While a federal judge considers one lawsuit, a second suit was
filed Friday
By Tony Burchyns Staff Writer
Morgan Hill – Controversial land-use initiative lured another lawsuit Friday, this one filed in Superior Court alleging ballot arguments in favor of the environmental measure include “brazenly” false statements intended to mislead voters at the polls.
The lawsuit doesn’t put Measure A itself at risk, unlike a federal court challenge brought in August, but could force deletions or amendments to “Yes on Measure A” arguments before ballot packets are printed for the Nov. 7 election.
A hearing is scheduled for Tuesday in Superior Court, by which point a decision is expected in the federal case that asks a judge to wipe the initiative off the ballot entirely.
If passed, Measure A would increase the minimum parcel size for rural and hillside development in unincorporated areas, among other things.
Supported by the Santa Clara County Farm Bureau, the new lawsuit centers on four bullet points in the rebuttal to the “No on Measure A” ballot argument.
The arguments in question include:
– “Every environmental organization (in the county) supports Measure A.”
– “Measure A freely permits wineries and farmers’ markets that sell local produce.”
– “Measure A discourages annexation to cities – they will no longer have to worry about inappropriate County development on their borders.”
– “Measure A encourages private owners to make their lands available for public outdoor recreation.”
Jenny Derry, executive director of the Santa Clara County Farm Bureau, said she was disappointed when she reviewed the rebuttal arguments early in the week.
In part, the lawsuit asserts the farm bureau, which opposes the initiative, is a nonprofit organization that “undertakes activities and programs to preserve and enhance environmental resources in the County,” and therefore proponents of Measure A cannot rightly assert “every” environmental group supports the initiative.
Peter Drekmeier, campaign director for People for Land and Nature (PLAN), a consortium of environmental groups that spearheaded Measure A’s petition drive over the last year, doesn’t see eye to eye with the farm bureau’s argument. Voters would be more confused, he said, if asked to lump the farm bureau among groups such as the Sierra Club, Greenbelt Alliance, Committee for Green Foothills and the Audubon Society.
As for the federal lawsuit, a preliminary hearing Friday ended with no firm decision.
Those close to the case, however, say Judge Ron Whyte appears to be leaning toward allowing the initiative to stay put on the Nov. 7 ballot.
Plaintiffs in the lawsuit say Santa Clara County violated the Voting Rights Act by allowing PLAN to circulate a petition for an initiative in languages other than English. Under federal law, voting materials in Santa Clara County must additionally be printed in Spanish, Tagalog, Chinese and Vietnamese.
A number of lawsuits are pending on whether the law extends to initiative and recall petitions, which originate from citizens, not the State.
Jay Ross, the attorney representing the four plaintiffs in the federal case, said even if the judge denies his request for an injunction, the case is not over.
The Ninth Circuit Court of Appeals is reviewing a case out of Orange County involving a recall petition that was not translated into multiple languages.
“If the Ninth Circuit comes out with a decision and upholds its underlying decision (that the petition was illegally circulated), then this petition would have violated the Voting Rights Act,” Ross said.
At that point, he said, even a passing vote on Measure A could be invalidated.
“I think there would be an effort to get into court” to invalidate it, Ross said. “And then you have a public perspective problem, where the voters are upset and confused. But, if you grant the injunction, the proponents of the initiative still have the ability to circulate the petition.”
Attorney Bryce Gee of Strumwasser and Woocher, the Santa Monica law firm hired by PLAN to intervene in aforementioned lawsuits, said he’s confident PLAN did everything they were required to do under the law.
“The plaintiffs’ position is completely untenable, since they had no (legal precedent) supporting their position requiring the initiative petitions to be circulated in multiple languages.”
County Supervisor Don Gage, who saw legal trouble on the horizon in June when the Board of Supervisors approved the petitions certified by the Registrar of Voters, said he backs the plaintiffs arguments in the federal case.
At a board meeting in June, Gage remarked on the record that signatures had been gathered illegally.
Asked if he knew the federal lawsuit – which was brought by two landowners who oppose Measure A, in addition to two non-English speaking county residents – was coming at that point in time, Gage responded he knew nothing of it. The Santa Clara County Counsel’s office, he said, had briefed him on the possibility of a legal challenge in federal court, based on recent cases across the nation.
