO, an individual; JAMES 7 CATHCART, an individual; DELPHINE CATHCART, an individual; VOTERS FOR A FAIR ARENA DEAL, a California political 8 committee; SACRAMENTO TAXPAYERS OPPOSED TO PORK, a California political committee; DENNIS NEUFELD, an individual; 9 and JENNIFER SOLOWAY, an individual
10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SACRAMENTO UNLIMITED JURISDICTION JULIAN CAMACHO, an individual; Case No. 34-2014-80001748-CU-WM-GDS JAMES CATHCART, an individual; DELPHINE CATHCART, an individual; (Assigned for All Purposes to the VOTERS FOR A FAIR ARENA DEAL, Honorable Timothy M. Frawley a California political committee; Dept. 29) SACRAMENTO TAXPAYERS OPPOSED TO PORK, a California PETITIONERS’ POST-HEARING political committee; DENNIS NEUFELD, BRIEF IN OPPOSITION TO an individual; and JENNIFER RESPONDENTS AND INTERVENER SOLOWAY, an individual, -RESPONDENT’S SUBSTANTIVE ARGUMENTS REGARDING Petitioners, SACRAMENTO ARENA INITIATIVE PETITION v. Writ Petition Filed: January 29, 2014 SHIRLEY CONCOLINO, in her capacity as City Clerk of the City of Sacramento; CITY COUNCIL OF THE CITY OF SACRAMENTO, a legislative body; CITY OF SACRAMENTO, a charter city; and DOES 1 through 10, Respondents. __________________________________ THE 4000.ORG, a California political committee, Intervener - Respondent.



2 CATHCART (the three proponents of the “Voter Approval for Public Funding of Professional 3 Sports Arena Act” (the “measure”); VOTERS FOR A FAIR ARENA DEAL and 4 SACRAMENTO TAXPAYERS OPPOSED TO PORK (political committee supporting the 5 measure); and DENNIS NEUFELD and JENNIFER SOLOWAY (Sacramento voters who want to 6 vote on the measure) (collectively, “Petitioners”) hereby submit this “Post-Hearing Brief in 7 Opposition to Respondents and Intervener-Respondent’s Substantive Arguments Regarding 8 Sacramento Arena Initiative Petition” as follows: 9 I. 10 INTRODUCTION On February 21, 2014, this Court conducted a hearing on the issue of whether the

11 Sacramento City Clerk correctly concluded that proponents’ measure, as presented to Sacramento 12 voters in the form of an initiative petition, was legally insufficient. In making this determination, 13 the Court first analyzed whether the petition “substantially complied” with the applicable 14 provisions of the California Elections Code relative to municipal initiatives, preliminarily 15 concluding that it did not. 16 In their opposition papers, Respondents SHIRLEY CONCOLINO, in her capacity as City

17 Clerk of the City of Sacramento; CITY COUNCIL OF THE CITY OF SACRAMENTO; CITY 18 OF SACRAMENTO (“Respondents”) and Intervener-Respondent THE 4000.ORG (“Intervener”) 19 raised issues regarding the substance of the measure, arguing that it violated the Sacramento City 20 Charter and therefore was invalid. Respondents additionally asserted that the measure was 21 unconstitutionally vague. 22 In their Reply papers, Petitioners objected to Respondents and Intervener’s substantive

23 arguments on the grounds that they were not part of Petitioners’ case-in-chief and needed to be 24 pursued via a cross-writ petition or one or more separate actions. Petitioners also requested that if 25 the Court was inclined to hear Respondents and Intervener’s substantive arguments, that 26 Petitioners be afforded an opportunity to brief the issues. 27 28 PETITIONERS’ POST-HEARING BRIEF RE: SUBSTANTIVE ARGUMENTS


The Court overruled Petitioners’ objections to Respondents and Intervener’s substantive

2 arguments, but granted Petitioners’ request for an opportunity to brief the city charter and 3 vagueness arguments, ordering that such post-hearing brief be filed and served by Tuesday, 4 February 25, 2014. Accordingly, Petitioners hereby submit their brief on these two issues. 5 As detailed below, the measure is neither violative of the Sacramento City Charter nor

6 unconstitutionally vague. Even if the Court has some concerns about these issues, unless there 7 has been a “clear showing of invalidity,” the Court should not take the drastic step of preventing 8 the voters from voting on the meaure, but instead should defer this question until after an election 9 is conducted on the measure and democratic process is able to play itself out in the proverbial 10 “marketplace of ideas.” Further, the proponents believe that Respondents should be estopped 11 from raising their substantive arguments in this litigation, given that such arguments could have 12 and should have been made known to the proponents at the beginning of the initiative process. 13 II. 14 15 16 LEGAL ARGUMENT A. Initiative Measures are to Be Presumed Valid and Must Be Upheld Unless Their Invalidity is Clear, Positive, and Unmistakable. The Constitutional protection of the people’s right to initiative was “drafted in light of the

17 theory that all power of government ultimately resides in the people” and this power is enshrined 18 in our State Constitution “not as a right granted to the people, but as a power reserved by them.” 19 (Associated Home Builders v. City of Livermore (1976) 18 Cal.3d 582, 591.) It is for this reason 20 that courts “apply a liberal construction to [the] power [of initiative . . . ] wherever it is challenged 21 in order that the right be not improperly annulled.” (Assembly v. Deukmejian (1982) 30 Cal. 3d 22 638, 652). In this regard, the California Supreme Court has held that: 23 “As with statutes adopted by the Legislature, all presumptions favor the validity of initiative measures and mere doubts as to 24 validity are insufficient; such measures must be upheld unless 25 their unconstitutionality clearly, positively, and unmistakably appears.” 26 (Legislature v. Eu (1991) 54. Cal. 3d. 492, 501.) It is therefore with an abundance of caution and 27 judicial restraint that the Court should interpret the substantive challenges to the measure. 28 PETITIONERS’ POST-HEARING BRIEF RE: SUBSTANTIVE ARGUMENTS

1 2 3


The Court Should Evaluate Substantive Challenges to the Measure Only After the Election.

Preventing a measure, prior to the election, from appearing on the ballot is a dramatic

4 remedy that goes directly against the People’s constitutionally protected right to initiative. 5 6 7 8 9 10 (Brosnahan v. Eu (1982) 31. Cal. 3d 1, 4; emphasis added; see also Legislature v. Deukmejian 11 (1983) 34 Cal. 3d 658, 665; Costa v. Superior Court (2006) 37 Cal. 4th 986, 1005; and 12 Independent Energy Producers Ass’n v. McPherson (2006) 38. Cal. 4th 1020, 1024.) 13 Intervener concedes this point by stating that “as a general matter, substantive challenges 14 to initiative measures are typically determined post-election.” (Intervener’s Opp. 26:17-18.) 15 Despite this view, both opposing parties argue that “the proposed initiative is beyond the power of 16 the voters to adopt” and thus should be reviewed and invalidated pre-election. (Intervener’s Opp. 17 26:17-18; Respondents’ Opp. 18:17-18.) However, because “even grave doubts as to the 18 constitutionality of an initiative measure do not compel a court to determine its validity prior to its 19 submission to the electorate” (Gayle v. Hamm (1972) 25. Cal. App. 3d 250, 256), the Court 20 should not rule on these substantive issues at this time. 21 C. 22 Respondents and Intervener’s main substantive argument against the measure is that it 23 “impermissibl[y] seeks to restrict the council’s charter granted authority.” (Respondents’ Opp. 24 21:9-10; Intervener’s opp. 28:10-12.) This argument should be rejected for at least two reasons: 25 1) the measure does not “restrict” the power of the City Council, and 2) the powers at issue are not 26 exclusively granted to City Council and thus are subject to initiative. For each charter section the 27 opposing parties cite, a closer analysis reveals that the measure does not interfere with that 28 PETITIONERS’ POST-HEARING BRIEF RE: SUBSTANTIVE ARGUMENTS

Consequentially, the Supreme Court has held on multiple occasions that “it is usually more appropriate to review constitutional and other challenges to ballot propositions or initiative measures after an election rather than to disrupt the electoral process by preventing the exercise of the people's franchise, in the absence of some clear showing of invalidity.”

The Measure Does Not Violate the City Charter

1 section, but merely adds a voter approval requirement to one aspect of the City’s finances – the 2 use of public funds for a sports arena. 3 Under the measure, the City Council is still free to adopt and amend a budget resolution

4 (Charter Section 111), fulfill the City’s contractual obligations (Charter Section 114), appropriate 5 funds (Charter Section 116), and issue bonds (Charter Section 119), with one additional proviso: 6 if these acts relate to the public funding of a sports arena, then the citizenry is allowed to vote on 7 such funding before it can take place. Such a narrow, single-issue voter approval requirement 8 clearly does not undermine the City’s fiscal abilities under the Charter, nor does it impair 9 “essential government functions” as argued by Respondents. (Respondents’ Opp. 19:20.) 10 11 1. The Measure Does Not Restrict the Powers of the City Council

A plain reading of the measure demonstrates that it does not “restrict” the power of the

12 City Council, but only adds an additional step to the process of expending public funds for a 13 sports arena. The measure’s operative language simply states that “the City of Sacramento shall 14 not use, or redirect, undertake an obligation to pay, bond or borrow against monies intended for or 15 from the City general fund for the development and/or construction of a professional sports arena 16 without the approval of a simple majority of voters.” Thus, the City Council is not “restricted” (as 17 in “prevented”) from using public funds for a sports arena, but rather, if such an expenditure is 18 proposed, one additional step (or condition precedent) is required: approval by the voters. 19 This voter approval requirement is akin to, and no more restrictive than, other rules which

20 provide for procedural safeguards during the legislative approval process, such as legislative 21 committee meetings, agenda requirements, public hearings, and environmental impact reports. 22 In this regard, an analogy can be made to the “special motion to strike” under California's anti23 SLAPP statue. (CCP section 425.16.) There, where the defendant demonstrates that the 24 plaintiff’s causes of action arise from constitutionally protected rights of free speech and petition 25 (and therefore the case is a “SLAPP” suit), the plaintiff must demonstrate a probability of 26 prevailing before he is able to proceed with the litigation. Parties on the receiving end of a 27 “special motion to strike” have argued that the requirement that they show a probability of 28 PETITIONERS’ POST-HEARING BRIEF RE: SUBSTANTIVE ARGUMENTS

1 prevailing before they may proceed with their case is an unconstitutional restriction of their rights 2 to due process, to a jury trial, and to petition their government for a redress of grievances. Courts 3 have found, however, that the anti-SLAPP statute merely creates a pleading hurdle, and if a 4 plaintiff can overcome that hurdle, he may continue with his litigation. (See Schroeder v. Irvine 5 City Council (2002) 97 Cal.App.4th 174.) 6 The same could be said for the proponents’ measure. It is merely a “public expenditure

7 hurdle,” which enables the people (in whom the power ultimately rests) to serve as a check and 8 balance over the public purse with regard to a professional sports arena. This is not a restriction 9 or a prohibition and does not unduly interfere with the City Council’s power to create its budget, 10 tax its residents, or otherwise perform legislative and fiscal acts. 11 Even assuming that the measure does restrict the power of the City Council (which

12 Petitioners do not concede), it should be noted that “initiative ordinances restricting future acts 13 have been upheld when the restrictions were sharply limited in scope.” (Citizens for Responsible 14 Behavior v. Superior Court (1991) 1 Cal. App. 4th 1013, 1034.) This is the case here, as the 15 proposed measure does not to subject all financial decisions of the City Council to a public vote, 16 but only covers decisions to expend public funds on a sports arena. 17 Therefore, just as courts in the past have upheld initiative measures opposing the

18 construction of golf courses and jails, so too should this Court rule in favor of Petitioners’ 19 measure regarding the use of public funds for a sports arena. (See Duran v Cassidy (1972) 28 Cal. 20 App. 3d. 574 [upholding an initiative opposing the construction of a golf course on certain public 21 land]; and Citizens Against a New Jail v. Board of Supervisors of Santa Cruz County (1976) 63 22 Cal. App. 3d. 559 [upholding an initiative which opposed the construction of a new jail, and 23 instead required the County to renovation the old jail.].) 24 25 2. Financial Decision-Making is Not Exclusive to the City Council

Both opposing parties argue that the measure is preempted because the Charter “plainly

26 and exclusively grants the City Council control over the City’s financial decision-making 27 processes.” (Intervener’s Opp. 28:17-19; Respondent’s Opp. 4-6.) However, this argument is 28 PETITIONERS’ POST-HEARING BRIEF RE: SUBSTANTIVE ARGUMENTS

1 incorrect. In addition to the general delegation of powers to the City Council, Sacramento City 2 Charter section 160 provides that, “the powers of the initiative, referendum and the recall of 3 elected municipal officers are hereby reserved to the electors of the city.” As noted above, the 4 right to initiative in the California Constitution was “drafted in light of the theory that all power of 5 government ultimately resides in the people” and thus courts must presume that “absent a clear 6 showing of the Legislature's intent to the contrary, that legislative decisions of a city council or 7 board of supervisors ... are subject to initiative and referendum.” (Totten v Board of Supervisors 8 (2006) 139 Cal. App. 4th 826, 834; citing DeVita v. County of Napa (1995) 9 Cal. 4th 763, 775.) 9 This, coupled with the fact that the right to initiative “is generally co-extensive with the legislative 10 power of the local governing body,” demonstrates that just as the City Council can act on financial 11 issues affecting the City, so can the voters. (DeVita v. County of Napa (1995) 9 Cal. 4th 763, 12 775.) 13 14 D. The Measure is Not Unconstitutionally Vague

Respondents’ second substantive argument is that the measure is “unconstitutionally

15 vague” because it supposedly “fails to provide a person of ordinary intelligence fair notice of what 16 is prohibited.” (Respondents’ Opp. 21:22-23.) This assertion is without merit or support, as 17 Respondents merely engage in creative wordplay as they speculate as to other possible 18 interpretations of the measure, notwithstanding the measure’s obvious clarity and simplicity. 19 In interpreting statues, courts have made it clear that “whether enacted by the Legislature

20 or by initiative, the intent of the enacting body is the paramount consideration.” (Legislature v. 21 Eu (1991) 54. Cal. 3d. 492, 501; citing In Re Lance W. (1985) 37 Cal. 3d. 8787, 889.) 22 Furthermore, “enactments should be interpreted when possible to uphold their validity and . . . 23 courts should construe enactments to give specific content to terms that might otherwise be 24 unconstitutionally vague.” (Associated Home Builders v. City of Livermore (1976) 18 Cal.3d 582, 25 598.) Applying these two key principles to the measure demonstrates that the measure is clear as 26 to its purpose and effect. 27 28 PETITIONERS’ POST-HEARING BRIEF RE: SUBSTANTIVE ARGUMENTS


First, the measure’s title, “Voter Approval for Public Funding of Professional Sports

2 Arena Act” makes it clear that the measure is designed to require voter approval for the 3 expenditure of public funds in relation to a sports arena, before such funds can be spent. The 4 additional components of the petition also underscore this intent. For example, the official 5 summary prepared by the city attorney states that the purpose of the measure is “to prohibit the 6 City of Sacramento from using, diverting, obligating, or borrowing against the city’s general funds 7 [i.e., “public funds”] for the development of a professional sports arena without the approval of a 8 majority of voters.” Additionally, the measure’s notice of intent states that proponents circulated 9 the petition because “the city council did not submit the arena funding proposal to the electorate.” 10 The only reasonable interpretation that can be reached is that the measure seeks and requires 11 public approval before public funds are to be used to finance a sports arena. As Respondents note 12 in their opposition, “enactments should be interpreted when possible to withstand a claim of 13 vagueness” (Respondents’ Opp. 21:20-21), and thus this Court should conclude that the measure 14 is not unconstitutionally vague. 15 16 17 E. The Measure’s Proponents Assert That the City Should be Estopped from Challenging the Measure on Substantive Grounds. When the proponents submitted the text of the measure to the City so that the City

18 Attorney could draft the title and summary, they believe that to the extent there were substantive 19 problems with the measure from the City Attorney’s perspective, such as that it needed to be a 20 charter amendment rather than an ordinance, that the City, through its attorney or clerk, had a duty 21 to so inform them. For example, in the official summary of the measure, the City Attorney could 22 have stated that the measure might not be able to do what it seeks to do because it is an initiative 23 ordinance rather than a charter amendment. This would have put the proponents on notice of the 24 City’s position, and the proponents then could have litigated the matter or embarked on a charter 25 amendment rather than an ordinance. 26 27 28 PETITIONERS’ POST-HEARING BRIEF RE: SUBSTANTIVE ARGUMENTS

Especially with regard to the number of signatures required on the petition (10% of the

1 City’s voters for an ordinance), the proponents assert that the Clerk had an obligation to tell them 2 that 15% of the City’s voters are required to sign the petition in order to effectuate a charter 3 amendment. Had these important aspects of the initiative process been disclosed to the 4 proponents at an early stage, they could have been rectified. Instead, the proponents believe that 5 the City officials such as the City Clerk and City Attorney were essentially “lying in wait,” 6 watching the proponents obtain signatures for 180 days, waiting to see if the petition contained a 7 sufficient number of signatures, and then sprung the substantive argument on the proponents in 8 Respondents’ affirmative defenses in their Answer and in their opposition brief arguments. 9 The proponents believe they had a right to expect more from their governmental officials

10 and not to be “led down a primrose path” only to be legally opposed by their City officials. 11 Accordingly, the proponents believe that the City should be estopped from raising the substantive 12 arguments at this juncture, given that the arguments could have (and the proponents believe 13 should have) been raised earlier by their city officials. 14 III. 15 16 17 CONCLUSION For the above reasons, Petitioners respectfully request that the Court rule that the measure at issue is neither violative of the City Charter nor unconstitutionally vague. In the alternative, even if the Court has concerns about these issues, it should not take the dramatic step of preventing the measure from appearing on the ballot, and instead should defer these substantive 18 arguments until after the election is conducted. 19 20 Dated: February 25, 2014 21 22 23 24 25 26 27 28 PETITIONERS’ POST-HEARING BRIEF RE: SUBSTANTIVE ARGUMENTS By:_________________________________ Bradley W. Hertz The Sutton Law Firm, PC Attorneys for Petitioners JULIAN CAMACHO, an individual; JAMES CATHCART, an individual; DELPHINE CATHCART, an individual; VOTERS FOR A FAIR ARENA DEAL, a California political committee; SACRAMENTO TAXPAYERS OPPOSED TO PORK, a California political committee; DENNIS NEUFELD, an individual; and JENNIFER SOLOWAY, an individual

Proof of Service I, Bradley W. Hertz, declare: I am over 18 years of age, not a party to the within cause, am a partner at the Sutton Law Firm, 2 PC, have personal knowledge of the facts recited herein, and could testify competently thereto as to the 3 service of the following document(s):


4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

PETITIONERS’ POST-HEARING BRIEF IN OPPOSITION TO RESPONDENTS AND INTERVENER -RESPONDENT’S SUBSTANTIVE ARGUMENTS REGARDING SACRAMENTO ARENA INITIATIVE PETITION On February 25, 2014, I caused a copy of this pleading to be served by electronic mail to: Matthew Ruyak, Esq. Deputy City Attorney City of Sacramento 915 I Street, Suite 410 Sacramento, CA 95814 (916) 808-5346 mruyak@cityofsacramento.org Sean Welch, Esq. Kurt Oneto, Esq. Steven Merksamer, Esq. Nielsen, Merksamer, Parrinello, Gross & Leoni, LLP 2350 Kerner Blvd., Suite 250 San Rafael, CA, 94901 (415) 389-6800 swelch@nmgovlaw.com koneto@nmgovlaw.com smerksamer@nmgovlaw.com Lance H. Olson, Esq. Deborah B. Caplan, Esq. Richard C. Miadich, Esq. Olson Hagel & Fishburn LLP 555 Capital Mall, Suite 1425 Sacramento, CA 95814 (916) 442-2952 lance@olsonhagel.com deborah@olsonhagel.com richard@olsonhagel.com Counsel for Respondents SHIRLEY CONCOLINO, CITY COUNCIL OF THE CITY OF SACRAMENTO, and CITY OF SACRAMENTO

Counsel for Intervener - Respondent THE 4000.ORG


25 true and correct. 26 27 28

I declare under penalty of perjury under the laws of the State of California that the foregoing is

Executed on February 25, 2014, in Sacramento, California. By: _______________________________ BRADLEY W. HERTZ


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