Judge sides with city in dispute over Newport ballot arguments because suit was filed 4 minutes late

Bad timing sunk an attempt to force the city of Newport Beach to swap out arguments opposing a local proposition on the November ballot.

Orange County Superior Court Judge Timothy Gibbs on Friday denied a request by former Mayors Keith Curry, Rush Hill and Mike Henn and former Mayor Pro Tem Jean Watt to have their jointly written argument against Measure T run in informational pamphlets in place of one written by local activist Bob Rush.

The reason, Gibbs said, is that they filed their lawsuit four minutes past the deadline. And even if they did get the substitution, it would have restarted a statutory timeline that could have interfered with the election.

Gibbs ruled that state elections code requires strict compliance with deadlines.

In this case, the city had a 5:30 p.m. deadline July 9 for accepting arguments. That triggered a 5:30 p.m. deadline July 19 for filing legal challenges after the public had time to review the submitted statements. The lawsuit wasn’t filed until 5:34 p.m. July 19, according to a Superior Court time stamp on the cover page.

Furthermore, had the court allowed the swap, it would have started a new 10-day review period for the replacement argument, potentially followed by another 10 days if the authors of the argument supporting the proposition — Mayor Marshall “Duffy” Duffield and Councilmen Scott Peotter and Kevin Muldoon — filed a rebuttal, which would need its own public review.

That ultimately would have delayed the pamphlet’s publication by up to three weeks, something the judge would not allow.

“Petitioners have … failed [to] address, much less meet their burden of demonstrating by clear and compelling evidence, that issuance of the requested relief ‘will not substantially interfere with the printing or distribution of official election materials as provided by law,’” Gibbs wrote, quoting elections code.

Rush, who has feuded with Curry, Hill and Henn in the past, welcomed the ruling.

“The court’s decision today to deny them their lawsuit is karma,” he said.

Phil Greer, the lawyer for Curry, Hill, Henn and Watt, did not immediately return messages seeking comment Friday.

Newport Beach City Attorney Aaron Harp had no comment.

The recently named Measure T — which the City Council agreed to place on the ballot in June — will ask voters to approve an amendment to Newport’s city charter to require 55% voter approval whenever the council wants to spend at least $50 million on capital projects using a financing method known as certificates of participation, or COP.

Curry, Hill, Henn and Watt wanted their ballot argument to run in place of Rush’s because they claimed his statement contains inaccuracies and that flawed organizational paperwork for Rush’s political action group, Newporters for Ethical Government, means it isn’t a “bona fide association of citizens.”

According to state elections law, arguments from registered associations of citizens have priority for pamphlet placement over submissions from individual voters not speaking for a PAC, like Curry, Hill, Henn and Watt. In choosing Rush’s argument for the pamphlet, City Clerk Leilani Brown said she was bound by the state elections code and had no discretion in how the arguments should be prioritized.

The four former officeholders also contended that Rush isn’t a true opponent of the ballot measure because he made some approving statements about it and has previously supported Peotter.

Gibbs’ ruling did not address those issues, focusing instead on procedural flaws.

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