9th Circuit decision on Padilla could rekindle local land use fight.

At the tail end of an oral argument in the federal courthouse in San Francisco on Thursday, Judge Harry Pregerson asked attorney Frederic Woocher: “What’s the big deal?”

The 13-judge panel of the 9th Circuit Court was reconsidering Padilla v. Lever, a case from Orange County about the February 2003 recall of a school board member. In Monterey County—and throughout California—Padilla had become a very big deal.

In the case, three residents—Sandra Padilla, Victor Sanchez and Rosa Andrade—sued Orange County, arguing that the recall petitions should have been translated into Spanish. In November 2005, the 9th Circuit Court agreed, deciding that the Voting Rights Act applied to recall petitions. Since that ruling, elected officials and judges have used Padilla to keep land-use measures off of ballots in at least three California counties.

In April, the 9th Circuit withdrew its earlier decision and agreed to rehear the case before a full panel. Now, slow-growthers in Monterey County and beyond are hoping that the court will reverse its earlier decision.

Woocher, a Santa Monica-based lawyer, is the attorney for the petitioners who circulated the recall in the Padilla case. Around these parts, he also represents the supporters of the General Plan Initiative and the opponents of the Butterfly Village development. Both of those issues will likely be affected by the court’s decision in Padilla.

In the San Francisco courtroom on Thursday, Woocher argued that the Voting Rights Act’s minority language requirements should not apply to petitions for recall—or to initiative or referenda.

“In some instances,” he said, “there is, in fact, a great burden to force the translation.” In Orange County, for example, if the Voting Rights Act were applied to recall petitions, these petitions would have to be translated into four languages: Spanish, Vietnamese, Korean and Chinese.

And then Woocher moved on to the point that Monterey County voters had been waiting to hear, decrying “the uncertainty of how this whole process will fit in with the state process, not only for recalls, but for initiatives and referenda.”

He argued that the translation requirement would render the circulation of some petitions impossible.

“A referendum has to be drafted and circulated within 30 days,” from the day when the initial law was enacted, Woocher said. “A lot of these referenda petitions are literally 60, 100, 200 pages long. If you have to translate that into six different languages, that simply cannot be done in the 30-day period.”

But then, the judges began to hammer away on the question of “mootness”—a key point that several of the judges made throughout the hearing. The recall election is over and done. So is this case moot?

No one knows what—or when—the court will decide.

Woocher said afterwards that it can take “many, many months” for the full court to render a decision. The 9th Circuit Court heard six cases between December 2005 and March 2006, Woocher says, and has yet to issue decisions in any of the six.

But because of the Padilla decision’s likely impact on the November ballot, the court may decide to issue a brief order sooner, rather than later, with a more complete decision to follow.

Woocher says he hopes for an early decision that says recall petitions are not covered by the Voting Rights Act. “They don’t have to say much more than that,” he says. “Then it would be quite clear that initiative and referenda are not covered either.”

Locally, the court’s decision might determine whether or not county residents will get to vote on the anti-sprawl General Plan Initiative, as well as the Butterfly Village referendum, intended to stop the first piece in the larger Rancho San Juan development plan.

Shortly after the original ruling in Padilla, a federal judge ruled the General Plan Initiative violated the Voting Rights Act and pulled it off the June ballot. Initiative supporters appealed the decision to the 9th Circuit Court.

County Supervisors pulled the Butterfly Village referendum off the June ballot following the federal judge’s ruling on the General Plan Initiative.

If the court rules narrowly in Padilla, only addressing the recall question and ignoring the initiatives and referenda issue, then one of the two Monterey County land-use cases may become the landmark battle.