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9th Circ. Tackles Denied Pot Shop Ballot Bid

PASADENA, Calif. (CN) - An initiative to allow medical marijuana dispensaries in Long Beach should be placed on city ballots in time for this year's election, an attorney told the Ninth Circuit Thursday.

Two Long Beach voters, Jeremy Coltharp and Edith Frazier, sued then-city clerk Larry Herrera in May 2013 claiming that the official had unlawfully excluded their ballot initiative from both special and general elections and unlawfully disqualified signatories who supported the measure.

Herrera concluded there were not enough valid signatures to include the measure on the ballot and also declined to place it on the next regularly scheduled election in 2014.

That prompted Coltharp and Frazier to seek an injunction and a declaration that the clerk, who retired last year, had violated their constitutional rights.

U.S. District Judge Andre Birotte ruled for Herrera in late 2014, and the two plaintiffs appealed to the Ninth Circuit.

At a hearing at the Richard H. Chambers Courthouse on Thursday morning, Coltharp and Frazier's attorney Gautam Dutta told a three-judge Ninth Circuit panel that the current clerk should be ordered to certify the ballot initiative by March 8, in time for the general election.

"We ask the court to vindicate the fundamental right of Long Beach citizens to directly propose and vote on legislation by enforcing the due process clause," Dutta said. "The issue at stake is critical to due process jurisprudence because it goes to the very integrity of our election process."

Circuit Judge Richard Clifton asked if California's state court system might not be a better venue for claims arising from the state's election code.

"Why are we in Federal Court? Why did you file the case here?" Clifton, a George W. Bush appointee, asked.

"Because an entire electorate has been disenfranchised," the San Jose-based election law attorney told the court.

Clifton remained skeptical.

"An entire electorate of California citizens. The California courts could look after that. It puzzles me why we are here," Clifton said, adding that he sensed the plaintiffs were dodging the state court because they believed they were more likely to prevail in Federal Court.

Deputy City Attorney Howard Russell told the panel that Herrera did not have the authority to place the measure on a general election ballot and that Coltharp had demanded the clerk bend those rules.

That would mean Herrera would have stepped beyond the bounds of his authority as clerk, Russell told the panel.

"The city clerk had only the option of taking no further action on the petition," Russell said. "The appellant wants this court to try and determine the will of the people by amending the petition that was put in front of the voters."

Circuit Judge Carlos Bea, another Bush appointee, asked: "What would be so bad with that?"

Russell said the clerk would have to determine whether the signatories wanted the measure voted on either a special or general election.

"You're asking the city clerk to decide: 'Well, they must have wanted it on the ballot somehow, so we'll put it on the ballot,'" Russell said. "That may serve the interests of the 40,000 or so people who signed the petition but doesn't necessarily serve the interests of the 200,000 people in the city of Long Beach who are registered voters who didn't sign the petition."

In 2012, Coltharp and Frazier proposed the measure under California's medical marijuana laws. If passed by Long Beach voters it would have permitted the city to regulate and tax medical marijuana collectives in the city.

In February 2013, Coltharp supported his bid to get the measure on the ballot by delivering to Herrera 28 boxes. Inside those boxes were 43,159 signatures supporting his petition, according to his lawsuit.

Herrera refused to put the measure on a ballot for a special election because he determined that Coltharp did not have enough valid signatures after examining a three percent sample, or 1,295 signatures.

The clerk also declined to place the initiative on the ballot for the next regularly scheduled election on April 8, 2014, even though Coltharp had enough valid signatures, the plaintiffs claim.

In the filing, Coltharp cites several errors in the way Herrera had counted the sample of signatures.

Dutta noted after the hearing that the case had been going on for more than three years and that he hoped the appeals court will decide in his clients' favor so they could put the matter to voters again this year.

"Almost 15 percent of Long Beach voters wanted to vote on something and yet they were denied," he said. "That's not democratic. That's not fair. That's not constitutional."

As to Clifton's argument on jurisdiction, Dutta said that more than state issues are in play.

"It's federal constitutional issues - what happens when a government oversteps its bounds. We wanted to get a statement from a Federal Court on the propriety or impropriety of such a move because you basically have someone who's thwarting democracy," Dutta said.

Jimmy Carter appointee Circuit Judge Joseph Jerome Farris joined Clifton and Bea on the panel.

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