1 Mark Peterson

State Bar No. 111961

2 5405 Oakstone Court
Concord, California 94521
3 (925) 890-4600 (Cellphone)
(925) 686-3422 (Home)
4 markdda@aol.com
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IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
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IN AND FOR THE COUNTY OF CONTRA COSTA
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MARK PETERSON, ) Case No.:
10 Petitioner, )
v. ) PETITION FOR WRIT OF
11 ) MANDATE TO COMPEL
STEPHEN WEIR, ) ACCEPTANCE OF ACCEPTABLE
12 as Registrar of Voters ) BALLOT DESIGNATION
of the County of Contra Costa, ) (Elec. Code, §§ 13107, 13314.)
13 )
Respondent, )
14 )
WILLIAM DAN O‟MALLEY, and ELLE FALAHAT, )
15
) Date:
16 Real Parties in Interest. ) Time:
) Dept:
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18 TO THE ABOVE-ENTITLED COURT, TO RESPONDENT STEPHEN WEIR, AND TO REAL

19 PARTY IN INTEREST WILLIAM DAN O’MALLEY:

20 Petitioner Mark Peterson (hereinafter “Candidate Peterson”) hereby petitions this Court for a writ

21 of mandate pursuant to Elections Code section 13314(a)(1), directed to the Honorable Stephen Weir, as
22 Registrar of Voters of the County of Contra Costa (hereinafter “Registrar Weir”), and by this verified
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petition, represents that:
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Petition for Writ of Mandate to Compel Acceptance of Acceptable Ballot Designation
 1

2 I.
3 Candidate Peterson is a United States citizen more than 18 years of age, a resident in the State of
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California, a registered voter, a resident of an election precinct in Contra Costa County, a candidate for
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the District Attorney of Contra Costa County, and otherwise meets the definition of an “elector” and a
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“voter of the jurisdiction in which the election is being held” within the meaning of the Elections Code,
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with respect to the primary election to be held on June 8, 2010, to elect the District Attorney of Contra
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Costa County. Candidate Peterson is a homicide prosecutor, currently employed by the District
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Attorney‟s Office in Contra Costa County, where he prosecutes and tries murder cases fulltime.
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12 II.

13 Real Parties in Interest are William Dan O‟Malley (hereinafter “Candidate O‟Malley”), and Elle

14 Falahat (hereinafter “Candidate Falahat”), both candidates for the District Attorney of Contra Costa
15 County. Although both Candidate O‟Malley and Candidate Falahat might claim a beneficial interest in
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Candidate Peterson‟s ballot designation, the Elections Code does not contemplate that they be
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designated as Real Parties, insofar as Candidate Peterson challenges Registrar Weir‟s rejection of his
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proposed ballot designation. Nevertheless, in order to provide both of them notice and an opportunity to
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be heard, Candidate Peterson has no objection to their joining these proceedings.
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III.
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Registrar Weir is the County Clerk-Recorder here in Contra Costa County, and as such, he is
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responsible for supervising the Contra Costa County Elections Division and its employees, and he is
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responsible for preparing, distributing, and tallying the ballots and the candidates‟ statements to be used
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26 in the upcoming June 8, 2010 primary election, as well as the November 2, 2010 general election.

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Petition for Writ of Mandate to Compel Acceptance of Acceptable Ballot Designation
 1 CHALLENGE TO REGISTRAR WEIR’S REFUSAL TO PERMIT CANDIDATE PETERSON

2 TO USE ASSISTANT DISTRICT ATTORNEY AS HIS BALLOT DESIGNATION

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IV.
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In response to an informal, non-judicial challenge lodged by Candidate O‟Malley, Registrar Weir
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has refused Candidate Peterson‟s request to use Assistant District Attorney as his ballot designation.
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Yet in his own campaign materials in the upcoming election, Candidate O‟Malley repeatedly describes
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8 himself as a former Assistant District Attorney. (Pet.‟s Exh. Nos. 5, 6.) (Candidate Peterson alleges

9 this, not as an allegation that Candidate O‟Malley is engaged in excessive hypocrisy, but rather, as

10 evidence that the terms Assistant District Attorney and Deputy District Attorney both fairly and

11 accurately reflect the profession that both candidates practiced, at various points in their respective
12 careers, while working as criminal prosecutors here in Contra Costa County. They each shared the same
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job title and the same job classification.) In two previous elections – in both the primary and in the
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general election in 2002 – Registrar Weir permitted another candidate for District Attorney – Mike
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Menesini – to use Assistant District Attorney as his ballot designation. (Pet.‟s Exh. No. 7.) This was
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because Mike Menesini worked in exactly the same capacity as Candidate Peterson currently does, and
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as Candidate O‟Malley did before becoming a Criminal Defense Attorney, i.e. as a Criminal Prosecutor.
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20 V.

21 The phrases Assistant District Attorney and Deputy District Attorney are both commonly used

22 phrases, each of which accurately describe a subordinate prosecutor who assists the elected District

23 Attorney in prosecuting criminal cases. Some California subordinate prosecutors are designated as
24 Assistant District Attorneys, while others are designated as Deputy District Attorneys.
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Petition for Writ of Mandate to Compel Acceptance of Acceptable Ballot Designation
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2 VI.
3 California law permits Candidate Peterson to use Assistant District Attorney as his ballot
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designation, because it is not misleading, as contemplated by Elections Code section 13107(b)(1). The
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statute does not require the most specific job description available, but merely one which is serviceable.
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Assistant District Attorney suitably describes Candidate Peterson‟s principal occupation or profession.
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The Elections Code does not require that candidates list their specific job titles, as designated by their
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employer‟s Human Resources Department. It only requires that the ballot designation describe the
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candidate‟s occupation or profession in a way that does not mislead the voter. (Elec. Code, § 13107,
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11 subd. (b)(1).) Candidate Peterson wishes to use Assistant District Attorney as his ballot designation

12 because, in this age of mass media and television, that phrase is much more familiar to the electorate

13 than the less well recognized phrase, Deputy District Attorney.

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15 VII.

16 Registrar Weir erroneously refuses to permit Candidate Peterson to use Assistant District

17 Attorney as his ballot designation, for the following stated reason: “According to Contra Costa County
18 Human Resources Department records, [Candidate Peterson‟s] job classification and title is „Deputy
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District Attorney – Advanced‟ (Job Classification and Title 2KTG). According to Human Resources
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Department records, the job classification and title of „Assistant District Attorney‟ (Job Classification
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and Title 2KD3) is a job title and classification separate from „Deputy District Attorney.‟” (Pet.‟s Exh.
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No. 8.)
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Petition for Writ of Mandate to Compel Acceptance of Acceptable Ballot Designation
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2 VIII.

3 California law permits Candidate Peterson to use Assistant District Attorney as his ballot

4 designation because it is not misleading, as contemplated by Elections Code section 13107(b)(1).

5 Assistant District Attorney accurately describes his principal profession or occupation. Although
6 Registrar Weir can refuse a misleading ballot designation (Elec. Code, § 13107, subd. (b)(1)), he has no
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statutory authority to refuse an accurate ballot designation, merely because a candidate‟s acceptable,
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accurate, serviceable, non-misleading, and generic description of his principal profession or occupation
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happens to overlap with a specific job title that the County of Contra Costa‟s Human Resources
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Department has established.
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IX.
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14 “[T]he Secretary . . . shall reject as unacceptable any proposed ballot designation which would

15 mislead voters. In making this determination, the Secretary . . . shall determine whether there is a

16 substantial likelihood that a reasonably prudent voter would be misled as to the candidate‟s principal

17 profession, vocation or occupation by the candidate‟s proposed ballot designation.” (Cal. Code Regs.,
18 tit. 2, § 20716, subd. (c).) The average, reasonably prudent voter in Contra Costa County has no idea
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that according to the County‟s Human Resources Department, the job classification and title of Assistant
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District Attorney is a job title and classification separate from Deputy District Attorney. The average,
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reasonably prudent voter in Contra Costa County ascribes the well-established, plain meaning to the
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phrase Assistant District Attorney, i.e., it describes someone who prosecutes criminals for a living.
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Petition for Writ of Mandate to Compel Acceptance of Acceptable Ballot Designation
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2 X.

3 The ballot designation is not misleading when read in conjunction with Candidate Peterson‟s

4 candidate statement. Nowhere does he allege that he is the Assistant District Attorney. Rather, in his

5 candidate statement, he begins, “As an Assistant District Attorney . . .” (Pet.‟s Exh. No. 4.) The voters
6 are presumed to know the law. (Cf. People v. Wheeler (1992) 4 Cal.4th 284, 302 [“the voters intended
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legal terms to have their legal compass”].) The voters presumptively know that the ballot designation
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refers to the candidates‟ “principal professions, vocations, or occupations” (Elec. Code, § 13107, subd.
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(a)(3)), not to their specific job titles, as designated by their employers‟ Human Resources Department.
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Furthermore, Candidate Peterson‟s candidate statement will identify his occupation, not his specific job
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title, as an Assistant District Attorney, i.e., “Occupation: Assistant District Attorney.” (Pet.‟s Exh. No.
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4.)
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15 XI.

16 “The determination [regarding whether a proposed ballot designation violates Elections Code

17 section 13107(b)(1)] shall take into account the plain meaning of the words constituting the proposed

18 ballot designation and the factual accuracy of the proposed ballot designation . . .” (Cal. Code Regs., tit.

19 2, § 20716, subd. (c), italics added; see Evid. Code, § 451, subds. (e), (f) [““Judicial notice shall be taken

20 of . . . [¶] The true signification of all English words and phrases and of all legal expressions. [¶] Facts

21 and propositions of generalized knowledge that are so universally known that they cannot reasonably be

22 the subject of dispute”].) The plain meaning of an Assistant District Attorney refers to someone who

23 prosecutes criminals for a living, which is indisputably the profession that Candidate Peterson practices.

24 “The assistant district attorney (ADA), or prosecutor, is the local public official who represents the

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Petition for Writ of Mandate to Compel Acceptance of Acceptable Ballot Designation
 1 government in the prosecution of alleged criminals. The prosecution is the legal party responsible for

2 presenting the case against an individual suspected of breaking the law in a criminal trial.”

3 (http://lawandorder.wikia.com/wiki/Assistant_district_attorney.)

5 XII.

6 Assistant District Attorney accurately describes Candidate Peterson‟s principal profession and

7 occupation from a linguistic standpoint. The dictionary defines an assistant as one “[h]olding an

8 auxiliary position; subordinate.” (http://education.yahoo.com/reference/dictionary/entry/assistant.)

9 And while the dictionary describes a deputy as “a second in command or assistant who usually takes
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charge when his or her superior is absent; specifically: DEPUTY SHERIFF.” (http://dictionary.
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reference.com/browse/deputy), the term Deputy is more likely to conjure up, in the average voter‟s
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mind, the image of a deputy sheriff, as opposed to that of a criminal prosecutor. Assistant District
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Attorney suitably describes Candidate Peterson‟s current profession or occupation, and the term‟s well-
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established meaning precludes it from being misleading, as a matter of law, for purposes of Elections
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Code section 13107(b)(1).
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18 XIII.

19 Candidate Peterson challenges Registrar Weir‟s refusal to accept his ballot designation by

20 seeking a writ of mandate. Elections Code section 13314 authorizes him to challenge Registrar Weir‟s
21 erroneous refusal to accept his acceptable, accurate, serviceable, non-misleading, and generic ballot
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designation. (Cf. Cook v. Superior Court (2008) 161 Cal.App.4th 569, 562, 573 [writ of mandate
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challenging ballot designation; “[s]ection 13314 allows „[a]ny elector‟ to challenge by writ of mandate
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an error in regard to ballot designations”].)
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Petition for Writ of Mandate to Compel Acceptance of Acceptable Ballot Designation
 1 XIV.

2 “Any elector may seek a writ of mandate alleging that an error or omission has occurred, or is
3 about to occur, in the placing of any name on, or in the printing of a ballot . . . or that any neglect of duty
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has occurred, or is about to occur.” (Elec. Code, § 13314, subd. (a)(1).) “A peremptory writ of mandate
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shall issue . . . upon proof . . . that the error, omission, or neglect is in violation of [the Election C]ode
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. . . and that issuance of the writ will not substantially interfere with the conduct of the election.” (Elec.
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Code, § 13314, subd. (a)(2).)
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XV.
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The following exhibits reflecting the above-described documents, events, and proceedings are
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attached hereto, and made a part of this petition with the same force and effect as if they were more
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specifically set forth herein, and are incorporated herein by reference:
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Exhibit 1. Registrar Weir‟s List of Qualified Candidates for the June 8, 2010 Primary
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Election.
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18 Exhibit 2. Candidate Peterson‟s Declaration of Candidacy, with Proposed Ballot

Designation.
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Exhibit 3. Candidate Peterson‟s Ballot Designation Worksheet.
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22 Exhibit 4. Candidate Peterson‟s Candidate Statement of Qualifications for the Direct

23 Primary Election to be held June 8, 2010.

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Exhibit 5. Candidate O‟Malley‟s campaign website (Facebook), wherein he refers to himself
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as a former Assistant District Attorney (p.1, upper LHS, below his picture).
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Petition for Writ of Mandate to Compel Acceptance of Acceptable Ballot Designation
 1 Exhibit 6. Candidate O‟Malley‟s campaign website (Twitter), wherein he refers to himself

2 as a former Assistant District Attorney. (p. 1, lower RHS.)

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Exhibit 7. Exemplar ballots from the 2002 Primary and General Elections, wherein Registrar
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Weir permitted Mike Menesini to use Assistant District Attorney as his Ballot
5 Designation.
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Exhibit 8. Registrar Weir‟s March 18, 2010 letter, opining that Candidate Peterson‟s
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proposed Ballot Designation of Assistant District Attorney is unacceptable, and
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therefore rejected.
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10 Exhibit 9. Candidate Peterson‟s March 22, 2010 letter to Registrar Weir, challenging his

11 Ballot Designation refusal, without waiving his objections.

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XVI.
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Candidate Peterson is particularly aggrieved by Registrar Weir‟s erroneous refusal to accept his
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suitable ballot designation. Unless restrained and prohibited by order of this Court, Registrar Weir
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threatens to, intends to, and will, mail out voters‟ pamphlets, candidates‟ statements, and absentee
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ballots, and he will conduct an election, using voters‟ pamphlets, candidates‟ statements, and ballots, in
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20 a manner prejudicial to any fair election, and in a manner contrary to law. Unless this Court issues its

21 writ of mandate, Registrar Weir will inflict irreparable harm upon Candidate Peterson and upon the

22 electorate in general. “A major purport of the Elections Code is to insure the accurate designation of the

23 candidate upon the ballot in order that an informed electorate may intelligently elect one of the
24 candidates.” (Salinger v. Jordan (1964) 61 Cal.2d 824, 826; Andal v. Miller (1994) 28 Cal.App.4th 358,
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364; Andrews v. Valdez (1995) 40 Cal.App.4th 492,495; Cal. Code Regs., tit. 2, § 20710, subd. (a).)
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Petition for Writ of Mandate to Compel Acceptance of Acceptable Ballot Designation
 1 XVII.

2 The initial issuance of a peremptory writ of mandate, and the ultimate issuance of the requested
3 writ of mandate, will not substantially interfere with the printing and distribution of official election
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materials, as provided by law for the June 8, 2010 primary election.
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6 XVIII.
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The parties directly affected by the present proceeding now pending in this Court are Petitioner
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(Candidate Peterson), and Respondent (Registrar Weir, as Registrar of Voters for the County of Contra
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Costa); in addition, the parties also affected herein, as Real Parties herein, are Candidate O‟Malley and
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Candidate Falahat.
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XIX.
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All the filings, events, and proceedings about which this petition concerns itself either have
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occurred or will occur within the territorial jurisdiction of this Court.
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XX.
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No other petition for writ of mandate has been made by or on behalf of Candidate Peterson
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relating to this matter.
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XXI.
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Candidate Peterson has no other plain, speedy, or adequate remedy at law. As a result, “[t]he
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23 action or appeal [challenging a ballot designation or a candidate statement] shall have priority over

24 all other civil matters.” (Elec. Code, § 13314, subd. (a)(3), emphasis added.)

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Petition for Writ of Mandate to Compel Acceptance of Acceptable Ballot Designation
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2 XXII.

3 Unless this Court expedites this matter for an immediate hearing and for resolution, the lawful

4 issuance of the writ otherwise might interfere with the printing or distribution of official election

5 materials as provided by law. Registrar Weir has expressed his desire that this matter be resolved on or
6 before April 1, 2010.
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WHEREFORE, Candidate Peterson prays that:
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A peremptory writ of mandate be issued, directing and compelling Registrar Weir to accept his
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suitable ballot designation, as Assistant District Attorney, on any and all ballots to be employed in both
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the June 8, 2010 primary election, as well as the November 2, 2010 general election (should that become
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necessary); and that
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16 An alternative writ of mandate be issued, directing and requiring Registrar Weir to show cause

17 before this Court, at a specified time and place, and in a manner allowing for an expedited hearing, so as

18 not to substantially interfere with the printing and distribution of official election materials as provided

19 by law for June 8, 2010 primary election, why the relief prayed for should not be granted; and that
20 Candidate Peterson be granted such other and further relief as may be appropriate and just.
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Dated: March 22, 2010 Respectfully submitted,
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24 __________________________
Mark Peterson
25 Petitioner
Candidate for District Attorney
26 Attorney at Law
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Petition for Writ of Mandate to Compel Acceptance of Acceptable Ballot Designation
 1 VERIFICATION

3 I, Mark Peterson, am representing myself as the Petitioner in this action. All facts alleged in the

4 above document not otherwise supported by citation to the record, exhibits, or other documents are true
5 of my own personal knowledge.
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I declare under penalty of perjury that the above is true and correct and that this declaration was
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executed on March 22, 2010, at Concord, California.
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Dated: March 22, 2010 Respectfully submitted,
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__________________________
14 Mark Peterson
Petitioner
15 Candidate for District Attorney
Attorney at Law
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Petition for Writ of Mandate to Compel Acceptance of Acceptable Ballot Designation