More than two months after the September 6 vote, after a signature-gathering campaign garnered over 5000 signatures, over 3800 of which actually counted, Mayor Joe Krovoza dropped a bombshell in an email to the Vanguard as he questioned the legality of the referendum in overturning a 218 process.
This prompted one of the referendum organizers to comment, “Mayor Joe: Please show us your opinion memo supporting your claim that the referendum is unconstitutional.”
Around midday, he would send out a records request for documents showing that the referendum is “an unconstitutional challenge to the Prop 218 rate hikes that were approved on Sept 6.”
In the middle of the night, City Manager Steve Pinkerton sent the Vanguard, among others, a legal memorandum dated November 15 from City Attorney Harriet Steiner to the City Council.
She writes, “In our opinion, the City’s newly-adopted water rates are not subject to challenge by referendum.”
There is, however, a major qualification here, as she adds, “We must note that there are no post-Proposition 218 cases that are directly on point.”
“The main provision in the California Constitution concerning the power of referendum provides that referendum does not apply to laws that impose taxes and also does not apply to ordinances for the usual current expenses of the city,” she added. “This has been held to apply to utility rates, as discussed below.”
“Proposition 218 expressly allows initiatives to reduce or repeal any local tax, assessment, fee or charge. However, Proposition 218 only addresses initiatives and it is silent with respect to the power of the referendum.”
Critically she argues, “In our opinion, this silence leads to the conclusion that prior case law is still valid and that water and other utility rates adopted pursuant to Proposition 218 are not subject to challenge by referendum.”
The city could choose to fight this in court, however, as Ms. Steiner herself mentions in the conclusion, “As a practical matter, even if the City Council adopts a resolution providing that the referendum is invalid, the City’s voters may ultimately vote on the increased water rates as an initiative petition (which is authorized by Proposition 218) to reduce water rates, as is currently circulating in the community.”
There would probably need to be a new initiative that the drafters of the referendum could agree upon. The current one has spawned quite a bit of disagreement and many believe it to be unconstitutional itself.
As we have mentioned previously, the threshold for such an initiative is actually quite a bit lower than the 3705 threshold for referendum.
The city, however, would be well advised to tread lightly here and not rely on technicalities of the law. What is very clear is that some 4800 people were upset enough with the proposed rate hikes that they filed a protest. Another 3866 of qualified signatures signed the petition to put the referendum on the ballot. That is substantial dissent in this community.
As Ms. Steiner writes, “The provision’s silence regarding the referendum power to reduce, repeal, or affect Proposition 218 fees and charges is a strong indicator that the referendum power is not available for those purposes. Furthermore, the absence of the referendum power to affect local taxes, assessments, fees and charges in the context of Proposition 218 is consistent with the general rule that tax measures and measures concerning appropriations for usual current expenses are exempt from the referendum power of the electors.”
Again, this has not been tested in the legal sphere. It seems like the council could refuse to recognize the referendum and force the petitioners to take the matter to court.
The City Attorney presents four options, the first which is to submit “the ordinance to the voters at either the next regular municipal election or at a special election, pursuant to the referendum procedures in the Elections Code.”
Second, the City Council could repeal the ordinance and propose a new ordinance setting forth a different water rate structure, increasing the rates.
Third, the “City Council may determine that, despite the referendum petition having sufficient signatures, the use of a referendum to repeal water rates is not legally permissible” and based on that, they may neither repeal the ordinance nor submit it to the voters.
“The City Council could adopt a resolution declaring that although the petition contains the sufficient number of valid signatures, and thus qualifies for the ballot, the referendum is invalid for the reasons set forth in this memorandum and thus the water rates will take effect as scheduled,” the city attorney writes. As we mentioned, “This option carries with it the possibility that the referendum’s proponents will sue the City claiming that the referendum is valid and seeking to obtain a court order compelling the City to take action on the referendum.”
The fourth option is a part-way option, “If the Council determines that the referendum is not valid, as set forth above, but wishes to take some action to allow more time for future rates to be discussed and possibly modified, in our opinion, the City Council could determine, for example, to repeal part of the ordinance, leaving the first of the five years to take effect on December 1, 2011, and repealing the increases planned for years two through five.”
Ms. Steiner argues this action could also be challenged in court.
There is actually an unmentioned fifth option – a course I would support. The Council could find the referendum invalid, which is probably the safest legal course of action. The problem with simply ignoring the potential that the referendum is invalid is that some third party could sue to invalidate the ordinance.
After finding the referendum invalid, the council could recognize that there is a substantial population that is not supportive of the rate hikes, they could recognize that they put the Target matter to a vote, and they could opt to do the same here.
Alternatively, they could use this as opportunity to bring all parties together and see if there can be a way to resolve differences.
The likely trajectory of this is that the council finds this referendum invalid, the backers at the same time sue the city while they prepare an initiative and circulate that.
As Davis Enterprise columnist Bob Dunning wrote in his column yesterday: “Despite the fact that signature gatherers were poorly funded, loosely organized and woefully short on time, they managed to gather enough valid signatures to force the council’s decision to a vote of the people … the council, of course, can simply rescind the offending rate hike and render an election moot, but given this council’s penchant for digging in its heels in the face of public opposition, I wouldn’t count on them to admit defeat …”
He adds, “Back when nearly 5,000 Davis ratepayers filed formal written protests with the city over the new rates, the mayor and others said they heard us “loud and clear.” … despite that, however, the council went ahead with rate increases as high as 64 percent in the first year and a tripling of rates for many over five years, then tried to discredit those who dared to point out just how faulty the city’s math truly was …”
It is a good a point. Mayor Krovoza keeps telling me he wants to find a way through this but I have yet to see him put anything on the line. Time to step up, Mr. Mayor.
—David M. Greenwald reporting
I believe that a majority of Davis is against the rate hikes especially with the imaginative math they used to calculate the raises. The city should think twice before they give the finger to the referendum and the citizens. There will be a huge backlash.
4,800 ratepayers protesting or roughly 3,700 referendum signers does not make a majority of Davis. I think that most people will support increased rates, but at an actual 14%. A larger tier 1 would protect low income seniors, students and families living in apartments. The Council should move ahead with its plans to evaluate the project and identify cost savings and adjust the rate increase accordingly.
I would say the ball is in the City Council’s court, and they have a very tough decision to make… there are no easy answers on this issue…
It’s always interesting in our wonderful little city !
Whatever the legalities of the water referendum, and no-one can know since there aren’t any judicial precedents, the actions of Krovoza and Steiner et al. starkly show the Davis City Junta for what it is. To begin with Krovoza and Steiner were far too cowardly ever to raise the issue of constitutionality when the referendum campaign was launched, or during it. Now despite 4,800 prop 218 votes against the measure, and almost 4,000 signatures gathered in 30 days, the Junta, with no clear legal precedent to support them, is trying to throw another obstacle in the way of allowing Davis voters to decide on the most important infrastructure project in the city’s history.
As I listened to NPR this morning I heard Berkeley students making analogies between university governance at UC and Wall Street and other corporate tycoons. How apt I thought, knowing as a full professor at a public university in California, how little power even most faculty have in the running of a university. While of course Krovoza and Steiner and their supporters don’t make the kinds of salaries that corporate leaders and top UC administrators do, there is an important analogy. To begin with they make quite enough money not to have the least sympathy for any hardship that a large hike in water rates might bring to a significant number of Davis residents. But, much more importantly, they show the same disregard, or rather contempt, for democracy that corporate leaders/Wall Street do, though doubtless the usual will retort by saying that the City is going through the judicial process.
But let’s get real. It is blatantly evident that a very significant minority of Davis voters, perhaps a majority, both have major doubts about the project and believe that its scope is so large that it should go before the voters. Even the Davis Enterprise, not historically a source of support for “populist” (to use Voter2012 term) causes has come out in favor of the matter going to a vote. While perfectly legal in some sense the lengths that supposedly decently liberal people like Joe Krovoza will go to deny people a vote on this issue is dismaying. It is especially dismaying in the light of Davis’s reputation for putting other important issues on the ballot and for its purported reputation as a democratic city open to a wide range of views.
Finally, on this issue, and on so many others, going back to well before Covell Village, it is depressing to see our city staff (we pay them don’t we?), who are meant to do their duties with some degree of neutrality and objectivity always , almost without question, falling into line like then worst apparatchiks in Eastern Europe and China. I stupidly and naively thought that this country had some tradition of a neutral civil service, or that at least Davis did. How very wrong I have been proved time and time again.
[quote]To begin with they make quite enough money not to have the least sympathy for any hardship that a large hike in water rates might bring to a significant number of Davis residents. [/quote]
Let’s tone down the rhetoric, and get down to brass tacks. What water rate increase would you support? Or do you think water rates should stay as they are? Rationale?
[quote]The city should think twice before they give the finger to the referendum and the citizens. There will be a huge backlash.[/quote]
Don’t you think there is going to be a “backlash” if we delay/kill the surface water project in increased costs, or do you naively believe there will be no “repercussions” to such a decision? Please explain your reasoning…
I assume that the authors of the referendum sought legal opinion as to its validity before they began the process, so all they have to do now is release the legal opinion that was at the foundation of their efforts. The problem is, if the City Attorney is correct, then this referendum would set a precedent affecting the Prop 218 process throughout the state. So every municipality in California has a stake in the issue of whether a referendum can challenge a Prop 218 process.
So, Michael, just release the opinion you have that counters the City Attorney’s opinion. That should at least provide the public and the council with the information we need to assess this.
[quote]Mike Harrington: “It’s always interesting in our wonderful little city !”[/quote]
This is all you have to offer, Mike? I get it. The game is on!
[quote]So, Michael, just release the opinion you have that counters the City Attorney’s opinion. That should at least provide the public and the council with the information we need to assess this. [/quote]
OK. You asked for the City’s legal opinion. Now, your opinion is being asked for. Let’s see it.
To Herman: Re: “Krovoza and Steiner et al. starkly show the Davis City Junta for what it is” and “falling into line like then worst apparatchiks in Eastern Europe and China”
Get some sleep, drink less coffee, and then come back and play in the sandbox nicely please!
“We must note that there are no post-Proposition 218 cases that are directly on point.”
Lower courts do not make ‘new law”. It is obvious that the surface water rate hike ordinance is not a “usual current expense”. Upon request, an immediate court injunction that halts the CC’s challenge to the validity of the referendum would most likely be granted and the following court decision can then be appealed by the city. California’s legal system has near a century and a half history of vigorously defending populist voter rights against the predations of powerful special interests.
Sure. Or Michael can just release the legal opinion that formed the basis for the referendum. He can have his attorney send it to the Vanguard and the Enterprise.
The opinion of the City attorney states above that a referendum does not apply to ordinances for the “usual current expenses of the city”. The water rate hikes are not to cover the usual current expenses of the city, but to cover future very speculative costs of a proposed future water project that may or may not be needed.
The nearly 5000 protests should have sent a strong message to the council. The over 5000 signatures submitted by the referendum proponents should send another strong message. The council would be advised to heed those messages from their constituents, and to either rescind their vote or put this issue on the ballot. There is not consensus in the community that this project is necessary and there is certainly a great deal of concern about the cost of this project.
There were many other options studied in the feasibility studies done several years ago. Some of those options are viable alternatives to this project. Let the community at least have an open discussion of those options and perhaps we can agree on something that we can all live with. I for one am not convinced that we need this project, and I have followed this issue from its inception.
The numbers just get bigger and bigger. The 218 protests were around 4,800 and the referendum was around 3,700 (no where near 5,000 Wolf states). We still don’t know who paid for the referendum signature gathering. Can’t the Vangard get this and let everyone know?
Where’s Mike Harrington’s legal opinion?
Ryan:
The referendum workers turned in just over 5100 signatures. Of those, 3866 were declared valid. But more than 5100 people signed the referendum, and that in only 30 days, all that is alloted under law.
Wolf, I don’t think you can count the rejected signatures. You should only count John Doe once.
[i]”The water rate hikes are not to cover the usual current expenses of the city, but to cover future very speculative costs of a proposed future water project that may or may not be needed.”[/i]
That seems to be a valid, although potentially argumentative, point.
What are the chances that this will end up being decided by the court? Mike Harrington, will you file suit on behalf of the 3866 qualified signers of the referendum?
[i][quote]“This prompted one of the referendum organizers to comment…”[/quote][/i]Actually, you’re quoting Michael Harrington, possibly [u]the[/u] referendum organizer (who knows at this point?).”How do you decided when to attribute? Since this is a real person saying real things and taking real actions, it would help your readers to understand if you give him credit.
Second reporting request, please include links to the documents that are the bases of your reports. It can’t be that difficult, it improves the professional quality of the [u]Vanguard[/u] reports and it really helps the rest of us. (87th request.)[i][quote]“It is a good a point. Mayor Krovoza keeps telling me he wants to find a way through this but I have yet to see him put anything on the line. Time to step up, Mr. Mayor.”[/quote][/i]This is really vague. What is it that you want the mayor to do?[quote][i]”In the middle of the night…”[/i][/quote]What’s the significance?[quote][i]”Where’s Mike Harrington’s legal opinion?”[/i][/quote]Sorry, folks, he’s got no legal obligation to provide anything. And, it’s obvious he sees no moral obligation to be forthcoming about anything in spite of his leadership/spokesman role in this referendum scam.
Trouble is it’d be difficult to decide what attorney’s opinion to believe if they were sitting side-by-side. Harriet has a proven record of giving the council misguidance in recent years. We have little reason to question Michael’s legal abilities before we see any of his work.
Given his quietness about anything specific, we won’t get the opportunity to evaluate. Who knows, maybe his legal evaluation matches Harriet’s and he proceeded just to jam up the gears of city government?
What’s the date of Harriet’s opinion? It does’t look good if the mayor and city manager have been sitting on this “finding” while people have been engaged in the petition signature gathering process. The timing is poor anyway, except the city council has to have the information now that the effort was successful. Either way, it doesn’t reflect well on the staff or council to have this play out like they’re the reactionaries on this issue.
I think Ms. Steiner is wrong in her assessment. Her view seems to be that because Prop 218 allows only for an initiative to reject a rate hike, it does not allow a referendum. However, that forgets a pretty obvious fact: a popular referendum is a subset of the larger initiative process. That is, the terms are not mutually exclusive.
This proposal is a “popular referendum” because its purpose is to allow the voters to approve or repeal an act of a legislative body, the Davis City Council. Unlike a legislative referendum–such as the vote we took on Target–a popular referendum requires some amount of qualified signatures, which was met by the proponents.
The only distinction between an initiative and a popular referendum is that the former is not limited to overturning an act of the legislature; an initiative can also change the constitution or write new laws which the legislature may or may not have ever addressed.
The language in Prop 218 does not mention repealing fee hikes by initiative or by referendum. Rather, it uses the language “the power of initiative,” which would apply to all popular referendums as well as to all initiatives.
When the legislative analyst’s office formally analyzed Prop 218, the LAO used the terms referendum and initiative interchangeably. Here, for example, when discussing the question of who should be eligible to vote on Prop 218 matters, the LAO wrote that it was necessary to explore, “Who may vote on referendums to repeal assessments, fees, or taxes.” Clearly the LAO thinks that a referendum may be used to repeal a fee under Prop 218.
Most importantly is why our constitution allows for popular referendums at all. According to the California League of Cities (2007 Edition of its Proposition 218 Implementation Guide): “The referendum is the power of the electors to approve or reject statutes or parts of statutes except urgency statutes, statues calling elections, and statutes providing for tax levies or appropriations for usual and current expenses of the State. Cal. Const., art. II, § 9. Article II, section 11 grants the electors of each city or county the right to exercise initiative and referendum powers.”
I have to wonder if Ms. Steiner has read this document. If not, she should.
http://www.cacities.org/resource_files/newCybrary/2007/legalresource/26003.PROP 218 final.pdf
RE: the number of supporters of a referendum…
Given more time, I think the opposition would have collected more signatures. Bob Dunning has a lot of pull. Also, talking to many people in town there is a general lack of understanding of both sides of the argument and hence they are prone to just vote no. People are more apt to vote selfishly for their immediate pocketbook at this point; especially not understanding the longer-term cost-risks that might impact them and their children.
Related to this last point, kicking the can down the road will do nothing to reverse the trend of Davis pricing out young families. Selfishly I don’t want to see my home equity drop from an increased housing supply; but a larger share of water rate increases is a consequence of low population growth from our low residential growth. Our conundrum seems to be that we are too small to be big, and too big to be small. Can we stay a quaint little village and maintain a quality life-style? When I look around for other US cities matching our apparent vision, I cannot find many.
The California Dept. of Finance more-less said the same thing as the CLoC: “The referendum (RS) process is similar to the initiative process in that it also is the power of the electorate, but it is the approval or rejection of statutes. It is used infrequently. (Cal. Const. Art. II, §9).”
My opinion? I generally agree with Rich Rifkin’s post above. There is more to it, but he did an excellent job at a first stab.
The City may get sued in a class action (all registered voters, especially the ones who signed the referendum), but we shall see how this plays out.
Also, for the first time, a significant Davis business person has threatened the CC with a recall effort if they dont repeal, or put it to the ballot vote.
Times are interesting, as the Mayor said.
“The numbers just get bigger and bigger. The 218 protests were around 4,800 and the referendum was around 3,700 (no where near 5,000 Wolf states).”
We’ve been through this before, almost 30% sent in the 218 protest letters. How many more didn’t bother, threw out the mail not knowing what it was, thought why bother because the hurdle is insurmountable….
I’ll bet you a cup of coffee that a MAJORITY of Davis voters are against the rate hikes.
Rusty: My estimate at this point is 75% would support a repeal right now, and as we show our evidence during the campaign it will hit + 80%.
ANyone watch the CC meeting last night? There they were, acting like nothing is happening, and considering JPA Chairman Stevew Souza’s blessing of United Water, under indictment on felony charges in Indiana for falsefying e-coli results from a city water plant UW operates.
I went down last night to watch for a few minutes, and it reminded me of the violin and Rome story. The only one up there who looked concerned about the fiscal disasters hitting the city was Sue Greenwald.
The CC should immediately halt spending any more of our money on the surface water plant until after the June election.
I will run another referendum if they try a one year rate hike to bridge them into the big dollars.
[i]”a significant Davis business person has threatened the CC with a recall effort if they dont repeal…”
[/i]
Really? Who?
Michael Harrington said . . .
[i]”Also, for the first time, a significant Davis business person has threatened the CC with a recall effort if they don’t repeal, or put it to the ballot vote.”[/i]
Mike, I missed that piece of news. Can you provide details?
The reason I am asking Michael to provide his legal opinion is that
1) he demanded, publicly, that the Mayor provide the basis for his statements;
2) we already have an initiative being drafted or circulated which has been said to have significant legal flaws.
It is interesting that Rich has provided his own opinion on the subject. But Michael, as the organizer and presumably author of this referendum: did you get a legal opinion about what you were doing before you began? If so, will you provide it to David and to the Davis Enterprise? Your comments here don’t answer my concern that you may have caused a lot of volunteers to spend a lot of time on another flawed document. You can’t blame the city council for your lack of due diligence, if that is the case. They have to make a [i]political [/i]decision. I am asking you, specifically, if you did the basic legal groundwork for your referendum.
So, Mike Harrington is threatening a class action suit against the City. The “Class” is “all registered voters. OK, Mike have fun with that. IF you can get a legal team to take the case: First, you would have to get approval to try it as a class action, then you would have to mail out a notice to all registered voters so they have an opportunity to opt out of the class. Years of discovery and churning the files with motions. Then, in 3-4 years or more, you might get a trial date. By then the project will be well on its way to being built. If you win the case, the only option then is to bankrupt the City, or maybe raise fees and rates to pay the award. Or maybe cut services, lay off staff, reduce police and fire service, shut down Parks & Recreation, cancel the annual Nutcracker performances. I don’t think you are thinking this through and it is an empty threat.
As for a recall, I don’t think that the people of Davis will kick any current Council member off.
Again, you don’t understand the project, water issues or public finance.
All of your solutions are litigious in nature, full of ridicule, and threats. We don’t need this. We need people who are willing to collaborate and work together.
Don, He didn’t. There is no substance there.
If it turns out that my opinion (despite the fact that I have never played a lawyer on TV) is right and Harriet’s opinion is wrong, I think the DCC should really consider replacing her. I suggest that in light of the wrong advice she gave the City when it came to stopping the fact-finding process with the DCEA, a decision which now is costing us roughly $800,000 and perhaps will cost us more if the result is other bargaining units deciding that it is in their interests to pursue the same strategy those in DCEA have pursued. We need to have a city attorney whose conclusions hold up. Clearly they did not with regard to DCEA; and I seriously expect they will not with regard to this referendum question.
I should add that I spoke late last week with a non-DCEA city employee (who had spoken with his bargaining unit’s rep the day before) that his group is talking about what they will do if the City tries to go to impasse with them next summer. What he told me made it clear that they will let the new AB 646 process play out all the way, rather than just accept the City’s LBFO.
A different city employee told me that process will likely cost about $100,000 per bargaining unit for the city’s share of the fact-finding expense. So if we have to fully follow AB 646 with 6 employee groups, that means we will have roughly $600,000 less for cops, parks, streets, etc. And that expense will be every year, until the employee groups are willing to sign on to an MOU which includes terms the City can afford.
If Harriet Steiner had given the correct advice to the City with regard to DCEA, we would have been spared this $800,000 loss to DCEA and might have been spared the future annual costs of $600,000.
It is thus very expensive to get wrong advice from your lawyer.
To: Just Saying re “What is the date of Harriet’s Opinion?”
I do not know when the written opinion was delivered but on Sept 6 during the Council meeting, Harriet responded to a question by Stephen Souza asking what happens to rates set that eve if if a referendum comes forward. She gave the following response,
“It is at best unclear, but a majority of city attorneys believe that you cannot do a referendum against a rate setting.”
Harriet clearly brought the issue of a potential problem with the referendum process to the public’s attention. This is just another example of where a lot of information has been made publicly available for anyone who actually went to or listened to the Council meetings or read the staff reports. If there is a problem here, it seems to be that the referendums legal counsel did not do their own homework and not that the City tried to hide anything. I can easily imagine the hue and cry if anyone from the City actually did stand up and very pointedly noted there “might” be a problem with the referendum process. I am guessing the project opponents would then be crying “foul” that the City is trying to interfere with the referendum signature-gathering process.
This is similar to the situation where many of the water project opponents have ignored much information about rates that was widely publicly disclosed in the past such as that the maximum 14% per year rate increases specifically assumed a 20% water conservation effort on the part of the consumer rate payer.
Opponents of the project should not be expected to be spoon fed every single detail of the project over and over and over again. They are bright people. Telling them twice or three times should be enough to fulfill the City’s obligations and if they do not get it by then it is because they were being soft and not doing their own homework.
We shall see how this plays out it won’t be in favor of this nightmare water plant or the false rates
Alan Pryor:
Given your hyperventilation and hyperbole regarding the issue of wood burning on this blog, you should take your own advice.
Herman makes very good points.
Pam
Harriet Steiner is doing what she is paid to do.. take instructions from the Council Majority and shape the best, albeit in this case patently weak, legal argument. The plan may be to try and delay the formal approval of the referendum being put on the ballot, either to shorten the campaigning time to the June ballot or move the referendum to November where Souza and Wolk’s reelection bids will not be on the same ballot. The June campaign should not wait for final Council approval or the inevitable court injunction that forces the Council to place the referendum on the ballot.The campaign should begin in earnest if/when delaying tactics by the Council Majority are implemented.
So the city attorney stated in public, on record, that she felt the referendum was not on legal ground. [i]After that statement[/i], fully aware of the city attorney’s advice, Mike Harrington and others drafted and circulated a referendum that might not be legal.
Michael, did you get a legal opinion that contradicts what the city attorney said? If so, will you provide it?
Don, he didn’t. He’s dodging again.
[quote]Don: Can you provide a legal opinion that contradicts what the City Attorney said?” Mike Harrington: “We shall see how this plays out it won’t be in favor of this nightmare water plant or the false rates.”[/quote]
Don: My legal opinion? It’s clear: the memo from the City Attorney is incorrect. Ask any first year law student who has finished the Constitutional Law class, and they will tell you. Sorry to be so blunt, Harriot, but you are being paid the big dollars to get it right, and you did not. Maybe I will file a PRA for her billings to produce her opinion.
The City loses this argument, in the trial court, and all appellate courts, in my opinion. I am not wasting any more time with back and forth on this straightforward subject. Don: go hire a lawyer or a first year law student if you disagree with my opinion.
The City has two options on December 6: repeal the entire ordinance, or put it on the June ballot. No, the city does not get to repeal 4 years of rate hikes, and stick with the first. Clear law.
If the CC wants a special election, they can put it on the March ballot. But … oooopppsss …. the DJUSD already has that one for their parcel tax renewal. Put the city’s rate hike on the same ballot, and watch all of them lose.
In the end, I want to give the school parcel taxes the best shot at passage, and staying firm with the CC on its two options (repeal, or June 2012 ballot) is the best way to do that.
Steve, you are stuck. Get used to is. Just like you tried to stick us with the indicted for felonies Unted Water.
OK OK. Everyone is clamoring for something from me on the constitutionality of the Prop 218 process, and challenge.
I’ll give you a little.
From the text:
SECTION 5. LIBERAL CONSTRUCTION.
The provisions of this act shall be liberally construed to effectuate its purposes of limiting local government revenue and enhancing taxpayer consent.
That means: any doubts are resolved against the City trying to disenfranchise nearly 4000 voters, who emphatically did NOT consent to this extra fee and want to vote on it if the city wont flat repeal it.
There is a lot more …. but later, in court if needed.
When those two school parcel taxes are renewed in March, I want all of those DJUSD employees, and parents and voters to thank those referendum signers who helped make it happen. The power is in the precincts, a lesson this CC has completely lost.
LAO review of Prop 218:
[url]http://www.lao.ca.gov/1996/120196_prop_218/understanding_prop218_1296.html[/url]
Description of Prop 218, with detailed description of initiative procedure:
[url]http://davismerchants.org/water/26003PROP218final.pdf[/url]
[quote]Don: “Michael, did you get a legal opinion that contradicts what the city attorney said? If so, will you provide it?”
MH: My legal opinion. It’s wrong, because I said so. [/quote]
Yep, you have it right, Ryan. For now, that is what you get. And the quote above from the Prop 218 text. Are you going to argue with the Calif Constitution?
Sometimes I wonder how many of those dark suited $700/hour water lawyers hang on this Blog’s every word to try to figure out how to beat us. Hi guys! See you around sometime.
Those lawyers are all hired by the water consultants and the vendors who stand to make millions and millions and millions off this project if it goes through. Must have been a bad day on 10/14 when they got the pdf qualificaton document from the Mayor; that flood of water money might be ending.
I have another idea: maybe the water lawyers put the CC and City Attorney up to that weak memo? Got to try anything, huh, to keep that billing frenzy going?
November 14, 2011. Sorry for the typo.
Rifkin: [i]That is, the terms are not mutually exclusive. [/i]
[i]CALIFORNIA CONSTITUTION
ARTICLE 2 VOTING, INITIATIVE AND REFERENDUM, AND RECALL
SEC. 8. (a) The initiative is the power of the electors to [b]propose statutes . . [/b]
SEC. 9. (a) The referendum is the power of the electors to [b]approve or reject statutes . .[/b] [/i]
That proves what, Neutral?
Take a closer look at Section 8. You could have an initiative put on the ballot with the required number of signatures. That initiative could be worded to overturn a law passed by the legislature. In that case, tell me how that initiative was not also a popular referendum, other than having a different name?
Or you could have the same scenario, but the proposition was first called a referendum. All popular referendums use the same power of initiative.
The two are the same thing, if the referendum is of the popular type (as opposed to a legislative referendum) and if the initiative is not writing a new law but is rather overturning an existing law passed by the legislative body.
Davisite2: [i]”Harriet Steiner is doing what she is paid to do … take instructions from the Council Majority and shape the best, albeit in this case patently weak, legal argument.”[/i]
That is wrong. She is being paid by the taxpayers of Davis to give the City (and by extension the City Council) her best, most informed legal advice on matters of civic law.
The problem is that her record is not too great, right now, in my opinion. The PERB boner is glaring. Some say she also did not give the best advice with regard to ZipCar, though I have no strong opinion on her role in that misguided original contract.
[i]”It is at best unclear, but a majority of city attorneys believe that you cannot do a referendum against a rate setting.”[/i]
I have to wonder if Harriet picked the best group to consult with to decide her own advisory position*? None of the “majority of city attorneys” she pointed to has overturned a Prop 218 referendum**. It appears that there is no case law binding, here. Yet there are cases where rates passed legislatively have been challenged by referendums.
For example, the voters in Paso Robles had just such a vote in 2009 ([url]http://ballotpedia.org/wiki/index.php/Paso_Robles_Water_Use_Fees_Referendum,_Measure_A,_2009[/url]).
According to californiacityfinance.com ([url]http://www.californiacityfinance.com/UUTfacts08.pdf[/url]), “From June 2002 through June 2008 there were 83 utility user tax measures placed before voters by cities and counties. … During this period [b]there were also 14 referenda placed on the ballot by citizens[/b] concerning UUTs.”
*I am not sure exactly whom she should have spoken with. I suspect there are some experts on the law faculty or perhaps the PoliSci faculty at UC Davis that know more on this question than the “majority of city attorneys” know.
**I should make this clear: I could not find any such case. I looked and looked and looked. If there is one, please let me know by posting the link on the Vanguard.
Neutral: yep, you got a little more of my research and opinion, done before we ran the referendum. The reason for Prop 218 was to clarify for the public that they had an absolute constitutional right to file the initiative. There is little or no case law on the constitutional evaluation of the referendum process because it is so, so, so clearly available. Prop 218 was merely a clarification of the right to run an initiative.
There are other valid reasons why our little referendum is going to beat those water lawyers in court if we get there. Stay tuned, but I will save the best for the legal briefs, if we get there.
Hey Harriot: which of those expensive water lawyers put you up to this? Lots of churning going on for sure.
City Manager: is there anything you can do to end this expensive billing and churning madness to beat our referendum? How crazy was that memo, release after the referendum qualified? Is the City really going to try to take away the power to vote on this?
I am going to send a PRA for her bill for it.
One more bit to bolster my view that Prop 218 allows for referendums or initiatives to challenge legislatively increased water rates. This is the exact language from Prop 218: [quote] Notwithstanding any other provision of this Constitution, including, but not limited to, [b]Sections 8 and 9 of Article II[/b], the initiative power shall not be prohibited or otherwise limited in matters of reducing or repealing any local tax, assessment, fee or charge. [/quote] Now why would Prop 218 refer to Section 9 of Article II if Prop 218 did not allow challenges through the referendum process? After all, Section 9 deals exclusively with referendums.
Here is Section 9 of Article II in full:
[i]SEC. 9. (a) The referendum is the power of the electors to approve or reject statutes or parts of statutes except urgency statutes, statutes calling elections, and statutes providing for tax levies or appropriations for usual current expenses of the State.
(b) A referendum measure may be proposed by presenting to the Secretary of State, within 90 days after the enactment date of the statute, a petition certified to have been signed by electors equal in number to 5 percent of the votes for all candidates for Governor at the last gubernatorial election, asking that the statute or part of it be submitted to the electors. In the case of a statute enacted by a bill passed by the Legislature on or before the date the Legislature adjourns for a joint recess to reconvene in the second calendar year of the biennium of the legislative session, and in the possession of the Governor after that date, the petition may not be presented on or after January 1 next following the enactment date unless a copy of the petition is submitted to the Attorney General pursuant to subdivision (d) of Section 10 of Article II before January 1.
(c) The Secretary of State shall then submit the measure at the next general election held at least 31 days after it qualifies or at a special statewide election held prior to that general election. The Governor may call a special statewide election for the measure. [/i]
“She is being paid by the taxpayers of Davis to give the City (and by extension the City Council) her best, most informed legal advice on matters of civic law.”
This may very well be the case BEFORE the fact. AFTER the fact, her role as legal counsel to the city/Council,in practice, includes attempts at legal “damage control”.
[quote][i]”Also, for the first time, a significant Davis business person has threatened the CC with a recall effort if they dont repeal, or put it to the ballot vote.” [/i][/quote]When? Where? Why?
Dear All:
This evening, Ann (Ann Evans former Mayor of Davis) and I were talking about the pickle the City seems to be in over the water issue.
Ann brought up that when the council voted to do an RFP on developing the Arden Mayfair site(now our Central Park)as a shopping center there was a citizen effort to repeal the Council decision. Don’t know whether it was called an initiative or referendum but it was led by former Mayor Maynard Skinner and I think Bill Cavins and others. Perhaps Rich Rifkin’s historical knowledge will come to our aid.
Ann and I both remember that there was something technically wrong with the form used or there was close to the number of signatures but perhaps not enough. Anyhow, the Council had a technical out if it wanted to use it and just move ahead with the shopping center and ignore the vote.
Ann remembers that the Council felt that there was a clear message that the community wanted a park and not a shopping center and it really did not matter what the technicality was. The Council got the message and today we have a park.
Enough community members have said in two different messages that they want to have more dialogue on the issue and then they want to vote on it.
David Thompson
My question (previous post) is addressed to Sue Greenwald (who allegedly was threatened), Michael Harrington (who made the public allegation) and David Greenwald (who claims to know what’s going on).
Justsaying: You can ask the CC for this information.
Sue G was not threatened by a recall, or at least not that I have heard of.
My focus remains on pushing through the repeal, or the referendum to a final vote. And I am seriously looking at a water system initiative, since the CC appears to simply be unable to shoot straight anymore and get to the right, fair, obvious and affordable conclusions.
Noticed one thing: I think the project enablers who post here seem to be slowing down a bit as the tide has turned against any facts or law or political support they may have had.
I have to say, that City Attorney’s breath-takingly sloppy and poorly timed memo advocating that the Davis CC strip us of our constitutional right to run a referendum has really turned the worm over.
MIchael: [i]Noticed one thing: I think the project enablers who post here seem to be slowing down a bit as the tide has turned against any [b]facts[/b] or law or political support they may have had. [/i]
We have given up trying to discuss facts with you, MIchael. You have never responded to any attempts to discuss the technical and regulatory issues involved, except to denigrate those who engage on those. Salinity, selenium, subsidence, impact on the deep aquifer. Things like that. All you do is question our motives and disparage us, call people names, use innuendo and rhetoric. It’s pointless.
Here are [i]some[/i] assumptions involved in delaying or cancelling the surface water project. Feel free to address any of these on which you have any expertise or opinion.
We will get a series of variances for salinity.
We will skate by on selenium limits by diverting a small amount of high-selenium water to city irrigation, and using deeper aquifer water to dilute our intermediate supply enough to barely get under the discharge limit.
The deep wells won’t interfere with the UC Davis wells.
The deep aquifer won’t get contaminated from above.
The deep aquifer can sustain a significant increase in pumping without declining in quality or quantity.
The existing wells will hold out without requiring repair or replacement for two decades or more.
It is acceptable that continued pumping from the intermediate aquifer will cause continued subsidence at one-half to one inch per year.
UC Davis will continue pumping from the deep aquifer and will have to increase their use of it to provide water for future campus housing growth.
Davis won’t grow, Woodland won’t grow, UC Davis won’t grow.
Woodland will manage on its own to develop the surface water it needs; if not, Woodland will also try to pump from the deeper aquifer.
Don, don’t you get it? No one believes anything anymore from the project personnel who gave us the false rate rates, among other things? Now we have a city attorney memo that advocates stripping me of my signature on the referendum and my constitutional right to vote on these rate hikes? Sorry don, but they duped all you guys
Oh, add in steve Souza cozying up to indicted united water. Why should I believe anything these people tell me ? I don’t
[i]”Enough community members have said in two different messages that they want to have more dialogue on the issue and then they want to vote on it.”[/i]
David Thompson, with all due respect, the water infrastructure project decision criteria are much more complicated than are the decision criteria for building a park versus a shopping center.
Let me ask some rhetorical questions: why doesn’t the public get to vote on environmental policy and regulation? How about matters of national security? Why don’t we all vote to set city employee wages and benefits?
In our representative form of democracy, don’t we elect people to work out the decisions for the truly detailed and complicated issues?
Can you honestly tell me that you think the average Davis voter will educate himself to know all the short and long-term costs and risks for going forward with, delaying, or killing the surface water project? I think they are more likely to believe false hype that provides an outlet for their displeasure over paying higher rates.
You just proved my point, Michael. Salinity, selenium, and subsidence are matters of fact, not opinion. They are statistical issues that derive from the present discharge permits. You can look them up. Your failure to do so when the information has been presented to you time and time again demonstrates that you are choosing not to inform yourself. None of what I listed has anything to do with the rate hikes. None of it derives from city staff. Nobody has duped me.
Try that list I posted. Let’s discuss the issues.
Don. But the same people designed and carried those studies. No, I don’t believe most of it
That is not true, Michael. That is, in fact, a lie.
[quote]“Justsaying: You can ask the CC for this information. Sue G was not threatened by a recall, or at least not that I h`ave heard of.”[/quote] I asked [u]you[/u] for the information (“When? Where? Why?”) because you’re the one who wrote: [quote]“Also, for the first time, a significant Davis business person has threatened the CC with a recall effort if they dont repeal, or put it to the ballot vote.”[/quote]I asked Sue because she’s a member of the CC to which you were referring. [i][quote]“I have to say, that City Attorney’s breath-takingly sloppy and poorly timed memo advocating that the Davis CC strip us of our constitutional right to run a referendum has really turned the worm over.[/quote][/i]Finally, something that makes sense to me (except for the worm part)–the timing of the “big news” today gives the appearance the authorities were waiting with this in their pocket to see whether your effort would fail. However, I found Alan’s Sept. 6 meeting report reassuring that there is no hanky-panky going on. How about you, were you aware of her early, initial opinion?
Michael:
Here is the city water quality report: [url]http://cityofdavis.org/pw/water/pdfs/2010_waterqualityreport.pdf[/url]
Testing of the city water is conducted as regulated by the EPA and the state.
Here is the city’s discharge permit: [url]http://davismerchants.org/water/CityofDavisdischargepermit2010.pdf[/url]
It makes it very clear what the regulatory and technical problems are that are at the heart of this whole issue.
Please tell me what you don’t believe.
Rifkin: [i]After all, Section 9 deals exclusively with referendums. [/i]
According to ‘Rifkin’s Law’ the Constitution should collapse the definitions of ‘referendum’ and ‘initiative’ into one:
[i]The two are the same thing, if the referendum is of the popular type (as opposed to a legislative referendum) and if the initiative is not writing a new law but is rather overturning an existing law passed by the legislative body.[/i]
I’ll give you some small credit for creative double-speak, but a ‘fail’ for your reactions to my comment. I was confused about the difference – if any – between the two terms and found and posted the *legal* definitions.
That’s it. End of story. No personal slight intended. But if you remain true-to-form, I suppose you’ll find a way to post a few hundred irrelevant words on the matter anyway.
[quote]There were many other options studied in the feasibility studies done several years ago. Some of those options are viable alternatives to this project.[/quote]
Here is the crux of the issue. What are these “viable alternatives” you are referring to?
NEUT: [i]”I’ll give you some small credit for creative double-speak … No personal slight intended.”[/i]
Thanks for not slighting me, Neut.
NEUT: [i]”I suppose you’ll find a way to post a few hundred irrelevant words on the matter anyway.”[/i]
Thanks again for not slighting me, Neut.
@ Elaine: the feasibility study mentioned here, as well as in a comment by Michael Bartolic on the Enterprise, is on the city’s website. I’ve also saved it here: [url]http://davismerchants.org/water/2002CityofDavisUCDavisjointwatersupplyfeasibilitystudy.pdf[/url]
@ Neutral: please no personal attacks.
Don: [i]@ Neutral: please no personal attacks.[/i]
Haven’t made any. If I do, you’ll be the first to know.
Neutral, that is a bit of a tightrope walk. 8>)
🙂
Neutral, please! There’s only one unfettered one at the present time.
To Don: Thanks for the link!