Sunday Commentary: City Settles for the Small ‘w’ on Sales Tax Ballot Measure


In an ideal world, the city of Davis would have liked the clean victory on Measure with Judge Reed ruling what most of us already know –there is nothing false and misleading about calling a sales tax “half-cent” rather than “half a percent.”  But that is not how the law works sometimes.

Jose Granda and company have filed numerous lawsuits against the school district, they kinda of, sorta of, won one when an issue they were arguing from another school district ending up convincing the school district to play it safe and alter the parcel tax rather than risk getting defeated in court.

Still despite the courtesy extended by Judge Reed, Mr. Granda looked unprepared and foolish.  He did not know that he needed to schedule a hearing following a tentative ruling – only the fact that Ms. Steiner showed up (having nothing to lose, but at the cost of taxpayer money) did the Judge allow the proceedings to continue.

Mr. Granda illustrates a central factor in litigation – never represent yourself.  I consider myself to know a good deal about the law and procedure, certainly far more than Mr. Granda (as I explained things to him last week), and I would never under any condition represent myself in a court of law.

Why?  For one thing, to avoid the kind of procedural pitfalls that Mr. Granda was ultimately derailed by.  In short, he did not know that he needed to file the suit not against City Clerk Zoe Mirabile but against the County Clerk Freddie Oakley.  I may have figured that out, or at least asked people who would know.  I’m not sure I would have figured out that the City Council, as authors of the measure in question, also needed to be noticed.

However, it did seem odd to me to see that they had filed it against the city clerk, I have seen a fair amount of litigation against the city, but never have seen the city clerk as the named party.  I may have done City of Davis and the County Clerk.
But again, this further illustrates why it is problematic to file a petition yourself.

The other thing that I know having been to countless trials both criminal and civil is that there is a difference between the letter of a statute and the application of it as interpreted through court cases.  I can understand the plain text of statutes, but knowing precedent and procedure is something that a lawyer would need to guide one with.

There is no doubt that the city would have preferred to have argued and won on the merits of the case rather than have the case be dismissed on a technicality.  Adding to the intrigue here is that while normally this would not have been a fatal problem, they simply amend and refile, but here there is a strict ten day examination period, after which the petitioners are no longer allowed to intervene.

In a strange sense, the error by Mr. Granda and company could work out in their favor.  Already Columnist Bob Dunning has raised this issue in the public venue, arguing even if it is not misleading, it is false to state that “half-cent” and “half a percent” are the same.

Here again, the plaintiffs are at a huge disadvantage representing themselves, but I see now possible way that they can show that Measure O was false and misleading.

The standard to remove ballot language by a court is necessarily extremely high.  After all in a democracy, you want the people to make the decision as to whether or not they support the proposed bill, not the courts if you can avoid it.

So the standard for review is that a court may only intervene is there is “clear and convincing” evidence that demonstrates the statement to be false.  In this case of course, you cannot argue that “half-cent” is false, at best you can argue that it is not the most precise description.

But it not only has to be false, it has to be “misleading” and the court must consider “whether the challenged statement is subject to verifiability, as distinct from ‘typical hyperbole and opinionated comments common to political debate. ‘”

Therefore a ballot title or question “is legally sufficient if it “substantially complies” with the law and is impartial (i.e., the measure does not favor a particular partisan position).”

Here is precisely where the plaintiffs were going to lose.  Measure O uses very common language to describe the rate of a sales tax.  We already showed you in previous articles that Measure O’s designation of “half cent” was used in the original 2004 law that put the half cent sales tax onto the books and the 2010 law that renewed it.

So you have the case where the law has been on the books for ten years now, you are not going to convince a court that renewing and extending the sales tax using the exact same wording is going to be misleading to anyone.

Moreover, as we noted earlier this week, the 2012 Proposition 30 used the language “quarter cent” to implement its statewide tax.  And a quick glance at Ballotpedia shows that almost all sales tax measures in the state over the last decade have used similar language to what Davis is using.

Now Mr. Granda and probably Mr. Dunning would argue that none of that makes this correct.  I agree.  However, the law does not require literal correctness as we just showed.  It has to go beyond the typical hyperbolic and otherwise opinionated comments that adorn political debate.

And in this case, common usage is the best defense against the notion that this could be misleading.

But the city does not get a court of law to make such determinations and so this is a point that we are likely to hear over and over again.

One of the great ironies is that Michael Harrington has posted that he agrees with Mr. Granda that the language is misleading.  The funny thing of course is that in 2004, Mr. Harrington was on the council that put the original half-cent sales tax measure on the ballot.

The other irony is that the opponents to this actually have far stronger arguments against the tax measure.  However, as we noted when we read the opposition the sales tax measure ballot argument, they do not seem to really understand the city’s fiscal crisis and how it occurred.

What was false and misleading was that the 2004 sales tax measure warned about cuts to police and fire and closure of parks if the voters did not approve the $3 million in additional revenue.  A year later, that $3 million was essentially give to firefighters in the form of a 36% pay increase over the court of their 2005 to 2009 MOU.

Everyone else in the city got raises as well, but those were at 18% rather than what the firefighters received.

Talk about false and misleading.  It might been nice if a certain columnist had noticed that bait and switch a decade ago as easily as he recognized that “half-cent” is not technically the same as “half a percent” even if almost all jurisdictions use the phrases interchangeably including the California Attorney General’s Office.

—David M. Greenwald reporting


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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