By David M. Greenwald
Woodland, CA – He doesn’t have much time—Judge Dan Maguire on Tuesday listened to roughly an hour of oral arguments from both sides of the DiSC 2022 campaign. Last week, Dan Carson filed a suit alleging that the No on Measure H campaign had used false and misleading language in their ballot argument.
On Tuesday, Beverly Palmer on behalf of the real parties who signed the ballot argument against Measure H countered that this was simply protected political speech.
Judge Maguire took the arguments under advisement and indicated that he will issue a ruling on Wednesday, which would allow the county time to alter the ballot statements should the judge so rule.
Amber Maltbie from Nossaman representing Dan Carson, the petitioner, pointed out that “the proposed deletions and/or amendments that the petitioner is seeking are narrowly tailored and only address fact statements. They do not address opinions.” Maltbie argued, “There are fact statements that are either false or misleading because of the context in which they are used.”
She noted that “we’re only looking at three sets of words used together and one single word as a standalone.”
Addressing the specifics, Maltbie acknowledged for instance that Measure H, “doesn’t comply with the current general plan.” However, she argued “that by itself creates a bit of circular reasoning because the reality is DiSC 2022 won’t exist unless and until the voters adopt Measure H. So at this point, it can’t be non-compliant with the General Plan because Measure H hasn’t passed yet, which would amend the General Plan to allow for the designation of an innovation center.”
Maltbie under questioning from Judge Maguire acknowledged, “DiSC 2020 would not be compliant with the general plan as it exists today, which is why the amendment is required.”
Judge Maguire asked, “I guess I’m struggling with how is this statement false if it is referring to the current general plan?”
She responded that the standard for determining whether or not a statement is false or misleading looks at whether “a statement is true on its face, is it misleading in its context and here a reasonable person reading this ballot argument would believe that if they vote for Measure H they will be voting on a project that at the passage of Measure H would be inconsistent with the General Plan. So the real issue here is that voters led to believe that they will be voting on something that if passed is essentially illegal.”
She moved on to the traffic issues. The first is that “the developer has made almost no binding commitments” and “the second sentence, their only promise is to develop a traffic demand management plan if the project is approved.”
Addressing “no binding commitments,” she said, “the totality of the entitlement documents are exactly that exactly that—binding commitments between the project applicants and the city. So we think ‘almost no’ is objectively and verifiably false.”
The respondents argue that the Development Agreement and mitigation and monitoring measures aren’t before the voters.
Maltbie responded, “That is true. However, the Development Agreement is inextricably linked to what is before the voters, because the Development Agreement per the ordinance adopting it, becomes operative once Measure H is passed.”
In terms of the promises, she argued, “The Baseline Features in particular show that is not their only promise.” She later argued, “This Traffic Demand Management plan is actually one of five traffic and transit related promises.. that are in the baseline features.”
There was some agreement on the language regarding the quantity of GHG emissions.
But the focus turned to the use of “unmitigated” greenhouse gas emissions. The judge pointed out “there’s also the contention by the real parties that the reference to ‘unmitigated’ in the heading for greenhouse gas emissions is a prediction or an opinion that the mitigation measures will be not entirely, sufficient. The real parties note that people are allowed to make predictions and the voters can decide whether such predictions are well founded or not.”
Maltbie acknowledged that the real parties can offer their opinion, but “here we don’t think the use of the term unmitigated in this context is an opinion or a prediction about the future, because the term mitigation has such a specific meaning in the land used realm.”
She argued, “We think that that is a fact statement about the existence of mitigation factors and not an opinion statement about the impact or the effectiveness about of mitigation factors.”
Beverly Palmer, arguing for the respondents, noted, “The courts have also cautioned… that we should view statements made in the context of initiatives, generally as opinions and particularly where those are about the effect or application of an initiative.” She said, “so even though something may be couched in kind of a factual context, if it’s a predictive statement, it’s generally held to be an opinion because, of course, no one actually knows what the future will bring.”
Palmer argued that the project “does require that the project be approved pursuant to Measure J before the other entitlements would actually be consistent with the General Plan and the General Plan does contain policies that discourage this kind of development.”
She argued, therefore, “these are actually also opinion statements, because my clients are entitled to tell the voters that think there are policies in the general plan that this project is really not consistent with.”
Palmer pointed out, in terms of commitments, “if they’re not included in the baseline agreement, that’s for a reason, and those features can be changed.”
She argued that those things in the Development Agreement “may be modified by the City Council.” She said, “It is true that these things will become effective, , but it is equally true that they can be changed and that the voters are entitled to know that what they are exactly voting on. And my client has the right to express that to the voters so that they understand you’re only really voting on the baseline features.”
Judge Maguire questioned her on the challenged language “their only promise is to develop a Traffic Demand Management Plan,” as he pointed out “only, I believe, implies none others.” He said, “I’m wondering how that could be deemed even arguable true—if we look at the baseline project features only, which I understand why we might do that—there are a total of nine commitments or promises under transit and roadways.”
He acknowledged that they might be “of limited utility or speculative or contingent, but isn’t it just false to say they don’t exist at all?”
Palmer responded that “the thing they are really relying on in the EIR to address traffic is the Transportation Demand Management Plan. That’s kind of a big big chunk of what the EIR is saying will reduce traffic.”
She argued, “Really the only promise that anyone is making is that they’ll study it and deal with it down the road.”
Julia Michel addressed the GHG issues. Here the judge noted “unmitigated in the context of this heading could mean a variety of things to readers.” He threw out three possibilities. “One it could mean, a factual claim that the project has no mitigation efforts for greenhouse gas emissions.” He said, “That would be, I think false.”
Or it could mean “that it’s a prediction that emissions will not be fully mitigated… That’s well within the ambit of fair political speech.”
He said it could mean that they are not “fully mitigated.”
He asked if she thought there was a single meaning for this section?
Michel said, “Part of the answer is that the fact that the word could be susceptible to so many interpretations does weigh in favor of leaving it.” She argued, “The first amendment requires breathing room, especially in the context of political speech.”
Judge Maguire put the issue to the petitioner, pointing out that “it’s a heading, it’s not even a sentence. So a heading can’t be true or false, at least not in the ordinary way as a sentence.”
Amber Maltbie responded, “I do believe that it could be construed in a number of ways and I think that creates the issue here which is it might be an opinion to say that the effect or the efficacy of the mitigation standards in question,” she argued here the phrasing leads the voter to believe that “the projected annual emissions does not contain any mitigation measures at all.”
Maltbie in her closing argument noted that while the real parties have argued this is political speech, she countered, “I think it’s important to make the distinction between political speech that is directly by participants in the political process versus political speech that happens on a, a government document and that’s what’s happening here.”
She 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.”
She said, “What we’re proposing really is just taking a scalpel to very discrete statements and phrases that will have a very particular meaning in the minds of voters, or that are objectively and verifiably false.”
Maltbie pointed out that there has been quite a bit that the Development Agreement “is not a binding document because it can’t be voted on by voters in the future.” She noted, however, that a “development agreement is adopted as a legislative act. It is treated by case law as a contract between two parties.” She added, “So case law supports what the development agreement is a legally enforceable contract.”
With that Judge Maguire indicated that he would issue a ruling on Wednesday.