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Stephen A. Munkelt, SBN 80449
MUNKELT LAW OFFICE
356 Providence Mine Road, Suite E
Nevada City, CA 95959
Tel: (530) 265-8508
Fax: (530) 265-0881
stephen@munkeltlaw.com
Attorneys for Patricia Smith
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF NEVADA
PATRICIA SMITH, Elector,
Petitioner,
v.
COUNTY OF NEVADA and GREGORY DIAZ,
Election Official,
Respondents.
Case No.
PETITION FOR PEREMPTORY WRIT OF
MANDATE

Petitioner, by this verified petition, represents:
1. Petitioner is seeking a writ from this court directing respondents Gregory Diaz and County of
Nevada to change the ballot statement regarding Measure S on the ballot for November 4, 2014.
As set forth in this petition the current language on the ballot does not comply with the
mandatory requirements of Elections Code 13119, and violates the fundamental principles of
neutrality expressed, inter alia, in Elections Code 9105 and 9106.
2. Under Elections Code 13314(a)(3) this action is entitled to priority over all other civil matters.
3. Petitioner is, and at all times mentioned herein was, a registered voter in the County of Nevada
and residing therein.
4. Respondent County of Nevada is the duly organized and existing entity under the state
constitution responsible for carrying out governmental responsibilities within its boundaries,
including the conduct of elections.
5. Respondent Gregory Diaz is the duly elected and serving elections official for respondent County
of Nevada.
Petition for Peremptory Writ of Mandate
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6. This court has jurisdiction of the petition pursuant to C.C.P. 1085, and Elections Code 13314
and 9106.
7. In or about July, 2013, the county counsel of respondent County of Nevada, acting on behalf of
the county and as directed by Elections Code 9105 prepared a ballot title and summary for a
local initiative measure to repeal a county ordinance and enact a new ordinance relating to lawful
cultivation of marijuana.
8. A true copy of the ballot title and summary is attached as Exhibit A and incorporated here by
reference.
9. Petitions were printed and circulated in compliance with state law for the qualification of an
initiative measure for a county ordinance. Signed petitions were submitted to respondent Gregory
Diaz as the elections official in or about December 2013.
10. In or about January 2014 respondent Diaz certified that there were sufficient valid signatures to
qualify to be presented to the electors of respondent county for a vote.
11. On April 22, 2014, the Board of Supervisors of respondent County of Nevada adopted resolution
Number 14-140, which acknowledged that the initiative had qualified for the ballot and
designated the election to be held November 4, 2014, concurrently with the statewide general
election.
12. Resolution 14-140 also provided that the Board of Supervisors submits to the voters of
respondent County of Nevada the following Measure [now designated Measure S]:
Shall medical marijuana cultivation in Nevada County be allowed to
expand by amending the County's General Code to (a) increase the
allowed sizes of cultivation areas; (b) reduce or eliminate setback
requirements between cultivation areas and adjacent residences and
sensitive uses; and eliminate various marijuana cultivation regulations
and restrictions related to nuisance control?
Yes ___
No ___
13. Neither respondent Gregory Diaz nor respondent County of Nevada provided petitioner with any
notice of the resolution or disclosed that the language to appear on the ballot would be the quoted
language from resolution 14-140.
14. On or about September 24, 2014, petitioner received an e-mail message expressing concern about
Petition for Peremptory Writ of Mandate
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the ballot language for Measure S and providing a link to a site for elections information which
included the statement quoted in paragraph 12, supra. Petitioner immediately recognized that the
language is partisan and the representations are misleading or false.
15. Petitioner sent an e-mail to county counsel Alison Barratt-Green on September 24 requesting
confirmation that the quoted language was in fact the text to be printed on the ballot.
16. Ms. Barratt-Green responded by e-mail on September 25, 2014, confirming the language and
including a link to the text of resolution 14-140.
17. This present language as approved in resolution 14-140 is in violation of state law. Elections
Code 13119 provides that when voting on a proposed county ordinance the ballots shall have
printed on them the words Shall the ordinance (stating the nature thereof) be adopted?. The
present wording of the ballot for Measure S does not comply with either the form or intent of this
mandatory statute.
18. The proper wording for measure S under state law is Shall the ordinance repealing County
ordinance 2349 and enacting medical marijuana cultivation standards be adopted?
19. The ballot language adopted by resolution 14-140 is false or misleading, and is designed to create
prejudice against the measure in violation of the legislative intent expressed in elections Code
9105 and 9106, 13119 and 13314, and the rights guaranteed by the state constitution in Article II
Sections 1, 4 and 11.
20. The official Argument Against Measure S is signed by four of the five members of the Board of
Supervisors of respondent County of Nevada. A true copy of the argument is attached as Exhibit
B and incorporated here by reference.
21. The text approved for the ballot in resolution 14-140 incorporates several of the arguments
against Measure S signed by the four members of the Board of Supervisors. This demonstrates a
fundamental violation of the requirement for non-partisan language identifying ballot measures
since these are arguments designed to create prejudice against the measure.
22. Petitioner believes the language from resolution 14-140 includes four assertions of fact, each of
which is false or misleading. If this language appears on the ballot the electors will naturally
assume that the ballot language is accurate and non-partisan.
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23. The first assertion is that a yes vote will allow cultivation of medical marijuana to expand. This
is false or misleading in that: 1) Measure S would decrease the amount of outdoor cultivation in
areas zoned R-1, R-2 and R-3, and would place limits on the number of plants in areas zoned for
agriculture or other non-residential purposes which are lower than the state law allows; 2)
Measure S limits the amount of cultivation by the number of plants, while the current ordinance
uses only a square-footage of planted area. Therefore more plants could be grown under the
current standard; 3) Petitioner is informed and believes that the majority of cultivation in the
county is currently in excess of the present ordinance, and that the more reasonable standards of
Measure S would lead to greater compliance and reduce the total amount cultivated.
24. The second assertion is that Measure S would increase the allowed sizes of cultivation areas.
This is false and misleading in that: 1) Measure S limits the amount of cultivation by plant
numbers, making no reference to the size of cultivation areas. It does not increase the area, it
replaces the area limitation with a different system; 2) Measure S bans outdoor cultivation in
residential zoning districts, thereby decreasing the size of cultivation areas; 3) The net effect of
Measure S is expected to be a shift from cultivation in residential areas to collective growing
areas on larger, more remote parcels.
25. The third assertion is that Measure S will reduce or eliminate setback requirements between
cultivation areas and adjacent residences and sensitive uses. This is false or misleading in that
1) the setback for residential areas in Measure S is the same as the existing distance for parcels
under 2 acres, where impacts are most likely; 2) The need for setbacks in residential areas where
outdoor cultivation is prohibited are reduced because Measure S requires any indoor cultivation
in these areas to mitigate odor, light and noise impacts; 3) On larger agriculture-zoned parcels
there is less need for setbacks because other permitted activities in those areas can generate odors
and other impacts consistent with the neighborhood.
26. The fourth assertion is that Measure S would eliminate various marijuana cultivation regulations
and restrictions related to nuisance control. This statement is false or misleading in that: 1) It is
non-specific and vague, so that it is impossible to tell what it means, but it presents the negative
impression that S would eliminate restrictions on nuisances. In fact, Measure S controls the
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actual nuisance issues of smell, excess light and such by shifting cultivation to larger parcels, or
restricting it indoors, while retaining some of the present protections. This is a different approach
to nuisance value which Petitioner believes will prove more effective than the present approach;
2) The Right-to-Farm act of respondent County of Nevada provides an overall means of
regulating nuisance for agricultural activities, placing a framework around Measure S.
27. Petitioner is informed and believes that respondents Gregory Diaz and County of Nevada plan to
mail ballots including the challenged language on October 6, 2014.
28. There is no plain, speedy, or adequate remedy at law to address the prejudicial impact of the
ballot language prior to the election scheduled for November 4, 2014.
29. There is no means of determining the prejudicial impact of the language after the votes are cast,
nor is there any method for determining the true will of the voters after the fact.
30. For these reasons petitioner respectfully requests that the court issue the peremptory writ
directing respondent Gregory Diaz and respondent County of Nevada to modify the ballot
language associated with Measure S to comply with the state law and constitution.
Respectfully Submitted,
September 28, 2014
Stephen A. Munkelt
VERIFICATION
I, the undersigned, declare under penalty of perjury under the laws of the state of California that I
am the Petitioner in this matter, and that the foregoing is true and correct.
Executed on September 28, 2014, at Nevada City, California.

Patricia Smith, Petitioner
Petition for Peremptory Writ of Mandate
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