Kilbourne

Introduction

Petitioner-appellant Kenneth B. Kilbourne (hereinafter petitioner), having been removed as a member of the City Council of the City of Carpintería by a special recall election, appeals from the denial of his petition for a preliminary injunction by the superior court brought by him after the election, seeking to have the election invalidated and new election ordered pursuant to Elections Code section 10016.

The error in the printing of the ballot complained of was that the “u” was left out of his surname, his last name having appeared on the ballot as “Kilborne” rather than “Kilbourne.”

The Case

On July 25, 1974, two days after his recall, petitioner filed an affidavit in the superior court entitled, “In the Matter of the Application of Kenneth B. Kilbourne, for Correction of Error, Pursuant to Section 10016 California Elections Code and Request for Order for New Election.”

On July 29, 1974, the court below refused to issue an ex parte restraining order but issued an order to show cause setting the hearing for August 20, 1974. Respondent city filed memorandum of points and authorities and declarations in opposition. The court granted leave to Harold N.…