Both Sides Claim Victory in Judge’s Ruling on DiSC Ballot Language

By David M. Greenwald
Executive Editor

Woodland, CA – Judge Maguire issued his ruling on the petition for writ of mandate filed by Dan Carson last week ruling in large part for the respondents.  Still both sides seemed to claim victory in statements following the ruling.

Alan Pryor told the Vanguard in a quick phone conversation that he felt “relief” that the judge for the most part found the claims by Carson to be without merit and “grateful” that the judge listened carefully and ruled accordingly.

Pryor and the No on H campaign will have a more full statement later today.

Meanwhile in a statement from the Yes on H campaign, Councilmember Dan Carson also applauded the ruling by Judge Maguire claiming that he found that “statements submitted by opponents of Measure H for use in the taxpayer-funded Voter Information Guide were false and misleading.”

Judge Maguire found that an opponent statement on project requirements to mitigate traffic falsely said that only one such measure existed when in fact nine separate commitments are among the DiSC baseline features. “The court finds clear and convincing evidence that this statement is verifiably false,” Maguire ruled.

The judge also ruled that an opponent statement related to potential greenhouse gas emissions from the project was “misleading.”

He ordered both opponent statements to be corrected in the Voter Information Guide, which at taxpayer expense is printed and distributed to voters before the election by Yolo County.

“Today’s ruling proves that our campaign opponents made false and misleading statements about Measure H, and should undercut their credibility with all voters,” Carson said. “We are thankful that Judge Maguire has taken a stand in support of truth in politics at a time when the spread of political disinformation is a growing national concern. We hope voters will visit the Yes on Measure H website… to get the truth and facts.”

Judge Maguire in his five page ruling found the statement, “and is still non-compliant with the City of Davis General Plan,” to not need to be stricken or amended.

The judge wrote, “as all agree, the project does necessitate a change to the current General Plan. Second, Real Parties in Interest are entitled to express their opinion that the project is incompatible with certain goals and policies in both the current and proposed amended General Plan…”

Further, he did find the evidence “clear and convincing” that the developer “made almost no binding commitments…” was “objectively false or misleading.”  The Judge writes, “The qualifier “almost” imports an element of subjectivity or opinion, which brings the statement within the wide ambit of acceptable political speech.”

However, with respect to the Traffic Demand Management Plan being the only promise, “The Court finds clear and convincing evidence that this statement is verifiably false, because the Transportation Demand Management Plan is one of nine separate traffic-related commitments among the Baseline Project Features.”

Judge Maguire writes, “Real Parties in Interest are free to argue that the other eight commitments are vague, 15 speculative, contingent, or otherwise ineffectual, but as a matter of objective fact they cannot deny the existence of these commitments, which the word “only” does.”

The judge changed the language to “excise the word ‘only.’”

On the issue of “unmitigated greenhouse gas emissions,” the judge notes, “Petitioner argues that this phrase should be interpreted as a factual statement that the project contains no greenhouse gas emission mitigation measures. So construed, it would be objectively false.”

However, “Real Parties in Interest construe the phrase as a prediction that the project will result in significant unmitigated greenhouse emissions. So construed, the phrase would stand as an opinion “about the future effects … if the measure was enacted.””

The judge notes the words are “challenging” in part because they are a heading rather the sentence or assertion.  He notes, “The text following the heading discusses the Environmental Impact Report, lending credence to the Petitioner’s interpretation that this is a false assertion that the project contains no greenhouse gas emission mitigation measures.”

However, “the brevity of the text and the inherent ambiguity in converting a heading to an assertion lead the court to conclude that the evidence is not “clear and convincing” that this heading is objectively false or misleading. Therefore, the court will not amend or strike this heading.”

Finally the court did find that 54 million pounds was “misleading.”  The judge writes, “This error was made inadvertently and not in bad faith, but still should be corrected, and the figure of 20,000 metric tons will be used instead, as requested by Real Parties in Interest at the hearing.”

A statement by the Yes on H campaign notes, “The DiSC project is required to be carbon neutral – in other words, to offset all greenhouse emissions – by 2040. The project is also required to implement a series of road, transit, bicycle, and other transportation improvements that would improve traffic flows for area roads.”

Link to the full ruling

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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12 Comments

  1. Ron Oertel

    Not sure that I’d view this as a “both sides” type of result, unless one believes that the elimination of the word “only” is an earth-shaking result.

    Ron Oertel March 30, 2022 at 12:49 pm
    So, here’s the result (retyping the quoted sections from a pdf document).  Don’t know if there’s a link to it, where the reasoning is discussed in more detail.

    “and is still non-compliant with the City of Davis General Plan.”

    No change to wording (challenge denied).

    “The developer has made almost no binding commitments and has no viable ways to improve this traffic mess”.

    No change to wording (challenge denied).

    “Their only promise is to develop a Traffic Demand Management Plan if the project is approved.  But figuring this traffic mess out later is not a plan!”

    Strike the word “only”, and (for some reason) combine “Their only promise is”, into “They promise to . . .”

    Unmitigated Greenhouse Gas Emissions.

    No change to wording (challenge denied).

    DiSC is projected to produce 54 million pounds of new greenhouse gasses annually.

    Use figure of 20,000 metric tons instead, “as requested by Real Parties in Interest at the hearing”.

    ReplyReport comment ↓

    1. Ron Oertel

      But if I had to choose one thing that I find downright offensive, it’s David’s reporting of “both sides”, as if he doesn’t have a “side” that he’s constantly pushing:

      https://www.davisvanguard.org/2022/03/commentary-wildly-inaccurate-and-exaggerated-opposition-statement-on-disc-2022/

      This is the same type of thing he does in regard to the DA race. (Again, regardless of what “side” his readers are on – he is engaging in political campaigns on behalf of “one” side.)

  2. Todd Edelman

    From today’s earlier article on this topic in the Vanguard:

    She [Altbie, representing Carson] argued “the typical restraint that the First Amendment imposes on regulating free speech actually is constrained a little bit in the context of ballot materials, because they give the imprimatur of government approval, even, even with the, the statement that these are opinions of the author.”

    “…government approval…” is curious as her client throws his whole elected government official gravitas behind the issue, while claiming that he’s wearing his citizen hat… and icing on the cake is Carson’s claim after the ruling that the respondents’ claims are part of the global disinformation disease.

    I am curious if the printed statements in the voter guide will show strikethroughs of the original submitted text.

  3. Jim Frame

    I am curious if the printed statements in the voter guide will show strikethroughs of the original submitted text.

    I doubt it.  I just read the judge’s order, and the only thing he changed was to remove the word “only” from one sentence, and correct the amount of GHGs that both parties acknowledge was wrong.

     

     

    1. Matt Williams

      The judge also ruled that an opponent statement related to potential greenhouse gas emissions from the project was “misleading.”

      .
      This statement in the article is misleading.  The text of the ruling specifically says “The Court finds clear and convincing evidence that the “54 million pounds” figure is misleading, as it is expressed in the less common unit of Troy weight. This error was made inadvertently and not in bad faith, but still should be corrected, and the figure of 20,000 metric tons will be used”

      That is the same as saying the measurement 24 inches is misleading, and the figure of 2 feet will be used.  Bottom-line, neither number is wrong.  The judge is making the change so that the chances of voter confusion are reduced.

      Another similar example would be replacing the measurement “100 pennies” with the measurement “one dollar.”

    2. Bill Marshall

      And, following up on Jim F’s post, no need to do a strikeout, as the ballot info hasn’t been printed yet, as far as I know… yet, a different poster opined,

      I am curious if the printed statements in the voter guide will show strikethroughs of the original submitted text.

      “I am curious”, “I wonder”, “what if”… whatever…

      I am curious, I wonder, what if folk would not use those to make a statement, posed as a question, in a ‘passive aggressive’ way?  Irony fully intended…

      Jim F is direct… may not always agree with him, but he oft is, and when I disagree with him, I still respect him… FWIW

       

       

       

    1. Tim Keller

      but obviously only one side won.

      Not so obvious.   As with any court proceeding, its always possible that both sides lost..

      Plaintiff:  They are lying

      Defendant:  But these are TRUE lies…

      Judge:  Since they are cagey enough to dance around the truth, I will have to allow it as freedom of speech…

      …Yeah, I think we ALL lost.

      1. Matt Williams

        Tim, yesterday you used the same “But these are TRUE lies” expression and I asked you there … and I ask you again here … what do you mean when you say that expression?

        Yesterday, you used the expression in the abstract, but today, here in the Vanguard, you are putting the expression into the mouths of Alan Pryor, Michael Corbett, Stephen Wheeler, Darell Dickey, Juliette Beck and Roberta Millstein.  Can you also explain why you took that escallation step in your rhetoric?

        1. tkeller

          Sorry Matt, I didnt see your other question.

          To me at least, a “true lie” is a larger lie that is predicated on a smaller nucleus of fact.

          ” There are almost no binding obligations” is a great example.

          Its is a lie, of course, as pointed out by the judge, and it is without ANY doubt intentionally misleading.

          But by sneaking in the word “almost” the statement is rendered subjective and thus subject to interpretation and opinion.

          Was the statement intended to deceive?  Yes.  That makes it a lie.

          A better example is one of the lies that have NOT come up in this discussion, which is the oppositions argument that DiSC will cause vehicle emissions.

          Yes, it is true that anyone who drives into disc in a car will create emissions.   But if we dont build Disc – those jobs are just going to be somewhere else – and potentially much further away.

          So building disc doesnt CREATE those emissions, like the opposition claims.  And those emissions certainly wont “go away” if we dont build it.   Those emissions will just happen somewhere else.

          Stating one peice of evidence to make a particular point, and deliberatley NOT putting it into context is another form of a “true lie”

          Also see:  Everything Tucker Carelson and Donald Trump says…  They are MASTERS of the True Lie.

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