Transcript now available!
GARY B. WESLEY
Attorney at Law
707 Continental Circle #424
Mountain View, CA 94040
(408) 882.5070



August 20, 2004 (Saturday)

Mr. Jack Hickey Fax: (650) 368-5722:

Yesterday afternoon (about 3: 15 p.m.), Presiding Judge John Forcum of the San Mateo Superior Court called two matters concerning the November election in the Sequoia Hea1thcare District.

I had just filed a petition for writ of mandate on behalf of Merrilee Gibson who bad sought to file a declaration of candidacy for.the 2-year seat on the Sequoia Board of Directors on August 11 but had been turned away by the Registrar of Voters Office. County counsel had taken the position that the Registrar of Voters erred in allowing Dr. Kenneth S. Steele to file for the seat on Monday, August 9 - claiming that the time to file for the seat had not extended 5 days from Friday, August 6 because there was no "incumbent who could have run by that date. County counsel claimed that John Oblak, who had been appointed to the seat on August 4, was not an "incumbent" on August 6 because he bad not yet taken an oath of office. The Registrar of Voters had reportedly invalidated the August 9 dec1aration of candidacy from Dr. Steele. I argued that a sufficient oath had been taken (for the very office) by Mr. Oblak when he filed a declaration of candidacy on July 27) albeit for a 4-year seat. I further argued that even if Elections Code Section 1360 called for a post-appointment or post-election oath, a person appointed or elected becomes an "incumbent" before taking such an oath under the language of Section 1360 itself and in light of an old California Supreme Court case defining "incumbent" to include an officeholder who had not yet taken an oath (Hull v. Superior Court (1883) 42 Cal. 174, 177).

Judge Forcum handles "ex parte" matters between 2 and 3:30 p.m. each week day. I was seeking a hearing schedule on the petition. Ms. Bennett asked that no hearing schedule be set and that the legal issue of whether Mr. Oblak became an "incumbenf' by August 6 simply be decided (in her favor).

Curiously, another attorney appeared in court. The attorney was presenting a petition for writ of mandate to get his client, Mr. John B. Oblak, off the ballot as a candidate for a 4-year seat on the Board of Directors. The attorney had not yet even filed the case, but Judge Forcum nonetheless took up the matter along with Merrilee Gibson's petition. County Counsel (by "Deborah Penny Bennett, Deputy") had submitted a short opposition memorandum to Merrilee Gibson's request but told Judge Forcum she did not oppose the unfilled petition to allow Mr. Oblak to withdraw his candidacy for a 4-year seat. The attorney told Judge Forcum that his client had mistakenly run for the 4-year seat on July 27 when he intended to run for the seat to which he expected to later be appointed. No doubt there is a declaration under penalty of perjury from Mr. Oblak about this alleged "mistake" in the court file on the case John B. Oblak v. Warren Slocum). (Mr. Oblak's attorney headed downstairs to file the case immediately following the hearing.) Mr. Oblak's attorney did not tell Judge Forcum that Mr. Oblak had even updated his paperwork for the 4-year seat on August 6 by adding, that he was then an "appointed' incumbent."  Whatever his state of mind, Mr.. Oblak has managed to limit the choices available to voters in November and may well end up being appointed to fill the seat with the unexpired term for 2 years.

Judge Forcum stated that he was familiar with election matters, including the requirement of an oath, and that he did not consider Mr. Oblak an "incumbent" whose failure to run by August 6 operated to extend the deadline for others to file until August 11. Judge Forcum said that he was making a record of his prompt ruling so that the matter might be taken to a higher court. In reality, no higher court could decide the matter fast enough to get Merrilee, or anyone else, on the November ballot for the 2-year seat. Judge Forcum marked my proposed ORDER "denied", and started to sign an order presented by Mr. Oblak's attorney removing him from the ballot but paused. Judge Forcum then stated that he
did not know Mr. Oblak personally but that he (the Judge)was sometimes a part-time professor at the college where Mr. Oblak is President.

Very truly yours, Gary  B. WESLEY

...

THOMAS F. CASEY III, COUNTY COUNSEL (SBN 47562) By: Deborah Penny Bennett, Deputy (SBN 722&2)
Brenda B. Carlson, Deputy (SBN 121355)
HaIl of Justice and Records
400 County Center, 61h Floor
Redwood City, CA 94063
Telephone: (650) 363-4750
Fax: (650) 363-4034

Attorneys for Defendants
WARREN SLOCUM
,

ENDORSED FILED
SAN MATEO county
AUG ' 20 2004
Clerk of the Superior Court,
Nicole Fallen
Deputy Clerk




IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA

IN AND FOR THE COUNTY OF SAN MATEO


MERRILEE GIBSON
Petitioner,

vs.

WARREN SLOCUM 

Registrar of Voters,

   Respondent.




Case No. CIV 441379
OPPOSITION TO EX PARTE REQUEST
FOR HEARING ON WRIT OF MANDATE



Petitioner seeks to have her name placed on the ballot for election to.a two-year term of the Board of Directors of the Sequoia Healthcare District. The Uniform District Election Law, Elections Code §§10500 et seq., require the declaration of candidacy to be.tiled by the eighty- eighth day before the election. Petitioner's declaration was rejected because it was untimely.   Another candidate's declaration was erroneously accepted even though it was untimely. However. that error was subsequently corrected.

The putative legal basis for the petition is Elections Code § 10S 16, which provides as follows:

(a) Notwithstanding any other provision of law, in any district or agency election, if a declaration of candidacy for an incumbent elective officer of a district is not filed by 5 p.m. on the 88th day before the general district election, any person other than the person who was the incumbent on the 88th day shall have until 5 p.m. on the 83rd day before the election to file a declaration of candidacy for the elective office.






(b) This section is not applicable where there is no incumbent to be elected If this section is applicable, notwithstanding Section 10510, a candidate may withdraw his or her declaration of candidacy until p.m. on the 83rd day before the general election." (italics added).

Section 10516 applies only if there is an incumbent elective officer. and does not apply:if there 911 is no such incumbent. In the present case. there was no incumbent elective officer.

Although Dr. Oblak was appointed to fill a vacant 2-year seat on the Sequoia Healthcare District Board on August 4. 2004, he was out of town, never served and never took the oath of office for the 2-year seat.

The oath of office is absolutely essential to incumbency. Government Code § 1360 provides that ~~(u)nless otherwise provided, before any officer enters on the duties of his office, he shall take and subscribe the oath or affirmation set forth in Section 3 of Article XX of the Constitution of California."  The statutory provisions relating to.the time of filing of the oath and bond of public officers are mandatory, and the refusal or neglect of a person duly elected to an office to file his official oath or bond within thirty days after notice of his election or appointment vacates the office. Norton v. Lewi.", {1917)  34 Cal.App.621. This line of reasoning was more recently endorsed by the Court of Appeal in Lundgren. v. Davis, (1991) 234 Cal.App.3d 806, which held that "it is the qualification and assumption of an office, and not merely the election thereto, which entitles a person to the benefits and imposes the detriments of office upon him."

There is no admissible or properly authenticated evidence to show that Dr. Oblak did take the oath of office for the position to which he was appointed. He did, however, declare his candidacy for a different office- a four year term on the same board. In connection with that declaration, he executed the oath of office for the four-year term for which he was seeking election. Petitioner's submis~ion of a partial document makes it difficult to determine the office in connection with which Dr. Oblak took the oath. Had petitioner submitted the entire document as an attachment to her petition. rather than just the second page, it would be immediately evident that Dr. Oblak took an oath for an office other than the one to which he was appointed. His failure to take the oath for the two year office compels the conclusion that he was' not an incumbent: Therefore, Elections Code provisions which extend the filing period by five days if the incumbent does not declare his or her candidacy do not apply.

No hearing should be scheduled because there is no scenario under which a writ of   mandate will issue.

Dated: August 20. 2004

THOMAS F. CASEY III, COUNTY COUNSEL
By:  Deborah Penny Bennett
Attorneys for Defendants WARREN SLOCUM

11/ GARY B. WESLEY 211 Attorney at Law (#84745)
II 707 Continental Circle #424
3 Mountain View, CA 94040
411 (408) 882..5070
5

Attorney for Petitioner 611 MERRILEE GIBSON 7

8 9

SUPERIOR COURT OF CALIFORNIA

COUNTY OF SAN MATEO

10
11..
MERRll-EE GIBSON, 12"

.i

Petitioner,

Case No.

GP/'4" 413'" 9

13 14.. VS.

" .'. ..

15--
161IWA~REN ~LOcuM Reg1strar of Voters,

(proposed) ORDER SETTING HEARING DATE AND SCHEDULE ON PETITION FOR WRIT OF MANDATE .

17
1811 Respondent. 1911 SEQUOLAHEAL1HCARE 2011 DISTRICT,
21 22 23

)

Date: August 20, 2004 Time: 2 p.m.
Dept: 8

Real Party in Interest.

)

IT IS ORDERED:

24 25 2611 Department 27
28

(J) Hearing on the Petition is set for August ---,2004, in

at

-1-



FROM:

FAX NO. :

Aug. 21 2004 09:58AM P7

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(2) Unless served upon counsel at the time of the ex parte application

1
2
3
4 attorneys for Respondent and the Sequoia Healthcare District a copy of 5 this order, the filed Petition and the tUed InitiaJ Memorandum of Points " .
6l.
7 and Authorities by August -' 2004;
8 (3) Any opposition to the Petition shaH be served by overnight mail

tor this order, Petitioner's cowlscl shall cause to be served upon the

9..
- - and filed by August -' 2004~ 10
11 (4) Anyone who signs a declaration (or, verification) in support of any
12 opposition tiled shall attend the hearing to be examined by Petitioner's
13H
1411 counsel (unle~s attendance is waived by ,Petitioner's counsel in writing);

15

(5) At the conclusion of the hearing, the Court may direct the

1611 .

f
.

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all

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Issuance 0 a wnt compe mg Respon ent to ow etltloner. to execute
17

11

.
18 and file a declaration of candidacy (and any related documents) for the

221J 5 p.m.). 23

24 25..

D
d
ate: August_, 2004.
2611 SU.PERIOR COURT JUDGE ,
27
: :ORDER SETTING HEARING DATE ..2-
28




PROOF OF SERVICE BY FAX

The undersigned declares that he over the age of 18, not a party to this

proceeding and served the foregoing

(proposed) ORDER SETTING HEARING DATE AND SCHEDULE ON PEillIONFOR WRIT OF MANDATE

by faxing a copy to each attorney t()r thc other parties on August 19, 2004

as shown below:

SAN MATEO COUNTY COUNSEL Chris Motley, Esq. Fax: (650) 363-4034

Attorneys for Respondent
WaueD Slocum,
San Mateo County Registrar of Voters

CARR, McCLELLAN, Ingersoll, Thomson & Horn Fax: (650) 342-7685

Attorneys for Real Party in Interest Sequoia Healthcare District

I declare under penalty of perjury that the foregoing is true and correct.

Executed August 19,2004, at Santa Clara County, California.

~ /6ary . Wesley (
Attorney at Law (#84745) 707 Continental Circle #424 Mmmtain View, CA 94040 (408) 882-5070



111 GARYB. WESLEY
211 Attorney at Law (#84745)
. h,: .
311 707 COfitlneitta1 Circle #424
Mountain View, CA 94040 . 411 (408)882-5070
5

,
e-RSED FILED
SAN MATEO COUNTY
AUG 2 0 2D04;
CIeIfc of the SuPtnor c(,ulf
By -,NlCnI ~ f&LEN j - DePUiYCl.eRK .

Attorney fot Petitioner 611 MERRILEE GIBSON 7
81 I SUPERlOR COURT OF CALWORNIA

9 10 11

COUNTY OF SAN MATEO

I
MERRILEE GIBSON

,
12' 13
14.. VS.
II 15
1611 WARREN SLOCUM
Registrar of Voters,

Petitioner,

Case No. .4' 41 ~ 7 .

, DECLARATION OF GARY B. WESLEY IN SUPPORT OF EX PARTE APPLICATION

17 m . - m.--
18 Respondent.
1911 SEQUOIA HEAL rnCARE
2°11 DISTRICT,
21 22 I I 23!

'

)

Date: August 20, 2004 Time: 2 p.m.
Dept: 8

Real Party in Interest.

)

Attached as EXHIBIT A is a copy of the letter I faxed on August 19
with the other materiaJs as stated to other counsel giving further notice 2411 oftoday's ex parte application for an order setting a hearing schedule. 2511 I declare under penalty ofpetjury that the foregoing is true and correct. Executed August 20, 2004, in San!J1 Clara County, California.
2611,4" -,
27 28



GARY B. WESLE"f Attorney at Law .
707 Continental Circle #414 MOW1tain Vjew, CA 94040 (408) &82-6070

EXlUBITA

AugUst 19, 2004

SAN MATEO COUNTY COUNSEL Chris Motley, Esq.
FIDe: (650) 363-4034

CARR, McCLELLAN, Ingersoll, Thomson & Horn FIDe: (650) 342-7685

Re:Merrilee Git~son v. Warren Slof;lWll

Dear Counsel:

I am providing you with a copy of the Petitio~ Initial Points and Authorities and proposed Order I intend to present to the Presiding Judge (or as otherwise assigtied) tomorrow at 2 p.m.

V ery truly yours.

t(Q)~Y GARYB. WESLEY



12 18 14" VS. 15
16 WARRENSLOCUM
. . Registrar of Voters,




111 GARYB. WESLEY
2 Attorney at Law (#84745) . 707 Continertta.1 Citc]e #424 3 Mountain View, CA 94040 411 (408) 882..5070

ENDORSEbFlLED SANMATEO'CdUl,\,
AUG 2.0 2004 ; CI8Ifc of the.supertor COUrt
By - NICOl r: FALLEN. DEPUTY CLeRIc

511 Attorney for Petitioner 611 MERRJLEE GIBSON
7 8

SUPERIOR COURT OF CALIFORNIA

9 10

COUNTY OF SAN MATEO

11

MERRILEE GIBSON,

Petitioner,

.44l379

Case No~

EX PARTE APPLICATION FOR ORDER SEITINO . . HEARING SCHEDULE ON PETITION FOR WRIT OF
MANDATE . . .. .. .

Respondent.

1911 SEQUOIA HEALTHCARE 2011 DISTRICT,
2111 Real Party in Interest.

)

Date: August 20, 2004 Time: 2 p.m.
Dept: 8

221 )
23 Petitioner applies, ex parte, for an order setting a hearing schedule
2411
251 J on her Petition for Writ of Mandate and explains the proposed ORDER
2611 in this application.


~ of tile proposed order would set a hearing. date, place

and time. IdeaJly, the date will be no later than Thursday, August 26 3
4 so that the (up to three) candidates fOf the office inv~lved may submit by .
5 Friday, August 27 their declarations of candidacy and any related papers 6
7" without any complaint from the Registrar orv oters Office that it lacks 8 the time' to process the papers.
9 10 11 12 13

~ of the proposed order calls for service on the attorneys

for the Registrar of V oters and Sequoia Healthcare District if not served: . I
at the time of the ex parte application. I

14 . ~ caUs for any opposition to be served by overnight mail. 15 Petitioner would need opposition served two days before the hearing.

~ aims at forestalling conttoversial, late...minute factual . . .

avennents. For example, if the Registrar of Voters claimed in opposition

that the agreed upon hearing date was too late (to permit printing and

25 26

Dated: August 20.2004.

(-r~~ B. WESLEY
Attorney for Petitioner.
711 MERRR..EE GIBSON
2 - - EX PARTE APPLICATION FOR HEARING -2-
28




IIIGARYB. WESLEY'
211 Attorney at Law (#84745) 311 707 Continental Circle #424 Mountain View, CA 94040 , (408) 882-5070
5 A~omey for Petitioner 611 MERRILEE GIBSON

I
ENDORSED'FlLED
SAN MATeo COUNTY
AUG J 0 2004 . Clet1c of the Supenor Court!
By NICOUH'ALlEtj .
DePUTY CLeIUc

..

7 8

. .

SUPERIOR COURT OF CALIFORNIA

9 10 11 12 18

COUNTY OF SAN MATEO

:MERRILEE G~SON,

Petitioner,

Case No,

.,4'41379

l'IIVS.
15 161IW~NSLOCUM Registrar of Voters,
... .t1tJ ... . .
18
1911 SEQUOIA HEAL THCARE 2011 DISTRICT,

)

INITIAL MEMORANDUM OF POINTS AND AUTIlORITlBS IN SUPPORT OF PETITION FOR WRIT OF MANDATE (AND APPLICATION FOR HEARING SCHEDULE) Date: August 20, 2004
Time: 9-e:m. ~ ""'"
Dept:8

Respondent.

21
22 28 24

Real party in Interest.

)

Petitioner Merrilee Gibson presents this initial memorandum of points' .

2511 and authorities in support of her Petition for Writ of Mandate (and its
2611 request for an order establishing a hearing schedule),
27 28


IN1RODI1CTION

3 Petitioner seeks a writ of mandate compelling respondent Watren 4 Slocum, San Mateo County's Registrar of Voters, to perform his duty to allow Petitioner (and two other persons who sought to run by the August 11 extended deadline) to run for a 2-year seat on the Board of Directors of the Sequoia Healtbcare District. The chief issue is whether the Registrar of Voters was correct in prohibiting Petitioner and one other person from running on August 11 and in invalidating the declaration of the candidacy of another person (which had been filed on Monday, August 9) -on the alleged basis that there had been no extension of the initial (August 6) deadline because the incumbent (appointed on August 4) had not (thereafter) taken and filed an oath of office.

The Petition also seeks an order setting a prompt hearing date and  setting a schedule for the service and filing of any opposition papers.

The Petition itself discloses that the attorneys for Respondent and "Real Party in Interest" Sequoia Healthcare District were given notice of this proceeding and the plan of Petitioner's attorney to seek an order at 2 p.m. on Friday. August 20. in Department 8. Moreover, the PROOF OF SERVICE BY FAX attached to the Petition, this memorandum and INITIAL SUPPORTING MEMORANDUM and the proposed ORDER shows that the attomeys were served with the papers on August 19.

1. THE COURT SHOULD ISSUE A WRIT OF MANDATE 611 TO COMPEL AN ELECTIONS OFFICIAL TO PERFORM DUTIES THE OFFICIAL HAS REFUSED TO PERFORM
"Mandamus is clearly the proper remedy for compelling an officer to conduct an election according to the law" (Wenke v. HItchcock (1972) 6 Cal.3d 746,571 (citing CCPSectlons 1085-1086 and involving "respondent's refusal to issue nomination papers").


2. TIlE REQUIREMENT THAT OFFlCEHQLDERS HAVE TAKEN AN "DATIf' PERMITS ADMINISTRATION OF nm QAlli LO~G BEFORE TIlEY ASSUME OFFICE. . .

CaUfornla Elections Code Section 1360 requires only that '4(u)n/ess .:

1811 otherwise provided, before any officer enters on the duties of his office.
1911 he shall take and subscribe the oath or affirmation setforth in Section 3 :
20
21 of Article XX of the Constitution o/California," The oath set forth in
22 Section 3 of A11lcle XX does not refer to any particular office.

23 2.

Consistent with Section 1360 and Article XX, John B. Oblak tOOk

2511 and filed an oath of office on July 27 ~ to the Petition).

26 27

28

As the Petition alleges, Mr. Oblak did so in connection with bis

INITIAL SUPPORTING MEMORANDUM: -3-



FROM:

.. . ".~

FAX NO. :

Aug. 21 2004 09:54AM P15 . '.. ..,. . _. I .

. . .

1

. d declaration of candidacy for the very office (i.e., a seat on tbe:Boatd of . j

2_-
Directors of the Se

q
uoia Healthcare District) involved herein. As the '3 .
4 Petition also alleges, the Hcalthcare District had already duly advised

"

5 II the Registrar of Voters that three seats (2 fom -year seats and 1 seat
6
..
711 with a shorter (unexpired tenn) were up for election. .

8 9

As the Petition also alleges, Mr. Oblak thereafter was appointed to. a

vacant seat on the Board on August 4,2004. If Mr. Oblak thereupon 10" .
11. became an "incumbent" within the me~g of Elections Code Section.
12 10516, that Section provides that, upon his tailure to file for the seat

13

14 "by 5 p.m. on the 81t' day before the general district election" (August 15 6)" any person other than the person who was the incumbent on the aK"

16.. d
day shall have until 5 p.m. on the 8Y day (August 11) before the 17H
1811 election to file a declaration of candidacy for the elective office."
19
2O_-
when he was appointed on August 4, Respondent Registrar orv oters 21
22 provided and fIled the declaration of the candidacy of Kenneth S. Stee]e .
23 for the seat with the Wlexpired (2-year term) on Monday, August 9.

Consistent with the view that Mr. Oblak had become an "incumbent'

24 25 2611 (a Ms. Palmer) requested permission from the Registrar of Voters
27..
INITIAL SUPPORTING :MEMORANDUM -4- 28--

Thereafter, when Petitioner Menilee Gibson and another person



FROM :

'", ""',,:'"

FAX NO. :

Aug. 21 2004 09:54AM P15

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111 to receive and file declarations of candidacy for the seat before '5 p.m. '

2

3 .on August 11, 2004, the Registrar's Office refused to a)low them to 4 run and, at some point in time, also ~validated the declaration of

5:: candidacy filed on August 9 by Dr. Steele. 6
7 811 he allowed Dr. Steele to run for the 2-year seat. The tilDe to f1le had

Petitioner contends that the Registrar of Voters had it right when

'9

-. been extended Wlder Elections Code Section 10516 ~ not only because 10
1111 an incumbent . (eligible to run by August 6) had been appointed on

12~ ~ August 4 but also because that incumben.t had, in fact, already taken the
13..
1411 oath of office on July 27, 2004.

15 16

3. A PERSON APPOINTED OR. ELECTED TO PUBLIC OFFICE BECOMES AN INCUMBENT REGARDLESS OF WHElHER AN OATH IS TAKEN UNLESS AND UNTIL THAT INCUMBENCY IS SUCCESSFULLY CHALLENGED IN A PROPER PROCEEDING FOR THAT PURPOSE.

17 18 19 20

In Hull v. Superior Court (1883),43 Cat. 174, 177, our Supreme



FROM:

v. "... ". ,..:

FAX NO. :

Aug. 2~ 2I!'~ ~:.:S5AM... Pi? , ..'. .!-

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1 2

Even if Elections Code Section 136'0 were claimed to have 'changed

3 the rule stated in Hull v. Superior Court ill any respect, Section 1360 4 itse1fmakes clear that it only requires.an oath "before any officer enters 5 on the duties of his office. "

6 7

For an "Qfficer" to thereafter enter "on the duties," the person

811 must have fIrst become an "officer" . by appointment or election. It Was 9

to" Mr. Oblak's status of becoming an "officer" on August 4 that made him 1111 an "incum.bent" who couId have (but did n?t) run by August 6.

1211 Accordingly, the deadtine for others to run was extended to August 11. t3~ ~ '
14 I I CQNCLUSION

15 For the foregoing reasons, the Court should issue an order setting a
] 6 prompt hearing date and setting a schedule for the service and ,filing of
17 '
18 any opposition, and, after due consideration, grant the relief requested.

19 20 21

Dated: August 19. 2004.

Respectfully submitted,

22 23 24 25 26 27 28

.,. I'pa

::D

'
GAJ(Y B. WESLEY Attorney for Petition MERRILEE OffiSON

INITIAL SUPPORTING MEMORANDUM .6-



FRi:J'1 :

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FAX t-U. :

Aug. 21 2004 09:55AM PIS

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PROOF OF SERVICE BY FAX

The undersigned dee.ares that he over the age of 18, not a party to this

proceeding and selVed the foregoing

JNIT~ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PETITION FOR WRIT OF MANDATE (AND APPPLICA TION FOR HEARING SCHEDULE)

by 'faxing a copy to each attorney for the othcr panies on August 19) 2004

as shown below: '

SAN MATEO
COUNTY COUNSEL Chris Motley, Esq.
Fax: (650) 363-4034 CARR) McCLELLAN, Ingersoll, Thomson & Horn Fax: (650) 342-7685

Attorneys for Respondent
Warren Slocum,
San Mateo County Registrar of V Qters

Attorneys for ReaJParty in Interest Sequoia Hea1thcare District

I declare lU1der penalty of perjury that the foregoing is true and :correct.

Executed August 19,2004) at Santa Clara County, California.

-"lJ/fjJ~'J Dar{B. Wesley, I Anomey at Law (#84745) 707 Continental Circle #424 Mountain View, CA.94040 (408) 882-5070



FROM:

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FAX NO. :

Aug., ~1 2,'!:I0~ 09:55AM P19 "", ::: ",'~:-:, ': '.. /,<'f> ::' ~':-:!':" ',',

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"

111 GARY B. WESLEY
211 Attorney at Law (#84745)
II 707 Continental Circle #424
3 Mountain View, CA 94040
'II (408) 882-5070
5 Attorney for Petitioner 611 MERRILEE GmSON 7

, , ,,'" ",r','
ENDORSEP, FILED'
SAN MATEO COUNTY
AUG 2 0 2004 ; ,

Clerk of the Superior Court
By N. DtiIgad.2.. '
DEPUrY OI.EAI(

8 9 10

SUPERIOR COURT OF CALIFORNIA

COUNTY OF SAN MATEO

'CPl4' 18 19

13

Petitioner,

Case No.

1411 YS. 15
1611 W~NSLOCUM
Regtstrarof Voters, 17--
1811 . Respondent.
1911 SEQUOIAHEAL1HCARE 2011 DISTRICT,
21
22 23

)

VERIFIED PEITI10N '
FOR WRIT OF MANDATE ' TO COMPEL REGISTRAR OF VOTERS TO PERMIT CANDIDATES TO RUN FOR 2- YEAR SEAT ON SEQUOIA HEALTIlCARE DISTRlCT BOARD OF DIRECTORS

Real Party in Interest.

)

THE PARTIES

2'

2511 I. Petitioner MERRILEE GmSON is a registered voter of the
2611 Sequoia Healthcare District.
27..
.1-

28



--u --- -
- - -- -- -- --
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FROM:

FAX NO. :

Aug. 21 2004 B9:,5GAM , P20 '. "':-.!.'H' '.~: ':'

1 2

,
f. i' 2. Respondent WARREN SLOCUM is the Registrar of Voters' for' ::'

3 San Mateo County, California.
4 3. Real Party in Interest SEQUOIA HEALTHCARE DISTRICT is I) a public entity in San Mateo CO1D1ty.

6 7 8

DUTY .. NOT PERFORMED

4. The SEQUOIA HEAL THCARE DISTRICT duly informed the

. 911 Registrar of Voters that it had three seats on its Board ofDitectors up 10
1111 for election - including a two-year seat to fiU the unexpired tenn of a '
1211 member who had resigned. 13
14

5. The Board of Directors of the SEQUOIA'IffiAL THCARE

1511 DISTRICT appointed John B. Oblak to occupy the vacant seat J)ending
16.. the outcome of the November 2004 election on August 4,2004 (copy of '
17"
1811 news release attached as EXHIBIT 1).

19

6. The filing deadline for the two-year seat was August 6, 2004;

20--
21 however, ,because Mr. Oblak, the appointed incumbent, did not file for
22 the seat, the Registrar of Voters considered tbe filing period to be ,
23.hextended to WedDesday, August 11,2004, for any District voters.. 24
2511 except the incumbent.
26 I 2711 '
PETITION FOR WRIT OF MANDATE ..2..

28



FROM:

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FAX NO. :

Aug. 21 2004 09:56AM P21 , " " '~' " ':,:';: ,;:, :,,: :,l ;'

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t. . t "

1
2.. .
S and ftled a "Declaration of Candjdacy~' for the 2-year term from Dr.
4 Kenneth S. Steele (copy attached as ~.
5 6 711 to the Registrar of Voters Office and asked to receive and me
811 declaration of candidacy for the 2-year seat.
9

7. On Monday, August 9, 2004, the Registrar of Voters accep~.

8. On Wednesday, August 11, 2004 before 5 p.m., Petitioner went

9. One other person who reportedly asked the Registrar of Voters

111 Office before 5 p.rn. on August 11, 2004 about nmning for the 2-year
12 seat was nuned away: Ms. V. Palmer, according to the newspaper.
13.. , 1411 10. On August 11 (before 5 p.m.) the Registrar of V oters (through a i

1611 deputy) refused to allow Petitioner Merrilee Gibson to fde'a declaration
16... '
.. of candidacy for the 2-year seat.
17 18 1911 to allow Ms. Pahner to file a declaration of candidacy for the 2-year seat. '

20 21

11. On August 11, the Registrar of Voters (though a deputy) refused

12. The Registrar of Voters declared invalid the declaration of

2211 candi~ filed by Dr. Kenneth S. Steele (attached as 1l!!!!!!Il). 23
24 2511 run for the two-year seat because the appointed incwnbent had not taken i
2611 an oath of office (following his appointment) and, therefore, there was
27..
PE1TIION FOR WRIT OF MANDATE -3-

28

13. The Registrar of Voters has taken the position that no one can



FROM :

FAX NO. :

Aug. 21 2004 09:57AM P22 '::',:",." .'. r:: . ..:.;.1.

. ..

.;

.i;.:

111 on August 6, 2004, 'no eligible incwnbent who failed. to file, ~d.
2--
3 therefore, there was no S-day extension of time for others to rtle.
4 14. As Petitioner's counsel informed County Counsel on August 18, '.
S - - 2004 (copy of letter attached as ExmJIIT 3), Mr. Oblak had, in fact, 6
711 taken' and filed an oath for the very office (Le., a seat on the Board of .

I i

8// the Sequoia Heathcare District) on July ~7, 2004 (copy of oath ~hed
9.. .
as EX!!.!!!!IJ). This occurred when Mr. Oblak filed for a 4-year seat 10"

tIll on the Sequoia Healthcare District Board.
1211. 15. As the August 18 letter ~ also avers, Petitioner

13

14 also contends that no oath of office is needed, under C~omia law, 15 for a person to.become a member and "incumbent" ofth.e Board bfthe
16.. Sequoia Healthcare District, and that, furthermore, .the R~gistrar of
17""

1811 Voters bad no lawful authority to (retroactively) rule that there had been 1911 no 5-day extension oftime for persons, other than Mr. Oblak, to file.

16. A copy of the August 18 letter ~ was also faxed on

2511 A copy of the cover letter is attached as ~.
26
2711 PErmON FOR WRIT OF MANDATE -4-
28



- -- -- - - - --- --- -.

FROM :

FAX t-IJ. :

Aug. 21 2~~.~.:09.::?~~.,.:P2? . . "::::";' ':\::;"'" .::.:1:-:."",.-:'

.,.

. .

1 2

. . 'i
17. Under the circumstances, Respondent had a ministerial dUty to " . ';

, :

3 allow Petitioner (and one or both oCthe two other persons involved) to 4 run for the 2-year seat until the end of regular business hours at 5 ,p.m. 5 - - on August 11, 2004, and Respondent failed to perfonn that duty.
6 7 811 pointed out that Petitioner's counsel had "called the Registrar of Voters

18. In the August 18 letter to County Counsel ~, it is

9..
Office to ascertain the date the Office would claim is the /atest

fl

or a to"
11 hearing on the Petition in light of the need to send electi()n materials to
12.. the printer(s)." In the letter1 it is suggested that County Counsel 18

14" "contact the Office to O$certain the date."
1511 19. On August 19, 2004, Petitioner's counsel received' a call from.a
16.. representative of the Registrar of Voters Office who stated that he did
17"
Isll not know when the latest date for a hearing should be but that if
1911 materials were ready to be sent to the printer(s) a week from this Friday

20

PETITION FOR WRIT OF MANDATE -5-

28



6 7 811 1. Issue an order setting a prompt hearing date and setting a schedule'
9.. for the service and filing of any opposition papers;
10"
11
1211 opposition filed attend the hearing to be examined by Petitioner~s
13 --
1411 counsel (w1Iess attendance is waived by Petitioner's counsel in writing);
15

FROM :

FAX NO. :

Aug. 21 2004 09:58AM P24 ::: : ,: ' , j::-" .
i ! i

1 2

, ! i
21. Prompt issuance of the writ sought will not unduly interfere with i

the printing or distribution of ba1lot materi81s.
: I 22. Petitioner bas no plain, speedy or adequate remedy allaw.

5

~

Petitioner requests that the Court:

2. Order that anyone who signs a declaration in support of any

3. After due consideration, direct issuance of a writ compelling the

4. Grant Petitioner such other relief as is later duly sought (e.g., :

2311 a motion for attorney fees pursuant to CCP Section 1021.5). 24/1 . .
2511 Dated: August 19. 2004. J:-t ;1~-r.-7
ARY B. WES~~Y r
2611 Attorney for Petitioner
MERRILEE OmSON
2711 PETITION FOR WRIT OF MANDATE -6-

28



FROM :

FAX I'IJ. :

Aug. 21 2004 09:58AM P25 '" ,',:,,"" ,;~~.,:'",,: ':..1 '

"

, , " j , ;

1 2 8 4

VERIFICA nON

I am the attorney for Petitioner Menilee GIbson and verify that the

511 factual averments contained in this Petition are true and correct to the
6
711 best of my knowledge and belief and do so on that basis that Petitjoner is : 811 absent from the oounty where I have my office (CCP Section 446).
9.. I declare under penalty of perjury that the foregoing is true and correct. 10"
1111 Executed August 19,2004, at Santa Clara County, California.
12 13 14 15

~4'a G Y B. WESrny!
Attorney for Petitioner MERRILEE OmSON

16 17 18 19 20 21
22 23 24 25 26



FROM :

" "'. Sequoia Healthcaie Distriot




sequoia Healthcare District Appoints Dr. .John B. Oblak to Fi,lI Vacant Board of Directors Seat
District Headlines







GARY B. WESLEY Attorney at Law 707 Continental Circle #424 Mountain View, CA 94040 (408) 882-5070

: 1" , I

August 18, 2004

County Counsel's Office Attn: Chris Motley, Esq.:

Faxto:~ CORRECTED

Re: Metrilee Gib.m v .Wanen Slocum

Dear Ms. Motley:

When we spoke just now~ I said that I would be filing a petition for writ of mandate compelling the Registrar of Voters to accept my client's declaration of candidacy for the Board of the Sequoia Healthcare District. My client is Merrilee Glbson. Evidently, one other person's declaration of candidacy was ; accepted on Monday, August 9 {during the S.day extension period which : began when no one (tied for the two-year seat by Friday, August 6). That other person is Ken Steele' (copy of declaration provided).

My client and, evidently, one other person mentioned in the newspaper, , attempted to file on Wednesday, August] 1 but were tmned away by the Registrar of V otees on the basis that the time to file had not been extended when no one filed by Friday, August 6 because, it turned out, the apparent "incumbent" (Jolm B. Oblak) had not taken an oath of office.

When we spoke, I pointed out that, in fact, the appointed incwnbent bad already taken an oath for the very same office (i.e.~ a seat oCthe Board)
on July 27 when he fiJed for a 4-year seat (copy of certificate provided herewith). Moreover, it appears that taking an oath is not necessiry to become an officeholder. only to begin performing duties of the office. Finally, it appears that the Registrar of Voters had no authority, under the law, to determine that there had been no extension by virtue of an . incumbent's allegedly (or actually) having failed to take or ftle an oath.



--_n--- - --_u
_nn n__n n-

FROM :

FAX NO. :

"'9;,~1!p;'~:i:rr .

" : ",,',,' " . ,.
, .!;'.'

County COW1Sel's Office August 18, 2004
Page 2

i . . (.

Accordingly, I will propose that the 3 persons denied their right to file for the : seat be allowed to file. I said that I would fax you the Petition, propoSed :
order and any other supporting papers tomorrow and appear at 2 p.rn. on
Friday, August 20 before the Presiding Judge to secure an order setting a hearing and response deadline.
I noted that I had called the Registrar of V oters Office to 8scertain the date . the Office would claim is the latest for a hearing in light of the need to send election materials to the printer(s). I suggested that you could contact the Office to ascertain a date. If the date claimed is too SooD, I would expect to seek a short evidentiary hearing on the claim.

Very truly yours,
/ ?-; /5 (// /)
U:;Y B. WESLEY I,

2 pages to follow



}
County of SMII8I8D '

BY.

~
I. ..,n B. 0Itt8k ~ . f fT- PInIf(or 1IIIInn) thIIl wllllU,.. end d8r8ftd the CandIutIon rJ Ih8
UnitM ... 8nd the Candlutlan dltheoICdbnIa.-ga1nat d 8ftlmIM. f'areI8n 8NI dlmelUo: that I wID bel, 1M
fal., .net IIItiInC8 to ttIe Conatllullon af.. lInil8d , 1M ~ Of the'" of CaIifGmIa; tI18t ',,1t1lS '
oOliptlon frMIr. without any mental r8IeMIIDn ot PIJrPG88 ~ "'aslan:}I~~1I ..18ftd rdhfully ~ the dtAMa upon which I 8m 8IIeuI1D.....

~ UIIt8ft

, } ~7~d~

StIlle of CalfomI8 COUnty of

SutlSCtiO8G IftClIWam ID before me""

Exemlned and.nilled by me "',. ~ of ~

c Aa To C8ndld... PaUtIca8 , AMH8IIon
--"0 -..

DaIe(I!hIs - 'ftarR~ Party MMaten


-

GARY B. WESLEY Attorney at Law 707 Continental Circle 1#424 Mountain View, CA 94040 (408) 882-5070


FROM:

FAX NO. :

August 18. 2004

Penelope C. Greenberg, Esq. CARR, McCLELLAN, Ingersoll, Thomson & Horn Faxto:~

Re: Merrilee Oil

Dear Ms. Greenberg:

Here is today's letter to CoWlty Counsel regarding the planned writ of mandate compelling the Regjstrar of Voters to accept my client's declaration' . of candidacy for the Board of the Sequoia Health~ District. This is Dotice to the District. If you believe I need not name the District in the case, please advise. Otherwise, I would intend to fax you the papers at the same time I fax the papers to County COWISel (i.e., by the end of the day tomorrow).

Very truly yours,
J/ 01J~
d~B, WESLEY (

4 pages to fonow
cc: Ms. Chris Modey, Esq.




PROOF OF~ERVICE BY F.

The undersigned declares that he over the age of 18, not a party to this

proceeding and selVed the foregoing

VERIFIED PETmON FOR WRIT OF MANDA TE TO COMPEL REGISTRAR OF VO1ERS TO PERMIT CANDIDATES TO RUN FOR 2-YEAR SEAT ON SEQUOIA HEALTHCARE DISTRICT ,BOARD OF DIRECTORS

by faxing a copy to each attorney for the other parties on August 19, 2004

as shown below:

SAN MATEO COUNTY COUNSEL Chris Motley, Esq. Fax: (650) 363-4034

Attorneys for Respondent
WmmSlooum, :
San Mateo County Registrar of Voters '

CARR, McCLELLAN, Ingersoll, Thomson & Horn Fax: (650) 342-7685

Attorneys for Real Party in Interest Sequoia Healthcare District

I declare under penalty of perjury that the foregoing is true and correct

Executed August 19,2004, at Santa Clara County, California.

~
V~
Gar,.'B. Wesley
Attorney at Law (#84745)
707 Continental Circle #424 Mountain View, CA 94040 (408) 882.5070