The Red Brennan Group’s legal case against the San Bernardino County Registrar of Voters for telling the group they needed three times as many signatures for Measure Z than was actually required was thrown out by a Court of Appeal ruling April 27.
The ruling directed San Bernardino Superior Court to sustain a demurrer against the case it had previously overruled.
Tom Murphy, an Escondido resident who runs the Red Brennan Group, did not respond to a request for comment.
The Red Brennan Group is a political organization funded by Eric Steinmann, a former Wrightwood millionaire and telecommunications business owner.
The organization attempted to repeal a special fire tax in San Bernardino County through a ballot measure, Measure Z, that would have been voted on in the June 7 ballot. The Registrar of Voters told them they needed 26,000 petition signatures to place the measure on the ballot, when they only needed 8,000, according to the ruling.
The group collected 32,000 signatures, and claimed to be harmed through increased costs from signature gathering, the ruling said.
In a separate case, San Bernardino Superior Judge David Cohn removed the Red Brennan Group’s measure from the June ballot. Cohn ruled that the Red Brennan Group’s campaign violated the California Constitution by containing false and misleading information in the initiative text.
The group had claimed that the fire tax was unconstitutional, which Cohn found to be false information due to a ruling in an earlier lawsuit against the county by the Red Brennan Group. The group has appealed Cohn’s ruling.
Read Follow Our Court’s coverage of that ruling here.
The Red Brennan Group sued the San Bernardino County Board of Supervisors over the fire tax, in 2018. They claimed then that the tax was unconstitutionally expanded, and lost the case.
Legal arguments
The appellate ruling outlined the arguments in the Red Brennan Group’s complaint and the county’s demurrer.
The Red Brennan Group claimed the county owed it a mandatory duty to ensure their signature requirement was consistent with the state, and that the county prevented it from exercising its constitutional right to file an initiative petition. They claimed the county broke state law, which says county elections officials will determine the number of signatures required for petitions, and a section of the California Constitution, which states a local government cannot require a signature requirement higher than the state.
The county claimed the Red Brennan Group did not allege liability under the law they cited, and that their complaint is barred by misrepresentation immunity. They cited two sections of California law that say a public entity is not liable for an injury caused by misrepresentation by the entity’s employee.
San Bernardino Superior Judge Gilbert Ochoa overruled the demurrer after concluding he could not determine whether the stated laws required the county registrar to provide initiative proponents with an accurate signature number early in the initiative process, according to the appellate ruling.
Appellate decision
The appellate panel found the Red Brennan Group’s arguments fell short.
The county eventually complied with law by providing the correct number of signatures in February, 2020, even though they miscalculated the number in August, 2019, the panel wrote.
The elections law does not state when the registrar of voters is required to calculate the number of signatures, the panel wrote. The law does not mandate that the county inform an initiative proponent the number of required signatures. It also does not provide liability for telling a proponent an incorrect number of signatures, the ruling reads.
Even if the county committed common law negligence, California law requires suits against entities only by violation of a law, not by any common law negligence, the ruling said.
Finally, the county does have misrepresentation immunity as they claimed in the demurrer, the panel found.
Parties
County counsel Tom Bunton and Steven O’Neill and deputy county counsel Laura Crane represented San Bernardino County.
Colantuono Highsmith & Whatley, PC represented the county at the trial court level.
Aaron Burden of Encinitas’ Peabody & Buccini represented the Red Brennan Group. Eric Steinmann, Kristine and Henry Hallmark, the Johnson Valley Improvement Association, Homestead Valley Community Council and the Mentone Chamber of Commerce also joined the Red Brennan Group as plaintiffs in San Bernardino Superior Court, each sharing Burden as a lawyer.
San Bernardino Superior Judge Gilbert Ochoa presided at trial level.
Fourth District Court of Appeal, Division Two, Associate Justice Carol Codrington wrote the opinion, which Presiding Justice Manuel Ramirez and Associate Justice Art McKinster joined.
San Bernardino case number CIVDS2021303.
Appellate case number E077884.
Read the ruling here.
