1 SAN DIEGO, CALIFORNIA, WEDNESDAY, SEPTEMBER 8, 2010, A.M. 2 -- 000 -- 3 PROCEEDINGS 4 THE COURT: ALL RIGHT. THE FISCAL IMPACT 5 |] IS PART OF THE PACKAGE THAT THE VOTERS RECEIVE IN THEIR 6 |). INFORMATION BOOKLET. IT IS PART OF WHAT MOST -- MOST 7 || VOTERS WILL READ, T NG AN ASSUMPTION THAT 8 || MOST VOTERS WILL READ THIS, MAYBE NOT CRITICALLY, BUT AT 9) LEAST WILL READ IT TOGETHER WITH THE ARGUMENTS, FOR THE 10 T AND THE INDEPENDENT ANALYSIS BY THE CITY ATTORNEY, AS WELL AS, MOST IMPORTANTLY, THE BALLOT 12 || QUESTION IN THE BALLOT STATEMENT. 13 I AM ASSUMING THAT WHILE THEY MAY GLANCE AT THE 4 PROPOSITION ITSELF, THEY'RE UNLIKELY TO TRY TO OUTLINE IT 15 | OR IN ANY WAY UNDERSTAND IT, OUTSIDE OF THE CONTEXT OF 16 |] WHAT'S -- THE OTHER STATEMENTS, THE AN, 17 || ARGUMENTS. I KNOW I DON'T, I DON'T THINK ANYBODY 18 UNLESS IT{S SOMETHING REAL SHORT. 19 Now, I'M NoT ING THAT'S A BAD THING. THE 20 || PROPOSITION HAS TO BE DRAFTED PROPERLY, AND ALONG WITH ATIVE GUIDELINES AS TO HOW THOSE AND THEY NEED TO BE AS PRE 23 SOMETIMES THAT'S HARD TO READ. I 24 MOST STATUTES, IS ACTUALLY OUTLINE 25 Ne 26 Now, THE STATUTE THAT'S JE HERE, HOWEVER, 27 IS NOT HARD TO UNDERSTAND. IT IS ELECTIONS CODE SECTION 28 9295, WHICH IS THE AUTHORITY FOR BRINGING THIS1 || APPLICATION RIT OF MANDATE. AND THE SUBDIV SION 2 B2 STATES THAT I CAN ISSUE THAT MANDAMUS ONLY -- ONLY 3 || UPON CLEAR AND CONVINCING PROOF THAT THE MATERIAL IN 4 QUESTION FALSE, MISLEADING OR INCONSISTENT WITH 7 5 REQUIREMENTS OF THIS CHAPTER. é TAKE THOSE ONE AT A TIME, "INCONSISTENT WI 7 || THE REQUIREMENTS OF THIS CHAPTER” COVERS HOW THESE FISCAL 8 IMPACT EMENTS ARE TO BE PRESENTED, HOW THEY'RE 9 |) DRAFTED, WHAT THEY'RE 5| OSED ORDING TO 10 || MR. OTTILIE'S BRIEF, THE -- THE STATE STATUTES oN T: il CODE ON THESE Iss. 12 TYPICALLY READ TO BE THE SAME THING, AT 13 ATE OPINIONS ARE CONCERNED. 14 IN OTHER WORDS, AN APPELLATE OPINION ON 15 || SOMETHING IN THE ELECTIONS CODE IS PRECEDENT FOR A 16 PARALLEL PROVISION IN THE -- IN THE MUNICIPAL CODE. 7 DID I GET THAT RIGHT, MR. OTTILIE MR. .OTTILIE: I'M NOT SURE THAT WAS MY 19 THE COURT: OKAY. PLACE ELSE. SO THE -- THE PORTION OF THE MUNICIPAL CODE THAT ADDRESSES THESE ISSUES IS MUNICIPAL CODE TON ‘ON "A" THROUGH "C," AND AT "C." AND IT COMMAI 25 US TO LOOK AT RESULTING FISCAL IMPACT IF 26 IS ADOPTED, AN ERNATIVELY, THE ‘AL IMPACT OF THE 27 MEASURE.1 NECESSARILY THE RESULT OF THE PROPOSITION ALONE. NOTHING 2 || occuRs IN A VACUUM. ALL OF THESE THINGS HAVE -- OR ALL 3 || OF THESE PROPOSITIONS, ALL OF THESE LAWS, HAVE AFFECT ON 4 |] of LAWS, FOR THE MOST PART. AND THE -- THE STATUTE, 5 || THAT IS 27.0506, IS READ TOO NARROWLY IF I AM TO APPLY IT 6 || ONLY TO THESE 500 WORDS, OR HOWEVER MANY THERE ARE HERE. 7 SO I THINK IT IS APPROPRIATE TO ME ITION IN SOME MANNER 8 || THE TEN CONDITIONS AND THE POTENTIAL SAVINGS OF THOSE TEN 9 || conprrrons. 10 NoW, I BELIEVE THAT IT IS MORE LIKELY THAN NOT ql A VOTER OF AVERAGE INTELLIGENCE, INFORMED OF THE 12 FACTS, COULD BE DECEIVED BY THE FISCAL IMPACT STATEMENT 13 FOR PROPOSITION D. THE ORDER IN WHICH IT'S PRESENTED 14 SORT OF DEFLECTS ONE FROM THE PURPOSE OF THE 7 15 PROPOSITION D DIRECTLY. MOREOVER, THE RANGES OF SAVINGS 16 || AVAILABLE TO THE OR POSSIBLY REALIZED BY THE CITY, ARE 17 || SOMETIMES JUST TOO REMOTE TO INCLUDE IN A STATEMENT THAT 18 SHOULD FAVE SOME -- SOME CLEAR ADVICE TO THE VOTE! 19 I AM, AS I SAID, TAKING THIS ALL IN CONTEXT. 20 || BUT THE -- THE FISCAL IMPACT, TO A CERTAIN EXTENT, DOES 21 STAND ALONE. PEOPLE WANT TO KNOW WHAT IT'S GOING TO 22 COST, OR WHAT IT'S GOING TO SAVE. I EXPECT THAT THE 23 || BALLOT STATEMENTS BY THE -- SORRY, THE ARGUMENTS FOR AND 24 || ARGUMENTS AGAINST WILL POINT OUT ALL OF THE CONSISTENCIES 25 || AND INCONSISTENCIES WITH THE WAY THIS IS DRAFTED AND WHAT 26 || 17 MEANS. 1 KNOW THEY'RE CONSTRAINED BY THE NUMBER OF WORDS, AS WELL. BUT IN MANY CASES, THE SUGGESTIONS THAT I HAVE BEEN PRESENTED WITH, IT SEEMS TO ME WOULD MORE1 || APPROPRIATELY GO IN THE ARGUMENT, RATHER THAN 2 IMPACT STATEMENT. 3 BE THAT AS IT MAY, I AM FINDING THAT BY A 4 PREPONDERANCE OF THE EVIDENCE THAT IT WOULD BE 5 || mrs LEADING. THAT DOES NOT END THE INQUIRY. THE 6 |e IONS CODE STATES THAT I SHOULD ISSUE A WRIT OF | 7 MANDAMUS ONLY UPON CLEAR AND CONVINCING PROOF THAT THE 8 IN QUESTION IS FALSE, MISLEADING OR 9 ENT, AND I CAN'T DO THAT IN A VACUUM. 10 AS WITH THE -- MY FINDING THAT BY qi ONDERANCE OF THE EVIDENCE THAT IT WOULD BE MISLEADING 12 OF ORDINARY INTELLIGENCE, INFORMED OF THE 13 AVE TO MAKE A DETERMINATION -~ 14 F IT'S MISLEADING, SOMEBODY Hi | 15 || AND I DON'T THINK THE ELECTIONS CODE IS AS 16 || mzstep asour rr. AT WOULD BE AN ENTIRELY DIF 17 STANDARD, IF A SUPERIOR COURT JUDGE IS MISLED OR IF THE 18 IS.MISLED. AND I HAVE TO CONCLUDE THAT WHAT 19 N IS MISLEADING A VOTER. » THERE" 20 || OF IT BEING IN THERE. BECAUSE THE -- THE ARGUMENTS al HAVE BI INTERPRETATIONS OF THE STATO INTERPRETATIONS WORDS THAT ARE IN THE DECIDED AS 24 OF LAW, JUST AS IN THE MEANING OF THE CONTENT. THE STATUTE, ET ERA, THE COURT DETERM 27 NOW, IN A PERFECT WORL TIVE ANALYSIS OF THE MISLEADING NATURE, IF IT IS, OF10 11 THE COURT: ANYTHING -- MR. OTTILIE, ANYTHING you WANT ME TO EXPLAIN OR DECIDE THAT I HAVEN'T? MR. OTTILIE: WELL, I THINK YOU'VE DECIDED EVERYTHING. THE COURT: OKAY. I KNOW YOU DON'T LIKE THE REASONS, BUT I'M ASKING, HAVE I GIVEN REASONS TO YOUR SATISFACTION? MR. OTTILIE: WELL, PHRASE IT LIKE THAT, NO. BUT T MEAN, COURT MAKE A FINDING AS TO WHETHER OR NOT OUR MUNICIPAL CODE HAS BEEN VIOLATED BY THIS ANALYSIS OR NOT? THE COURT: NECESSARILY, THAT'S PART OF IT. MR. OTTILIE: IT HAS NOT BEEN -- AT LEAST WE HAVEN'T ESTABLISHED THAT BY CLEAR AND CONVINCING EVIDENCE? THE COURT: NO, YOU HAVE NOT. AND THAT'S -~ THAT'S A LITTLE CLOSER QUESTION. HOW CAN WE TAKE CLEAR AND CONVINCING PROOF THAT A -- A STATEMENT IS INCONSISTENT WITH A LAW? THAT'S ALMOST NONSENSE, BECAUSE BOTH OF THEM ARE INTRRPRETATIONS FOR THE COURT, AS A MATTER OF LAW. BUT I DON'T FIND IT INCONSISTENT WITH THE MUNICIPAL CODE, NO. AND I THINK I EXPLAINED THAT, THAT THE MUNICIPAL CODE DOES NOT REQUIRE THE SORT OF PRECISION THAT YoU SUGGEST, THAT THE PHYSICAL IMPACT STATEMENT CORRESPOND EXACTLY TO THE WORDS OF THE PROPOSITION. MR. OTTILIE: OKAY. WELL, THANK YOU VERY MUCH, YOUR HONOR. THE COURT: ALL RIGHT. MR. OTTILIE: HOPE THE COURT WASN'T OFFENDED BY MY AGGRESSIVE ARGUMENT TODAY.