Despite the 2014 adoption of the most significant reforms to the initiative process in recent California history, two former state Supreme Court justices have gone public with criticism over the dominant role of money in direct democracy, suggesting that the process should be made harder and citing concerns about voter overreach.

The biggest 2014 change approved by the Legislature at the behest of the Think Long for California government reform group requires the Legislature to be notified when a ballot measure gets at least one-quarter of necessary signatures. At that point, lawmakers can confer with measure sponsors about qualms they have with their proposals. They can also head off ballot fights by passing legislation addressing the issues cited in ballot measures.

This is what happened in 2016 with a proposed measure raising the state minimum wage was circulated. The Legislature instead produced its own version of the plan, which Gov. Jerry Brown signed.

The second most important change requires the Legislature to hold public hearings on initiatives which qualified for the ballot via signature-gathering. The hearings must be at least 131 days before the election, promoting closer scrutiny of such legislation.

Special interests, money play dominant roles

But in an interview with the San Francisco Chronicle, former state Chief Justice Ron George said much more needed to be done to improve the initiative process. George said the very groups that direct democracy was supposed to help keep in check – powerful special interests – “have managed to seize control of the initiative process and, in a way, perverted the whole function of it.”

“If you are willing to pay [signature gatherers enough] … I think you can qualify anything for the ballot,” he said. Those signature gathers in many cases “have no idea what the measure involves.”

George, who was chief justice from 1996 to 2011, also said the initiative process made it “far too easy” for the public to change laws – and the ballot measures they enact can only be changed, in most circumstances, by another ballot measure. Voters have approved more than 500 state measures since direct democracy began in 1911. To make the ballot, a citizen initiative must have signatures that total at least 5 percent of the votes cast for governor the previous gubernatorial election. For 2020, the threshold is just more than 623,000 votes. Twelve measures qualified for the November 2018 ballot. Six passed.

Majority uses votes to ‘impose will’ on a minority

In a recent speech in Berkeley, former state Supreme Court Justice Kathryn Mickle Werdegar, who served on the court from 1994 to 2017, raised additional concerns. She depicted voters as being eager to make sweeping changes in state laws in ever-broader areas and said initiatives are “empowering a majority to impose its will on a minority.” She also said voters didn’t appreciate that justices were expected to tweak ballot measures to ensure they stayed within constitutional boundaries and expressed frustration with the criticism she got in 1996 for a decision in which she concluded part of the state’s “three strikes” crime bill went too far in reducing judicial review.

One of the examples of a ballot measure that may go too far that was cited by the Chronicle was a proposed initiative to put a maximum of five years on alimony. In a telephone interview, Steve Clark – the Huntington Beach software engineer who is behind the proposal – said he was “unpleasantly shocked” at the idea his measure dealt with an issue that should be left to the Legislature. But he said that this view of alimony law reflected the “entitlement state” attitudes of many Californians.

A ballot measure is likely in 2018 that aims to eliminate some or most of Prop. 13’s protections for commercial property — a concept known as “split roll” that has been discussed for decades. In May 2015, a coalition of unions set up a group called Make It Fair that originally talked about launching a 2016 ballot measure before pulling back over concerns it could harm chances to pass a November 2016 ballot measure extending the “temporary” income taxes on the wealthy that voters approved in 2012.

Split roll advocates say property taxes should be a much more important part of paying for government in a sprawling state with many needs. They cite evidence that economically successful mega-states Texas and Florida have much higher basic property tax rates.

Critics cite a 2012 Legislative Analyst’s Office report that challenged the assumption that Prop. 13 had starved the state of revenue. “Since 1979, revenue from the 1 percent rate has exceeded growth in the state’s economy,” the LAO noted. Other studies have found that property tax revenue has gone up by higher percentages that income and sales tax over the same span.

Record annual revenue of $60 billion looms

Now there’s fresh evidence that despite limits on property tax increases, revenue growth in the tax category can be robust. Reports this month show that homes and businesses changing hands and having assessments go up along with new construction could mean annual property tax revenue will be $3 billion higher than expected by Gov. Jerry Brown’s Department of Finance; the state could receive a record $60 billion.

The Bay Area is leading this surge.

San Francisco City/County is 8.8 percent ahead of predictions; Santa Clara County is 7.9 percent ahead, San Mateo County is 7.6 percent ahead; Napa County is 7.1 percent ahead; and Alameda County is 7 percent ahead.

Gains are more modest in Southern California, paced by Los Angeles County and San Diego County each running 5.6 percent ahead of expectations and Orange County up 5.4 percent.

Nevertheless, these gains are unlikely to head off a 2018 split roll ballot battle. That’s partly because perhaps the most powerful critic of the idea — Gov. Brown — will be in the final months of his fourth and final term.

Last October, Brown raised eyebrows — and prompted rebukes — when he likened efforts to tinker with Prop. 13 to a “tar baby.” The racially tinged term comes from 19th century folklore. Brown’s spokesman said his intent was plain: to suggest it was a bad idea and nothing more. At the same event, the governor also specifically opposed split roll.

‘Split roll’ likely focus of 2018 governor’s race

The topic is likely to be a factor in the governor’s race in 2018. Lt. Gov. Gavin Newsom has been an intermittent critic of Prop. 13 over the years. Last year, Treasurer John Chiang has said he would consider reforms but was cool to split roll. Former Los Angeles Mayor Antonio Villaraigosa has long backed split roll.

Another signature-gathering campaign targeting Prop. 13 is possible in 2018 that takes a different approach. Southern California nonprofit groups that advocate for anti-poverty programs have proposed subjecting real estate properties assessed at more than $3 million to a 1 percent property tax surcharge.

It was formally floated in 2015 before being dropped early this year because of concerns about other tax measures on the crowded November 2016 ballot. The proposal was initially forecast to raise nearly $8 billion a year.

Denise Cross / flickr

A tenfold increase in the initiative filing fee was supposed to reduce the number of long-shot proposals in circulation.

“The updated filing fee set by this bill will deter frivolous submissions,” Assemblyman Evan Low, author the new initiative fee increase, said in a September press release. “We live in California, the cradle of direct democracy, but we also need a threshold for reasonableness. And this bill will do just that.”

It’s had the opposite effect, as dozens of proponents of unconventional ideas rush to file their initiatives before the end of the year.

Among this year’s unconventional proposals: a 1,000 percent tax on political advertisements, a 5-cent tax on bottled water, a statewide ban on shellfish and a plan for California to declare independence from the United States.

“For the privilege of influencing public elections and political issues, a sales tax of 1,000% (one thousand percent) is hereby imposed upon Political Advertisements,” a statewide ballot measure, proposed  by Terrance Lynn of Portola Valley, states. “The proceeds of which shall solely benefit California public education.”

And if the courts try to strike down the measure, Lynn’s prepared for that, too. “If a Federal District Court or Supreme Court of the United States find this tax to be too high, then this law shall immediately ratchet down to the highest acceptable level and remain in place,” the measure states.

10x Filing Fee Hike

On January 1, the cost of proposing a statewide ballot measure for circulation will increase from $200 to $2,000. The new law, authored by Democratic Assemblymen Evan Low of Campbell and Richard Bloom of Santa Monica, was intended to reduce the number of proposals given a ballot title and summary.

“This significant fee increase could greatly reduce the number of initiative proposals submitted for title and summary, and thus reduce the AG’s workload in this area, in addition to that of the Legislative Analyst’s Office and the Department of Finance, which jointly prepare a fiscal estimate of proposed initiatives,” states the state Assembly’s legislative analysis of AB1100 published in July.

Yet, the fee hike itself has likely spurred more frivolous measures. Often times, the text, title and summary are enough to generate free publicity for an idea, including outrageous and blatantly unconstitutional measures.

Subhendu Das of West Hills wants to see California lawmakers adopt a secret ballot for legislative business. Joe Decker believes the state should make “the sale or consumption of shellfish a serious felony punishable by a $666,000 fine per occurrence and/or prison sentence of up to six years, six months, and six days.”

Citing Aristotle’s philosophy of human association, Louis Marinelli of San Diego wants California to declare its independence from the United States.

“Do you agree that California should acquire the exclusive power to make its laws, levy its taxes and establish its own relations abroad — in other words, sovereignty — and at the same time to maintain with United States an economic, political, and military partnership?” he proposes in the “California Nationhood” initiative.

If that idea fails to gain support, he’s also asking California residents to impose a 5-cent tax on bottled water

Fee Hike to Deter Frivolous Submissions

Since 1943, any Californian with $200 has been able to obtain the necessary paperwork to begin collecting signatures to put their proposal on the ballot. The reasonable filing fee has allowed average citizens and grassroots organizations to shape the political debate.

From 2009 to 2013, the state Attorney General’s Office has drafted titles and summaries for 315 measures. Just 27 ultimately qualified for the ballot.

Low’s office noted that, as of August 2015, 58 proposals had been submitted for the 2016 November ballot. By December 14, that figure had doubled. The California State Attorney General’s Office has received 118 requests for a ballot title and summary — double the average number of initiatives from the previous decade.

State legislative analysts say that the number of initiative petitions have been gradually increasing. Over the last half century, proponents filed the following number of initiatives:

• 47 from 1960 to 1969
• 180 from 1970 to 1979
• 282 from 1980 to 1989
• 391 from 1990 to 1999
• 647 from 2000 to 2009
• 240 from 2010 to April 21, 2015

Proponents of the new higher filing fee say that it will help offset the cost to taxpayers. The AG’s office estimates that it takes 56 hours of staff time to prepare each ballot measure, at a cost of $8,000. Under the new state law, proponents get their money back only if the measure qualifies for the ballot.

Some state political observers say the filing fee hike undermines citizen engagement in the process.

“The initiative game in California is entirely for the rich and powerful,” argues columnist Joe Mathews, who also serves as a board member of Democracy International. “What we need are alternative ways to get measures on the ballot that are based on the quality of the idea and on public support.”

San Diego City Councilman Todd Gloria will ask the City Council and state lawmakers to look into making it harder to put referendums on the ballot after legislation he supported, including raising the minimum wage, were derailed.

Since December 2013, business groups have gathered enough signatures to block three City Council decisions: an update to Barrio Logan’s community plan, an affordable housing linkage fee and an increase to the city’s minimum wage.

Voters overturned the Barrio Logan community plan update, and the City Council rescinded its decision on raising the linkage fee, a construction fee that goes toward paying for affordable housing. The minimum wage increase will go before voters in 2016.

Gloria said there was “documented deceit” by the paid signature gatherers who worked to qualify some of the referendums, and he wants to make the process more transparent.

“I think that every San Diegan has real questions about whether the referendary tool is really a tool of the people any longer, or is it really just a high-priced tool that’s reserved for folks who can afford lobbyists, consultants and others to really affect a political outcome that they could not get through the normal public process,” he said.

That’s from a KPBS account from last month.

Direct democracy abuses: Ours are OK, not theirs

Gloria identifies a real problem. But this is a classic example of how hardball politics only offend a politician when his side is on the losing end. The most notable national example is the Senate filibuster rule requiring a supermajority of 60 votes to advance broad categories of legislation. When one party has 51 to 59 seats, it views the other party’s use of the filibuster as un-American and undemocratic. But when the same party is in the Senate minority, the filibuster is depicted as a wise way to slow down hasty and impulsive lawmakers and to encourage bipartisanship.

The San Diego Democrats who worry about the sanctity of direct democracy because of the deceptiveness of paid signature-gatherers have had little or nothing to say about the increasingly common practice of unions encouraging fake signatures to make it more likely that initiative petitions are invalidated when election officials’ samples of petitions show irregularities.

Here’s part of an overview of this phenomenon that I wrote for Cal Watchdog in November 2012:

For decades, signature-gathering to win placement of measures on the local or state ballot in California has followed a basic script. Once proponents gathered some 30 percent more signatures than the minimum threshold necessary, they shut down operations, confident that their measure would easily make the ballot.

But in the past three years, this script has been rewritten, at least when it comes to measures that threaten the interests of public employee unions or that target their supporters. …

In November 2009, an attempt to recall Assemblyman Anthony Adams, R-Claremont, never made the ballot even though proponents turned in 58,384 signatures –- 63 percent more than the 35,825 necessary to force a vote on whether Adams should be ousted. A random sample of 1,839 ballots had shown only 42 percent were valid.

Adams was a darling of unions for providing a decisive vote in the Legislature in February 2009 for $12.8 billion in higher income, sales and vehicle taxes, breaking past promises to his constituents. …

In July 2010, a proposed initiative to force the outsourcing of more government services by the San Diego city government faced a similarly mysterious demise. [Advocates] turned in 134,441 signatures -– 39 percent more than the 96,834 needed. But a random sample of 3 percent of signatures showed so many duplicate signatures and ineligible signers that officials estimated only 74,732 were valid.

In July 2011, a proposed initiative that would have changed the makeup of the San Diego Unified school board and likely weakened the local teachers union’s control of the board also failed. San Diegans 4 Great Schools turned in 129,283 signatures –- 39 percent more than the 93,085 needed. But a full hand count found that just 90,027 were valid –- with a stunning 11.4 percent of the signatures being duplicates.

A leader of San Diegans 4 Great Schools expressed bafflement at this “aberration.” But in San Diego political circles, it was accepted as a given that local union members had monkey-wrenched both the 2010 and 2011 initiatives.

This remains true. In San Diego, backers of ballot measures with any anti-union overtones have changed how they gather signatures, spending much more money and time to prevent this form of election fraud. Deceptive signature-gatherers are not the only problem with direct democracy in California’s second-largest city

At a May hearing, judges signified their readiness to defer to the Legislature — at least so far — in determining whether state efforts were meeting the safeguards in Proposition 1A, the 2008 ballot measure providing $9.95 billion in bond seed money for the$68 billion project.

Below is the initial reaction of Michael Brady, one of the attorneys representing Kings County and other plaintiffs targeting the California High-Speed Rail Authority. In a nutshell, he says this isn’t a sweeping victory for the state — just a victory at a very early stage of years of court fights that is tempered by the appeals court’s acknowledgment of the project’s shortcomings:

1. We are disappointed in the decision in that we think it ignores  150 years of precedent which respects the intent and the protection of the voters who engage in the initiative process.  Proposition 1A had various safeguards and protections which do apply to this case, and we question whether the court has properly interpreted those protections; the court itself on several occasions even conceded that the initial funding plan was “deficient.”

2. However, the court was dealing with what is called the INITIAL funding plan procedures of Proposition 1A; it seems to be saying that those requirements were meant to provide notice to the legislature only and not to provide a measure of protection to the voters themselves (we disagree with that);

3. We still have (and the court so indicated) an opportunity to challenge the legality of the Authority’s actions when the Authority moves to the NEXT STEP and  actually tries to access the monies in the bond fund; they have to apply for that money through a different section of the law-a section which is actually much tougher on the Authority with respect to what it has to prove;

4. For example, when the Authority applies under the 2d/updated funding plan, they have to make a stronger showing that they have enough money in the bank or firmly committed  to be able to complete the usable segment that they picked-a segment costing, in today’s dollars, about $35 billion.  They only have $6 billion of that, or 20%; that will not suffice and they will not be allowed to access Proposition 1A for construction costs until they have the full $35 billion; that will be a heavy burden;

5. We also believe that the Authority when they apply for Proposition 1A bond funds will have o demonstrate that they have obtained all the environmental clearances for the entire 300 mile usable segment that THEY picked; they have at present nothing  beyond Bakersfield , nothing through the Tehachapi’s all the way to the Los Angeles Basin; those clearances  will take years to obtain and they have delayed doing this for years; these are both heavy burdens;

6. Finally, under the 2d/updated funding plan requirements they must show that the project will be successful financially and in other respects; actually the financial situation on funding, the increased costs, the lack of private investors, the likelihood  of government subsidies (forbidden by 1A) have all deteriorated in the last 2 years, making the prospects for success very remote; this project , state -wide, will cost well above $100 billion, and currently they have 6% of that available with no prospects for significant further financial help from the federal government or from private investors. Californians will bear this enormous cost by themselves and alone.  This was never intended and is a bleak prospect.

7. Therefore, we look forward to litigating these further issues where the burdens on the Authority to meet the requirements of 1A are even heavier;

8. We are also evaluating the possibility of going to the Supreme Court on issues such as respect for the protection of the voters in the initiative process when measures were specifically enacted for their protection and are then brushed aside, contrary to the intent of the initiative.

But for some on the right — and for lots of people who believe in direct democracy — that probably would be fine by them. Regular CWD contributor John Hrabe explains what drives the phenomenon in which Swearengin’s biggest detractors come from what should be her base:

“The battle over Fresno’s water rates began last August, when the city approved a plan supported by Mayor Ashley Swearengin to increase the average water bill to $48 per month. The city says that the additional revenue is needed for a $410 million upgrade to the city’s aging water system. But, some residents of the city and unincorporated parts of Fresno County balked at the prospect of higher water bills, which are expected to double by 2016.

“When taxpayers attempted to circulate a petition to overturn the plan, the City of Fresno denied the taxpayers a title and summary for their referendum. Then, the city sued the taxpayers to prevent their initiative from entering circulation. The move appeared to be a direct violation of the California Constitution. Section 3 of Article 13C states that ‘the initiative power shall not be prohibited or otherwise limited in matters of reducing or repealing any local tax, assessment, fee or charge.’

“The city says that the lawsuits were necessary in order to fulfill its obligation to deliver an essential public service to residents. … Yet, 11 judges have disagreed with the city’s arguments in the case. Most recently, the California Supreme Court denied the city’s petition for review of a 5th District Court of Appeals ruling, which held that the city has a legal obligationto issue a petition title and summary.”

Not up to task of persuading Fresno residents?

On this issue, I started out thinking Swearengin was dead wrong. But the more I think about it, the more I understand the peril of having a state in which citizens can vote on their utility rates. Of course that’s likely to lead to chaos.

But, I’m sorry, Swearengin is still dead wrong. Whatever the circumstances, an elected leader shouldn’t defy clearly written state laws, as she did. Instead, you make your case to voters.

Swearengin chose dirty pool over taking the high road. She either …

A) … didn’t think the voters she would have to convince were bright enough to understand that utilities which have fixed bills and obligations aren’t the same as local governments which often tolerate bad status quos because of political influence or an acceptance of incompetence; or …

B) …. didn’t think she was enough of a leader to win over voters to the logic of her argument.

I am slightly more understanding of why Swearingen did what she did than I used to be. I also think her critics on the right need to cogitate more on the difference between utilities and local governments.

But ultimately I think the liberal Fresno Bee editorial page pretty much nailed the right way to characterize the Fresno mayor’s actions back in November:

“We support the water-rate increases; they are vital to the city’s future. But with these stalling and blocking tactics, Swearengin sends a message that she doesn’t trust Fresno voters to do what’s best for the city.”

She also doesn’t seem to trust her own competence at a politician’s most basic skill: the ability to win over people who disagree with you.

Because districting is based on population, not number of citizens, Democrats do better in Sacramento from the get-go then one would expected based on voting on high-profile state props. Our Legislature should be strongly Democratic and thus generally pro-union — not overwhelmingly Democratic and reflexively pro-union.

And on those state props, the Attorney General’s Office works to thwart anti-union ballot measures with dishonest ballot summaries, and the state Public Employment Relations Board targets them with extreme tactics, too. At the local level, unions try to sandbag ballot measures with skulduggery, and the authorities usually look the other way. Direct democracy is the biggest threat to union hegemony, and the California power structure reacts accordingly.

2011 law enables more legal looting

But there’s still more. Leave it to Dan Borenstein of the Contra Costa Times to point out a new way the public is brutalized by the union-favoring California status quo:

“A bill Gov. Jerry Brown signed in 2011 gives labor the right, when negotiations break down, to demand a nonbinding fact-finding inquiry before most local governments can impose terms.

“In theory, a neutral party approved by both sides evaluates competing positions. In practice, the fact-finders, professional mediators and arbitrators, lack objectivity because they cannot alienate unions if they want to receive business elsewhere.

“Consequently, the costly, time-consuming process produces biased findings devoid of common sense that place additional political pressure on elected officials to make concessions they cannot afford.”

Shock: Lawyer does favor for Dem status quo

I don’t assume this is just a failure of a split-the-difference process. It may well be yet another example of the fact that lawyers are a key part of the Democratic Party’s coalition, and that lawyers who do favors for the most powerful part of the Dem coaltion can expect their favors to be “paid forward.”

Dan’s fact-finding doesn’t make one think the “fact finder” he writes about is fair or competent, that’s for sure:

“In Concord last year, attorney Carol Vendrillo concluded that the city, already facing a $5.5 million structural deficit, should raid revenues from a temporary sales tax increase to fund permanent salary and benefit increases of 12.3 percent. 

“Vendrillo ignored that voters had been told the tax money would be used only to protect core services, cover the city’s structural deficit and rebuild badly depleted city reserves.

“She revealed her bias as she warned that ’employees’ expectations, labor peace, and a positive labor/management relationship, while difficult to measure in monetary terms, must weigh heavily in the (City) Council’s response’ to her recommendation.”

Great, just great.

What was that again about Jerry Brown being some sort of genius? He signed this law. It’s on him.

The CTA blocking efforts to make it easier to remove classroom sexual predators and instead passing legislation that gave such predators new protections is one example. Another is the state Public Employment Relations Board making insane arguments, such as asserting the provisions of a 1971 state law mandating teacher performance be part of job evaluations should be subject to collective bargaining now — and in every school district! Another is the Legislature passing a bill that would have led to even more shakedown lawsuits in response to corrupt trial lawyer scams targeting minority small businesses.

This ruthless extremism is on particular display with direct democracy. The Attorney General’s Office under Bill Lockyer, Jerry Brown and now Kamala Harris has a horrible record of crafting ballot language for initiatives and constitutional amendments — language obviously meant to push voters one way or the other when it comes to signing petitions or voting, whether it be for union power plays or on social issues like gay marriage.

So guess what happened Tuesday? The Secretary of State’s Office released the official title and summary for a proposed anti-bullet train ballot measure prepared by the AG’s office, and it seems downright reasonable and fair:

“HIGH-SPEED RAIL. FUTURE BOND SALES. NEW TRANSPORTATION TECHNOLOGIES. INITIATIVE STATUTE. Prevents sale of high-speed rail bonds previously approved by voters for construction of a high-speed rail system, except to fund any segment already under construction. Permits construction of first segment of the high-speed rail system to proceed, if Legislature consents, to allow comparison with other transportation technologies that deliver speeds exceeding 250 miles per hour or energy efficiencies exceeding 120 miles per gallon or equivalent. Authorizes state to acquire/dedicate right-of-way and contract with private developers to construct and operate new transportation technology pilot projects for comparison with high-speed rail. Summary of estimate by Legislative Analyst and Director of Finance of fiscal impact on state and local government: Impact to state debt-service savings ranging from zero to about $650 million annually from not using state bond funds to construct high-speed rail, depending on how this measure is interpreted and the resulting reduction in bond funds spent. Potential state costs in the hundreds of millions of dollars to the extent that the state is not reimbursed by private developers for right-of-way acquisition for the development of transportation pilot projects. Potential reduction in state and local tax revenues of tens of millions of dollars annually for a few years, resulting from a loss of federal matching funds.”

Dems ready to bail on bullet train without admitting as much

So what’s going on here? Why is Kamala Harris playing fair?

I think it’s more evidence for my theory that Dem leaders from Gov. Jerry Brown down privately agree with Lt. Gov. Gavin Newsom and want the bullet train gone before it becomes Big Dig West — but they want to do so without blood on their hands or without admitting they championed a fiasco. Instead, they can lamely blame “declinists” and mean people who opposed the bullet train from the start.

How are they going to pull this off? Through intentionally inept lawyering. As I wrote last fall for this site:

“In California Attorney General Kamala Harris … office’s ‘remedies’ brief in October responding to Sacramento Superior Court Judge Michael Kenny’s Aug. 16 ruling that the bullet train had an illegal business plan and inadequate environmental reviews, there was no challenge to Kenny’s findings. There was just the assertion that work on the project could continue using federal funds. …

“It seems awfully problematic for the state to concede its plans break the law yet still want to proceed with a $68 billion project. But that appears to be what has happened.”

Touting ludicrous legal theories with knowledge they’re ludicrous

Here’s more from CWD in January on the the second round of legal responses from the state to anti-rail authority rulings:

“For five months after Judge Kenny’s ruling, the Brown administration didn’t question its legal reasoning one bit. Now the administration accuses the judge of ‘erecting obstacles found nowhere in the voter-approved bond act’ of 2008 that provided $9.95 billion in bond seed money for the project. Huh? How can the governor and attorney general make this argument now when they didn’t before?

“Maybe because they know how ludicrous it will look to sober observers, and they like that it looks ludicrous.

“Look at the bigger picture. Two plus two equals four, people.

“By asking the California Supreme Court to weigh in quickly, and by using an obviously flawed legal argument in doing so, Jerry is angling for a prompt resolution to the bullet-train saga — before more money is spent and before eminent domain is used to seize perfectly sound homes, farms and businesses in the Central Valley.”

Now there’s more evidence for this thesis. If Kamala Harris really wanted the bullet train, her MO would have been to write another slanted ballot summary and title.

She didn’t.

Sherlock Holmes would know what to think of this. It’s the dog that didn’t bark.

It’s the latest development in a bitter fight between the city and taxpayers. Last August, the city approved a controversial plan by Fresno Mayor Ashley Swearengin to double water rates in order to fund a $410 million upgrade to the city’s water system. But when a group of taxpayers led by former Fresno County Supervisor Doug Vagim objected to the plan, the city took the taxpayers to court in order to stop a referendum campaign.

Earlier this month, a state appeals court upheld a lower court ruling that ordered the city to fulfill its ministerial duties and issue a petition title and summary. Now the taxpayers say that the title and summary, as prepared by City Attorney Doug Sloan, are biased in favor of the water tax hike.

“Frankly, I don’t believe this Title and Summary filed by the Fresno City Attorney can be considered to represent an impartial statement of the purpose of the proposed measure,”  Vagim said  “This text belongs in the con-argument side of the ballot’s voter guide for Measure W.”

This is the full text:

“Title: Initiative Measure To Repeal City of Fresno’s Four-Year Water Rate Plan And Related Water Fees”

“Summary: A ‘yes’ vote on this measure would repeal water rates to be charged over four years that the Fresno City Council adopted on August 15, 2013, and cause the rates to return to what the Council adopted in 2008. The City Council adopted the 2013 water rates to pay for increased costs to provide adequate water that is safe to drink. The increased costs are caused by changes in state and federal drinking water standards, depletion of ground water, costs of maintenance and repairs to old water pipes and other parts of the water system, and the necessity to build a surface water treatment plant. If the current rates are repealed, the City Council could impose higher rates again. However, it would delay the City’s work to repair and improve the water system.”

Factual errors: Last water rate hike in 2010, not 2008

Vagim points to state law, which requires the city attorney to issue an impartial analysis. The Election Code states:

“In providing the ballot title, the city attorney shall give a true and impartial statement of the purpose of the proposed measure in such language that the ballot title shall neither be an argument, nor be likely to create prejudice, for or against the proposed measure.”

In the complaint letter submitted to the city attorney on Thursday, Vagim’s group cited factual errors in the title and summary, including the last time the city raised water rates. The petition summary references a water rate hike in 2008, when the last such increase passed the council in 2010.

“The prejudicial nature of this misstatement falsely informs voters that water rates have not been raised since 2008, when in fact rates were last increased in 2010,” the letter objecting to the petition summary states.

After five months of delays, the taxpayers say they’ll circulate the biased petition rather than wait for another title and summary. 

“Moreover, the City’s intentional, unreasonable and unlawful delay over the course of the last five (5) months has deprived my client of time to challenge the petition title and summary for petition circulating,” the complaint states.

If they can gather enough signatures, they’ll be looking for a revised title and summary before the election and could recoup legal fees and court costs in the process.

Fresno City Attorney: ‘Title is fair, complete and complies with the law’

The city attorney maintains that the title complies with the law. “We believe the title is fair, complete, and complies with the law,” said Sloan, Fresno’s City Attorney.

But the state’s leading taxpayer advocacy group contended otherwise. “The language is most certainly slanted,” said Jon Coupal, president of the Howard Jarvis Taxpayers Association. “But we have not yet determined whether it crosses the line from the perspective of potential litigation.”

Earlier this month, CalWatchdog.com reported the story of the bully tactics by the City of Fresno in defense of Mayor Swearengin’s water rate increases. Under Swearengin’s plan, the average water bill would be doubled to fund a $410 million upgrade to the city’s water system.

In September, a group of taxpayers, led by former Fresno County Supervisor Doug Vagim, organized a campaign to overturn the rate hikes. But the taxpayers were denied a title and summary for their petition. Without a title and summary, the group couldn’t collect the necessary signatures to get a referendum on the ballot.

City of Fresno sues taxpayers

Then the city sued the taxpayers in an effort to stall the petition from reaching the 2014 ballot. In late November, a Superior Court sided with taxpayers and ordered the city attorney to issue the title and summary. Instead of compiling with the court order, the city filed a notice of appeal, which stayed the court’s order, as part of a strategy to run out the clock on the initiative.

The city of Fresno is facing major financial problems after years of fiscal mismanagement and irresponsible spending. It owes $3.4 million per year in annual construction bond payments for a city-owned minor league baseball stadium. The bond payments were supposed to be covered by a $1-per-ticket fee collected by the team. However, City Manager Renena Smith told the Fresno Bee in November that the team is two years in arrears. To solve its cash flow problems, the city had to borrow $14 million from the water department to balance its books.

Fresno Bee: Thumbs down to Fresno Mayor Ashley Swearengin

Even supporters of the water rate hike have become disgusted with the city’s hardball tactics. Shortly after the first ruling, the Fresno Bee editorial board, which backs the water rate increases, chastised Swearengin.

“We support the water-rate increases; they are vital to the city’s future,” the paper wrote. “But with these stalling and blocking tactics, Swearengin sends a message that she doesn’t trust Fresno voters to do what’s best for the city.”

The “stalling and blocking tactics” stopped the referendum from reaching the June 2014 ballot. To qualify their proposed initiative for the regularly scheduled November 2014 election, taxpayers would need to submit 4,846 valid signatures to the City Clerk by May 8.

The battle began last August, when the city of Fresno approved a controversial plan pushed by Mayor Ashley Swearengin to raise the city's water rates. The additional revenue would go towards a $410 million upgrade to the city's aging water system.

Under Swearengin's plan, most water users, which include city residents and some unincorporated parts of Fresno County, would see their average monthly bills rise to $48, double what they were last year. That didn't sit well with a group of taxpayers, led by former Fresno County Supervisor Doug Vagim, who mobilized a grassroots effort to overturn the rate hikes.

But when the taxpayers tried to circulate a petition to overturn the mayor's plan, the city took the extraordinary step of refusing to grant the petition a title and summary. Without a title and summary, the group couldn't collect the necessary signatures to get a referendum on the ballot.

The move appears to be a direct violation of the California Constitution. Section 3 of Article 13C states that “the initiative power shall not be prohibited or otherwise limited in matters of reducing or repealing any local tax, assessment, fee or charge.”

Pre-emptive strike: City sues taxpayers

Not content to block the initiative, the city went a step further: It sued the taxpayers.

“The City anticipates Initiative Proponents will continue to advocate for the Initiative and its submission to the voters,” its lawsuit states. “By seeking pre-election relief, the City hopes to avoid the cost and expense of submitting an illegal and invalid Initiative to voters.”

Attorneys for Fresno made the remarkable argument that the city's lawsuit would restore the public's trust in government that had been eroded by the courts.

“The voters already fear that everything they vote on ultimately gets invalidated by the courts anyway, and we don't want to feed that fear by letting plainly invalid measures get presented to the voters,” the city's attorney, Michael Colantuono, argued in Fresno County Superior Court.

Taxpayers said that the city was using the legal system to undermine their constitutional rights.

“Our constitutional rights are being infringed on on a daily basis as we're denied the ability to go to the voters to seek their approval,” Chuck Bell, one of the state's preeminent election attorneys, argued on behalf of the taxpayers. “Frankly, we still have the hurdle once a title and summary is issued to retain the requisite signatures of a sufficient number of voters to qualify the measure for the ballot.”

In late November, a Superior Court agreed, and ordered the city attorney to issue the title and summary. Instead of compiling with the court order, the city filed a notice of appeal, which stayed the court’s order, as part of a strategy to run out the clock on the initiative.
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'Core public service not subject to referendum'

Swearengin's office did not respond to an email request for comment on the issue. However, at a press conference last month, the Republican mayor said that the city's interests in managing the water business trumped citizens' rights to petition their government.

“The city of Fresno believes there is ample case law that indicates that a core public service is not subject to a referendum,” she said. “I recognize the short-term pain of raising water rates in the city of Fresno. However, I believe this short-term pain will result in long-term gain for the people of Fresno.”

Much of the city's financial problems stem from years of fiscal mismanagement and irresponsible spending. In a November speech to the Rotary Club of Fresno, City Manager Bruce Rudd acknowledged that “the reality is this organization has always ran close to the edge.”

Among the city's money-pits: a costly city-owned baseball stadium for the town's minor league team, the Fresno Grizzlies. The city owes $3.4 million per year in payments toward the stadium's construction bonds. The bond payments were supposed to be covered by a $1-per-ticket fee collected by the team. However, City Manager Renena Smith told the Fresno Bee in November that the team was two years in arrears.

Which all comes back to the city's water problems. To make up for the cash it wasn't getting from the baseball team, the city had to borrow $14 million from the water department to balance its books.

Fresno Bee turns on mayor over her hardball

Even supporters of the water rate hikes have become disgusted with the city's hardball tactics. Shortly after the first Superior Court ruling, the Fresno Bee editorial board, which backs the water rate increases, chastised Swearengin.

“We support the water-rate increases; they are vital to the city's future,” the paper wrote. “But with these stalling and blocking tactics, Swearengin sends a message that she doesn't trust Fresno voters to do what's best for the city.”

The “stalling and blocking tactics” have already proven effective at stopping the referendum from reaching the June 2014 ballot. If the 5th District Court of Appeals doesn't set aside the stay, taxpayers won’t get a title and summary until May, and the referendum would miss the November ballot. To qualify their proposed initiative for the regularly scheduled November 2014 election, taxpayers would need to submit 4,846 valid signatures to the City Clerk by May 8.

The next scheduled election would occur in 2016, by which time the city is expected to have bond funding contracts in place.