Raymond Dussault v Elaine DoerflingBS152770

December 19 2014

Petition for a Writ of Mandate Moving Party Petitioner Raymond Dussault

The petition is denied

The Court reviews municipal ballot measures pursuant to Election Code 9295b Section9295bprovides that

1 During the10calendardaypublic examination period provided by thissection any voter of the jurisdiction in which the election is being held or theelections official himself or herself may seek a writ of mandate or aninjunction requiring any or all of the materials to be amended or deleted Thewrit of mandate or injunction request shall be filed no later than the end of the10calendardaypublic examination period

2 A peremptory writ of mandate or an injunction shall be issued only upon clearand convincing proof that the material in question is false misleading orinconsistent with the requirements of this chapter and that issuance of the writor injunction will not substantially interfere with the printing or distribution ofofficial election materials as provided by law emphasis added

Petitions such as this should not be used to impede a political opponent from expressing itsviews The right to seek deletion of false and misleading ballot arguments should not be usedas aweapon against differing as opposed to misleading opinions Hull v Rossi 1993 13CalApp4th 1763 1769 Itis not the province of the courts to bluepencil statements merelyon the basis that they do not believe them to be persuasive or cogent Huntington Beach CiryCouncil v Superior Court ofOrange County Blackford 2002 94Ca1App4th 1417 1423See also Yes on 25 Citizens For An OnTime Budget v Superior Court ofSacamento CounryBrown 2010 189 Ca1App4th 1445 1452 affording drafters considerable latitude

Huntington Beach City Council provides helpful insight into the meaning of the terms false ormisleading

In determining whether statements are false or misleading courts look to whetherthe challenged statement is subject to verifiability as distinct from typicalhyperbole and opinionated comments common to political debate An

outright falsehood or a statement that is objectively untrue may be strickenWe need only add that context may show that a statement that in one sense

can be said to be literally true can still be materially misleading hence theLegislature did not indulge in redundancy when it used both words On the otherhand the standard as defined by the Legislature is necessarily a high one Courtsmay intervene only if clear and convincing evidence shows the statement to befalse or misleading 94 Ca1App4that 1432 citations omitted

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Further developing this concept courts have held that predictive statements ie predictions ofwhat will result from the passage or failed passage of a measure are statements about the future

and therefore inherently unverifiable Mandicino v Maggard 1989 210 Ca1App3d141314171419 Statements in ballot arguments are generally known by the public to be opinions ofthe drafters Chavez v Citizensfor a Fair Farm Labor Law 1978 84 CalApp3d77 82 seealso Yes on 25 189 CalApp4that 1454 a difference of opinion does not rise to the level ofclear and convincing proof that the challenged language in the ballot title and summary and theballot label is misleading

Petitioner challenges five statements in the ballot argument against Measure O as false andmisleading Petitioner must present clear and convincing evidence of his entitlement to relie IdIn order to determine that ballot material is false the Court looks for verifiable objectiveuntruth Huntington Beach Ciry Council supra 94 CalApp4that 1432 Misleading statementsare those that are literally true but also operate to create a false impression in the minds of thepublic Id noting that misleading is not a redundancy but addresses a different category ofstatements from those that are false However opinions and predictions are generally notverifiably false or misleading and therefore not subject to challenge on those groundsMandicino supra 210 Ca1App3dat 14171419 Chavez supra 84 Ca1App3dat 82

Oil drilling will be unsafe Petitioner challenges this assertion on the basis that it is false ormisleading to argue that oil drilling is unsafe because the final environmental impact reportsEIR section on project risks does not include a risk that has 100 chance of occurring PetnExh E and because the probabilities of accidents set forth in the quantitative risk assessmentQRA do not support an argument that anything is unsafe id Exh L Real Partysstatement is a predictive statement ie an opinion that the prospective oil drilling contemplatedby Measure O will prove to be unsafe when and if it becomes operational in the future Similarto the statements discussed in the Mandicino opinion Real Partys opinions and predictions arenot verifiably false or misleading and therefore not subject to challenge on those groundsMandicino supra 210 CalApp3dat 14171419 Chavez supra 84 CalApp3dat 82

Petitionerscontention that the word unsafe implies that an injurious event necessarily occurshas no merit Unsafe means notenjoying safety exposed to danger or risk Petitionerscontention that the word unsafe is false or misleading because the EIR does not indicate thatany dangerous or deleterious event is 100 likely to occur places a threshold on the requisitelevel of risk that does not comport with any reasonable or common sense definition of unsafeSimilarly Petitionersunelaborated reference to QRA does not establish that the project is eithersafe or unsafe because there is no generally accepted threshold of risk where somethingtransitions from one category to the other Finally Petitionersargument that the project cannotbe unsafe because it will be subject to extensive regulation to ensure safety does not establishthat Real Partysstatement is false To the contrary it merely establishes that an underlyingunsafe condition exists Real Party obviously believes that the regulatory scheme will beinsufficient to ameliorate this underlying condition Again this is an opinion that is not properlychallenged by a writ petition Hull supra 13 CalApp4th at 1769

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Finally as Respondent notes there is substantial evidence in the EIR that would support theconclusion that the project is unsafe including statements that operation and drilling activitieswould generate offsite risks that exceed the thresholds and that these risks are significant andunavoidable Doerfling Decl Exh 3 Such statements support Real Partysposition that theproject will be unsafe in his speculative opinion To the dubious extent that categories such asfalse and misleading can be applied to an opinion regarding a future state of affairs the falsity ormisleading nature of Real Partysopinion in this case could not be proven by clear andconvincing evidence Elections Code 9295b2Yes on 25 supra 189 Ca1App4that 1454

No writ will issue with respect to the first challenged phrase

Oildrilling will be unhealthy Petitioner argues that it is false or misleading to argue that oildrilling is unhealthy because the EIR includes sections on the projectseffects on air qualityPetn Exhs G H Petitioner also refers to a health impact assessment in the EIR whichindicates that after certain mitigation and adoption of other recommendations the drafters do notbelieve that the project will have a substantial effect on community health in the RespondentCity id Exh I Again Real Partysstatement is a predictive opinion regarding the effects onthe community at some future date when and if the project commences operation Real Partysopinions and predictions are not verifiably false or misleading and therefore not subject tochallenge as such Mandicino 210 CalApp3dat 14171419 Chavez 84 Ca1App3dat 82

Petitionerschallenge to Real Partysopinion that the project will be unhealthy reveals anotherflaw in Petitionerschallenge namely his reliance on the EIR to establish the underlying truthto which he proposes to juxtapose Real Partysalleged falsehoods An EIR is an informationaldocument required by the California Environmental Quality Act when a project may havesignificant environmental effects in order to permit avoidance or mitigation of those effects whenfeasible Public Resource Code 210021 An EIR does not certify that a project is safe orhealthy it merely provides information As Respondent observes these standards are notfactual absolutes for the purposes of voter evaluation Petitioner cites portions of the EIR tosupport his own opinion that the project is safe or healthy or otherwise nonthreatening andnondisruptive The petition essentially seeks to have the Court decide which policy positionshould control before the voters have an opportunity to do so As explained above this is aninappropriate use of an Elections Code petition challenging ballot language Hull 13CalApp4that 1769 Yes on 25 supra 189 Ca1App4that 1454

Additionally as Respondent notes the EIRshealth impact assessment finds that the projectwould result inasignificant and unavoidable impact on the community in the form of odorreleases owing to the proximity of the project to homes and businesses Doerfling Exhs 3 4The health impact assessment also allows that odor exposure produces headaches nasalcongestion eye nose and throat irritation and other respiratory illnesslike symptoms id Thissupports Real Partysopinion that the project would prove to be unhealthy Yes on 25 189CalApp4th at 1454

No writ will issue with respect to the second challenged phrase

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Miles ofdangerous undergroundpipelines that will threaten our quality oflife and our healthThe third statement Petitioner challenges also substantially consists of opinions and predictivestatements Petitioner contends that the health impact assessment reveals no negative impact onhealth or social cohesion even arguing that the project has potential positive effects based onenhanced recreation greenspace and educational funding Petn Exh I Petitioner also assertsthat the EIR concludes that transportation by pipeline is one of the safest forms of transportationfor oil or natural gas apparently in the belief that this forecloses Real Party from opining thatpipeline transportation would be dangerous ic Exh M Real Partys assertions that thepipes will be dangerous and that they will threaten quality of life and health are againReal Partys opinions They are expressly political argument that cannot be fairly categorized asfalse or misleading Chavez 84 CalApp3dat 82

Additionally the EIR does indicate that a pipeline rupture or other project accident would havesignificant health and safety impacts including lasting groundwater contamination issuesDoerfling Exh 3 In particular the EIR notes that seismic activity could threaten pipelineintegrity id The report indicates that the threat of these impacts is unavoidable id The EIRand the health assessment also note potential qualityoflifedamage from light pollution idand property value fluctuations id Exh 4 This supports Real Partys opinion that the projectwill threaten the health and quality of life in the Hermosa Beach community Yes on 25 189CalApp4that 1454

No writ will issue with respect to the third challenged phrase

Operations that will bring unhealthy odors noise and light pollution The challenge to thefourth statement attempts to use factual observations in the EIRs findings to foreclose RealPartys expression of contrary political opinion Petn Exhs J K Again Real Partysstatements are opinions concerning future events that are neither false nar misleadingMandicino 210 CalApp3dat 14171419 Chavez 84 Ca1App3dat 82 Additionally as notedby Respondent the health impact assessment does indicate that the project will result inincreased noise levels particularly during the projectsconstruction Doerfling Exh 3 Thehealth impact assessment also includes a description of the unavoidable odor release from thefacility and further indicates that these odors could have deleterious health effects on somemembers of the community id Finally the EIR indicates the significant and unavoidablefact that the project will substantially increase the ambient light in the surrounding communityowing to the lighted drilling rig and that the project could potentially create skyglow or acorona id Exh 4 These all support Real Partys opinion that the project will result inunhealthy odors and noise and light pollution Yes on 2 189 Ca1App4that 1454

No writ will issue with respect to the fourth challenged phrase

The official Environmental Impact Report identifies nine significant unavoidable impactsincluding air pollution that will exceed air qualiry thresholds The air pollutants and dozens oftoxic chemicals used during the projectsconstruction and operation have been linked toincreased heart attacks asthma and cancer These health impacts will fall heaviest on childrenand the elderly Petitioner challenges the fifth statement on the basis that it is false andmisleading particularly the statements regarding air pollution that will exceed air quality

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standards and the connection of these air pollutants to heart attacks asthma and cancerThese are both fact statements the first concerning what was found in the EIR and the secondconcerning the existence of a link between the air pollutants and the enumerated healthconditions Petitioner asserts that the EIR does not indicate that either fact is true Petn ExhsG HHowever the EIR indicates that the odor releases from the projectsproposed facilitywould indeed fall under the category of air pollution and that the odor releases would exceedthe nuisance threshold set by the South Coast Air Quality Management DistrictsRule 402Palmer Decl Exh D Therefore the statement that the EIR identifies air pollution that willexceed air quality thresholds is not false or misleading

The same result applies to Real Partys contention that air pollutants might lead to increasedcancer risks as the EIR indicates that the project and the chemicals to be used in constructionwould yield an increased cancer risk although less than the 10 cancers per million thresholdlisted in the EIR Palmer Exh E As Real Party observes he 10 cancers per million thresholdwhile acceptable in the EIR might be unacceptable to the voting public Ultimately Petitionerand Real Party advocate different positions as to the acceptability of the facilitys impacts on thecommunity Each opinion is supported by facts The resolution of these opinions is the provinceof the voters and not the Court Hull 13 CalApp4th at 1769 Therefore no clear or convincingevidence supports the proposition that the specified statements are false or misleading Yes on 25189 CalApp4that 1454

No writ will issue with respect to the fifth challenged phrase

For the foregoing reasons Petitioner has not demonstrated that Real Partysarguments inopposition to Measure O are false or misleading The disagreement between the parties is oneproperly resolved by the electorate not the Court Therefore the petition is denied

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