Lawsuit Filed Challenging False and Misleading Ballot Statements by Measure H Opponents

By David M. Greenwald
Executive Editor

Davis, CA – Last week the ballot arguments for and against DiSC 2022 came out.  The Vanguard noted a number of exaggerations and inaccuracies with the arguments.  On Monday, Councilmember Dan Carson filed a lawsuit in Yolo County Superior Court “to strike false and misleading language from the ballot argument submitted by opponents for use in the Voter Information Guide.”

Carson, who is serving as as Honorary Chair of the Yes on H campaign and as a Davis voter, alleges that the statement submitted by opponents violates California Election Code Section 9295 because it contains “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.

“All voters are of course entitled to their opinions, but Measure H opponents go beyond opinion to make provably false and misleading statements to try to mislead voters,” said Carson.

“There is already too much misinformation spreading in today’s politics. We want Davis voters to make their decision on Measure H based on the truth and facts. The ballot statement against Measure H includes so many falsehoods that we felt this action had to be taken so that voters are not potentially making decisions based on information that we can prove is inaccurate.”

The complaint names Alan Pryor, Michael Corbett, Stephen Wheeler, Darell Dickey, Juliette Beck and Roberta Millstein as respondents.

Carson is represented by Amber Maltie and Julia Botezatu of Nossaman, LLP.

According to the complaint several statements are “false and misleading” in violations of the California Elections Code and they are seeking judicial remedy.

Also named is City Clerk Zoe Mirabile and County Clerk/ Recorder Jesse Salinas.

The second sentence of the ballot statement states, “It still has overwhelming traffic and environmental problems, and it is still non-compliant with the City of Davis General Plan.”

According to the complaint, “This statement is in reference to DiSC 2022 and is partially objectively and verifiably false. Both Ordinance Nos. 2616 and 2617, adopted by the City Council as part of its approval of the project, made specific findings that the planned development is in conformity with the City General Plan.”

The resolution passed by council, states the intent to amend the city’s General Plan Land Use Element providing a “whereas” clause, “Whereas, the General Plan Amendment is appropriate in that it is compatible and consistent with existing General Plan policies.”

Therefore, “the court must delete the words “and it is still non-compliant with the City of Davis General Plan” from the Argument Against Measure H.”

Further, the complaint notes, “The Argument Against Measure H also makes specific representations about traffic mitigation obligations imposed on the DiSC 2022 project applicants that are false and misleading.”

The specific statements are as follows: “The Developer has made almost no binding commitments and has no viable ways to improve this traffic mess. Their only promise is to develop a Traffic Demand Management Plan if the project is approved.”

The complaint argues, “These statements must be deleted because they are false and misleading. If Measure H is approved, the underlying entitlements require specific and binding traffic mitigation measures.”

The complaints notes that between the DA and the Baseline Project Features, “collectively include dozens of legally and contractually enforceable promises and commitments by the project applicants to mitigate and improve traffic impacts from the project.”

Accordingly, the complaint argues that “the court must delete the words “no binding commitments” and the sentence “Their only promise is to develop a Traffic Demand Management Plan if the project is approved” pursuant to Elections Code section 9295 because they are objectively and verifiably false.”

Further Carson argues that the Argument Against Measure H’s use of the term “Unmitigated” before “Greenhouse Gas Emissions” is false and misleading.

Instead, he argues, “The Mitigation Monitoring and Reporting Program requires the developer to take extensive emissions mitigation measures. Indeed, the City will not issue permits unless the mitigation measures are satisfied.”

Thus the complaint asks the court to delete the “unmitigated” because “it is at worst false, and at best misleading.”

The argument also notes a technical error when it states, “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 addendum to the CEQA quantifies greenhouse gas emissions “by metric ton and not by pounds, which is the industry norm.”  “after converting GHG emissions from metric tons to pounds, the total amount projected in the DiSC 2022 addendum equals 44 million pounds as opposed to 54 million pounds, so the ballot argument is verifiably false.”

But the statements are also misleading.

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.”

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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25 Comments

  1. Ron Oertel

    On Monday, Councilmember Dan Carson filed a lawsuit in Yolo County Superior Court “to strike false and misleading language from the ballot argument submitted by opponents for use in the Voter Information Guide.”

    Holy cow.  Is today April 1st?

    By the way, wasn’t this guy a member of the plaintiff group in the lawsuit against UCD, several years ago?

    Carson, who is serving as as Honorary Chair of the Yes on H campaign, 

    How is it legal for a council person to serve as the “Honorary Chair of the Yes on H campaign”?

    The complaint names Alan Pryor, Michael Corbett, Stephen Wheeler, Darell Dickey, Juliette Beck and Roberta Millstein as respondents.

    Carson is represented by Amber Maltie and Julia Botezatu of Nossaman, LLP.

    I don’t think this will bode well for the “Yes on H” campaign, politically.

    This entire action seems unprecedented, and downright odd. Not to mention amusing, except for those who are now forced to defend themselves.

    Seems like purposeful intimidation by a council member on behalf of a developer. Again – not a good look, politically.

    1. Ron Oertel

      Also named is City Clerk Zoe Mirabile and County Clerk/ Recorder Jesse Salinas.

      Hilarious.

      Again, is this April 1st, yet?

      I suspect that this is going to go down as one of the biggest political blunders in the history of Davis (and perhaps beyond).

      But I will say that it does make for some exciting reading, going forward. So, it will probably help the Vanguard, at least.

      I’m kind of enjoying it, with the exception of any stress caused for those I actually care about.

      1. Keith Olson

        I suspect that this is going to go down as one of the biggest political blunders in the history of Davis

        I tend to agree Ron.  If I were the NO on H campaign I would seize on this and rally around it.

        1. Alan Miller

          And what if the judge rules that their statement was false and misleading?

          Have you ever seen official ballot arguments?

          One side says the other side will be crushing puppies with a steamroller, the other side claims their opponents will be burning kittens in an garbage can.  Then they refute others claims as false.

          Yeah, the system sucks for voter information — but are we seriously going to be “Fact Checking” ballot arguments?  What sort road does that take us down?

          One thing that is missing here is the assumption that the claims of studies by consultants hired by one side that has vastly more money constitute some sort of truth. I do not worship at the alter of the Godhead “Paid Consultants”.

        2. wesleysagewalker

          Alan,

          This is not a case of  “a pox on both their houses.” The opposition made demonstrably false arguments in their ballot statement which is not permitted under state election law. Sure, during the course of the election, they can, and most likely will, say whatever they want as they try to oppose DiSC as they are wont to do. But this is a very different case here in that they have violated state elections law, so I think your analogy is quite off base.

        3. Alan Miller

          But this is a very different case here in that they have violated state elections law,

          So you claim, WS.  Or possibly the claims that they violated state elections law are for show as a campaign tactic for the pro side.  Me, I don’t know.  When the judge decides what you claim to be true, feel free to say “I told you so”, and I’ll say “Yes you did”.

        4. Craig Ross

           Seems to me that it’s not up to a blog, the developer or council person (or their attorney) to decide what’s factual

          Probably why it goes before a judge

        5. wesleysagewalker

          Actually Ron, it is now up to a Yolo County judge to decide what is or is not factual in their ballot statement. And Alan, I am going to hold you to that because I am quite confident that the judge will find elements in their ballot statement false or misleading. Shall we wager a coffee on it?

        6. Ron Oertel

          The reason it goes before a judge is due to Mr. Carson and the development interests behind this.

          You can sue anybody for just about anything, but it doesn’t mean that it has merit.

          As such, the system favors those with deep pockets, until it backfires on them politically. Unless they’re successful at intimidation, prior to that point. At which point they can declare a “win”.

          Still doubtful that even a “partial” win (settled, or in court) would help them, politically. This has more of an appearance of an attempt to bully.

          I suspect that if the other side had sufficient funds, they might also find issues to challenge.

        7. Alan Miller

          Shall we wager a coffee on it?

          WS.  No.  My point isn’t that I think this is true or not, just that ballot arguments are often false.  There is no possibility that the totally contradictory statements in many ballot arguments could both be true.  So what we have here is one side with lots of money hiring lawyers to take this to court.  Don’t impress me much.

        8. David Greenwald

          There is a lot of presumption in your comment Alan.  First of all, people can have differing or divergent opinions without being factually wrong.  What I can’t say is that DiSC would require every person to sacrifice their first born, since it clearly doesn’t.  So obviously there has to be a standard.  Second, I don’t know how much they are paying for an attorney, but I can tell you that these types of suits aren’t that expensive – short term, limited hours and they have provisions for attorney fees if you win, thus many attorneys take it on contingency.  It is an avenue that is available to most litigants and it allows the average citizen to sue if they are so inclined and have standing.

        9. Alan Miller

          What I can’t say is that DiSC would require every person to sacrifice their first born, since it clearly doesn’t.

          DISC?  I thought we were talking about Bretton’s Woods.  Oh, that’s why WS was betting me a coffee.  I get so lost in the comments I don’t even know what article I’m in, or what planet I’m on.

    2. Alan Miller

      How is it legal for a council person to serve as the “Honorary Chair of the Yes on H campaign”?

      I’m speaking out my arse here, but I’m guessing if he were “Official Chair” it would be a conflict of interest, but since he’s “Honorary Chair” it passes the smell test for the City Attorney.  But, again, speaking out my arse.

  2. Alan Miller

    Thank God we have City Councilmembers who are hiring lawyers to assist in conducting “Fact Checks” on behalf of developers.  How else could we possibly know the Truth as professed by God Almighty?

  3. Ron Oertel

    The addendum to the CEQA quantifies greenhouse gas emissions “by metric ton and not by pounds, which is the industry norm.”  “after converting GHG emissions from metric tons to pounds, the total amount projected in the DiSC 2022 addendum equals 44 million pounds as opposed to 54 million pounds, so the ballot argument is verifiably false.”

    I know that I feel better knowing this, assuming that it’s correct.

    Let’s see: 1 metric ton = 2,204.62 pounds.

    However, not seeing how many metric tons will be produced (per the EIR) to begin with.

    But this one should be pretty easy for a judge to figure out.

  4. Ron Oertel

    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.

    Well, if the “analyses” show this, I’d call the analyses themselves “false and misleading”. Would that warrant a lawsuit?

  5. Bill Marshall

    that these types of suits aren’t that expensive – short term, limited hours and they have provisions for attorney fees if you win, thus many attorneys take it on contingency.  It is an avenue that is available to most litigants and it allows the average citizen to sue if they are so inclined and have standing.

    Aye, ‘there’s the rub’… another Will had it right… “first, we kill the lawyers”…

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