                                                                           FILED
                           NOT FOR PUBLICATION                              JUL 29 2014

                                                                       MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


JEREMY COLTHARP, an individual, and              No. 13-56589
EDITH FRAZIER, an individual,
                                                 D.C. No. 2:13-cv-03263-ABC-
              Plaintiffs - Appellants,           FFM

  v.
                                                 MEMORANDUM*
LARRY HERRERA, in his official
capacity as City Clerk for the City of Long
Beach,

              Defendant - Appellee.


                    Appeal from the United States District Court
                       for the Central District of California
                    Audrey B. Collins, District Judge, Presiding

                        Argued and Submitted June 3, 2014
                              Pasadena, California

Before: TROTT and CALLAHAN, Circuit Judges, and BENNETT, District
Judge.**


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Mark W. Bennett, District Judge for the U.S. District
Court for the Northern District of Iowa, sitting by designation.

                                          1
      Plaintiffs Jeremy Coltharp and Edith Frazier appeal the district court’s

decision denying their motion for a preliminary injunction seeking to compel Larry

Herrera, the City Clerk of the City of Long Beach, to certify their ballot measure

for the next regularly scheduled election. Plaintiffs argue that the district court’s

interpretation of the California Elections Code was erroneous and that Herrera

should have certified the measure as qualifying for the next regular election despite

the fact that their initiative petition proposed a vote on the measure at a special

election. We have jurisdiction pursuant to 28 U.S.C. § 1292(a)(1),1 and we affirm.2

      California Elections Code § 9214 appears to indicate that an elections

official may not validate a petition containing “a request that the ordinance be

submitted immediately to a vote of the people at a special election” unless it

obtains valid signatures from at least 15% of the registered voters. Section 9215(b)

further suggests that if a petition obtains support from 10% of the registered voters,


      1
         We reject Herrera’s contention that the district court lacked subject matter
jurisdiction. The Plaintiffs asserted federal claims in their pleadings and,
consequently, there is federal question jurisdiction under 28 U.S.C. § 1331 even if
the Plaintiffs’ claims are not meritorious. See Cook Inlet Region, Inc. v. Rude, 690
F.3d 1127, 1131 (9th Cir. 2012) (“Any non-frivolous assertion of a federal claim
suffices to establish federal question jurisdiction, even if that claim is later
dismissed on the merits.” (citation omitted)), cert. denied, 133 S. Ct. 1814 (2013).
      2
        Because the parties are aware of the facts, procedural events and applicable
law underlying the dispute, we recite only such information as is necessary to
explain our decision.

                                           2
the city council may set the initiative for the next regularly scheduled election

“unless the ordinance petitioned for is required to be, or for some reason is,

submitted to the voters at a special election.” The district court found that

Plaintiffs were unlikely to succeed on the merits because Herrera’s sampling

indicated that their petition failed to obtain support from 15% of the registered

voters and, by its own terms, their petition only sought a vote at a special election.

Cf. Mission Springs Water Dist. v. Verjil, 160 Cal. Rptr. 3d 524, 529 n.2 (Cal. Ct.

App. 2013) (suggesting that the wording of a petition can be significant in

determining the type of election required, as a petition indicating that initiatives

should be submitted to the voters “at a special election or the next regular election”

was “probably insufficient to require a special election” (ellipses omitted)).3 The

district court relied on § 9215(b), reading it to preclude a petition designated for a

special election from being considered for placement on a regular election ballot.

This reading of the statute is consistent with the principle that the voters should

have sufficient information to allow them to “intelligently evaluate whether to sign




      3
         Our dissenting colleague suggests that Mission Springs supports the
Plaintiffs’ position. However, as noted, in that case (unlike the present one), the
petition sought a vote at either a special election or the next regular election. See
id.

                                           3
the initiative petition and avoid confusion.”4 Mervyn’s v. Reyes, 81 Cal. Rptr. 2d

148, 151 (Cal. Ct. App. 1998).

      Plaintiffs plausibly argue that the district court’s interpretation was incorrect.

See Blotter v. Farrell, 270 P.2d 481, 482-84 (Cal. 1954) (suggesting that a petition

calling for a special election, which obtained more than 10% of the signatures of

the registered voters but less than 15%, would qualify for a vote at a regular

election under § 9215’s predecessor statute). Indeed, it is possible that the

language in § 9215(b) simply means that the city council cannot delay a measure

that qualified for a special election by placing it on a regular election ballot

scheduled for a later time.

      Nonetheless, we are here concerned only with the denial of a preliminary

injunction, which we review for abuse of discretion. Shell Offshore, Inc. v.

Greenpeace, Inc., 709 F.3d 1281, 1286 (9th Cir. 2013). “A preliminary injunction

is ‘an extraordinary and drastic remedy, one that should not be granted unless the

movant, by a clear showing, carries the burden of persuasion.’” Lopez v. Brewer,

680 F.3d 1068, 1072 (9th Cir. 2012) (citation and emphasis omitted). Moreover,

      4
         A petition’s language can matter. Although perhaps counter-intuitive, in
light of the historic differences in voter turnout for special elections versus regular
elections, some individuals who signed the petition may well have not wanted the
initiative placed on a regular election ballot where it would likely face a larger and
potentially less favorable pool of likely voters.

                                            4
where a party seeks a mandatory injunction that goes beyond maintaining the status

quo, “the district court should deny such relief ‘unless the facts and law clearly

favor the moving party.’” Stanley v. Univ. of S. Cal., 13 F.3d 1313, 1320 (9th Cir.

1994) (citation omitted). Plaintiffs have not made such a showing here. Although

they have established that the statutory language is ambiguous, they have not

clearly demonstrated that they are likely to succeed on the merits, are likely to

suffer irreparable harm, that the balance of the equities tips in their favor, or that an

injunction is in the public interest. Plaintiffs may have established a possibility of

success on the merits, but a possibility is not the same as a likelihood of success.5

See Sw. Voter Registration Educ. Project v. Shelley, 344 F.3d 914, 919 (9th Cir.

2003).

      A showing of “serious questions going to the merits” may be sufficient to

warrant issuance of a preliminary injunction where the balance of the hardships

      5
         Although some decisions can be construed as supporting one interpretation
or another, none of the decisions from the California courts directly address the
issue raised here. See Engebretson v. Mahoney, 724 F.3d 1034, 1040 (9th Cir.
2013) (indicating that prior rulings were not binding precedent on issues that were
not squarely addressed). Nor do we view the post hoc legislative history cited by
our dissenting colleague as controlling or even instructive. See Grupe Dev. Co. v.
Superior Court, 844 P.2d 545, 551 (Cal. 1993) (noting that the legislative
counsel’s opinion that was issued after a statute was adopted was “a post hoc
expression of the Legislative Counsel’s opinion of what the Legislature meant
when it adopted [the statute]; and like any such opinion . . . it is only as persuasive
as its reasoning”).

                                            5
tips sharply in the plaintiff’s favor and the other factors are satisfied. Ass’n des

Eleveurs de Canards et d’Oies du Quebec v. Harris, 729 F.3d 937, 944 (9th Cir.

2013) (citation omitted). However, Plaintiffs have not shown that the balance of

the hardships tips sharply in their favor or that they have satisfied the other factors.

Indeed, all of the Plaintiffs’ arguments on the balance of the equities and public

interest factors presume that their interpretation of the Elections Code is correct,

which they have not established. Plaintiffs have no right to vote for a measure if it

did not qualify for the ballot—their interests as sponsors or signors of the petition

are only relevant if they establish that their interpretation is correct. Thus, as

Plaintiffs have not clearly shown that Herrera violated the Elections Code, they

have not demonstrated that the balance of the equities and public interest weigh in

their favor.

      Additionally, as Plaintiffs’ counsel acknowledged at oral argument, the

Plaintiffs did not pay the costs of circulating the petition in the first instance and

cannot claim that they suffered any pecuniary harm.6 Moreover, the Elections



      6
         Despite this concession, our dissenting colleague takes issue with this
statement. We note that the group that funded the signature drive is not a party and
the Plaintiffs have not claimed an interest in the time and effort spent by others to
collect the signatures. Although Coltharp generally asserts that he “asked” others
to sign the petition, the true extent of the Plaintiffs’ personal participation in the
signature drive is unclear on the present record.

                                            6
Code does not preclude Plaintiffs from filing a new petition. Cal. Elec. Code §

9115(e). Plaintiffs could have avoided any resulting delay by drafting their

petition to alternatively seek placement of the measure on the regular election

ballot, but they did not do so. Consequently, the district court did not abuse its

discretion because the Plaintiffs did not carry their burden of showing that they

were entitled to extraordinary relief in the form of a mandatory preliminary

injunction.

      We note that decisions on motions for a preliminary injunction are made on

less than a full record and leave “open the final determination of the merits of the

case.” Ranchers Cattlemen Action Legal Fund United Stockgrowers of Am. v. U.S.

Dep’t of Agric., 499 F.3d 1108, 1114 (9th Cir. 2007) (citation omitted). This

appeal presents a difficult issue which may benefit from further development

below. Our decision does not dictate the final determination of the merits below.

      AFFIRMED.




                                           7
                                                                             FILED
Coltharp v. Herrera, No. 13-56589                                              JUL 29 2014

                                                                          MOLLY C. DWYER, CLERK
BENNETT, District Judge, dissenting:                                        U.S. COURT OF APPEALS



      I respectfully disagree and thus dissent. In my view, the district court

committed reversible error by not granting Plaintiffs’ preliminary injunction for

three reasons: (1) Plaintiffs are likely to succeed on the merits; (2) Plaintiffs

demonstrated that they are likely to suffer irreparable harm; and (3) the balance of

hardships and the consideration of the public interest favor Plaintiffs. See Winter

v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008); see also Klein v. City of

San Clemente, 584 F.3d 1196, 1199 (9th Cir. 2009).

      First, the district court abused its discretion by misinterpreting Cal. Elec.

Code § 9215(b)—i.e., it made “an erroneous review of the law.” See League of

Wilderness Defenders/Blue Mountains Biodiversity Project v. Connaughton, 752

F.3d 755. 759 (9th Cir. 2014) (citation omitted); see also United States v. Beltran-

Gutierrez, 19 F.3d 1287, 1289 (9th Cir. 1994) (“A trial court abuses its discretion

by erroneously interpreting the law.”). More specifically, the district court read §

9215(b) to preclude Plaintiffs’ initiative from being placed on the next “regular

election” with no support in the case law or reason. Native Am. Sacred Site &

Envtl. Prot. Ass’n (NASSEPA) v. City of San Juan Capistrano, 16 Cal. Rptr. 3 146,

149 (Cal. Ct. App. 2004). Instead, the district court’s reading of § 9215(b) is

bottomed on this one fact: Plaintiffs’ petition called for a “special election.”
       The plain meaning of the statute provides that a petition, obtaining 10% of

registered voters’ signatures, qualifies for the next regular election. See Cal. Elec.

Code §§ 1405(b), 9215(b). In Blotter v. Farrell, 42 Cal. 2d 804, 807–09 (Cal.

1954), California’s Supreme Court implied that, under California law, a petition

calling for a “special election,” and obtaining more than 10% of registered voters’

signatures, but less than 15%, qualifies under § 9215’s predecessor for the next

“regular election.” See Cal. Elec. Code § 9215(b); see also West’s Cal. Code

Forms, Elec. § 9201 Form 1 (5th ed.). Thus, although Plaintiffs’ petition called for

a “special election,” it is consistent with the statute’s plain and common sense

meaning and construction and case law to compel Herrera to certify the initiative to

the city council for the next “regular election.”

       Indeed, the majority’s opinion cites to authority that supports the dissent’s

position that Herrera should be compelled to certify the Plaintiffs’ initiative. For

example, the majority refers to Mission Springs Water Dist. v. Verjil, 160 Cal.

Rptr. 3d 524, 529 n.2 (Cal. Ct. App. 2013), in which the plaintiffs’ petitions

requested that initiatives be submitted to voters “at a special election . . . or the . . .

next regular election.” Id. The majority focuses its attention on the appellate

court’s reasoning that “[t]his wording was probably insufficient to require a special

election.” Id. In doing so, the majority overlooks the case’s material facts.


                                             2
       Furthermore, in Mission Springs Water Dist., the defendant, the registrar of

the voters, “was statutorily required to order that the initiatives be placed on the

ballot at the next general election” once the district was notified that the initiatives

had received enough signatures. Id. at 529. In the case at bar, the Plaintiffs are

likely to succeed on the merits. This is because Herrera’s sampling indicated that

the Plaintiffs’ petition obtained support from more than 10% of the registered

voters required to be placed on the ballot for the next regular election.

       The Plaintiffs’ reading of § 9215 is also consistent with the structure of the

statute, which creates higher hurdles for special elections, but eases them for

general elections. Otherwise, form (in this case the form of the petition) is exalted

over the substance (the rights of the voters). On the other hand, relying on

Mervyn’s v. Reyes, the majority writes, “[The defendant’s] reading of the statute [to

preclude a petition designated for a special election from being considered for

placement on a regular election] is consistent with the principle that the voters

should have sufficient information to allow them to ‘intelligently evaluate whether

to sign the initiative petition and avoid confusion.” 81 Cal. Rptr. 2d 148, 151 (Cal.

Ct. App. 1998). Yet, the facts in Mervyn’s are markedly distinct from the facts in

this case.




                                            3
      In Mervyn’s, the initiative petition did not call for a special election in the

petition; rather, the petition “failed to contain the text of the proposed measure.”

Id. (emphasis added). Moreover, the California Court of Appeals took issue with

the substance of the petition because relevant sections of the petition were left out.

“The approximately 17 pages of general plan sections omitted from the petition

were the key element of the initiative,” wrote the appellate court. Id. at 154.

      By contrast, unlike in Mervyn’s, here voters that signed the Plaintiffs’

petition were “advised which laws are being challenged and which will remain the

same.” Id. The petition is clear as to what “add[itions]” and “amend[ments]” will

be made to the Long Beach Municipal Code if the law is approved by the voters of

the City of Long Beach. If one peruses the Plaintiffs’ petition and the information

it provides, one would be hard pressed to argue that the Plaintiffs’ petition did not

allow the registered voters to “intelligently evaluate whether to sign the initiative

petition and avoid confusion,” or meet “the full text requirement” based on

Mervyn’s. Id. at 151. Elsewhere in Mervyn’s, the appellate court explained, “[I]t

has long been our judicial policy to apply a liberal construction to [the initiative

and referendum power of the voters] where it is challenged in order that the right

be not improperly annulled.” Id. at 152. The majority should heed the appellate

court’s implied warning.


                                           4
       The legislative history also suggests that the governing body “will [be]

force[d]” to put an initiative on a special election, only if the initiative garners “the

higher of the two thresholds” or 15% of the electorates’ vote. See California Bill

Analysis, S.B. 1424 Sen., May, 03, 2000. Therefore, Plaintiffs’ initiative was not

“required to be” submitted to the voters at a special election as it did not meet the

“higher of the two thresholds.” Nor was it “for some reason” submitted to the

voters at a special election to bar it from being on the next regular election. See

Cal. Elec. Code § 9215(b). Contrary to the district court’s holding, the legislative

history does not suggest an initiative is “required to be” on a special election if the

supporters of an initiative “request” a special election. Therefore, the district

court’s opinion mistakenly conflates the term “requirement” under § 9215(b) with

Plaintiffs’ “request” to be on a special election.

       Bolstering Plaintiffs’ case, California courts have explained their duty to

“jealously” guard voters’ rights to directly propose legislation, and they must also

accord “extraordinarily broad deference” to that right. Native Am. Sacred Site, 16

Cal. Rptr. 3d at 149. Blotter, for example, made clear that any statute “dealing

with the initiative power” must be “afforded” the longstanding “rule of liberal

construction.” Blotter, 42 Cal.2d at 809.




                                            5
      Here, Herrera acted unreasonably, and beyond his “purely ministerial”

powers, by exercising discretion to block Plaintiffs’ initiative. Friends of Bay

Meadows v. City of San Mateo, 68 Cal. Rptr. 3d 916, 923 (Cal. Ct. App. 2007).

This is because Herrera calculated that there were 939 valid signatures, which

exceeded 110% of the prorated number of signatures needed to certify an initiative

for the next regular election. Cal. Elec. Code § 9115(b). Based on Blotter’s rule of

“liberal construction,” the district court abused its discretion by not granting

Plaintiffs injunctive relief. See Blotter, 42 Cal. 2d at 809; see also League of

Wilderness Defenders, 752 F.3d at 759; see also Totten v. Bd. of Supervisors of

Cnty. of Ventura, 43 Cal. Rptr. 3d 244, 249 (Cal. Ct. App. 2006) (noting that “if

doubts can reasonably be resolved in favor of the use of the reserve initiative

power, courts will preserve it”) (internal quotation marks, brackets, and citation

omitted).

      Second, the district court made a “clearly erroneous assessment of the

evidence” as the evidence shows Plaintiffs will suffer irreparable harm if a

preliminary injunction is not granted on their behalf. See League of Wilderness




                                           6
Defenders, 752 F.3d at 759 (citation omitted). Like the district court,1 the majority

emphasizes this fact: “[A]s Plaintiffs’ counsel acknowledged at oral argument,

they did not pay the costs of circulating the petition in the first instance and cannot

claim that they have suffered any pecuniary harm.” I disagree.

      Plaintiffs spent six months of their time and energy collecting 43,159

signatures. It cost the Long Beach Citizens’ and Patients’ Rights Political Action

Committee $132,300 to collect the signatures. Plaintiffs did suffer pecuniary

harms—they spent six months collecting signatures, and requiring Plaintiffs to

repeat the gathering of the names on a new petition would cause further harm. See

Rubin v. Air China Ltd., No. 5:10–CV–05110, 2011 WL 2463271, *4 (N.D. Cal.

June 21, 2011) (citation omitted) (“Time is money, after all. . . .”).

      In addition, Plaintiffs continue to suffer non-pecuniary harms as they cannot

exercise their fundamental right to vote. Sanders Cnty. Republican Cent. Comm. v.

Bullock, 698 F.3d 741, 748 (9th Cir. 2012) (indicating that “a long line of

precedent establish[es] that ‘[t]he loss of First Amendment freedoms, for even

minimal periods of time, unquestionably constitutes irreparable injury,’” and

elaborating that a “delay of even a day or two may be intolerable” for a party)

      1
        “ . . . [N]either Plaintiff personally contributed money to this petition
effort. Rather, the financial contributions have largely come from businesses
seeking to sell medical marijuana in the City.”

                                           7
(citations omitted). Plaintiffs’ personal stakes are also affected: Coltharp

sponsored the initiative and leads the PAC that funded the efforts, and Plaintiffs

signed the initiative’s petition as city residents. The majority also overlooks the

harms Plaintiffs will endure if they are forced to recirculate the petition.

      Third, the district court made a “clearly erroneous assessment of the

evidence” as the evidence shows the balance of hardships and the consideration of

the public interest weigh in favor of the Plaintiffs. See League of Wilderness

Defenders, 752 F.3d at 759 (citation omitted). As noted above, Plaintiffs continue

to endure significant hardships. Also, granting injunctive relief will benefit the

public because it will protect citizens’ rights to propose initiatives and vote and

will counter Herrera’s unlawful blocking of the initiative. See N.D. v. Haw. Dep’t

of Educ., 600 F.3d 1104, 1113 (9th Cir. 2010) (“[I]t is obvious that compliance

with the law is in the public interest.”). Placing the initiative on the next “regular,”

not “special,” election will also save the city approximately $1.5 million.



      I also consider the hardships confronting Herrera and the public interests that

favor Herrera’s position. At oral argument, Herrera’s counsel was asked whether

Herrera would be harmed if the next regular election ballot included Plaintiffs’

initiative. The counselor’s reply was telling; no harms came to her mind at that


                                           8
time. The district court’s argument as to the public’s interest, which was adopted

by Herrera, is premised on the mistaken belief that its interpretation of § 9215(b) is

accurate.2

      Finally, the majority suggests that the crux of this case is what Coltharp

needs to show on an appeal from a denial of a motion for a preliminary injunction.

The majority recognizes that the “Plaintiffs plausibly argue that the district court’s

interpretation [of § 9215(b)] was incorrect.” However, the majority reiterates the

standard of review, which clarifies why it distrusts the Plaintiffs’ argument: “[W]e

are here concerned only with the denial of a preliminary injunction, which we

review for abuse of discretion.” Shell Offshore, Inc. v. Greenpeace , Inc., 709 F.3d

1281, 1286 (9th Cir. 2013). The majority continues: “‘[W]here a party seeks a

mandatory injunction that goes beyond maintaining the status quo, “the district

court should deny such relief ‘unless the facts and law clearly favor the moving

party.’” Stanley v. Univ. of S. Cal., 13 F.3d 1313, 1320 (9th Cir. 1994). In other

words, the majority grounds its decision on the belief that the Plaintiffs did not

overcome the high hurdle required to warrant the issuance of a preliminary

injunction. I cannot agree.



      2
        “In this case, the public’s substantial interest in ensuring the California
Elections Code is followed outweighs the cost of recirculating the petition.”

                                           9
      The majority refers to a “sliding scale” injunction standard, which survived

the United States Supreme Court’s ruling in Winter v. Natural Resources Defense

Council, Inc., 555 U.S. 7 (2008). The “sliding scale” injunction standard, also

referred to as the “serious questions” test, was articulated by the Ninth Circuit

Court of Appeals as follows: “‘[S]erious questions going to the merits’ and a

hardship balance that tips sharply in the plaintiff’s favor can support issuance of an

injunction, so long as the plaintiff also shows a likelihood of irreparable injury and

that the injunction is in the public interest.” Vanguard Outdoor, LLC v. City of Los

Angeles, 648 F.3d 737, 740 (9th Cir. 2011) (quoting Alliance for Wild Rockies v.

Cottrel, 622 F.3d 1045, 1049–50, 1053 (9th Cir. 2010)).

      Because the likelihood of harm to the Plaintiffs is obvious and great, and the

requested injunction is in the public’s interest, the Plaintiffs are not required to

show a likelihood of success on the merits as the majority suggests. Id. Rather,

the Plaintiffs only need to show that serious issues of law and fact have been

raised. Id. The Plaintiffs have met this burden. Accordingly, they were entitled to

a preliminary injunction, and the district court abused its discretion by failing to

grant the injunction.

      In sum, I recommend Herrera be required to certify the petition to the city

council for the next regular election on November 4, 2014. After receiving


                                           10
“confirmation” from Herrera that Plaintiffs acquired 10% of the voters’ signatures,

and above the 110% threshold of the prorated amount of signatures needed to

qualify for the next regular election, the city council would be required to act in

accordance with § 9215. See Cal. Elec. Code § 9115(b); see also MHC Fin. Ltd.

P’ship Two v. City of Santee, 23 Cal. Rptr. 3d 622, 626 (Cal. Ct. App. 2005)

(holding that if a city council receives “confirmation” from its election official that

a petition was signed by more than 10% of the city’s registered voters, it must

follow § 9215). If the city council does not discharge its duty, it could “be

compelled to do so by mandamus.” Blotter, 42 Cal. 2d at 812–813 (citation

omitted).




                                          11
