The Fourth District Court of Appeal has cleared the way for a ballot initiative regarding the future of the former El Toro Marine Corps Air Station to appear on the March ballot. The appellate court overturned a trial court ruling that allowed opponents of the initiative to contest the county counsel's title and summary of the initiative prior to the measure qualifying for the ballot. The unanimous three-judge appellate panel held that only proponents of an initiative could challenge the title and summary prepared by the county counsel prior to the measure qualifying for the ballot. "[T]he proponent of an initiative is entitled to seek signatures in order to have the proposed legislation qualified for the ballot, subject only to the tempering effect of the county counsel's impartial title, and is not required as a condition to seeking signatures to also obtain the approval of its title from those opposed to the measure," Justice Alex McDonald wrote for the court. The Marine Corps closed El Toro — a 4,700-acre airfield lying mostly in unincorporated Orange County — in 1999. Reuse of the base as an airport has been the subject of three initiatives since 1994. In 2000, airport opponents drafted a ballot measure that would repeal a 1994 initiative that designated the base for development of a civilian airport, and instead earmark the property for a "great park," a university and office space. Allan Songstad and other airport opponents submitted their initiative to the county, and the county counsel's office prepared a title and summary. The measure's backers then began collecting petition signatures. However, former county supervisor Bruce Nestande and his pro-airport organization, Citizens for Jobs and the Economy, filed a lawsuit contending that the county counsel's title and summary were false, misleading and not impartial. Nestande asked the court to order preparation of a new title and summary and to block the Registrar of Voters from accepting signed petitions with the contested titled and summary. Orange County Superior Court Judge James Gray ruled that the title and summary were inadequate and misleading, and he granted Nestande's requests. The Fourth District stayed Gray's order and then took up the case. The appellate court ruled that Nestande did not have standing to challenge the title and summary so early in the process. The court said that Election Code § 9106 is clear: Only a proponent may sue to have a ballot title and summary amended prior to the measure qualifying for an election. In 1980, the Legislature approved Election Code § 9190, which allows any voter to challenge ballot materials after a measure has qualified for the ballot. In 1987, the Legislature enacted § 9106, which allows only a proponent — not any voter — to file a prequalification challenge to the title and summary. The court held that the Legislature must have made a conscious choice to restrict challenges prior to a measure qualifying. Nestande argued, among other things, that the Legislature required the preparation of an impartial title and summary to avoid misleading voters who are asked to sign a petition. Under the appellate court's reading of the law, the Legislature's intent would be undermined, particularly in instances where county officials support a ballot measure, Nestande argued. But the appellate panel rejected that argument, ruling that proponents have a right to pursue an initiative. "Furthermore, the opponents of an initiative have postqualification standing to challenge the title and summary that are included in the ballot materials before the public vote on the initiative," McDonald wrote. The Case: Songstad v. Superior Court, No. D038503, 01 C.D.O.S. 9884, 2001 DJDAR 12301. Field November 21, 2001. The Lawyers: For Songstad: Robert Thornton, Nossaman, Guthner, Knox & Elliott, (949) 833-7800. For Nestande: Frederic Woocher, Strumwasser & Woocher, (310) 576-1233.