SUPERIOR COURT OF THE STATE OF CALIFORNIA

County of Nevada
B. SCOIT THOMSEN,
Presiding Judge

LINDA J. SLOVEN,
Assistant Presiding Judge

THOMAS M. ANDERSON,Judge

ROBERT L. TAMlEITI,Judge

CANDACE S. HEIDELBERGER,
Judge

201 Church Street

Nevada City, CA 95959
(530) 265-1311

YVETTE DURANT,
Commissioner

S. ROBERT TICE-RASKIN, Judge

G. SEAN METROKA,
Court Executive Officer

Amanda Uhrhammer and Scott McLeran, Office of the County Counsel

amanda.uhrhammer@co.nevada.ca.us

To:

Heather Burke and Charnel James, Plaintiff's Counsel

hburkelegal@gmail.com
YubaNet.Com
pascale@yubanet.com

The Union Newspaper, Brian Hamilton, Editor

bhamilton@theunion.com
From:

Nevada County Superior Court, Civil Division

Subject:

Case No. CU16-081626, Hurd v. County of Nevada, et al.

Date:

March 17, 2016

No. of Pages

__q~--'

including cover sheet

Please see the attached Ruling on OSC Re Preliminary Injunction; Order Thereon

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FILED

MAR 17 2016

Superior Court of the

State of California
County of Nevada

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IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA

IN AND FOR THE COUNTY OF NEVADA

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FORREST HURD,

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Petitioner,

CASE NO.: CU16-081626

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vs.

RULING ON OSC re
PRELIMINARY
INJUNCTION;
ORDER THEREON

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COUNTY OF NEVADA AND GREGORY DIAZ,

Election Official,

Res ondents,

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The above-entitled matter came on for hearing before the undersigned on March 17,
2016, at 1:00 pm, in Dept. 4. Attorney Heather Burke appeared for and with Petitioner.
Assistant County Counsel Amanda Uhrhammer and Deputy County Counsel Scott McLeran
appeared for Respondents. Following argument, the Court now rules as follows:
Petitioner's OSC re Preliminary Injunction is denied.
Background
In 2012, Ordinance 2349 was passed by the County to regulate the location and size of
indoor and outdoor medical marijuana cultivation.

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On January 12, 2016, the County passed Urgency Ordinance 2405. This ordinance

amended sections G-IV 5.2, 5.3, 5.4, and 5.5 of the County Code. In sum, it banned all

outdoor medical marijuana cultivation.

Due to the passing of Ordinance 2405, Section 5.4(C) currently provides that

cultivation may be undertaken only by (1) a qualified patient who occupies a legal residence

on the parcel being grown on as the primary place of residence; (2) a primary caregiver on

behalf of his qualified patient but only on a legal parcel with a legal residence which is

occupied by the patient or primary caregiver as his primary place of residence; (3) in

conformance with all state and local laws.

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Additionally, due to the passing of Ordinance 2405, Section 5.4(E) currently sets forth

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limits: (1) outdoor marijuana cultivation in any amount is prohibited and cultivation within

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any detached accessory structure that does not meet the definition of indoor shall also be

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considered outdoor cultivation and is prohibited; (2) marijuana may be cultivated only on legal

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parcels zoned for residential or rural uses, 12 plants per parcel and one contiguous cultivation

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area; (3) commercial cannabis activity in any amount or quantity on property located within

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the county is prohibited.

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Now, the County seeks to present Measure W (Resolution 16-038) to the voters for the

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June 7, 2016 election. This section amends only G-IV 5.4(C) and 5.4(E) of the County Code

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and adds a provision entitled Article III.

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Measure W's proposed 5.4(C) provides that marijuana may only be cultivated: (1) on a

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legal parcel improved with a permanent, occupied, legally permitted residence; (2) by a

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qualified patient on the same parcel that he/she occupies as his/her primary place of residence;

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(3) by a primary caregiver on behalf of his/her qualified patient on the same parcel that the

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caregiver or patient occupies as his/her primary place of residence; (4) only for medical

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purposes in accordance with federal, state and local laws; (5) in conformance with all

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applicable state and local laws, including all regulations and restrictions adopted by the Board.

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Measure W's proposed 5.4(E) sets forth limitations that limits apply: (1) outdoor

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cultivation in any amount is prohibited; (2) indoor of more than 12 plants per legal parcel is
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prohibited; (3) indoor cultivation may occur only on legal parcels located in an area zoned

primarily for residential or rural uses; (4) indoor cultivation on any other parcel is prohibited;

(5) indoor cultivation is prohibited in non-permitted structures, structures that are exempt from

permitting, or any portion of a structure designed or intended for human occupancy; (5)

commercial cannabis activities in any amount or quantity are prohibited.

Additionally, Measure W has an Article III that is being added to the code provisions.

This Article III provides that the Board may adopt, without a vote of the people, such

additional regulations as may be necessary to interpret and clarify the provisions of the

Ordinance.

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After Measure W (Resolution 16-038) was approved to go the voters, there was

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confusion by the public about whether or not Measure W would replace or repeal Ordinance

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2405. Accordingly, Resolution 16-082 was passed by the County. This Resolution states, "If

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the Ballot Measure [Measure W] is not approved by a majority of the registered voters voting

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on the measure, it is the intent of the Board of Supervisors to reject the Ballot Measure, to

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repeal the ban on outdoor cultivation of marijuana and to consider and adopt other outdoor

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regulations at the next available meeting ... "

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On February 29, 2016, Petitioner filed a Petition for Writ of Mandate challenging the

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Impartial Analysis language to be included with the ballot. Thereafter, on March 8, 2016, this

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Court granted a preliminary injunction enjoining the County from printing and distributing the

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Impartial Analysis originally drafted until five errors noted by the Court were corrected.

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The County then prepared and published a revised Impartial Analysis. Petitioner now

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seeks a preliminary injunction enjoining printing and distribution of the ballots with the newly

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revised Impartial Analysis.

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Legal Authority

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Elections Code 13314 permits a voter to seek a writ of mandate "alleging that an

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error or omission has occurred, or is about to occur, in the placing of a name on, or in the

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printing of, a ballot, sample ballot, voter pamphlet, or other official matter, or that any neglect

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of duty has occurred, or is about to occur. ['II] (2) A peremptory writ of mandate shall issue
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only upon proof of both of the following: [,r] (A) That the error, omission, or neglect is in

violation of this code or the Constitution. [,r] (B) That issuance of the writ will not

substantially interfere with the conduct of the election."

Elections Code 9160(b) provides: "The county counsel or district attorney shall

prepare an impartial analysis of the measure showing the effect of the measure on the existing

law and the operation of the measure. The analysis shall include a statement indicating

whether the measure was placed on the ballot by a petition signed by the requisite number of

voters or by the board of supervisors. The analysis shall be printed preceding the arguments

for and against the measure. The analysis may not exceed 500 words in length."

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Elections Code 9190 provides: "(a) The county elections official shall make a copy of

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the materials referred to in Sections 9119, 9120, 9160, 9162, and 9167 available for public

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examination in the county elections official's office for a period of 10 calendar days

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immediately following the deadline for submission of those materials .... (b) (1) During the

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IO-calendar-day public examination period provided by this section, any voter of the

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jurisdiction in which the election is being held, or the county elections official, himself or

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herself, may seek a writ of mandate or an injunction requiring any or all of the materials to be

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amended or deleted. The writ of mandate or injunction request shall be filed no later than the

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end of the IO-calendar-day public examination period. (2) A peremptory writ of mandate or

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an injunction shall be issued only upon clear and convincing proof that the material in question

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is false, misleading, or inconsistent with this chapter, and that issuance of the writ or

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injunction will not substantially interfere with the printing or distribution of official election

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materials as provided by law ... "

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Burden of Proof

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Respondent County contends that the burden of proof for this hearing is clear and

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convincing evidence and that the Court's prior determination that the standard of

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preponderance of the evidence is incorrect.

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Respondent is correct. The proper standard for this Court to apply is clear and
convincing evidence as set forth in Elections Code 9190.
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Waiver
In the prior OSC re Preliminary Injunction, Petitioner did not challenge the inclusion

of the word "federal" in the original Impartial Analysis. Although that language did not

change from the original Impartial Analysis to the revised Impartial Analysis, Petitioner now

challenges that language.

Thus, the Court is presented with the question of whether or not that failure to

challenge the language the first time waived any such challenge. Unfortunately, neither party

provided this Court with any statutory or legal authority on the waiver issue.

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The Court is not particularly swayed by the argument that Petitioner did not notice the

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word "federal" in the first application. Nonetheless, as Petitioner correctly pointed out in her

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brief, any new elector could challenge the language during the 10 day viewing period.

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Therefore, this Court will address the application on the merits.

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Discussion of the "Federal" Language

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Petitioner contends that the language of the revised Impartial Analysis is misleading

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because it presumes "that some measure of cannabis cultivation for medical purposes will be

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authorized under those regulations enumerated in the Revised Summary." Petitioner contends

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that a reference to federal law, which contains no exemptions for the cultivation of marijuana

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for medical purposes, is prejudicial and misleading.

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Petitioner is incorrect. The revised Impartial Analysis states that existing law "Allows

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marijuana cultivation only for medical purposes in accordance with federal, state, and local

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laws .... " This statements is, indeed, correct. Section G-IV 5.4G of the existing law does

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reference federal law and specifically states that federal law provides no exemptions for the

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cultivation of marijuana for medical purposes.

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The revised Impartial Analysis is correct. There are no misleading statements. Thus,
the revised Impartial Analysis does not need to be revised again.

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To the extent that Petitioner seeks to remove the word "federal" from the actual ballot

Measure itself, such issue is not before the Court. Rather, any direct or as-applied

Constitutional challenges should be filed after the election when the issue becomes ripe.

Discussion of the Intent Language

Petitioner next argues that "respondents have very publicly bound themselves to some

unknown action, should Measure W fail, which confuses the Revised Ballot Summary and

question to such an extent that further amendments cannot fix what is fatally broken." [Page

11 of the Ex Parte Application.]

Petitioner's argument is without merit. This Court previously ruled that the County's

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intertwining of two Resolutions, when only one is being voted upon, was confusing and

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misleading. Such reference to the Resolution 16-082, which is not on the ballot, has properly

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been removed by the County in the revised Impartial Analysis. The document itself is no

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longer confusing and misleading. Accordingly, the preliminary injunction is denied on these

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grounds.

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Interference with Conduct of Election

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Elections Code 13314 also requires that the Court find that the issuance of a writ

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would not substantially interfere with the conduct of the election. While the Court is not

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ruling on the under! ying petition itself, the Court finds that, had the Court found grounds to

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grant the preliminary injunction, such order would cause substantial prejudice at this late date.

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The Court notes that the arguments presented herein could have been, but were not, presented

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at the prior Preliminary Injunction hearing

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Further, if the Court were to grant any preliminary injunction, a second revision and a

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second 10 day viewing of any changes would have to be opened. The ballots, according to

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Sandra Sjoberg, Assistant Clerk-Recorder, must be sent to the printer, at the latest, on April 1,

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2016. There is simply insufficient time to correct any purported errors, and then allow for

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viewing and printing. The Court finds no errors, and has denied the preliminary injunction.

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However, as and for an additional ground for denying the preliminary injunction, the

Court finds that there would be substantial interference with the election process at this

juncture.

OSC re Contempt

In a footnote on page 11 of the Ex Parte Application for TRO filed by Petitioner on

March 14, 2016, Petitioner requested that the court issue an OSC directed at the County "for

failure to comply with the Court Order on Preliminary Injunction." This request is denied.

The Court enjoined the County from printing or distributing the ballots with the original

Impartial Analysis. Thereafter, the County did not print or distribute the ballots. In fact, the

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County swiftly revised the language of the Impartial Analysis adequately responding to each

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of the Court's five areas of concern. The County complied with this Court's prior order.

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Thus, Petitioner's request is denied.

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Conclusion

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Based on the foregoing, the request for a Preliminary Injunction is denied. The Court

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finds that the Impartial Analysis properly shows the effect of the measure on the existing law

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and the operation of the measure. Further, the Court finds that the language of the revised

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Impartial Analysis is not untruthful, is not confusing, is not misleading, and is impartial.

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Final Comments

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The Court notes that this Ruling on Preliminary Injunction does not address the

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validity or Constitutionality of either Ordinance 2405 or Measure W. Whether or not a

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complete outdoor ban is permissible under the law is not before this Court. Any challenges to

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the Constitutionality of the Measure or the Ordinance may be brought after the election.

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f2tt/3~~~

DATED: March 17, 2016

CANDACE HEIDELBERGER
Judge of the Superior Court

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DECLARATION OF SERVICE BY MAIL

I, G. SEAN METROKA, Court Executive Officer, County of Nevada, being a citizen of the

United States, a resident of the County of Nevada, and not a party to the cause, do hereby certify
that I mailed copies of the
RULING ON OSC RE PRELIMINARY INJUNCTION;
ORDER THEREON

of which the original is on file in Case No. CU16-081626 on the following named persons:
Heather Burke
Law Offices of Heather L. Burke
230 Main Street, Second Floor
Nevada City, CA 95959

Amanda Uhrhammer
Assistant County Counsel
950 Maidu Avenue, Suite 240
Nevada City, CA 95959

Charnel James
Law Office ofCharnel James
500 Olive Street
Marysville, CA 95901
aud that the envelope with prepaid postage was sealed and placed for collection and mailing in

'.2__ _I'1-_-_(~{_~---

the United States Post Office at Nevada City, California on ___

G. SEAN METROKA

Court Executive Officer----._

Nevada County S