Court Opinion In Debbie Cook Case
Posted by: Jubal | 03/27/2008 11:49 AM
Here's the Appellate Court opinion in the lawsuit challenging HB Mayor Debbie Cook's use of "mayor" in her ballot title for her congressional campaign.
The court tossed the lawsuit on jurisdictional grounds:
The court tossed the lawsuit on jurisdictional grounds:
The request that the case be dismissed because the Orange County Superior Court lacks jurisdiction -- or to be precise -- necessarily is about to lack jurisdiction -- is well taken.And that is a question the court ultimately answers in the affirmative.
Let us explain: Section 13314 allows "Any elector" to challenge by writ of mandate an error in regard to ballot designations. The statute, however, is very specific that venue for such a proceeding is "exclusively in Sacramento" when the Secretary of State "is named" as a "real party in interest" or a "respondent."3
Now, to be sure, the Secretary of State has not -- as of the moment -- been named a real party in interest or a respondent. However, if the Secretary of State is an indispensible party to the proceedings, then the Secretary must be joined to the proceedings. The applicable statute (Code Civ. Proc., § 389, subd.(a)) uses the word "shall."4 (See also Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2007) ¶ 2:159, p. 2-43 ["Joinder will be ordered if feasible: Wherever plaintiff fails to join some person necessary for a just adjudication, the court shall order that person be made a party to the action."].) And in this particular case, we need not
deal with any issue regarding whether joinder is feasible. It is difficult to imagine circumstances under which the Secretary of State, a constitutional office holder, could not be joined. And Carlson offers no reason the Secretary of State could not be joined, or any explanation for not joining her in the first place.
Indeed, Carlson, has, in fact, conceded the point that if the Secretary of State were an indispensible party, the case would have to be filed in Sacramento. In informal opposition papers filed Monday March 24, his counsel wrote: "Here, Cook is not running for statewide office. Therefore, the only way for this case to be tried in Sacramento is if the Court finds that the Secretary of State is a necessary party." (Italics in original.)
The case thus devolves on the question of whether the Secretary of State is
an indispensible party.
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CD46 Watch
Jubal, that is one of the best analyses I have read describing Sheriff Hutchens flawed CCW policy. She...
The gentleman who filed the suit is a lawyer, right?
So, how did this happen?
1. He did not read section 13314 close enough to catch the "exclusively in Sacramento" Sacramento clause
2. He thought he had some other, more compelling argument that overrode this clause
3. He thought handing Debbie Cook free publicity and a "victory" was a good idea.
In any event, thanks for covering this Jubal. This is where the blogosphere shines: the deeper, more detailed stuff a newspaper or newscast simply can't afford cover.
THANKS!
-tylerh