It all boils down to use of the word fact.
Livermore City Clerk Sarah Bunting is suing the authors of rebuttal arguments in favor of the Central Park ballot initiative. As the city’s elections official, Bunting is asking a judge to order the authors to rewrite portions of the arguments they prepared for official voting materials. She is also asking for the residents she is suing to pay the city’s court costs.
Bunting is the sole petitioner of the Sept. 30 lawsuit. The rebuttal authors, William Dunlop, Calvin Wood, Jeffrey Kaskey, Jeanette King and Jose Barrientos, are the respondents, as are the Alameda County Board of Supervisors. State elections code requires the official to name the supervisors as additional respondents, although those who authored the material are considered the real targets of the lawsuit.
Lafayette attorney Barry Fadem, whose firm represents the residents, called the action frivolous and “totally without merit.” Ballot arguments are opinions by their very nature, he said.
The ballot initiative is slated for the November 2020 ballot. It seeks to amend Livermore’s existing land use regulations and to change the mix of land uses and development standards for both downtown Livermore and the Pacific Avenue areas.
Livermore’s City Attorney Jason Alcala hired the firm Richards, Watson & Gershon of San Francisco to assist with the litigation. The city’s most current agreement with the firm allows for up to $45,000 for legal services on elections related matters. Alcala said he expects the costs to increase, to fund Bunting’s lawsuit.
City elections officials are required by state law to prominently place a disclaimer on voters guides stating that arguments in support or opposition of proposed laws are the opinions of the authors.
Bunting’s lawsuit argues that the disclaimer isn’t enough, and that more is needed. The lawsuit hinges on what the petition describes as political arguments improperly labeled as facts.
“The seven items wrongly labeled as ‘FACT’ are instead the opinions of the authors of the rebuttal argument. Labeling them as ‘FACT’ will mislead voters,” the lawsuit states.
Nothing in the language of the rebuttals is false or misleading, Fadem said.
Mary-Beth Moylan, associate dean at University of the Pacific’s McGeorge School of Law in Sacramento, is an expert in government law and the state initiative process. For more than a decade, she has supervised the publication of the California Initiative Review, an online journal providing objective and neutral analysis of each statewide ballot proposition.
While ballot argument language is ripe ground for challenges by political opponents, she said the duties of local elections officers are largely ministerial in nature. If the technical requirements are met, the official will generally place the arguments on the ballot, Moylan said.
It’s permissible for a local elections official to seek judicial intervention to take initiative proponents to task if the official believes the ballot arguments are false or misleading. Even so, it’s an extraordinary step to take, she said.
The process prescribed by the California Elections Code is for the elections official to bring a writ of mandate with the court to have the ballot argument deleted or amended. That is what Bunting did here, leaving it to the courts to sort out. “This is why we have three branches of government,” Moylan said.
A case management conference on the action is scheduled for 9 a.m. Jan. 10 in Alameda County Superior Court's Dept. 17, 1221 Oak St. in Oakland.