Councilmember Carson Explains His Decision to Sue over the Ballot Statements

Councilmember Dan Carson

By David M. Greenwald
Executive Editor

Davis, CA – Technically Councilmember Dan Carson is suing the city of Davis.  In reality, both City Clerk Zoe Mirabile and County Clerk/Recorder Jesse Salinas are named as formalities, as they are the ones who “approve” ballot measures.

But in reality, they are not fact-checkers and have no authority nor duty to verify the accuracy of the ballot language.

Elections Code section 9295 allows a voter in the jurisdiction in which an election is to ask the court to compel the deletion or amendment of material contained in ballot arguments only “upon clear and convincing proof that the material in question is false, misleading, or inconsistent with the requirements of this chapter,” and provided that “the issuance of the writ or injunction will not substantially interfere with the printing or distribution of official election materials as provided by law.”

The arguments were made public March 11 and the action was brought on March 21.  The courts have to act quickly now but the county still has time to finalize and send the ballot material within the statutory period.

Alan Pryor, principal officer in the No on DiSC campaign said in a statement he was “very surprised to learn of this lawsuit.”

“None of the citizens named in the complaint have been served with the lawsuit. Even though I am the principal officer of the No on DiSC campaign committee, I have only seen parts of the lawsuit provided to me by the media,” he said. “Based on my preliminary reading of what I have seen, however, I vigorously deny the allegations. I view the lawsuit as a deliberate tactic to suppress the rights of Davis citizens to speak out against the DiSC project and to suppress our rights to participate in a democratic process.”

Pryor added, “I am troubled that council member Dan Carson, as an elected city official, is choosing to sue Davis citizens as well as city and county election officials. I am especially concerned because Carson has been the primary negotiator with the developer and a staunch proponent of DiSC since the beginning. As a City Council member Carson must immediately disclose how he is funding this lawsuit and paying for the L.A. attorneys at a top California law firm. These potentially egregious conflicts of interest can not be taken lightly. ”

The Vanguard spoke with Councilmember Dan Carson, who ended up being the one to file the complaint.

“I wear a role as a councilmember and I wear a political hat as a council member,” Carson said.  “The specific legal requirements of this statute are that you have to be a voter in Davis to have standing to sue, which I, you may have noted that I am.  But also I’m the honorary chair of the campaign, so I am the logical party to make our case.”

When the ballot arguments over Measure H came out, the Vanguard noted a number of exaggerations and inaccuracies with the arguments.

The suit was filed because the supporters of Measure H believe that the ballot arguments contain “several statements that are objectively and verifiably false and/or misleading” about legally binding commitments and independent analyses for the project.

“Those analyses show that DiSC fully complies with the City of Davis General Plan, would improve area traffic conditions, and would fully offset greenhouse gas emissions to make it carbon neutral,” the campaign stated.

Carson told the Vanguard “we’ve had this sort of phenomenon in our country of alternative facts and things like that that I think have been harmful to our political debate and democracy.”

He said, he sees in the No on H ballot argument “example after example of false and misleading statements.

“It just felt like time to take a stand here,” he said.

Some have pointed out that there is always a good deal of competing statements in campaign, but as Carson noted there is a different standard for ballot arguments.

“It’s a different standard,” Carson said.  “We’re not trying to take away anyone’s First Amendment right to say whatever they want out there in public.  But when you have something like a voter information that is printed and distributed at taxpayer expense, the legislature passed a law, allowing these sorts of challenges in recognition that the taxpayers shouldn’t have to pay for false and misleading statements in those documents.”

The complaint references no less than five false and misleading statements (see the initial article for details).

“Here are these series of things that are just wrong,” Carson said.  “We’re going to ask a judge to correct the record in those ballot arguments.”

Carson explained that “we’re staying away from things” that “fall under fair comment or opinion, and we really focus on things that are material and specific false and misleading statements.”

A key question that the judge will have to sort is out is the line between normal disagreements about public policy proposals and implications and statements that are in fact false and misleading.

Carson pointed out that the legislature has created this process to determine that you can draw the lines and noted “there are precedents about what you can and cannot do.

“We’ve looked carefully at what those legal precedents say and our attorney is quite convinced that we have a strong case to bring here,” he said.

For instance, he cites the GHG emissions issue.

The no argument claims, “Yet alarmingly, the Environmental Impact Report states DiSC is projected to produce 54 million pounds of new greenhouse gas emissions annually – largely from vehicle emissions. DiSC alone will increase the City’s carbon footprint by almost 5%, completely derailing the City’s ability to meet its carbon-neutral goal by 2040.”

The complaint, however, points out that the Development Agreement requires that “DiSC 2022 will achieve carbon neutrality by 2040. To achieve this goal each individual development must, prior to the issuance of building permits, demonstrate consistency with the City’s Climate Action and Adaptation Plan by demonstrating a fair-share reduction of GHG emissions.”

The complaint argues, “Given that the DiSC 2022 developments may not progress unless project applicants can show they are reducing greenhouse gas emissions in an amount equal to production, this statement is at best misleading and at worst false, and therefore must be deleted.”

As Dan Carson notes, “here we have a project that is legally required to be carbon neutral by 2040.  The requirements for that are the mitigation monitoring plans for the EIR—they’re in the development agreements and they are in the baseline project features.”

He said, “So not only are they legally enforceable, but that particular requirement cannot, could not be changed, if Measure H were approved, without another vote of the public.”

He added, “More than that, there are a number of very specific actions that are hardwired into the project that deliver on that promise.”

For instance, the project is required to have large scale solar generation on site.  He pointed out that whatever they don’t generate on site, “they have to buy ultra green power from Valley Clean Energy.”

Carson argues, “Very specific, credible, legally enforceable requirements, and they tell the voters that there is no mitigation of the emissions.  It’s untrue.”

The question for a judge still will be to what extent is this allowable political rhetoric, and to what extent are the arguments false and misleading.

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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43 Comments

  1. Alan Pryor

    Here is my comment, as principal officer of the No on DiSC campaign that I submitted to the Enterprise which is now in their online edition of the storyin their story they ran yesterday.

     “I was very surprised to learn of this lawsuit on Tuesday afternoon by reading it first in The Davis Enterprise online edition,” he said. “None of the citizens named in the complaint have been served with the lawsuit. Even though I am the principal officer of the No on DiSC campaign committee, I have only seen parts of the lawsuit provided to me by the media. Based on my preliminary reading of what I have seen, however, I vigorously deny the allegations. I view the lawsuit as a deliberate tactic to suppress the rights of Davis citizens to speak out against the DiSC project and to suppress our rights to participate in a democratic process.

    “I am troubled that council member Dan Carson, as an elected city official, is choosing to sue Davis citizens as well as city and county election officials. I am especially concerned because Carson has been the primary negotiator with the developer and a staunch proponent of DiSC since the beginning. As a City Council member Carson must immediately disclose how he is funding this lawsuit and paying for the L.A. attorneys at a top California law firm. These potentially egregious conflicts of interest can not be taken lightly. ”

    1. David Greenwald

      I have incorporated Alan’s comments into the article.

      Please note that as the article explains naming the city and county is ministerial. The real parties in interest are ALan and his five co-defendants.

  2. Alan Pryor

    I’ll also add that this lawsuit is a classical political thuggery tactic taken by rich, well-endowed Developers trying to smother smaller community-driven organization trying to thwart their profit-driven schemes. Their plan is to sue the individuals in the organization (or ballot signers in this case) and make them spend tons of money defending themselves which detracts from their other campaign activities.

    In the last DISC election, the developer outspent the No campaign by over 30-1. We think he has substantially increased his budget this time around and certainly the $100,000+ (minimum) he is probably spending on Carson’s lawsuit indicates this is the case.

    Now Carson will wrap himself in political finery claiming he is only trying to protect Davis Democracy from these fiendish subverters. But the reality is this is the same oppresive method used by the Council 4 years ago when they took an unsubstantiated letter from David Taormino and used it to refer the No on West Davis Active Adult Community (of which I led) to the Yolo County DA AND the California Fair Political Practices Commission (FPPC) in late 2018 for alleged campaign reporting violations. And boy did some individual Councilmembers jump all over it in social media claiming they were trying to root out “dark money” and “shady” practices in Davis .

    But after all of the clamoring on the need to clean up our elections and save democaracy, the FPPC rejected the developer’s and Council’s claims in their entirety almost immediately and took no further action on the matter. And after 10 + hours of testimony and deliberation by the Yolo County Grand Jury (and this for misdemeanor charges, no less!) the Yolo County DA did not press any charges either.

    And ultimately, our City Council was forced to refer the developer himself to the FPPC and the DA for allged campaign reporting violations (including campaign money laundering charges) based on evidence I supplied to the Council in the course of defending myself (see – https://www.davisenterprise.com/local-news/city-forwards-allegations-of-misdeeds-by-yes-on-measure-l-campaign-to-da-fppc/).  I do not believe the FPPC has yet exonerated the developer from that complaint.

    Like I said, this latest action by Carson just continues a pattern of political theater and thuggery on the part of the Council’s developer partners. I don’t know why I was surprised to be blind-sided again by these spurious activities.

    1. David Greenwald

      How come it’s political thuggery when one side files a suit that has to be ruled on by a judge immediately and not political thuggery when a CEQA suit is filed that won’t be decided on until well after the election?

      1. Alan Pryor

        When one side has a checkbook with unlimited amounts of money to spend on lawyers AND otherwise will outspend the No campaign by probably 40 to 1 on this election AND then resorts to these type of frivolous shenanigans using Councilmember Dan Cardon, their avowed “Honorary Chair”, as their front man to sue us, then I call it political thuggery. And like I showed above, this is not the first time a local developer has been in cahoots with a Councilmember(s) to pull this kind of stunt on citizen-driven campaigns.

    2. Keith Y Echols

      I’m not sure I get all this protest about tactics.  You first have to refute the claim and prove your claims (the No on H ballot content) are correct and then attack the motives and technicalities of your legal opponent’s challenge.

      By Alan’s reasoning all “well endowed” (some sort of inferiority complex Freudian slip by Alan?…..I’m a former developer; so I’m not refuting anything) developers can never challenge any claims in court by opponents…..unless the opponent is also “well endowed”?  So rich on rich challenges are okay but not rich (however you define it) can say what they want?

      Bottom line; prove what you say is true or fix the content.  All this protest about legal tactics is stupid.  Legal challenge is way things are supposed to get changed.  How else are Carson and the developers supposed to force that content to change; a one on one boxing match in Central Park?

      1. Don Shor

        Bottom line; prove what you say is true or fix the content.

        Bingo. These are matters of fact, or not. Some factual matters are complicated. A judge can evaluate them. But the DISC opponents can certainly refute the accusations in public with their own facts or analysis.

        1. Ron Oertel

          How about if the developers, Carson, and the Vanguard “fix” some of their false claims?

          Such as the one regarding “carbon neutrality” for the development itself?

          Is that in their ballot argument?

          I’ll assume that the other claims (e.g., regarding “improving traffic”) aren’t in their ballot arguments.

          Of course, when one side has money to engage in frivolous lawsuits (while the other side can barely manage to even pay for a defense, and is also apparently subject to recovery of legal fees by the plaintiff), the odds are stacked, aren’t they?

          I think we’ve all come to expect one-sided developer advocacy from the Vanguard.  But when a council member is also part of this as an “honorary chair”, what can you say?

          Honestly, I don’t think this bodes well for the lot of you (Carson, the developer, and the Vanguard).

        2. Keith Y Echols

          How about if the developers, Carson, and the Vanguard “fix” some of their false claims?
          Such as the one regarding “carbon neutrality” for the development itself?

          Can you point out and prove these false claims?  If so great, more power to you.  If not, then you’re just blustering and talking out of your…….  I don’t believe lots of the claims in the YES campaign (I previously wrote a long comment about it).  But I can’t prove otherwise so I’m not going to make a claim otherwise in a voting document.

          Of course, when one side has money to engage in frivolous lawsuits (while the other side can barely manage to even pay for a defense, and is also apparently subject to recovery of legal fees by the plaintiff), the odds are stacked, aren’t they?

          Uh…so how are these supposed inaccuracies and falsehoods supposed to be resolved?  I’m all up for the public spectacle of a boxing ring but otherwise it’s a legal matter.  It’s like complaining that baseball is officiated by an umpire.

          I think we’ve all come to expect one-sided developer advocacy from the Vanguard. 

          Uh…so the Vanguard reported the news.  David even inserted Alan’s response.  What else is he supposed to do?  I’m sure if Alan and his party want to counter sue, the Vanguard would write an article.  Or do you want the Vanguard to write the counter-argument for Alan and the No group?  What specifically do you want from the Vanguard.

  3. Ron Oertel

    The complaint, however, points out that the Development Agreement requires that “DiSC 2022 will achieve carbon neutrality by 2040.”

    This is a demonstrably false claim.  DiSC itself will NOT achieve carbon neutrality.

    Carson, the developer and the Vanguard are claiming that purchasing “mitigation credits” achieves carbon neutrality for the development, itself.  Again, this is factually incorrect.

    The subject of mitigation credits is fraught with controversy.

    At what point is the electorate going to start electing council members who don’t sue their own constituents? Let alone one who sees “no problem” with serving as an “honorary chair” of a development campaign?

    1. Craig Ross

      This is a demonstrably false claim.  DiSC itself will NOT achieve carbon neutrality.

      That’s not a demonstrably false claim.  It’s your opinion.  Maybe your prediction. You could be right.  But legally, that’s not a falsifiable claim, especially when it is in the baseline features that they have to.

      The campaign could argue that in their opinion it’s unattainable.  I might agree with that.  But it’s not the same thing as a demonstrably false claim.

      1. Ron Oertel

        The campaign could argue that in their opinion it’s unattainable.  I might agree with that.

        Do tell.

        The development itself will generate millions of pounds of greenhouse gasses, annually. No one – even the developer, is claiming otherwise.  This cannot be avoided by mitigation.  

        This is a fact, not an opinion.

        1. Ron Oertel

          Again, this deals with facts.

          The development itself creates millions of pounds of greenhouse gasses, which cannot be avoided.  That’s not my opinion – that’s the conclusion of the EIR, the developer, Dan Carson, and even the Vanguard.

          And mitigations won’t change that basic fact.

          Last I checked, there were more than 2,000 parking spots planned for the development.

          1. Don Shor

            The development itself creates millions of pounds of greenhouse gasses, which cannot be avoided.

            Carbon neutrality by definition includes mitigation.

        2. Craig Ross

          You have listed one fact, the development creates GHG.

          However, your opinion is “mitigations won’t change that basic fact.”  That’s not a fact, that’s an opinion.  The legal issue is over misstating facts not disagreement on opinions. For some reason, you don’t get it.

        3. Ron Oertel

          “Carbon neutrality” is not included in the developer’s ballot language, and as such is irrelevant regarding the ballot statement.  Here’s what the developer does say:

          And DiSC will be a carbon-free model for California, requiring 100% renewable power onsite.

          Both of these statements are factually-incorrect.  In addition, the second part of this sentence is unrelated to the first part, as it (even if it were true) does not mitigate greenhouse gasses from the mechanized occupants of the 2,000 plus parking spaces.

          On a related note, the only potential commercial tenant which has shown any interest at all in the site has stated that gas lines are needed for labs.  I’m referring to the guy who operates a small non-profit “shared lab” venture (for startups which can’t afford their own labs), and yet still reportedly received $60,000 in assistance from the city – via the federal rescue funds. If that’s not a sufficient-enough hint, he’s also a current tenant of the DiSC developer.

          https://www.davisvanguard.org/2022/03/ballot-arguments-for-measure-h-disc-2022/#comment-463133

        4. Ron Oertel

          To further clarify (regarding the “renewable power”, I realize that the DiSC developers could elect to use the more-expensive “UltraGreen” option from Valley Clean Energy. Or more specifically, require their tenants to use that option, which could be one more reason for commercial tenants to seek other options.

          But even if this is the case (and they’re also forgoing gas – despite what labs reportedly need), I would ask if they’re making a permanent commitment regarding that option in the baseline features. “Permanent” being a relative term, since the option itself can change or be eliminated over time.

          And again, are their “lab tenants” going to be happy about not having any option for natural gas delivery?

          Of course, even “renewable” energy isn’t carbon-free, when considering the greenhouse gasses used to create the infrastructure, maintain and operate it.

          But again, this has nothing to do with the vast majority of greenhouse gasses resulting from the vehicles accessing (and parking at) the site.

        5. Ron Oertel

          and yet still reportedly received $60,000 in assistance from the city – via the federal rescue funds.

          To be fair, someone whom I trust told me about this, though the minutes/results from that council meeting have apparently not been posted.  Nor am I seeing the specific results regarding this documented on the city’s website.

          I was told that it was Mr. Carson’s suggestion, to approve the $60,000 at a council meeting a few weeks ago.

          I did see that a lot of other federal assistance funding was recommended for that company, but was told that it was denied.

        6. Todd Edelman

          Ron:

          minutes/results

          There are no minutes posted for any Council meetings since the end of 2021. There are also a few gaps in early 2017, when there were meetings.

          I have no explanation, but the minutes might be optional because there’s a video record. I also don’t know if the posted records were uploaded promptly or not.

  4. Alan Miller

    OK, I realize what my brain did yesterday.  Dan Carson lives on the West Side of Town, so my brain works geographically and I pinned the nearest controversial project, Bretton-Woods and got it in my mind that’s what the discussion was about.  DISC is like so opposite-side-of-town from Dan Carson, so I didn’t put them together.  And then I was wondering why Wesley “DISC” Sagewalker was betting me a coffee.  I never said my brain works properly.  I just think stuff.

    1. Keith Y Echols

      I’ve been saying the whole time that in order for DISC to pass; the rest of the city of Davis is going to have to be okay with screwing over (at least short term if you believe the mitigation efforts) the East and South-East people of Davis for the overall good (fiscally speaking) of the city….or in other words “take one for the team”.

  5. Sharla Cheney

    I hope this is resolved well before the election.

    It is important that voters are able to read accurate information and be able to make a decision based on exactly what is stated.   It is important that we have confidence in the accuracy of the information given to us about proposed legislation, proposed development, an candidate for office or proposed taxes.  When it comes to enforcing an agreement, it is the information in the bill as it appears on the ballot that is enforceable.  There are constant instances of misinformation and misleading statements flying about generally at all levels of government that it has eroded confidence in the voting process.  The ballot language should be held to a very high standard of accuracy.   I don’t think that there is a valid argument in opposition to this.

     

    1. Bill Marshall

      Sharla… with all due respect…

      I agree it should be ‘resolved’ quickly… too much static…

      I believe, however, that all those casting ballots should trust their knowledge, and informed ‘guts’, and skeptically (in the good sense) view ballot arguments and campaign ‘slogans’… unfortunately I believe that would account for 5-8% of the ones who will vote… the ‘sheep’, driven by the spurious claims of those for, and against, will determine the outcome.  May sound cynical, but I believe it to be accurate… look around as to pretty much any issue that faces Davis, the state, the nation, the world.  Recto-cranial inversion is more rampant than any version of Covid, to date… underdiagnosed, to be sure… no N-95 mask will make one immune…

      I agree the ‘lying’ is wrong… but “it is”… as are the lesser forms, partial truth, feinting, distractions, etc.  It is what it is… only informed thinking will serve as a buffer… that is in way short supply…

      Yet, I understand your points… aspirational, but perhaps not current reality…

      We will see… there are no ‘righteous heroes’ in any of the discussion, in my informed opinion… it is “spaghetti tossing time”… first one to the bottom may well ‘prevail’…

       

    2. Ron Oertel

      I have found misstatements in the proponents’ ballot arguments, as noted in the other article.

      Unfortunately, opponents may not be able to launch a counter-challenge due to deadlines, lack of resources, etc.

      And as David noted, opponents can (apparently) be theoretically be “on the hook” for the cost of Carson’s lawsuit.

      It is an attempt to bully, by a sitting council member (who is part of the developer’s campaign) and his developer allies (aided by the Vanguard). I believe they call this a “SLAPP” lawsuit.

      Carson should be recalled. And if he isn’t, he’s going to have a big political bullseye on his head in the future.

      1. Mark West

        Ron O. “I have found misstatements in the proponents’ ballot arguments”.

        No one is stopping you from filing a lawsuit, Ron O. …except that little issue of standing…oops.

        “Carson should be recalled”

        LOL… Dan will be re-elected handily anytime he runs. He has a better understanding of the electorate than you will ever have. Perhaps (in part) because he actually lives in Davis

         

         

         

        1. Ron Oertel

          My personal residence is not a topic on here. Nor is any other personal information that I don’t share, or any other connection I may or may not have with Davis.

          Another commenter was permanently banned for attempting to do so.

        2. Keith Olson

          Your personal residence becomes relevant when you say someone should be recalled.

          I see several comments and articles by non residents of S.F. and L.A. about the DA recall elections on the Vanguard.

        3. Ron Glick

          But these are recalls that, as far as I know, are already happening. I don’t see anybody saying Carson should be recalled except this one guy, who purportedly lives outside of Davis, and who regularly takes extreme anti-growth positions. If he lived in Carson’s district, where he could take out recall papers, it would be a more serious claim. Therefore his residence becomes relevant because it impacts his ability to follow through.

          Perhaps however, since Carson is up for re-election in November, the absurdity of saying he should be recalled should be recognized as nonsense, in which case it the residence of the commenter should be ignored.

        4. Keith Olson

          He’s allowed his opinions just as you’re allowed your’s NO MATTER WHERE YOU LIVE.  For instance, I don’t live in Russia but I want Putin removed even though there’s no recall in effect for him at this moment either.

        5. Ron Glick

          True, he can have an opinion, but he seems to be the only one saying it and he allegedly doesn’t live in the district. So I guess pointing out that the only person calling for Carson to be recalled has no standing beyond his opinion is worth pointing out.

        6. Ron Oertel

          If he lived in Carson’s district, where he could take out recall papers, it would be a more serious claim.

          Most Davis residents don’t live in Carson’s district.

          I don’t see anybody saying Carson should be recalled except this one guy, who purportedly lives outside of Davis, and who regularly takes extreme anti-growth positions.

          Have you asked anyone else (e.g., those with slow-growth views)?  How many of them do you see commenting on here, anymore?

          If he lived in Carson’s district, where he could take out recall papers, it would be a more serious claim. Therefore his residence becomes relevant because it impacts his ability to follow through.

          The hell it does.  The only reason this keeps coming up is because the Vanguard encourages doxing attempts. For that matter, I’ve NEVER discussed my place of residence on here, nor have I discussed other personal aspects.

          True, he can have an opinion, but he seems to be the only one saying it and he allegedly doesn’t live in the district. So I guess pointing out that the only person calling for Carson to be recalled has no standing beyond his opinion is worth pointing out.

          As far as I know, there’s more than one way to qualify for “standing”.  But, I never said that I’d be the one to initiate a recall, regardless.  So why do you an others keep bringing it up?

          More importantly, do the project proponents see any problem with a council member acting as an “honorary” member of a development team, and launching a one-sided lawsuit against those he disagrees with? (And, what on earth does THAT have to do with my place of residence?)

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