Sunday Commentary: Should Dunning Flip For District’s Legal Bill Defending Lawsuit?

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ballot-mailIt took less than a week after Bob Dunning’s column “Will bad grammar doom education measure” where he wrote, “it’s just confusing enough that it’s unlikely to survive a court challenge should someone decide to sue after it passes,” for someone to take the bait and sue the tax measure.

The remarkable thing about Bob Dunning’s column is that the Davis King Hall Law School graduate never bothered to do his own legal research.  Instead, he relied on a textual analysis in determining that the ballot language was muddled.

He apparently never consulted with the county clerk, he never talked to the district, and he never talked to the county counsel’s office – all of whom reviewed the language and evaluated the standards.

If the parcel tax measure passes on Tuesday, do you really think a court in California or a federal court is going to overturn the will of more than two-thirds of the voters of the city of Davis because they may have used a comma where they should have used a semicolon?

The legal experts the Vanguard consulted with believe pretty strongly that no court will even hear this matter.  The district can utilize the typical voter standard and point to the impartial analysis by the county counsel who apparently had no problem whatsoever interpreting the ballot language.  Neither did numerous newspaper articles.

And for that matter, neither did Bob Dunning himself, as he wrote, “Now, I know what the authors of this measure meant to say…”  Turns out that fact may be sufficient.

The problem is that Thomas Randall and probably a few others who did not want to put their name on the suit are desperately looking for any straw to grasp, no matter how fleeting.  The federal lawsuit is in fact a joke – they are not only taking on the muddled language which is probably an issue for the state courts, but also arguing that the tax law is inherently unfair.

The problem for them is that this is embedded in state law – law that has been challenged and has survived numerous court battles with top-notch attorneys.  So this band of non-lawyers is going to challenge state law that every locality utilizes, with no attorney?

This whole thing would be comical if it weren’t for the fact that the district likely is going to have spend money and legal resources to quash it.  The district believes they will have to file a motion to quash on the grounds that it is a frivolous suit with no merit.  When you spend $300 per hour or more on legal advice, that costs money.

Should Bob Dunning have to flip that bill for the taxpayers, since it was his column that led to this desperate lawsuit?  Whether he should or should not, we know he will not.  Thomas Randall and company may not be so lucky.  The district would be well within their rights after the suit is thrown out to recoup their attorney fees from the plaintiffs here.

The argument is in fact nonsensical.

The plaintiffs here cite the “Federal Plain Writing Act of 2010.”  They go on to note, “It requires that government agencies issue documents, announcements and any communication with the citizens be done in comprehensible plain English and avoiding technical terms.”

But all that law requires is that the federal government write all new publications, forms, and publicly-distributed documents in a “clear, concise, well-organized” manner.  It is not clear that this would apply to the states and, more importantly, it basically focuses on not using technical or highly legalistic terms.

However, the only point in question here is whether the ballot language would have been clearer with a semicolon rather than a comma.

The ballot measure reads: “To offset the continued loss of significant state funding, shall the Davis Joint Unified School District be authorized to continue a special tax for a period of 4 years not to exceed the base annual rate of $20.00 per dwelling unit for multi-dwelling parcels and $204.00 per parcel for all other parcels, and levy up to an additional $242 to cover State funding shortfalls ONLY if the November 2012 Temporary Taxes to Fund Education initiative does not pass?”

It is pretty clear here the meaning of this.  It would be a four-year extension of the parcel tax at the base rate of $204 per parcel, except $20 per dwelling unit for multi-dwelling parcels.  You then levy up to an additional $242 to cover state funding shortfalls if Proposition 30 does not pass.

What’s the confusion here?  It’s in the impartial analysis by the county counsel.  It has been in countless Enterprise and Vanguard articles.

Mr. Randall argues that the “current wording is incomprehensible.”

If it is incomprehensible, how does the county counsel know what they mean?

This is a more powerful argument than you think.  If the county counsel did not know the meaning of the ballot language as written, they would have had the authority within the ten-day window to ask the district to revise it.  The fact that they did not suggests that the meaning was very clear.

Mr. Dunning is simply acting as grammar police, as he often does in his columns, to lampoon and mock various officials and citizens who dissent.  That’s fine, but just because the ballot language does not rise to the technical grammatical perfection does not mean it rises to the legal standard for nullifying the will of two-thirds of the voters’ intentions.

And that’s the standard that the court will consider.  It’s the highest standard there is.  And we believe no court will overturn it based on arguably incorrect punctuation.

But there is a bigger loser here than the taxpayers, and that is the voters and even the parents and educators.

You see, while I support the parcel tax and believe that the district is forced to essentially collect money locally where they have lost money from the state, I believe that there should be a community discussion as we move forward.

There is a philosophical and political discussion here that we could be having as to how we should fund our schools, what programs we need, and how much funding it will take to have the district we like.

To DJUSD’s credit, we have fought to not only preserve the top-tier programs for the top students, but we still have school counselors, we still have psychologists, we still have paraeducators, we still have resources that many school districts can only dream about.

If parcel tax money goes away – the kids who will suffer the most are the ones like mine.  The nine-year-old that we have been caring for since first grade has a chance at a normal life only because DJUSD believes that kids like him deserve resources.

For those of you who do not believe we need things like counselors and psychologists at a school, maybe you have never had to deal with a kid where the barriers to education are wrapped up in psychological wounds suffered from early in childhood.

As we finally fought for and utilized a county-funded therapist, she worked with a number of kids initially at our school site and was absolutely astounded with the commitment and cooperation by staff at DJUSD.

In the local paper today, Jose Granda, the school board candidate and opponent of Measure E, runs his “life without parcel taxes,” a piece that he had similarly run in the Vanguard a few weeks ago.

He talks about his plan for replacing the parcel tax system “with a new, more robust and fair system for providing extra funding for schools.”

While perhaps well-intentioned, he writes, “The backbone is the formation of the Davis School District Excellence in Education Foundation, a central 501(c)(3) nonprofit organization with a master plan and a full-time staff whose main purpose would be to seek funding from external sources such as grants, endowments, wills and tax-deductible donations.”

The irony is that this seems not too different from what we already have – the Davis Schools Foundation which has been fundamental in saving programs in the district.  The problem is that they rely on one-time money which is not merely enough on an ongoing basis as is needed to replace the loss of state funding or the parcel tax.

The fact that I do not agree with him or do not believe it would work is aside from the main point that the news this week on the district has not been devoted to a discussion of these philosophical and political differences, but rather a lawsuit.

Bob Dunning, as a columnist, has never debated the merits of Dr. Granda’s plan or even the merits of the parcel tax.  Instead, he made a highly subjective assessment consulting few if any legal resources and turned the discussion from a political debate over ideas to a legal fight over ballot language and what constitutes clear and plain language.

Is it really a service to the community to raise the issue in this way without discussing with legal analysts, the county clerk, county counsel, etc?

Bob Dunning as a columnist is not bound by the same rules that govern journalists, but doesn’t he have some ethical responsibility to be sure that he is printing the accurate information?

Is he not responsible at least in some way for the actions of Thomas Randall and Janet Zwahlen?

—David M. Greenwald reporting

PS – I don’t really believe that a columnist should have to pay the legal bills for the district, it would be a bad precedent and have a chilling effect both on the freedom of speech and the ability of the press to feel free to criticize public policy.  At the same time, I use this as a rhetorical device to suggest that one needs to make responsible decisions for columns and do your best to check with experts before offering less than well-founded opinions.

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About The Author

David Greenwald is the founder, editor, and executive director of the Davis Vanguard. He founded the Vanguard in 2006. David Greenwald moved to Davis in 1996 to attend Graduate School at UC Davis in Political Science. He lives in South Davis with his wife Cecilia Escamilla Greenwald and three children.

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24 thoughts on “Sunday Commentary: Should Dunning Flip For District’s Legal Bill Defending Lawsuit?”

  1. davisite2

    David… There are some who would argue that this Vanguard Commentary is guilty here of “calling the kettle black” with regard to legal issues that the Vanguard may have contributed to requiring increased city legal costs. The Vanguard’s call for self-censorship and limiting the journalistic free speech of Dunning’s tongue-in-cheek commentary-style writings is disappointing.

  2. Davis Progressive

    actually it didn’t seem like the vanguard did that if you read through to the ps. though i must ask: can you explain exactly what was tongue-in-cheek by dunning with regards to the two columns on measure e?

  3. davisite4

    A semi-colon would not be correct. Whatever follows a semi-colon should be a complete sentence. However, “and levy up to an additional $242 to cover State funding shortfalls ONLY if the November 2012 Temporary Taxes to Fund Education initiative does not pass” is not a complete sentence.

  4. Davis Progressive

    it appears that the semicolon would take the place of the “and” and without the “and” it would be a complete sentence. but holding a ballot measure to exact punctuation rules is a bit ludicrous anyway.

  5. Rifkin

    Isn’t the real question here, the one the Vanguard has ignored, why we have top school district administrators, and perhaps even legal counsel for the district, unable to write a clear and grammatically correct ballot question?

    Defenders of the district claim our schools are so very good. They point to perpetually high test scores, admirable college admissions and respectable graduation rates as evidence that this district is a fount of intelligence.

    Yet in numerous small ways the administrators have shown over the last ten years that intellect is not their strong suit. Maybe they are simply the beneficiaries of a district loaded with children who come from well educated parents.

  6. davisite4

    “Levy up to an additional $242 to cover State funding shortfalls ONLY if the November 2012 Temporary Taxes to Fund Education initiative does not pass” is not a complete sentence, either. It lacks a subject.

    The complete sentence to follow a semi-colon would have to be something like: “Shall the Davis Joint Unified School District be authorized to levy up to an additional $242 to cover State funding shortfalls ONLY if the November 2012 Temporary Taxes to Fund Education initiative does not pass?”

    In the formulation that is currently on the ballot, one does not need to repeat the subject, since there is an “and.” The current formulation is long and awkward, but it is not grammatically incorrect.

    (agreed about the ludicrousness).

  7. David M. Greenwald

    Rich: I disagree with you on what the real issue is. To me the real issue and really the only one that matters is whether or not a reasonable voter is unclear as to what the measure does and secondarily whether a court is going to overturn the public’s will (if it passes) based on a technicality at most.

  8. Nora Oldwin

    Grammar can seem to be, but really is not, trivial. Compare the following two sentences which totally change meaning with the addition of just one comma:
    1) Let’s eat dad!
    2) Let’s eat, dad!

    That being said, I don’t buy the argument that this particular ballot measure as written is indecipherable, or un-understandable. So I’m really not sure why plaintiffs are spending their precious time (disclaimer– I’m not being facetious, my husband has stage four brain cancer and I have learned that time is VERY precious) fighting this particular battle.
    Anyway, If we pass Measure E we’ll be more sure of being able to provide the education for our kids that will allow them to use grammar and punctuation to say what they mean, mean what they say, thus potentially avoiding the possibility of future ambiguous ballot measures, right?

  9. SouthofDavis

    David wrote:

    > I use this as a rhetorical device to suggest that
    > one needs to make responsible decisions for columns
    > and do your best to check with experts before offering
    > less than well-founded opinions.

    Does this mean that you will be posting the names of the “experts” you check with before posting each new column?

  10. rusty49

    “I use this as a rhetorical device to suggest that
    one needs to make responsible decisions for columns
    and do your best to check with experts before offering
    less than well-founded opinions”

    LOL, anyone can find a supposed expert, study or article to back almost any claim they’re trying to make using just a simple Google search. You find this all too often here on the Vanguard. Just Google “the Earth is flat” and you’ll find all sorts of “proof”.

  11. hpierce

    PSA: Please vote Tuesday… if you are eligible, and don’t, please refrain from complaining about voting outcomes until the next election.

    Jeff Hudson has an incorrect piece in today’s paper (Emptyprize). He is correct that if you are a VBM voter (formerly known as “absentee”), it is too late to mail your ballot and be assured it will arrive in time for it to be counted… ballots have to be in the physical possession of Elections by poll closing time on Tuesday… postmarks DO NOT COUNT (and neither will your vote, if it gets delivered after Tuesday). Where he erred is telling VBM folks to drop off their voted ballot AT THEIR PRECINCT. Although you may certainly do so, the FACT is that you can drop your voted ballot AT ANY POLLING PLACE IN YOLO COUNTY. If you work in another county, and drop it of there, you HAVE NOT VOTED. [End of PSA]

  12. David M. Greenwald

    So let me get this straight – your equating talking to an attorney who practices in the election law field and knows law and procedure to someone on the internet who posts on the earth being flat?

    Let me ask you a couple of practical questions: if you sprain your knee do you go to your car mechanic or an orthopedist to get an opinion on it?

    If you are charged with a crime, do you hire a defense attorney or allow your neighbor to defend you?

    So if you are trying to understand a ballot measure and what the legal avenues are, who would you talk to? Here’s who I talked to: Freddie Oakley, the council counsel’s office, two people in the school district, and an election law attorney.

  13. rusty49

    IMO the way Measure E is written on the ballot is very obscure and misleading. To say that it’s more clearly written in the voter pamphlet handout and that people should’ve known the details because it’s been in local papers is besides the point. We all know that many voters come unprepared on the issues and will end up casting their vote based on the actual Measure E ballot language that’s on the ballot. So for this reason I think Mr. Randall, Zwahlen and Dunning are correct in their assessment.

  14. rusty49

    David, I was talking in general, not to a specific article and in regards to your statement “I use this as a rhetorical device to suggest that one needs to make responsible decisions for columns and do your best to check with experts before offering less than well-founded opinions.”

  15. Reading Comprehension

    Rusty:

    I don’t understand how you can argue it’s obscure or misleading.

    Is it your opinion that a court will nullify the election?

    I disagree with you, I think the meaning of the ballot language is very clear…

    “To offset the continued loss of significant state funding, shall the Davis Joint Unified School District be authorized to continue a special tax for a period of 4 years not to exceed the base annual rate of $20.00 per dwelling unit for multi-dwelling parcels”

    So it would establish a base rate of $20 per dwelling unit for multi-dwelling parcels… that’s very clear.

    ” and $204.00 per parcel for all other parcels,”

    And $204 per parcel for all other parcels… yes I used the exact language that’s how clear that is.

    “and levy up to an additional $242 to cover State funding shortfalls ONLY if the November 2012 Temporary Taxes to Fund Education initiative does not pass?”

    And it levys another $242 ONLY if Prop 30 fails.

    What the hell is confusing about this? It’s clear as day.

  16. rusty49

    Reading Comprehension, I always laugh at how a new name will all of a sudden pop up on here, is this your first time posting or do you have many aliases? Anyway, I feel that Mr. Dunning makes the point very clearly:

    “According to the Official Sample Ballot sent to me by the Yolo County Elections Office, the measure reads as follows: “To offset the continued loss of significant state funding, shall the Davis Joint Unified School District be authorized to continue a special tax for a period of 4 years not to exceed the base annual rate of $20.00 per dwelling unit for multi-dwelling parcels and $204.00 per parcel for all other parcels, and levy up to an additional $242 to cover State funding shortfalls ONLY if the November 2012 Temporary Taxes to Fund Education initiative does not pass?”

    Now, I know what the authors of this measure meant to say, but they crammed so many propositions into one sentence that the actual meaning is lost. At best, it’s subject to two or three separate interpretations, and at worst, the flaw is so certainly fatal it won’t matter if the measure passes or not.

    What the authors were trying to say was that a “Yes” vote would create a $204 per parcel tax no matter what happens with Prop. 30, but that if Prop. 30 fails, the same “Yes” vote would also authorize another $242 tax, in addition to the $204, for a grand total of $446.

    Unfortunately for the district, that’s not what the measure asks. And the “you know what I meant to say” argument won’t hold water in a court of law if and when someone challenges this.

    The fatal word here is “and,” which makes both the $204 tax and the $242 tax dependent upon the failure of Proposition 30.

    What you have here are three separate issues vying for our attention. Item A is the $204 tax, Item B is the $242 tax and Item C is Prop. 30.

    Measure E very clearly links the fates of Items A and B with the passage or rejection of Item C. There’s simply no way around it.

    Some will argue that a comma between the words “parcels” and “and” separates Item A from Item B, but it does no such thing. The clearest meaning of the measure as written, assuming a two-thirds “Yes” vote, is that both A and B pass if Prop. 30 fails, and both A and B fail if Prop. 30 passes.

  17. rusty49

    The district’s website notes that “If California voters approve Prop. 30 and Davis voters approve Measure E, Davis residents will not pay the component of Measure E that protects against additional state funding cuts.” Clarifying statements on the district’s website, however, have absolutely no legal standing.

    It’s the ballot language, and the ballot language alone, that’s relevant.

    It would be entirely reasonable for a voter to assume he’s voting “Yes” on both local taxes only if the state initiative fails, and that he’s off the hook completely on both local taxes if the state measure passes.

    Just for fun, let’s substitute food for taxes and see what happens.

    Suppose the statement said “We will have steak, and corn for dinner ONLY if dad doesn’t find potatoes.”

    The district would have us believe that that means we’ll have either steak and corn or steak and potatoes, when in reality it means that if dad does find potatoes, we will not have steak or corn, only potatoes.

    Or, let’s try this: “Shall the City of Davis be authorized to spend 32.3 billion dollars to bring fresh water from the Columbia River in Oregon, and an additional 14.8 billion dollars to bring water from the Snake River in Idaho ONLY if California voters fail to ease clean water restrictions prior to Jan. 1, 2016?”

    Again, the district would have you believe the “ONLY” refers only to the Snake River, when in reality it refers to both.

    That word “ONLY,” especially in all caps, is hard to ignore.

    Or, for those who like road trips: “We will visit Yellowstone National Park, and Glacier ONLY if we don’t run out of gas.” Again, both destinations are dependent on not running out of gas.

    Both the $204 tax and the $242 tax come into existence ONLY if Prop. 30 fails. Both are dependent on Prop. 30’s failure. It doesn’t matter what you meant to say, it matters only what you actually said.

    Instead of trying to cram several eventualities into one inelegant sentence, the district should have divided this up into two separate measures.

    Measure A should have said “Shall the Davis Joint Unified School District be authorized to continue a special tax for a period of 4 years not to exceed the base annual rate of $20.00 per dwelling unit for multi-dwelling parcels and $204 per parcel for all other parcels?”

    Measure B should have said “Without regard to Measure A, shall the Davis Joint Unified School District be authorized to levy up to $242 ONLY if the November 2012 Temporary Taxes to Fund Education initiative does not pass?”

    Not only would two separate votes be clear and unambiguous, it would also give voters more choices than now exist.

    After all, there may be some voters who feel $204 is as far as they’re willing to go, no matter what happens with Prop. 30. There may be others who are inclined to vote “No” on the $204, but would be willing to vote “Yes” on $242 if state funding fails. And there may well be voters who would vote “Yes” on both measures or “No” on both measures.”

  18. Paul Thober

    I think Dunnings analysis of the grammar of measure E is correct. Of course he is not obligated in any way to help the city defend itself, if the city screwed up it is their (our) responsibility. How about the author(s) of the measure language taking personal responsibility?

    I am very pro-public education, but I find these regressive tax measures very hard to take.

  19. eagle eye

    re Bob Dunning: We don’t know whether he came up with the idea of a challenge on his own, or whether he got wind of their plan before it was publicly announced by the opponents.

    re Vetting by specialists: Prop 34 —
    I asked an attorney in the LAO to explain Prop 34 and whether innocent death row inmates will lose their state-paid legal assistance if they’re moved to LWOP.
    He participated in writing the analysis for the Voter Guide, but he did not know the answer to the question. He finally admitted that he did not know the meaning of what his own group wrote in the Voter Guide.
    He’s going to “consult with his team” and get back to me. LOL ~

  20. David M. Greenwald

    “I am very pro-public education, but I find these regressive tax measures very hard to take. “

    You understand that the terms of the tax measure is dictated by Prop 13 and other state laws and the district has no latitude on it, right? So what the solution for a district trying not to have cut another $3.2 to nearly $7 million again this year?

  21. civil discourse

    I believe Dunning was using the “potential lawsuit” as a rhetorical device.

    Quite similar to your rhetorical device asking if Dunning should pay for the lawsuit (and of course knowing the potential that someone could indeed do so).

    Which leaves one to ponder: what exactly do you call it when a rhetorical device is used on top of another rhetorical device? Maybe a moot point?

    Better yet, perhaps the Vanguard should pay for the lawsuit against Dunning? I suggest that, of course, as a rhetorical device. That would be the third in this saga.

  22. civil discourse

    And if you think I’m joking, I’m not.

    Dunning’s rhetorical device of “potential lawsuit” was merely to point out that the language is confusing.

    Your rhetorical device is used to point out that Dunning has power, and should wield it carefully.

    Nonetheless, the irony is quite thick. To suggest that Dunning should stop using rhetorical devices by inciting your own against him is either funny or ironic, I’m not sure which.

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