1 BARIC TRAN & MINESIGNER STEVE BARIC, ESQ (State Bar No. 200066) 2 2603 Main Street, Suite 1050 3 Irvine, CA 92614 Telephone: 949-677-3688 4 Facsimile: 949-251-1886 5 Attorneys for Petitioner and Plaintiff, 6 TONY KRVARIC 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 FOR THE COUNTY OF SAN DIEGO 10 TONY KRVARIC, ) Case No. 11 ) Petitioner and Plaintiff, ) VERIFIED PETITION FOR WRIT OF 12 ) MANDATE [CCP §§ 1085], AND v. ) COMPLAINT FOR INJUNCTIVE 13 ) RELIEF [CCP §526a] and CITY OF SAN DIEGO; JERRY SANDERS, in his ) DECLARATORY RELIEF.[CCP§1060] 14 official capacity as Mayor, SHERRI LIGHTNER, in ) ) 15 her official capacity as councilmember; KEVIN ) FAULCONER, in his official capacity as ELECTION MATTER ) 16 councilmember; TODD GLORIA, in his official capacity as councilmember; TONY YOUNG, in his ) 17 official capacity as councilmember; CARL ) DEMAIO, in his official capacity as councilmember; ) Date Action Filed: 18 LORIE ZAPF, in her official capacity as ) Trial Date: councilmember; MARTI EMERALD, in her official ) ) 19 capacity as councilmember; DAVID ALVAREZ, in ) his official capacity as councilmember; ) 20 CITY OF SAN DIEGO REDISTRICTING ) COMMISSION; ANISHA DALAL, in her official ) 21 capacity as redistricting commissioner; CARLOS MARQUEZ, in his official capacity as redistricting ) 22 commissioner; FREDRICK KOSMO, in his official ) capacity as redistricting commissioner; ANI ) 23 ) MDIVANI-MORROW, in her official capacity as ) 24 redistricting commissioner; ARTHUR NISHIOKA, ) in his official capacity as redistricting commissioner; ) 25 DAVID POTTER, in his official capacity as ) redistricting commissioner; THERESA QUIROZ, in ) 26 her official capacity as redistricting commissioner; ) and DOES 1 through 100 ) 27 Respondents and Defendants ) 28 / / / ________________________________________________________________________________________________________ VERIFIED PETITION FOR WRIT OF MANDATE [CCP §§1085], INJUNCTIVE RELIEF [CCP §526a] & DECLARATORY RELIEF 1 1 PARTIES 2 TONY KRVARIC, in his capacity as an Elector and taxpayer of the City of SAN DIEGO, 3 County of SAN DIEGO, alleges as follows: 4 1. Petitioner and Plaintiff TONY KRVARIC (“Petitioner”) is, and at all relevant times 5 hereto was, a resident voter and taxpayer of the City of SAN DIEGO, County of SAN DIEGO 6 (“County”), California. Petitioner is currently registered to vote in the County and has paid property 7 and/or sales taxes to the County within the past twelve months. Plaintiff, as a municipal taxpayer 8 seeking to avoid the waste of municipal assets, falls into the category of a type of claimant long 9 recognized to possess a sufficiently intense interest in his claim to establish his "standing" to enter the 10 courtroom. Because a successful attack on wrongful municipal spending or disposition of assets in all 11 likelihood may reduce the municipal taxpayer's burden of meeting the expenses of government, courts 12 do not doubt that a municipal taxpayer will effectively present his claim. "[T]axpayers have a 13 sufficiently personal interest in the illegal expenditure of funds by [municipal] officials to become 14 dedicated adversaries." (Harman v. City and County of San Francisco (1972) 7 Cal.3d 150.) In this 15 capacity, Petitioner has standing to bring this action pursuant Code of Civil Procedure section 526(a) 16 and case law. 17 2. Respondents and Defendants CITY OF SAN DIEGO (“Respondent” and 18 “DEFENDANT”) charter provides that it will appoint residents to its redistricting commission “with a 19 demonstrated capacity to serve with impartiality in a non-partisan role.” As such, SAN DIEGO has an 20 obligation to its residents to ensure that its charter is complied with. 21 3. Respondents and Defendants MAYOR JERRY SANDERS AND 22 COUNCILMEMBERS SHERRI LIGHTNER, KEVIN FAULCONER, TODD GLORIA, TONY 23 YOUNG, CARL DEMAI, LORIE ZAPF, MARTI EMERALD AND DAVID ALVAREZ 24 (“Respondent” and “DEFENDANT”) are all elected members of the SAN DIEGO CITY COUNCIL. 25 As such, they all have an obligation to its residents to ensure that its charter is complied with. 26 Additionally, pursuant to SAN DIEGO MUNICIPAL CODE SECTION 27.1402 (c) “in the event that 27 all of the preceding individuals decline to act, then the City Council shall serve as the appointing 28 ________________________________________________________________________________________________________ VERIFIED PETITION FOR WRIT OF MANDATE [CCP §§1085], INJUNCTIVE RELIEF [CCP §526a] & DECLARATORY RELIEF 2 1 authority, and the appointments to the Redistricting Commission shall be made by a majority vote of 2 the City Council.” 3 4. Defendants SAN DIEGO REDISTRICTING COMMISSION (“DEFENDANT”) The 4 City of San Diego Charter section 5.1 requires the appointment of a seven-member Redistricting 5 Commission (“the Commission”) to “specify the boundaries of districts for the City Council” once 6 every ten years.1 Section 5.1 requires the appointment of impartial, nonpartisan commissioners: “The 7 appointees shall include individuals with a demonstrated capacity to serve with impartiality in a 8 nonpartisan role.” 9 5. Defendants REDISTRICTING COMMISSIONERS (“COMMISSIONERS”) ANISHA 10 DALAL, CARLOS MARQUEZ, FREDRICK KOSMO, ANI MDIVANI-MORROW, ARTHUR 11 NISHIOKA, DAVID POTTER, THERESA QUIROZ (“Respondent” and “DEFENDANT”) are all 12 appointed members of the SAN DIEGO CITY REDISTRICTING COMMISSION. As such, they all 13 have An obligation to its residents to ensure that the SAN DIEGO CITY CHARTER is complied with. 14 Each commissioner must have “demonstrated a capacity to serve with impartiality in a non-partisan 15 role.” Additionally, each commissioner must be a resident of SAN DIEGO. 16 VENUE 17 6. Venue is appropriate under the Code of Civil Procedure § 393 because the Respondent 18 public officers and entities are located in and his acts or omissions giving rise to liability in this case 19 occurred in City of SAN DIEGO and County of SAN DIEGO, State of California. 20 PRIORITY 21 7. This election action alleging an error in the appointing of San Diego Redistricting 22 Commissioners “shall have priority over all other civil matters”. 23 GENERAL ALLEGATIONS 24 8. This case is about ensuring a fair redistricting process which would allow the residents 25 of the City of San Diego to have faith and respect for the electoral process which will determine who 26 will serve these citizens on the City Council for the next ten years. Sadly, the process has it has 27 28 1 City Charter §5.1 ________________________________________________________________________________________________________ VERIFIED PETITION FOR WRIT OF MANDATE [CCP §§1085], INJUNCTIVE RELIEF [CCP §526a] & DECLARATORY RELIEF 3 1 occurred to date has been manipulated by special interests and has been heavily questioned by the local 2 media. The purpose of this suit is to restore the public’s trust in the process. 3 9. The City of San Diego vests its redistricting power in the hands of a commission of 4 seven impartial, non-partisan private citizens. In October, a panel of retired judges appointed three 5 Democrats, two Republicans, and two independents to the commission. Unfortunately, three of the 6 commissioners bring partisan interests to the commission in what appears to be a power grab by the 7 labor movement and other left-of-center causes. The retired judges acted in an executive, non-judicial 8 role, so the prohibition against investigating judicial performance or actions of the court does not apply. 9 10. San Diego voters overwhelmingly approved Proposition C in 1992, which amended the 10 San Diego City Charter to place the City’s redistricting power within the hands of a commission of 11 seven private citizens. This was motivated by a redistricting scandal where the City Council engaged 12 in a partisan redistricting battle for over a year, which resulted in two separate lawsuits. One of its key 13 selling points in support of the creation of the commission was the inclusion of a judge who would vet 14 the “likely impartiality of all the candidates.” 15 11. The end result was the creation of Charter section 5.1, which requires the appointment of 16 a seven-member Redistricting Commission (“the Commission”) to “specify the boundaries of districts 2 17 for the City Council” once every ten years. To prevent partisan redistricting, Section 5.1 requires the 18 appointment of impartial, nonpartisan commissioners: “The appointees shall include individuals with a 19 demonstrated capacity to serve with impartiality in a nonpartisan role.” 20 12. Additionally, Section 5.1 specifically limits the influence incumbents may have upon the 21 Commission: “To the extent it is practical to do so, districts shall…not be drawn for the purpose of 22 advantaging or protecting incumbents.” 23 13. The City Council later elaborated upon the Charter amendment by enacting Division 14 3 24 to Article 7 of the Municipal Code. These ordinances include specific inquiries the City Clerk must 4 25 include on the application form for the Commission. 26 27 2 City Charter §5.1 28 3 See Mun. Code §§27.1401 et seq. 4 See Mun. Code §27.1406(a) ________________________________________________________________________________________________________ VERIFIED PETITION FOR WRIT OF MANDATE [CCP §§1085], INJUNCTIVE RELIEF [CCP §526a] & DECLARATORY RELIEF 4 1 14. The Charter provides that the Commissioners “shall be appointed by a panel of three 2 retired Superior Court Judges.”5 3 15. Here, the City selected retired Judges Patricia Cowett, William Howatt, and Jim 4 Milliken to the Appointing Authority. The Appointing Authority convened on October 1, 2010, to 5 interview and select the Commissioners. City Clerk Elizabeth Maland announced that Judge Cowett 6 could not attend the meeting, but convened with only Judges Howatt and Milliken present. Applicant 7 Otto Emme questioned the legitimacy of the Appointing Authority convening with only two members. 8 Deputy City Attorney Sharon Spivak responded that two out of three represents a quorum under 9 Robert’s Rules of Order, so convening with only two members was permissible. The Appointing 10 Authority allotted each applicant a two-minute presentation. It declined to ask follow-up questions.