Judge Keeps Prop H on the Ballot

by Paul Hogarth on August 31, 2007

Yesterday’s court hearing on Proposition H reminded me why voters are so cynical of our judicial system. In recent years, judges at the San Francisco Superior Court disqualified two citizen-led ballot measures – the Anti-Demolition Ordinance and the Bayview Referendum – on dubious technical grounds. But with Prop H, Judge Peter Busch upheld Don Fisher’s Downtown Parking Initiative despite false statements of fact in the petition language, and actual declarations by citizens who said they were misled into signing it. Citing the risk of “depriving signatories the right to have their petition heard,” Busch would not remove Prop H from the ballot because proponents, he said, had substantially complied with the law. While “substantial compliance” is the proper test on whether to disqualify an initiative, local judges have not granted such deference for progressive ballot measures. And in those cases, the petitions were far less problematic.

In September 2004, Superior Court Judge James Warren invalidated the Anti-Demolition Ordinance, a pro-tenant proposition, because the signature gatherers did not include a small disclaimer at the top of the petition. There was no evidence produced (actual or hypothetical) that any of the 19,000 signatories were misled by such failure.

Last year, City Attorney Dennis Herrera disenfranchised 33,000 voters who put the Bayview Redevelopment Plan on the ballot – because the petition did not include the entire text of the 500-page Plan. Some voters, they said, might have signed without understanding what it was. Judge Patrick Mahoney agreed. Again, there was no evidence that people were duped into signing the petition.

But when it comes to the Downtown Parking Initiative, small technicalities don’t matter as long as there’s “substantial compliance,” and the sacred right of citizens to petition their government is paramount. The Ballot Title and Summary for Prop H contained false information about Downtown parking policy, the petition claimed the measure complied with the City’s General Plan, and nowhere did it mention the most significant part of Prop H – a huge increase in downtown office parking.

While the City Attorney conceded that the Title and Summary was inaccurate, said Busch, “there is no evidence of an intentional effort to manipulate the system.” The petitions were circulated in good faith, he said, as he cited Costa v. Superior Court as the guiding precedent. But while the state Supreme Court in Costa ruled that an honest mistake did not invalidate a ballot proposition, “a similar conclusion,” they wrote, “may not be warranted in other circumstances,” 37 Cal.4th at 1030.

Intentional or not, whether the voters were misled by the error still matters.

As I mentioned before, state law requires the Ballot Title and Summary to be accurate – so that voters who are asked to sign a petition can objectively understand what the measure entails. Unlike the other cases, here the plaintiff produced two declarations from actual voters who were duped into putting Prop H on the ballot because of the Title and Summary.

“When I signed the petition,” said Julie Wilmarth, “I was led to believe that current law was highly restrictive in terms of the amount of parking that could be allowed for downtown residences. I now understand that the City’s planning code already allows a maximum of three parking spaces for every four units [downtown.]” As written, the Title and Summary said the law only allows up to one parking space for every three units.

Judge Busch was not impressed. “I don’t think the fact that a person was misled is terribly meaningful,” he said, as he weighed it against the risk of disenfranchising 18,000 voters who put Prop H on the ballot. But when it came to the Anti-Demolition Ordinance or the Bayview Referendum, protecting the voters from being misled was of paramount importance – even if there was no evidence that people didn’t know what they were signing.

The City Attorney’s Office did not actively contest the suit, and Deputy City Attorney Jonathan Givner acknowledged that the measure’s Summary erroneously cited current parking law. But lawyer Jim Sutton was on hand to argue on behalf of Prop H, despite a deal between Supervisor Aaron Peskin and the measure’s proponents to not wage a campaign.

Even before hearing oral arguments, Judge Busch narrowed the complaint down to just the false statement about the parking ratio, while dismissing concerns about Prop H’s compliance with the General Plan – or that the Summary did not mention changes in Downtown office parking. That hurt the plaintiff’s case considerably.

“Had I understood this initiative would make such a drastic change in parking for downtown office,” said declarant Steven Miller, “I would not have signed the petition.” Nowhere in the 500-word Summary was there any mention of Prop H’s most significant change from the status quo.

The main issue – “substantial compliance” – really boils down to whether the mistake made an actual difference in whether a voter would sign the petition. Here we have concrete evidence that it did. And as plaintiff attorney Michael Sweet said at the hearing, it wasn’t hard to find these two people. There’s a strong likelihood that many more were duped as well.

It’s not Busch’s fault that other judges at the Superior Court applied a more strict interpretation of legal compliance to invalidate other citizen ballot measures. But it’s fundamentally unfair to apply different standards for different initiatives that lead to different results.

And the fact that Don Fisher’s initiative – which would benefit the Downtown business elite – was cut more slack on the issue of “substantial compliance” than progressive initiatives does not help the public’s confidence in our legal system. It confirms everybody’s worst suspicions.

Send feedback to paul@beyondchron.org

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