this morning two days after the new hampshire presidential primary we asked the court to vindicate the fundamental right of long beach citizens to directly propose and vote on legislation at stake is critical to due process jurisprudence because it goes to the very integrity of our election process and are really about a california election code excuse me isn't this case really about the california election code it begins with the california elections code but because when you keep citing california supreme court decisions the effect we've got a and termer that very liberally so on and so forth why are we in federal court why do you file the case here because depend so much on language from california supreme court decisions isn't taken where the california supreme court can speak to it's its but a federal court in your aging us to follow what the california court says what you're required to do for matters of state law but it puzzles me why are we here what if if you think california law so support your case why didn't you file in a california court that will plainly for a follow follow the california supreme court the reason is that due process has greatly implicated here so for due process is recognized by the california supreme court i mean my sense is that you want to be here do you think your chances are better here but you're trying to persuade us of what the california court would do rather than take your chances with a california court and i just seems odd to me suggests that maybe the california courts aren't quite as disposed to do what you'd like them to do in which case i'm not sure why we should we believe we're in the right court your honor and that's because under th a regular election well it's an unfair application of electoral rules so what you have here is you have a government official who steps out for a view raise to block a properly qualified measure that you see you keep sticking in adjectives the big question if it's all true there is if it's rightly qualified then the case is over but those are the issues you have to deal with this petition didn't say anything about irregular elections they don't keep them in the adjectives that beg the question tell me why we should cut your client some slack because basically it looks to me that's what you're trying to say you're trying to say well it's good enough for government work and maybe it is but by just telling me it's fully fully compliant with the law doesn't tell me anything there is no need to expressly request a general election under california law for a few reasons number one the plain language section ninety one five the statute that's at issue here does not require one to express the question and that's in contrast to section ninety one for the statute governing special elections which does propose to them a special action with a recognizably different electorate the general election and they sign on for a special election and then the nearly fifty percent of long beach voters who signed this petition in an r v are respectful of you care about getting on the ballot period whether people are special or regular i was told that there was signing a petition for a special election i'll grant you that the language has the word special in very small print and two words mean anything anymore on the petition they do mean something what it means is that i mean the end of the easy for you to say here's a petition for a special election or a general election depending on how many signatures we get that's certainly one way of doing it but i would do it again well it costs like to make two points exact same situation you had a case where the proponents requested specs pressley request a special election and in dicta the state supreme court stood noted that the state supreme court stated that the proponents had a right to get on the special but they said even very close to this case i mean there is as i mentioned you had an express request for a special election and in that case what happened was that at the first go at that point in time supplemental signatures were allowed in other words you're allowed to add signatures after you turn in the first that that's not the case anymore but at that point in time what happened was the proponent submitted basically eleven percent of the electorate signatures then they later supplemented it so that that they came out to sell something to the effect of sixteen percent of the signatures so in other words a qualify for special if you count the supplemental what the city did is it blocked this measure from qualifying altogether for election and the logic was is reminiscent to what the city is using the city clerk is using now essentially number one the city said oh we won't convert supplementary signatures so suddenly which was  hundred five and they were referencing the superseded version all right and then what the city said is that apparently since they refused to get on the ballot is oh you don't you don't request a general election so we're not going to put you on the ballot what the describes what the parties argument was not what the court was determining what we have is that it was or something in particular i should want it page eight zero way i'm there and then it's there is a language the fact that i grab it if you want to argument is based upon the fact that the original initiative petition containing the signature of eleven percent of the voters was sufficient for the application of section seven hundred twelve which is the old nine two one five and that's on the full text of that is published in footnote one of this case i i hear you but i have trouble seeing that as a reasoned decision by the court i see that as a description of the premises of the defendant's argument can i say and there another case that actually is relevant here as well and that's the mission springs v vera he'll case because there what happened was that the petitioner requested a special election or a general election and c i'll give you the site for for the for the mission case which is to one hell nine to pinpoint site nine hundred and footnote two and there are none see it's the same the same basic rule that we're talking here because basically all of this involves a black letter law rule if you have enough signatures that is but that's a petition that said what your petition should have said it actually didn't it said something different it didn't say in the alternative it just said that we request either a special election or a general election and what the court said is that it does that basically since it didn't express any preference that it would definitely qualify for a general election that's footnote two of that case but the general rule for throughout all of this is that it's a simple case of math if you have ten percent of the voters sign on to a petition you qualify for the general election ballot under section one two one five if you can show me a case that says that's the case even though the petition doesn't refer to qualifying as a general election ballot issue  case presented here excuse me which is the case i think is presented here the problem here i haven't seen a case where the court has taken upon itself to amend the language of the petition is there a case where the court's amended the language of the petition i would just disagree slightly with the premise of it so the first answer is there is no case squarely on that number one and number two is that we do not view this as amending the language of you want to take out the word special and insert the word general well we all know we already have water we all blotters basically states that you can use as basically the fallback is that if you can't qualify for special it doesn't dicta state that you qualify for a general and one thing i'd obviously we'll discuss due process but one thing i want to discuss with because this is something that the city has basically talked upon you know at length is the issue of the phrase required to be you know on section one two one five b and  it doesn't apply here in the way the city argues for a number of reasons and i'll just go through as quickly as i can number one the city clerk acted ultra vieira's and i use that word on purpose because under section nine two one five only quote the legislative body unquote can make the call of whether of weather a ballot measure has qualified you know that's that's the that's the heading of nine to one five it's a legislative body not the city clerk so that's point one on making decision and so the city clerk cannot make is a ministerial official and cannot exercise discretion and that's from friends of the babes meadows which is one fifty seven  seventy five as well as from the mh cv city of santee line of cases which is one twenty five for thirteen seventy two point site thirteen eighty three so that's point one this sounds like an argument a so the first time it's mentioned is in the reply brief ok i'll settle for that answer also your honor it is actually mentioned in the in the opening brief in the introductory section to the fact that the city clerk is a ministerial official it is there as well and well yeah but to recognize i'm asking why should i recognize that argument and you're telling me because you made it to the district court and we also made in the reply brief in response to arguments that were made by the city ok so that's point one point too as the for of this court from the earlier ruling on prelim injunction noted quote it is possible that the language of ninety one five b which is the language of required to be simply means that the city council cannot delay a measure that has qualified for a general election by placing it on a regular election ballot scheduled for a later time and that's five a day for pendants three three four three three six now this is really important because here's what if you look at what nine two one five in one two one for say ninety one feistiness of equally applies to any ballot measure that gets at least or greater than ten percent but nine to one for four applies to fifty to anything that gets at least fifteen percent any ballot measure but here's the catch there's no ceiling attached a nine to one five in other words it doesn't say this only applies between ten and fifteen percent so what what this report what the that that point was that this ensures honesty by the city government to make sure it's not a special election isn't the question not slot in the wrong place and this is confirmed by legislative history to the state senate two thousand analysis where at the time that two one five was amended and it sat reaching the higher of the two thresholds will force the governing body to place the measure on a special election ballot within specified guidelines and you are also forgot to request a time to respond to the other while you're already two minutes o good morning and made it please the court it's always difficult to try and determine the intent of the voters unless you actually know what it was that they were voting on and the only evidence that was before the district court is that a certain number of long beach voters signed a petition to authorize a special  to amend the municipal code to allow medical marijuana dispensary that was the only thing those voters were told and then when that petition failed to achieve the required number of voters to actually have the special election under election code section nine to one for the city clerk had only the option of taking no further action on the petition the appellant wants this court to try and determine the will of the people by amending the petition that was put in front of the voters and to essentially hold were no other court has held that if you ask for a special election and only a special election but you somehow don't qualify for that that the california legislature actually meant a starting with in general do we want an elected official to try and determine what the voters actually wanted based on that elected officials sense of the popular will and then make alterations to not only the language of the petition but the process by which that petition was put forward because that official thinks well that's what they must have wanted who wanted the election they did want an election your honor but as you pointed out during appellants portion of the oral argument there are many reasons that somebody might want a special election as opposed to a general election including not getting lost in the noise of a general election or having a smaller voter turn out to potentially give your issue the attention that you feel it deserves do you think that would really matter to  to this job i spend a fair amount of time in california and you walk down the street and if you're very long somebody is going to approach you to sign a petition at certain times of the year and it's just the nature of the beast and i don't see many people really care looking carefully at what they're signing and they're they're told in a sentence what it's about they sign or they walk by and that's it in a realistically did it make a difference to the signatories and  extend going back to what you were saying the city clerk if he had decided that way that is the signatories what in an election they didn't qualify for the special but they can have the general and he put it on the ballot that way or the city council decided to do that i mean would that really have ben exceeding his authority it would your honor because if you look at both ninety two fourteen in one hundred fifteen of the elections code the legislature specifically says that the legislative bodies options and by extension their designated official the city clerk can take the ordinance without alteration and put it on the ballot this particular ballot initiative said in two places special election the california legislature has given the voters the option of a special election it has a higher burden but there may be very valid reasons to do it you want it faster than the general election or the other reasons i explained the reasons why you want to special so what is not we make our way back to the first part of my question which is  is it possible to believe that the signatories were saying i want to special and only a special and if i don't get enough signatures for a special i don't want to be on the ballot for a general election now i could i can understand how the sponsor may reason it out that way but i have difficulty seeing how the signatories reasoned it out that way well your honor i guess the question is who would have the burden of putting on some evidence of the signatories intent it should be the person that put the petition in front of them who could have gone back to those signatories and said oh wait we didn't get enough for the special election are you ok with the general election that might be burdensome and it may be costly but they're the ones putting forth the legislation otherwise you're asking the city cork to decide well they must have wanted it on the ballot somehow so we'll put it on the ballot now that may serve the interests of the forty thousand or so people who signed the petition but that doesn't necessarily serve the interests of the two hundred thousand people in the city of long beach were registered voters who didn't sign the petition so if you're talking about who should have the obligation to produce some evidence as to the voter's intent i think it's a safer and better public policy for the proponent of the legislation to produce that evidence of intent as opposed to leave it up to a city clerk to try and divine that we've seen what happens when people are looking at ballots to determine whether the chad is hanging or not and i don't mean to be flippant when i say that your honor but the country was put into a very difficult situation when we're trying to divine a voter's intent based on how far in they pushed a punch out ballot and i think especially since the legislature did not wasn't that long ago that the amended the elections code if the legislature really wanted the default position to be as long as you got ten percent of the signatures you get on the general election ballot whether you request it or not they could have said that what they said is you get on the general election ballot if you have ten percent of the signatures unless it's required to go to a special election so the real question is whether or not calling for a special election and only a special election means that it's required to go there and the pla reading of the initiative and the plain reading in context of ninety two fourteen one thousand fifteen lead to that conclusion if all us for is a special election that's all you get and if you don't qualify you don't qualify and just addressing briefly the district court's grant of summary judgment there is nothing that indicates that ninety two fifteen is unconstitutional there's nothing that indicates that the city kirk did not have the discretion given to him by the election code to do a sample of three percent the random sample that doesn't appear to be a serious challenge here there doesn't appear to be any argument that he did it improperly so really the only question before the court is whether or not the district court properly interpreted the interplay between ninety two fourteen and ninety two fifteen because if the challenge as well as the due process violation and answering questions that the court may have and just the last thing about the injunction obviously it will do if the panel determines that there was an incorrect interpretation and enters judgment on favor in the favor of the point if in the appellant then an injunction may be appropriate although it would have to come to that in the question really is begged this was first put before the voters in twenty twelve it's now twenty sixteen there's been a number of changes to the state laws regarding medical marijuana  it's not in the briefing but i mean there are pending there is pending legislation in long beach for the ballot to do that and so there is no basis for a permanent injunction in this case and again if the if the panel has any questions i can address those thank you you thank to give you a brief or  thank your honor a few very quick points first of all her papers indicate the right to petition is accorded extraordinary deference quote unquote in california court and that's from the land of cases including native american secrets  is one twenty fourth nine sixty one pinpoints nine sixty five to ninety six the intent of the voters here is clear they were they wanted this initiative to be on election this is not a case of learning evidence submitted to the district court to that effect no there is not a candidly no there is not your honor but it's obvious just from the from the fact that nearly fifty percent of the voters signed up for this so that they're not clear when they're signing a petition they like the idea is  fine print if you one looks at one sixty nine you can see how the petition actually look people like the topic they they wanted they wanted to vote on it so that's that's clear i want to emphasize one point that the city made to that this same court when cost if this is in a general election the added cost would not be would would be less than a special election special election would cost about one point five million the general election will have much less an election now my point is in a general election it's  d into there so it's a cost as much a much less substantial i think it would be something to the effect of maybe two or three hundred i could stand to be corrected by the city clerk but it's substantially less because it's already folded into an existing election much it's much cases his bad faith that's not the issue the issue is that he improperly inserted himself at a point where he should not have his job was to do bean counting which is say did this measure have enough votes and it didn't not for a special election which is what the petition said it was the counting it was not his position to determine that if it was for anybody do not you would have said his but his job was to count the beans that's correct eight home edition that asked for a special election the statute requires fifteen percent ok but it's not your idea of exercising discretion appears to be ruling against your client with all due respect no your honor because though we did not have to for the reasons that we submitted before we did not have to expressly request a special election so his that then why attack the clerk why don't you focus on the legal issue instead of saying the clerk succeeding is authority and so on and so forth that's true only if your underlying premise is correct just talk about the underlying promise don't attack the clerk underlying premise is correct so talk about the underlying premise don't tell me you're not adding anything by saying the clerk's exercise of discretion that he doesn't have an event we thank you both for helpful arguments in this interesting case the case just argued is submitted and