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SACRAMENTO � A Sacramento superior court judge ruled in favor of Attorney General Bill Lockyer on Thursday, yanking the Proposition 77 redistricting initiative from the Nov. 8 special election ballot. Judge Gail Ohanesian agreed with Lockyer’s contention that Prop 77 shouldn’t qualify for the ballot because the language the attorney general approved differed from the version circulated for voters’ signatures. Lockyer’s office had argued that the differences were significant, and that the law tolerated no deviations. Proponents for the measure maintained that the differences were minor, and that a standard of “substantial” similarity should apply. Ohanesian wasn’t buying it. “The initiative process is too important to so broadly apply the doctrine of substantial compliance,” she said in her ruling, released after more than three hours of argument Thursday afternoon. Gibson, Dunn & Crutcher partner Daniel Kolkey, representing Prop 77 proponents, said Thursday that he would quickly appeal the ruling, meaning that the case would go to the Third District Court of Appeal, where Kolkey sat as a justice until two years ago. When a case brought Kolkey before the Third District in December 2003 � just a month after he’d turned in his robes � the entire bench recused itself. Lockyer’s writ petition turned on what Deputy Attorney General Vickie Whitney called a “bright line” issue: the state Constitutional requirement that the attorney general review the initiative language and provide a title and summary for it before it is circulated. “There’s no exception in the constitution to this requirement,” she said. Kolkey argued that the differences between the two versions were insignificant and that case law supported keeping the initiative on the ballot if there was “substantial compliance” with election requirements. “No one is able to argue that the title and summary on the circulated version was misleading or inaccurate in any way,” he told the judge. “The touchstone is whether the voters were misled.” Prop 77 would take control of redistricting from the Democrat-controlled Legislature and put it in the hand of a panel of retired judges. The discrepancy in the documents, Kolkey said, is the result of an error in the office of proponent Ted Costa. The attorney general approved one version of the initiative, but a clerk at Costa’s office copied a version of the ballot measure from a few days earlier and sent it out to be used for collecting signatures. On Wednesday, Democratic state legislators called an Aug. 17 hearing on “the sequence of events” leading up to Republican Secretary of State Bruce McPherson’s knowledge of the Prop 77 snafu. That hearing � to be co-chaired by Assemblyman Tom Umberg, D-Anaheim, and Sen. Debra Bowen, D-Redondo Beach (a likely candidate for secretary of state next year) � is expected to have no bearing on the court case. Lance Olson, a Sacramento attorney representing Californians for Fair Representation � a committee opposing Prop 77 that was an intervenor in the Lockyer case � raised questions about Kolkey having discussed the discrepancies with Peter Siggins, Gov. Arnold Schwarzenegger’s legal affairs secretary. Kolkey even wrote a June 10 memorandum minimizing the problems. “It’s very clear that proponents deliberately ran the clock out so that certification would occur,” said Deborah Caplan, an attorney with Olson, Hagel & Fishburn. But Ohanesian, in her ruling, said she could find no evidence to support the premise that Prop. 77 proponents “intentionally withheld” knowledge of the petition snafu in order to affect the certification process.

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