Judge: Curtis A. Kin, Case: 24STCP02640, Date: 2024-08-29 Tentative Ruling

Case Number: 24STCP02640    Hearing Date: August 29, 2024    Dept: 86

            Petitioners Shawn Osborne and Lawrence Sand seek a writ of mandate directing respondent Dean C. Logan, in his official capacity as Los Angeles County Registrar-Recorder/County Clerk, to amend the wording of the ballot question of the Measure US bond measure on the ballot for the November 5, 2024 election.

I.       Factual Background

On August 7, 2024, real party Board of Education of the Los Angeles Unified School District (“LAUSD Board”) adopted a resolution, entitled “Resolution of the Board of Education of the Los Angeles Unified School District Ordering a School Bond Election, and Authorizing Necessary Actions in Connection Therewith” (“Resolution”), in order to call an election on Measure US (“Measure”), request the services of the Registrar to conduct the election, and request the consolidation of the election on the Measure with the statewide election. (Registrar RJN Ex. 1 at § 3(e).)

The Resolution contains the following ballot statement/question to be submitted to voters:

Local Public Schools Safety and Upgrades Measure: To update school facilities for 21st century student learning and career/college preparedness; improve school facilities for safety, earthquakes and disability access; upgrade plumbing, electrical, HVAC; replace leaky roofs; provide learning technology; and create green outdoor classrooms/schoolyards; shall Los Angeles Unified School District's measure be adopted authorizing $9,000,000,000 in bonds at legal rates, levying approximately 2.5¢ per $100 of assessed valuation (generating $456,123,000 annually) until approximately 2059, with audits/citizens’ oversight?

(Registrar RJN Ex. 1 at § 3(b).)

On August 8, 2024, the Registrar received a transmittal letter from real party Los Angeles Unified School District (“LAUSD”) with enclosures consisting of: (1) the August 7, 2024 Resolution; (2) Exhibit A to the Resolution comprised of the full text of the proposed Measure; (3) Exhibit B to the Resolution comprised of the Tax Rate Statement for the Measure (“Tax Rate Statement”); and (4) the Executive Officer’s Certificate. (Registrar RJN Ex. A.) Notably, section 3(c) of the Resolution requests the Registrar to print the full text of the Measure in the voter information guide mailed to voters. (Registrar RJN Ex. 1 at § 3(c).) The full text of the Measure contains a “Bond Project List” on pages A-5 through A-27, specifying the projects or purposes for which the bond measure proceeds will be applied. (Registrar RJN, Exh. A.) In part, the Bond Project List includes a section entitled “REFINANCING OF CERTIFICATE OF PARTICIPATION (Retiring Existing Debt)” on page A-27 of the Measure text, providing that bond proceeds generated by the Measure can be used towards retiring existing debt of LAUSD. (Registrar RJN Ex. A to Ex. 1.)

When a measure is for bond issuance, a tax rate statement is statutorily required to be included in sample ballots sent to voters pursuant to Elections Code section 9401(a). The tax rate statement contains the best estimate of the average annual and highest tax rate that would be required to fund the bond, as well as the best estimate of the total debt service that would be required to be repaid if all bonds are sold. (Elec. Code § 9401(a)(1-3).) According to the Tax Rate Statement for the Measure, the best estimate of the average annual tax rate required to fund the bond, based on assessed valuations available, is “$25.04 per $100,000 (2.504 cents per $100) of assessed valuations.” (Registrar RJN Ex. B to Ex. 1.)

On August 16, 2024, the Office of County Counsel for the County transmitted the Impartial Analysis of the Measure (“Impartial Analysis”) to the Registrar. (Petitioners’ Request for Judicial Notice (Pet. RJN Ex. 7.) Among other information, the Impartial Analysis contains the same information for the estimated annual average tax rate (i.e., “$25.04 per $100,000 of assessed valuations”). (Pet. RJN Ex. 7 at 2.)

II.      Procedural History

            On August 19, 2014, petitioners filed a Verified Petition for Writ of Mandate and Preliminary Injunction. On August 21, 2024, the court granted petitioners’ ex parte application to set the petition for hearing on shortened time and to set a briefing schedule.

            On August 22, 2024, petitioners filed an opening brief. On August 26, 2024, real parties Los Angeles Unified School District and Los Angeles Unified School District Board of Education (collectively “District”) and respondent Registrar filed separate oppositions. On August 27, 2024, petitioners filed a reply.

III.     Standard of Review

“There are two essential requirements to the issuance of a traditional writ of mandate [under CCP § 1085]: (1) a clear, present and usually ministerial duty on the part of the respondent, and (2) a clear, present and beneficial right on the part of the petitioner to the performance of that duty.” (California Assn. for Health Services at Home v. State Dept. of Health Services (2007) 148 Cal.App.4th 696, 704.) In a CCP § 1085 writ petition, the petitioner generally bears the burden of proof. (California Correctional Peace Officers Assn. v. State Personnel Bd. (1995) 10 Cal.4th 1133, 1154.)

Under Elections Code section 13314(a)[1]:

(1) An elector may seek a writ of mandate alleging that an error or omission has occurred, or is about to occur, in the placing of a name on, or in the printing of, a ballot, sample ballot, voter pamphlet, or other official matter, or that any neglect of duty has occurred, or is about to occur.

(2) A peremptory writ of mandate shall issue only upon proof of both of the following:

(A) That the error, omission, or neglect is in violation of this code or the Constitution.

(B) That issuance of the writ will not substantially interfere with the conduct of the election.

“The constitutional guarantees of equal protection and freedom of speech as applied to public elections ‘mean, in practical effect, that the wording on a ballot or the structure of the ballot cannot favor a particular partisan position.’” (McDonough v. Superior Court (2012) 204 Cal.App.4th 1169, 1174, quoting Huntington Beach City Council v. Superior Court (2002) 94 Cal.App.4th 1417, 1433.) “The ballot title, for example, ‘must not be false, misleading, or partial to one side....’” (Ibid.) “Partial” means that the language signals the governing body’s view as to how the voters should vote or casts a favorable light on one side while disparaging the opposing view. (See id. at 1174.)

 The parties disagree to what extent section 9509 applies here. Section 9509, in Chapter 6 “School District Elections,” states that any voter in the jurisdiction in which the election is being held…may seek a writ of mandate or an injunction requiring any material to be amended or deleted. (§ 9509(b)(1).) Under section 9509(b)(2), “[a] peremptory writ of mandate or an injunction shall be issued only upon clear and convincing proof that the material in question is false, misleading, or inconsistent with this chapter, and that issuance of the writ or injunction will not substantially interfere with the printing or distribution of official election materials as provided by law.”

Petitioners argue that section 9509 does not apply here because it only applies to materials referenced in sections 9500, 9501, and 9504, which purportedly do not refer to the ballot question. (Reply at 5:19-6:4.) The Court disagrees.  Section 9509 states that it pertains to “materials referred to in Sections 9500, 9501, and 9504.” (§ 9509(a).)  Contrary to petitioners’ argument that section 9500 concerns only the “impartial analysis” prepared by the county counsel (see § 9500(b)), section 9500 also refers explicitly to the actual “school measure . . . on the ballot” (see § 9500(a)), which necessarily includes the ballot question.

            Thus, as the District and Registrar argue, deference to the drafters of the ballot question is required here. In McDonough, the Court of Appeal considered whether a ballot title and ballot question for a municipal initiative measure were impermissibly partisan. (McDonough, 204 Cal.App.4th at 1172.) In determining whether language in the measure should be deleted or amended, the Court of Appeal applied section 9295(b)(1), which allowed a writ of mandate to be issued “only upon clear and convincing proof that the material in question is false, misleading, or inconsistent with the requirements of this chapter, and that issuance of the writ or injunction will not substantially interfere with the printing or distribution of official election materials as provided by law.” (Id. at 1173, quoting § 9295(b)(2).)

In determining whether the ballot title is “false, misleading, or partial to one side,” the McDonough court applied a “substantial compliance” standard. (Id. at 1174, citing Martinez v. Superior Court (2006) 142 Cal.App.4th 1245, 1248.) “As in the case of statewide initiatives, the drafter is afforded ‘considerable latitude’ in composing the ballot title, and we must presume its language to be accurate.” (Ibid.) “‘Only in a clear case should a title so prepared be held insufficient. Stated another way, if reasonable minds may differ as to the sufficiency of the title, the title should be held to be sufficient.’” (Ibid.)

The language of section 9295(b)(2) at issue in McDonough is identical to section 9509(b)(2).  (Compare § 9295(b)(2) with § 9509(b)(2).) Accordingly, the Court applies the deferential standard set forth in McDonough to the ballot question at issue here. Petitioners must show by clear and convincing evidence that the ballot question is false, misleading, or partial.

IV.     Analysis

A.           Evidentiary Matters

All requests for judicial notice are GRANTED. (Evid. Code § 452(b), (c), (h).)

B.           Tax Rate[2]

Relying on sections 9401 and 9402, petitioners argue that the ballot question must be amended to reflect that the amount to be levied if the Measure passes is $25.04 per $100,000 of assessed valuation, instead of 2.5¢ per $100. Section 9402 states:

All official materials, including any voter information guide prepared, sponsored, or distributed by the jurisdiction that has proposed the bond issue or that is financed in whole or part by funds furnished by that jurisdiction, directed at or including a bond issue proposal, but excluding a notice of election required by law to be posted or published, shall contain a statement of the tax rate data specified in Section 9401.

Section 9401(c) states: “For purposes of this chapter, ‘tax rate’ means tax rate per one hundred thousand dollars ($100,000) of assessed valuation on all property to be taxed to fund a bond issue described in Section 9400.”

Although section 9401(c) defines “tax rate” as the rate per $100,000 of assessed valuation, section 9402 does not require that the tax rate be set forth as a ratio using a denominator of $100,000 in the ballot question. Rather, section 9402 requires that “tax rate data specified in Section 9401” be provided in “[a]ll official materials, including any voter information guide.” Section 9401 specifies the following data relating to the tax rate that must be included:

(1) The best estimate from official sources of the average annual tax rate that would be required to be levied to fund that bond issue over the entire duration of the bond debt service, based on assessed valuations available at the time of the election or a projection based on experience within the same jurisdiction or other demonstrable factors. The estimate shall also identify the final fiscal year in which the tax is anticipated to be collected.

(2) The best estimate from official sources of the highest tax rate that would be required to be levied to fund that bond issue, and an estimate of the year in which that rate will apply, based on assessed valuations available at the time of the election or a projection based on experience within the same jurisdiction or other demonstrable factors.

(§ 9401(a)(1-2).) Section 9401 specifies far more than just the tax rate, as defined in section 9401(c). Section 9401 requires other data related to the tax rate, including: (1) the best estimate of the average annual tax rate that would be required to be levied to fund the bonds to be authorized by the Measure: (2) the final fiscal year in which the tax is anticipated to be collected; (3) the best estimate of the highest tax rate that would be required to be levied to fund the bonds to be authorized by the Measure; and (4) the estimate of the year in which the highest tax rate will apply.

            Petitioners contend that “official materials” in section 9402 includes the ballot question. (Opening Br. at 13:13-14.) For petitioners’ contention to be true, the ballot question would have to include all the other above-described tax rate data set forth in section 9401. In addition, section 10403 requires a ballot question for a school district measure appearing on the same ballot in a statewide election to “conform to this code governing the wording of propositions submitted to the voters at a statewide election.” (§ 10403(a)(2).) Section 9051, which governs state elections, requires that the condensed ballot title and summary “shall not contain more than 75 words and shall be a condensed version of the ballot title and summary including the financial impact summary prepared pursuant to Section 9087 of this code and Section 88003 of the Government Code.”[3] (§ 9051(b)(1).) A ballot title and summary, in turn, includes a summary of the chief purpose of the measure. (§ 303.5(b)(1).)

            Based on the foregoing statutory requirements, a ballot question must include the title of the measure, chief purpose of the measure, and financial impact summary, i.e. impartial analysis of the increase or decrease in revenue or cost to state or local government. (See § 9087; Gov. Code § 88003.) Under petitioners’ interpretation of section 9402, the ballot question would also be required to include all the tax rate data set forth in section 9401, including not just the tax rate expressed as a ratio with a denominator of $100,000, but also the best estimates of average annual tax rate and highest tax rate, as well as the years applicable to each. A 75-word limit would be insufficient.  

“Interpretations that lead to absurd results or render words surplusage are to be avoided.” (Tuolumne Jobs & Small Business Alliance v. Superior Court (2014) 59 Cal.4th 1029, 1037.) Interpreting section 9402 to include the ballot question would lead to the absurd results described above. Notably, petitioners do not even contend that the ballot question fails to include the purportedly required best estimate of the highest tax rate or the year that such rate would apply. The import of petitioners’ section 9402 interpretation is that such required information is also glaringly absent from the ballot question. Petitioners’ failure to follow to its logical end the interpretation of section 9402 they advance here belies the persuasiveness and accuracy of that interpretation. 

Here, the Tax Rate Statement to be included in the voter information guide (§ 9401(a)) includes the tax rate data set forth in section 9401, including the average and highest tax rates per $100,000 of assessed valuations. (Registrar RJN Ex. B to Ex. 1.) This fully complies with section 9402.  Indeed, because the Tax Rate Statement provided to voters in the information guide is fully compliant, even if it were true that a ballot question constitutes one of the “official materials” under section 9402, the Court would find under the circumstances that the ballot question here substantially complies with the requirements of section 9401(c).  There is simply a lack of clear and convincing evidence that the ballot question is false, misleading, or partial merely because the otherwise accurately stated tax rate is not expressed as a ratio with a denominator of $100,000, particularly, where, as here, the tax rate is also expressed as a ratio with a denominator of $100,000 in the accompanying voter information guide.

C.           Proposed Inclusion of “Tax” or “in taxes” in the Measure

Petitioners argues that the Measure should reflect that the $456,123,000 to be generated from the Measure are taxes. However, the Measure states that it is “levying approximately 2.5¢ per $100 of assessed valuation.” “Levy” means “to impose or collect by legal authority,” as in “levy a tax.” (See Merriam-Webster, definition of “levy,” located at https://www.merriam-webster.com/dictionary/levying#dictionary-entry-2.)

Under section 9509, the Court evaluates whether the ballot question is false, misleading, or partial. Use of the word “levy” instead of “tax” does not render the Measure false or misleading. As to whether the Measure is partial, the Measure sets forth the purposes of the proposed bonds and the amount of to be levied to fund those purposes (both in terms of a the amount to be raised annually and the ratio of assessment per valuation). The Measure gives no indication as to how the voters should vote or suggests one way or the other whether the purposes stated in the Measure are worth the amount levied.

Petitioners present no clear and convincing evidence that, due to the lack of reference to a tax in the Measure, the Measure is rendered false, misleading, or partial.

D.           Proposed Inclusion of “Retire Existing Debt” in Ballot Question

Petitioners argue that the ballot question should reflect that one of the purposes of the Measure is to “retire existing debt,” as more than $300 million has been spent on projects prior to the voting on the Measure. (Registrar RJN Ex. A to Ex. 1 at A-27 [listing “Refinancing of [2023] Certificates of Participation” as part of Bond Project List]; Pet. RJN Ex. 6 [2023 Certificate of Participation total $384,260,000].) However, “the completeness of a ballot question is not the test; the test is whether it is partial (or false or misleading.).” (Martinez, 142 Cal.App.4th at 1248.) That the Measure does not list all of its purposes does not render the Measure false or misleading. “[T]he title and summary [of a measure] need not contain a complete catalogue or index of all of the measure’s provisions….” (Amador Valley Joint Union High Sch. Dist. v. State Bd. of Equalization (1978) 22 Cal.3d 208, 243.) Whether ballot materials consist of omissions, inaccuracies, or misleading statements depends on the totality of the information made available to voters, including other election materials or information the voters have received. (Horwath v. City of East Palo Alto (1989) 212 Cal.App.3d 766, 777.) Here, voters seeking to inform themselves beyond the text of the ballot question can readily ascertain from the voter information guide that an object of the Measure is to retire existing debt.

The omission of retiring existing debt from the Measure also does not render the Measure partial. The Court looks at whether the language of the Measure “hint[s] at how the electorate should vote” or “disparage[s] one side or the other.” (Martinez, 142 Cal.App.4th at 1248.) Omitting one of several purposes of the measure neither hints at how one should vote nor disparages either side for or against the Measure. (Cf. McDonough, 204 Cal.App.4th at 1174-75 [use of “reform” in ballot title implies that existing pension system was defective, thereby warranting approval of measure]; Huntington, 94 Cal.App.4th at 1434 [use of “exemption” in ballot title of tax initiative “connotes unfair influence and special treatment”].)

Petitioners present no clear and convincing evidence that the Measure is false, misleading, or partial merely because the purpose of retiring existing debt is not listed in the ballot question.[4]

E.           “Shall the Measure … Be Adopted?”

Petitioners argue that the ballot question does not conform to the “Shall the Measure … Be Adopted?” formulation required by section 13119(a), because the Measure does not begin with “Shall” and end with “be adopted?” As relevant here, section 13119(a) states:

The ballots used when voting upon a measure proposed by a local governing body or submitted to the voters as an initiative or referendum measure pursuant to Division 9 (commencing with Section 9000), including a measure authorizing the issuance of bonds or the incurrence of debt, shall have printed on them the words “Shall the measure (stating the nature thereof) be adopted?”

Notably, this statutory provision does not explicitly require that the ballot question begin with “shall” or end with “be adopted.”

Here, after listing the purposes of the bonds, the Measure poses the question “shall Los Angeles Unified School District's measure be adopted authorizing $9,000,000,000 in bonds at legal rates, levying approximately 2.5¢ per $100 of assessed valuation (generating $456,123,000 annually) until approximately 2059, with audits/citizens’ oversight?” (Registrar RJN Ex. 1 at § 3(b), emphasis added.) The placement of “shall” and “be adopted” within the Measure adheres to the “Shall the measure (stating the nature thereof) be adopted?” formulation set forth in section 13119(a) and certainly does not render the Measure false, misleading, or impartial. Simply put, the wording of the statute substantially complies with section 13119(a).

Petitioners thus present no clear and convincing evidence that the Measure is false, misleading, or partial merely because the Measure does not begin with the word “shall” or end with the words “be adopted.”

V.      Conclusion

For the foregoing reasons, the petition is DENIED. Pursuant to Local Rule 3.231(n), real parties Los Angeles Unified School District and Los Angeles Unified School District Board of Education shall prepare, serve, and ultimately file a proposed judgment.