1 ROBERT P. OTTILIE, ESQ.

(SBN 95845)
Attorney at Law
2 550 West “C” Street, Suite 1450
San Diego, CA 92101-8585
3 Telephone: (619) 231-4841
Facsimile: (619) 231-3293
4

5 Attorneys for Plaintiff/Petitioner

C. APRIL BOLING aka APRIL BOLING
6

8 SUPERIOR COURT OF CALIFORNIA

9 COUNTY OF SAN DIEGO, Central Division

10 C. APRIL BOLING aka APRIL BOLING, ) Case No.

)
11 Plaintiff/Petitioner , ) COMPLAINT FOR DECLARATORY
) RELIEF AND PETITION FOR WRIT OF
12 v. ) MANDATE
)
13 ELIZABETH MALAND, sued in her )
capacity as City Clerk of the City of San )
14 Diego; DEBORAH SEILER, sued in her )
capacity as Registrar of Voters for the )
15 County of San Diego; DOES 1 through )
10, Inclusive, )
16 )
Defendants/Respondents. )
17 )
)
18 THE CITY OF SAN DIEGO, )
)
19 Real Party in Interest. )
)
20

21

22 I.

23 COMMON ALLEGATIONS

24

25 Parties/Jurisdiction

26 1. Plaintiff and Petitioner C. APRIL BOLING aka APRIL BOLING (“Plaintiff”) is an

27 elector within the boundaries of the City of San Diego.

28
C. April Boling v. Elizabeth Maland, et al. Case No.
Complaint for Declaratory Relief and
Petition for W rit of Mandate 1
 1 2. Plaintiff is informed and believes and thereon alleges that Real Party in Interest

2 CITY OF SAN DIEGO (“Real Party”) is a charter city in San Diego County. Real Party has, by

3 resolution of its City Council, drafted legislation [Exhibit 1] that it intends to put before the voters

4 of San Diego as a proposition at its election on November 2, 2010. This proposition has been

5 designated San Diego Proposition D.

6 3. Defendant/Respondent ELIZABETH MALAND (“City Clerk”), sued in her official

7 capacity as San Diego City Clerk, has responsibility for the posting of materials that will be

8 included on the ballot and in the Voter Information Pamphlet (“Voter Pamphlet”) distributed to all

9 registered voters in the City of San Diego. Contained within the Voter Pamphlet will be a fiscal

10 impact analysis prepared by the Mayor’s office for Proposition D which has been posted by Ms.

11 Maland’s office for review by the public.

12 4. Defendant DEBORAH SEILER (“Registrar”), sued in her official capacity as San

13 Diego County Registrar of Voters, is the Registrar of Voters in San Diego County and has the

14 ultimate responsibility for final preparation and distribution of the ballot materials and Voter

15 Pamphlet distributed to all registered voters in San Diego County, including the City of San Diego.

16 Contained within this final document will be the fiscal analysis prepared by Real Party for

17 Proposition D.

18 5. Does 1 - 10 are Defendants/Respondents whose identities are not known to Plaintiff.

19 Plaintiff will amend to insert their true names when they are known.

20 6. All of the Defendants/Respondents were the agents of each other at all times set forth

21 herein, and were acting within the course and scope of their agency at the time they took all action

22 as described herein.

23 7. Venue with regard to this action is proper within San Diego County and the San

24 Diego Judicial District as all parties are located within said county and within said judicial district.

25

26 Background

27 8. In San Diego, the San Diego City Council has the power to place propositions on

28
C. April Boling v. Elizabeth Maland, et al. Case No.
Complaint for Declaratory Relief and
Petition for W rit of Mandate 2
 1 the ballot. Proposition D is a proposition the City Council has voted to submit to the voters of the

2 City of San Diego in the San Diego municipal election which has been consolidated with the state

3 election to be conducted on November 2, 2010.

4 9. Perhaps without precedent in the state, Proposition D, if passed, accomplishes

5 nothing. Plaintiff is unaware of any proposition or initiative ever placed on the ballot in the State

6 of California whose passage would have no impact at all.

7 10. Proposition D provides that, if passed by the voters, and if 10 other unrelated things

8 happen (referred to as “conditions” in the proposition), then a temporary one-half (½ ) of one

9 percent (1%) transaction (sales) and use tax would be imposed on purchases within the City of San

10 Diego. It would expire five (5) years thereafter.

11 11. Just as the Wizard told Dorothy when she wanted to leave Oz, Real Party has had

12 the power all along to accomplish all ten (10) conditions. By authority granted to Real Party under

13 its Charter, every one of the ten so-called “conditions” are matters which the San Diego City

14 Council could have addressed before placing this proposition on the ballot.

15 12. Real Party has, for several years now, lacked the political will to pass any of the so-

16 called “conditions” that are conditions precedent to implementation of the sales tax.

17 13. It is undisputed that four (4) members of the San Diego City Council wanted to place

18 a sales tax increase on the ballot without meeting any conditions. This would have raised the

19 already outrageous local sales tax to nine and one-quarter percent (9¼%).

20 14. Councilwoman Donna Frye proposed that she would become a fifth vote to support

21 placing Proposition D on the ballot, but only if the City Council would accomplish certain

22 conditions precedent to putting the tax increase before the voters. Rather than meeting any of the

23 conditions, and apparently unable to garner the votes to pass a single one of them, the other four (4)

24 members of the Council agreed to tie the implementation of the sales tax, should Proposition D

25 pass, to subsequent successful implementation of ten conditions.

26 15. However, as drafted, if Proposition D passes, it has no impact at all. It has no cost

27 savings. It has no fiscal impact.

28
C. April Boling v. Elizabeth Maland, et al. Case No.
Complaint for Declaratory Relief and
Petition for W rit of Mandate 3
 1 16. Only after Proposition D passes, if the San Diego City Council can muster the

2 political will to do that which it could have done years ago, and implement the ten separate

3 conditions identified under Section 2(a)(1)-(10) of the ordinance, will the sales tax will go into

4 effect.

5 17. Some of these conditions, if met, potentially could result in savings to the taxpayers,

6 of course offset by the $102 million a year cost to taxpayers of the tax increase itself. Other of the

7 conditions, even if implemented, have no savings attached to them.

8 18. However, it is undisputed that there will be no savings at all (and no cost either) if

9 Proposition D passes. Proposition D has zero fiscal impact. Without action by the City Council

10 to bring fiscal integrity back to the San Diego budgeting process, nothing will have changed. None

11 of the so-called “conditions” have been adopted during a multi-year budget crisis, none may be

12 adopted after passage of Proposition D.

13 19. If Real Party can restore fiscal restraint and sanity to its budget, then the taxpayers

14 will receive minimal savings. However, those savings would be generated by actions independent

15 of the proposition itself.

16 20. In fact, while there may be some savings from implementation of some of these

17 independent actions, if all ten of them are certified as being met, then the sales tax will kick in with

18 an estimated cost to taxpayers of $102 million annually for five years. Thus, the proposition itself

19 never results in cost savings; it could potentially result in a $510 million cost to taxpayers.

20

21 The Fiscal Impact Analysis

22 21. San Diego Municipal Code §27.0506(a) provides that the City Council may direct

23 the City Manager (now “Mayor”) to prepare a “fiscal impact analysis” of the proposed legislative

24 act. If so directed, the Mayor shall place the impact analysis on file in the office of the City Clerk

25 no later than 5:00 p.m. on the date established in accordance with the City Clerk’s administrative

26 calendar for the election on the proposed legislative act. Municipal Code §27.0507(b) allows 500

27 words for the fiscal impact analysis.

28
C. April Boling v. Elizabeth Maland, et al. Case No.
Complaint for Declaratory Relief and
Petition for W rit of Mandate 4
 1 22. San Diego Municipal Code §27.0506(b) provides that the fiscal impact analysis

2 shall be printed in the Voter Pamphlet preceding any arguments for or against the proposed

3 legislative act.

4 23. Real Party’s ordinance which places Proposition D on the ballot is lodged as Exhibit

5 1 to this Complaint and Petition for Writ of Mandate. Lodged as Exhibit 2 is a document entitled

6 “Fiscal Impact Statement” prepared by Jay Goldstone, Real Party’s Chief Operating Officer

7 (“COO”). This document was posted August 16, 2010. Although labeled a “Statement,” it appears

8 to be the analysis authorized under SDMC §27.0506. Without action of this Court, the so-called

9 Fiscal Impact “Statement” will be distributed to San Diego voters. This Fiscal Impact Statement

10 has been posted by the City of San Diego as the statement it intends to include in the Voter

11 Pamphlet for the November 2, 2010 election.

12 24. California Elections Code §9295 authorizes members of the public to file legal

13 challenges during the “public examination” period for election materials. This section provides that

14 during a ten-day public examination period any voter of the jurisdiction in which the election is

15 being held may seek a writ of mandate or an injunction requiring any or all of the materials to be

16 amended or deleted. The Court may delete or amend any materials it determines to be false or

17 misleading.

18 25. Lodged as Exhibit 3 to this complaint/petition is a document entitled “Fiscal

19 Analysis for Ballot Measure on Financial Reform and Sales Tax,” which plaintiff understands was

20 prepared by the City’s COO in support of the Fiscal Impact Statement for Proposition D [“Savings”

21 Chart”]. This “Savings” Chart is the source of the “savings” referenced in the Fiscal Impact

22 Statement for Proposition D.

23 26. The “Savings” Chart purports to estimate cost savings from the completion of the

24 ten conditions, none of which are accomplished by the actual passage of Proposition D.

25 Consequently, the Fiscal Impact Statement that will appear in the ballot for Proposition D is

26 compilation of potential savings if the City Council completes other acts that are not accomplished

27 by Proposition D. There is no legal support for the argument that the City can just accumulate

28
C. April Boling v. Elizabeth Maland, et al. Case No.
Complaint for Declaratory Relief and
Petition for W rit of Mandate 5
 1 other, unrelated acts/ordinances/projects for use as the potential savings to support a proposition

2 which, on its own, saves nothing and, in fact, could actually cost taxpayers hundreds of millions of

3 dollars.

5 The “Savings” Chart is Flawed

6 27. While Real Party does not intend to include the chart in the Voter Pamphlet, it is the

7 source of the estimated cost savings shown in the Fiscal Impact Statement. However, the analysis

8 in the chart itself is flawed. The savings on the first condition is fair (assuming the condition is

9 met). If that condition is met, it actually would save approximately $386,000. However, the chart

10 reflects an estimated savings under the second condition of up to $270,000,000 over ten years.

11 However, the condition is simply the completion of a document, the so-called guide for managed

12 competition. Completion of a guide does not save the taxpayers anything. Once it is completed,

13 the Council could choose not to implement the guide. Unless and until there are actually savings

14 from managed competition (outside bidding on city contracts of work now performed in-house by

15 the City), there are no savings. The condition itself, once met, saves nothing (and is the basis for

16 a massive increase). And, given its history, it is unlikely the City Council, as presently comprised,

17 will support managed competition. It is false and misleading to tell the voters this condition has

18 any savings.

19 28. However, Real Party includes this alleged “potential savings” in its analysis even

20 though Proposition D itself creates no savings through managed competition, and the completion

21 of the guide does not save taxpayers a dime. In essence, this condition can be certified as

22 accomplished for the purpose of raising San Diegans’ taxes, and it does not result in any savings.

23 For this reason, the Fiscal Statement, on that condition, is false and misleading.

24 29. Condition 3 on the “Savings” Chart shows no savings. That is accurate. However,

25 to certify completion of condition 4, Real Party simply needs to solicit an RFQ to take over the

26 Miramar Landfill. Yet, an RFQ does not save taxpayers anything. Savings are only potentially

27 recognized if a contract is let – which is not part of Proposition D, and is not a condition. And, a

28
C. April Boling v. Elizabeth Maland, et al. Case No.
Complaint for Declaratory Relief and
Petition for W rit of Mandate 6
 1 contract would have to result in savings, which itself is highly speculative. Yet, Real Party uses this

2 condition to tell voters the solicitation of the RFQs could save up to $100,000,000. This is false

3 and misleading.

4 30. On the surface, condition 5 looks like a legitimate savings of $120,000 to $1,028,571

5 annually. This is a fair range.

6 31. Condition 6 on Real Party’s “Savings” Chart is fair. Reducing these retirement

7 offsets, without more, produces no savings since it would be a voluntary program. Real Party

8 accurately represents the cost savings when the condition itself is met. The savings are, in fact,

9 zero. Jay Goldstone admits this [Exhibit 4].

10 32. Condition 7 on Real Party’s “Savings” Chart is false and misleading. While this

11 condition requires a “reduction” in retiree health care costs, that condition could be met, as the COO

12 himself highlights on the chart, with even $1 in savings. Yet, without any explanation or analysis,

13 voters will be told this condition could save them $420,000,000. Plaintiff submits Real Party

14 should not be allowed to use the high-end number as it is speculative. Triers of fact in California

15 are not entitled to award even a dollar of speculative damages. Real Party should not be allowed

16 to claim $420,000,000 in savings in official elections materials (which could sway the outcome of

17 the election) without demonstrating it is more than speculation.

18 33. Condition 8 is also flawed. It provides that Real Party must solicit proposals to take

19 over information technology services. However, that condition saves taxpayers nothing unless the

20 City actually outsources technology services that results in a reduction in costs.

21 34. Yet, as to condition 8, taxpayers are being told in the Fiscal Impact Statement that

22 up to $5 million in savings could be achieved in this area by passing Proposition D. Under the

23 Proposition, this condition will be certified once proposals are solicited. The tax could then be

24 imposed. However, Real Party is not required to accept any proposal. To be accurate, condition 8

25 should be the same as condition 4 – $0.

26 35. Condition 9 is fair. These appear to be the actual savings. Condition 10 is also fair.

27 36. Lodged as Exhibit 5 is an article from the Voice of San Diego in which Jay

28
C. April Boling v. Elizabeth Maland, et al. Case No.
Complaint for Declaratory Relief and
Petition for W rit of Mandate 7
 1 Goldstone, the City’s COO, acknowledges that the “high end of savings” in the fiscal analysis

2 “[goes] beyond what the ballot measure requires.” [Emphasis added.] Under the California

3 Evidence Code, this is termed an admission against interest.

5 The Fiscal Impact Statement Is Not Impartial, Is Not Accurate, and Misleads the Public

6 37. The San Diego Municipal Code calls for a fiscal analysis. Real Party does not even

7 call Exhibit 2 an “analysis,” referring to it instead as a “Fiscal Statement.” It does not even

8 reference the $510 million cost to taxpayers over 5 years if the measure passes and all conditions

9 are met. The Fiscal Impact Statement is simply being used to advance pro Proposition D arguments,

10 in essence giving the proponents of Proposition D two ballot arguments. One would be the

11 argument provided by Code for supporters of Proposition D who compete with the argument

12 provided by Code for the opponents of Proposition D. The second, which would stand alone,

13 would be shown as an apparent impartial Fiscal Analysis, but, in fact, is largely speculative puffery

14 offered by a proponent (the Mayor’s office) of the proposition’s passage.

15

16 FIRST CAUSE OF ACTION

17 Declaratory Relief as Against All Respondents

18 38. Plaintiff incorporates herein by reference, as though fully set forth herein, paragraphs

19 1 through 33 of the Common Allegations above.

20 39. An actual controversy has arisen and now exists between plaintiff, on the one hand,

21 and the Registrar of Voters, City Clerk, and Real Party in Interest, on the other hand, on the

22 accuracy and legality of the “Fiscal Impact Statement for Proposition D.” Plaintiff contends it is

23 false and misleading. Real Party contends otherwise and defendants/respondents will not correct

24 the document without court order. The Fiscal Impact Statement for Proposition D will be

25 disseminated to potential voters in the upcoming San Diego city election unless and until this Court

26 enters declaratory relief on the accuracy of the Fiscal Impact Statement for Proposition D.

27 40. Petitioner/Plaintiff desires a judicial determination of her rights, and the rights of the

28
C. April Boling v. Elizabeth Maland, et al. Case No.
Complaint for Declaratory Relief and
Petition for W rit of Mandate 8
 1 parties and all others similarly situated on the duties of the Registrar and the City Clerk, by a

2 declaration as to whether or not the proposed Fiscal Impact Statement for Proposition D violates

3 the Elections Code and, if so, then plaintiff further seeks relief as set forth in the second, third, and

4 fourth causes of action.

5 41. A judicial determination and declaration is necessary and appropriate at this time,

6 under the circumstances, so that plaintiff can ascertain her rights and the rights of registered voters

7 in this jurisdiction.

9 SECOND CAUSE OF ACTION

10 Peremptory Writ of Mandate as Against All Respondents

11 42. Plaintiff incorporates herein by reference, as though fully set forth herein, paragraphs

12 1 through 33 of the Common Allegations and paragraph 39 of the First Cause of Action.

13 43. Respondents, and each of them, have a clear and present duty to make corrections

14 to the arguments so that they conform with the Election Code.

15 44. The Registrar and City Clerk have not made the corrections, modifications or

16 deletions as requested herein. Petitioner has no rights beyond those that could be obtained by this

17 court.

18 45. Petitioner has no plain, speedy, or adequate remedy in the ordinary course of law,

19 and there is no other remedy under the circumstances other than petitioning to this court.

20 46. Petitioner/Plaintiff requests this Court immediately issue a peremptory writ of

21 mandate directed to the Registrar and City Clerk, mandating that the Registrar and City Clerk make

22 the deletions, corrections and modifications as requested in the prayer herein.

23

24 THIRD CAUSE OF ACTION

25 Alternative Writ of Mandate Against All Respondents

26 47. Plaintiff incorporates herein by reference, as though fully set forth herein, paragraphs

27 1 through 33 of the Common Allegations, paragraph 39 of the First Cause of Action, and

28
C. April Boling v. Elizabeth Maland, et al. Case No.
Complaint for Declaratory Relief and
Petition for W rit of Mandate 9
 1 paragraphs 43 through 45 of the Second Cause of Action.

2 48. Therefore, Petitioner seeks an alternative writ of mandate from this court compelling

3 the Respondents to make the corrections, modifications and deletions as requested in the prayer for

4 relief or, alternatively, for the Respondents to return to this court at a date to be set by the court to

5 show cause why such relief should not be granted to Petitioner.

7 FOURTH CAUSE OF ACTION

8 Injunction as Against All Respondents

9 49. Plaintiff incorporates herein by reference, as though fully set forth herein, paragraphs

10 1 through 33 of the Common Allegations paragraph 39 of the First Cause of Action.

11 50. Plaintiff seeks injunctive relief against defendants to prevent them from violating

12 election laws as set forth herein.

13

14 WHEREFORE, plaintiff prays judgment against defendants/respondents, and each of them,

15 as follows:

16 1. For a declaration of rights by this Court finding that the Fiscal Impact Statement for

17 Proposition D is false and misleading and does not meet the requirements for publication in the

18 voter pamphlet or, alternatively, for a declaration by this Court as to modifications necessary to

19 make the statement accurate.

20 2. For a Peremptory writ of mandate to issue from this Court compelling the Registrar

21 of Voters and City Clerk to delete from the voter pamphlet the Fiscal Impact Statement for

22 Proposition D, or, alternatively, make modifications to it that would make it impartial, true, and not

23 misleading;

24 3. That an alternative writ of mandate issue from this Court compelling respondents

25 to return to this Court mon a date to be set by the Court, to show why the relief requested in items

26 1 and 2 should not be granted;

27 4. For an injunction enjoining the respondents from printing the Fiscal Impact

28
C. April Boling v. Elizabeth Maland, et al. Case No.
Complaint for Declaratory Relief and
Petition for W rit of Mandate 10
 1 Statement for Proposition D in the voter pamphlet or, alternatively, from publishing it until it is

2 modified to be a fair and impartial analysis, true and correct and not misleading;

3 5. For costs of suit and attorney’s fees from respondents pursuant to the California

4 Elections Code and California Code of Civil Procedure §1021.5 in an amount to be proven at the

5 time of trial of this matter;

6 6. For such other relief as the Court deems just, equitable, and appropriate.

9 DATED: August _____, 2010 ______________________________________

ROBERT P. OTTILIE
10 Attorney for Plaintiff /Petitioner April Boling

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28
C. April Boling v. Elizabeth Maland, et al. Case No.
Complaint for Declaratory Relief and
Petition for W rit of Mandate 11