IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SAN MATEO
No. 441388 JOHN OBLAK, Petitioner, vs. ) WARREN SLOCUM, Respondent.
No. 441379 MERRILEE GIBSON, Petitioner, vs. ) WARREN SLOCUM, Respondent.
REPORTER'S TRANSCRIPT OF PROCEEDINGS BEFORE: HON. MARK R. FORCUM, JUDGE DEPARTMENT 8 August 20, 2004
For the Petitioners:
(John Oblak) BILL JOHNSTON Attorney at Law
(Merrilee Gibson) GARY B. WESLEY attorney at Law
For the Respondent:
Penny Bennett county counsel
REPORTED BY: VALERIE J. CATHEY, CSR 9870,
PROCEEDINGS-EX PARTE HEARING-Afternoon Session-August 20, 2004
THE COURT:
Oblak versus Warren Slocum and Gibson versus Slocum.
MR. JOHNSTON: Good afternoon, Bill Johnston for Mr. Oblak.
MS. BENNETT: Good afternoon, Your Honor, Penny Bennett from the County Counsel's Office appearing on behalf of Warren Slocum.
MR. WESLEY: Gary Wesley for Merrilee Gibson, Your Honor.
THE COURT; Okay. Good afternoon to all of you.
This court is quite familiar with a number of election-related issues and obviously aware of the overriding, I'm assuming, discovery code section that says that an incumbent does not file for re-election that that triggers a five-day additional time period for someone to file for the now vacant seat. And it was very unclear to me from apparently your recitation of these issues to the research attorney what was, what was happening here. It's very unclear to me what Mr. Or Doctor, I should say, Oblak did or didn't do that triggers, arguably, this period, or doesn't. So, Ms. Bennett, why don't we start with you. If you can explain to me, was Mr. Oblak a member of the Sequoia Health Care District Board?
MS. BENNETT: Your Honor, on August 4th Mr. -- Dr. Oblak was appointed to a vacant two-year term.
THE COURT: Okay.
MS. BENNETT: However, he was out of the area. I think he may have been out of the country, counsel can correct me if I'm wrong, never served and did not take the Oath of Office for the two-year term in which he was appointed.
THE COURT: He never took an Oath of Office?
MS. BENNETT: To that position, that's correct. It's our position, therefore, that he was not an incumbent in the two-year position.
THE COURT: That's interesting. So he was appointed by the other Board members by five members of his Board?
MS. BENNETT: I'm not certain if I can even respond to that. I'm sorry.
THE COURT: I guess that doesn't really matter, does it?
MS. BENNETT: I'm familiar with the fact that he was appointed .
THE COURT: Right.
MS. BENNETT: That he did not take the Oath of Office to the two-year term.
THE COURT: Okay.
MS. BENNETT: And that did he not serve.
Subsequently --
THE COURT: So it remains vacant, then? No one ever came to any meetings obviously if he never was sworn in?
MS. BENNETT: That's my understanding. Subsequently, he declared his candidacy for a four-year term. And 1n connection with that declaration, he then signed the Oath of Office for the four-year term, which I'm sure as Your Honor knows, is part of the declaration of candidacy.
THE COURT: Yes. Right. So if he intended to run you have to do a number of different things. So he did that for the four-year term, not the two-year term that he was never sworn in on?
MS. BENNETT: Correct. So he was not an incumbent to the two-year term because he did not sign or take the Oath of Office for that term.
THE COURT: All right.
MS. BENNETT: There being, there being no incumbent, the provisions extending the time limit period by five days, don't come into effect.
THE COURT: Right.
MS. BENNETT: So the fact that one other candidate may have submitted his papers during that time was in error, an error that's been corrected, and I believe it's entirely irrelevant to the relief that's being requested here.
THE COURT: Okay. Thank you for your clear explanation of that part of it. Now, I'm told by the research attorney that now Mr. Oblak doesn't want to, or Dr. Oblak doesn't want to run for the four-year term seat?
MR. JOHNSTON: That's accurate. See, what happened is that Dr. Oblak, in anticipation of an expectation he was going to be appointed, actually went down to the Clerk's Office to file for the two-year seat. When he went down there he was asked do you want it for two or four, and thinking, without understanding that we were talking about different seats, that four was better than two, apparently, he said four. It was not his intention to ever run or campaign for seats that were held by the other incumbents, but only to campaign for and to submit his name for the two-year seat.
THE COURT: If that was his intention why didn't he ever take the Oath of Office, Mr. Johnston?
MR. JOHNSTON: Well, because he hadn't been appointed to the position at the time that he went down to apply to run for the two-year seat, the seat that was,then vacant. Subsequently, he was appointed to the Office while on a business trip in connection with his duties as the president of the Notre Dome University. Upon his return, he discovered the error that had occurred, specifically, that he was now a candidate for a seat that he did not intend to apply for, he did not wish to serve in. As a consequence, I was asked to file this petition to ask the Court ,to allow him to simply withdrawal his name as a candidate, period.
THE COURT: Okay. And there are other people running for those four-year term seats?
MR. JOHNSTON: It is my understanding that that is the case. They're also incumbents for those four-year seats that are running.
THE COURT: Okay. All right.
MR. JOHNSTON: I've been told that the County Counsel's Office and that the court -- the County Clerk's Office both have no objection to the relief sought.
MS. BENNETT: That's correct.
THE COURT: The relief sought, which is to simply withdraw his name from the whole process?
MR. JOHNSTON: Exactly.
THE COURT: His name would not appear on the ballot?
MR. JOHNSTON: That's all we're asking for.
MS. BENNETT: That's correct, Your Honor.
MR. JOHNSTON: As to our petition.
THE COURT: Are we still within the Elections Code provisions have time to allow him to withdraw his name from the ballot? Because sometimes I believe there are Government Code or Election Code provisions say that it's too late and the time remaininq on it has to remain on the ballot.
MR. JOHNSTON: It's is my understanding that had the application been made prior to the 88 days before the election time frame, it could be done without the benefit of a court order. Once it's within the 88-day time frame, a court order is required. That's why we're here.
THE COURT: But I have the jurisdiction and the power to take his name off the ballot.
MR. JOHNSTON: It's my understanding that you do.
THE COURT: And you don't disagree with that, Ms. Bennett?
MS. BENNETT: That's correct, Your Honor.
THE COURT: All right. So that leaves you, Mr. Wesley, if Mr., or excuse me, Dr. Oblak never took the Oath of Office how, on the two-year seat, how is he considered an incumbent when he didn't file for that?
MR. WESLEY: Okay. First of all, Your Honor, just to get to the facts, he took the Oath of Office on July the 27th. That was in connection with filing for a four-year seat on the very Board of Directors that we're talking about.
THE COURT: Well, no, he took an Oath of Office with the election officials. That's a different type of thing than being sworn in to become an actual member of the Sequoia Health Care District: is that correct?
MR. WESLEY: Well, actually, it isn't because the code section that requires the Oath of Office requires that at anytime before he performs duties of the Office. So, actually, taking an Oath of Office when you run is sufficient after you're elected to assume the duties of the Office. You don't otherwise have to be sworn in.
THE COURT: After you're elected, but it doesn't make you an incumbent.
MR. WESLEY: Those are apples and oranges, Your Honor.
THE COURT: No, they're not apples and oranges. This is very important and election laws is, has to be interpreted very carefully so that everyone's rights are protected. If I'm running -- let's say I'm not a judge and I decide to run for a judge, just because I take this Oath ot Office as part of the election declaration to candidacy process, does not make me an incumbent. I have to take an Oath of Office for the actual job that one would be with serving for, right?
MR. WESLEY: There's no code section that says that, Your Honor. Actually, the code section 1360, which I quote, number one, doesn't say that. What it actually says is that before you start your duties you have to be sworn in.
THE COURT: Okay. Let me ask you a question, Mr. Wesley, and see if you know the answer. Do you contest, that Dr. Oblak never took the Oath of Office for the vacant two-year seat?
MR. WESLEY: Yes. I don't contest that. He didn't take it in connection with the two-year seat.
THE COURT: He. did take it?
MR. WESLEY: He did not take it in connection.
THE COURT: He did not. Okay.
MR. WESLEY: The seat is no different from any other seat on the Board, except that it's an unexpired term for purposes of the election. That was going to be a two-year seat.
THE COURT: So this is different.
MR. WESLEY: It's different in terms of you can run separately for that.
THE COURT: Yes, because it's a separate length of office, right?
MR. WESLEY: Yes, sir.
THE COURT: Maybe I misunderstood what you said. Did you just say that it is not different?
MR. WESLEY: I'm saying it's the same office, but it's going to be a particular term that is not any different.
THE COURT: I get it.
MR. WESLEY: That much is true.
THE COURT: All right.
MR. WESLEY: The second one I point out is that 1360 of the Elections Code says that one first has to be an officer to be sworn with in. Well, you don't have to be an officer to be sworn in. But to become an officer, and thereafter as an officer enter upon your duties. And I say that on page 6 ofthis initial memorandurn. And so you have the person who becomes an officer by appointment or election. And in this case what happened is he became an officer by appointment. And then at some point after that they would contend he has to take an Oath of Office, if he hasn't done so previously or they would say even if he has.
THE COURT: Of course, he has to take an Oath of Office.
MR. WESLEY: The officer. The person that's appointed to a position.
THE COURT: He has to take an Oath of Office before he can become a member of the Board. Just like a judge getting appointed, you know, if the governor appoints a judge and then the person never takes the Oath of Office, they're not legally electively serving.
MR. WESLEY: Right. Correct. That would be one interpretation, Your Honor. I'm just trying to deal with the statutes that I have --
THE COURT: One interpretation? No, no, no, no, no. We have to be fair about this, Mr. Wesley. We're talking about something that's fairly direct in what is required by Government Code section 1360. It provides that, quote, Unless otherwise provided for any officer enters on the duties of his office, he shall take and subscribe the Oath of Affirmation set forth in section 3 of Article -- is that 20? I'm not good with Roman numerals. XX, double X's.
MS. BENNETT: 20, Your Honor.
THE COURT: The Constitution of California. So, obviously, if Dr. Oblak never took that Oath of Office, he's not a member of the Board, he's not an incumbent.
MR. WESLEY: Well, Your Honor, I don't read it that way because what it says is he IS an office holder, which is what makes him an incumbent. He can't do the job without being sworn in. But the other point that I make is, in fact, in this case, he was sworn in in the sense that he took the Oath of Office two weeks early.
THE COURT: Kelly, can you get my denied stamp for me, please.
THE COURT: This is a very straight-forward issue. It doesn't require any evidentiary hearing because you're not contesting the one piece of evidence that's relevant here, which is, that Dr. Oblak never took the Oath of Office. Since he never took the Oath of Office for the two-year term, he was not a member of the Sequoia Health Care District Board of Directors and he was not an incumbent officer of that Board, and, therefore, the provisions triggering the five-day additional period to allow for the filing do not and cannot be triggered. So the proposed Writ of Mandate by Merrilee Gibson is denied for all the reasons that are stated here on the record. I need a copy of this face page to go into the file. We'll return the other papers to you, Mr. Wesley. The opposition will also be placed in the file filed by Ms. Bennett. And because of the importance of election-related issues, I came out here to make a record so that if you need a record for appellate purposes, you have one.
MR. WESLEY: Thank you, Your Honor.
MS. BENNETT: Thank you, Your Honor.
THE COURT: Okay. Then as to Mr. Johnston's petition, the --.I should also say I don't -- I occasionally teach at the College of --is this College of Notre Dame?
MR. JOHNSTON: It is. It's actually Notre Dame University.
THE COURT: Notre Dame de Namur.
MR. JOHNSTON: Notre Dame de Namur.
THE COURT: I was supposed to teach there this year, but because of these duties that I have, I didn't, but I taught there two years before. But I don't know Dr. Oblak, I've never met him, and since I'm not a -- I would guess part-time professor, I don't see any conflict in signing this, but I do feel compelled to disclose that to you.
MR. JOHNSTON: Thank you.
THE COURT: So that there's no ethical issue. Okay. So this is signed and you can take this down and have it filed downstairs, Mr. Johnston.
MR. JOHNSTON: Thanks.
MS. BENNETT: Thank you, Your Honor.
THE COURT:
And, Madam Clerk, if you file Ms. Bennett's papers and a copy of what I denied here. Actually, we probably ought to file them all 50 that there is a complete record.
MS. BENNETT: Thank you very much.
THE COURT: Have a good weekend.
MS. BENNETT: You, too.
(Proceedings concluded in this matter.)
VALERIE J. CATHEY, CSR 9870
I, Valerie J. Cathey, Official Reporter of the Superior Court of the State of California, County of San' Mateo, do hereby certify that the foregoing pages, inclusive, comprise a full, true, and correct computer-aided transcription of the proceedings held on August 20, 2004, in the matter of the above-entitled cause.
September 2, 2004
DATED:
VALERIE J. CATHEY, CSR 9870 OFFICIAL REPORTER, SUPERIOR COURT