Yolo County Superior Court Judge David Reed ruled against attempts by Joseph Whitcombe to change the ballot language on Measure R and denied the temporary injunction. According to Judge Reed, the language in Measure J had used the same title, it was approved back then, and has remained on the books for ten years.
While the argument by the petitioner claimed that the title does not describe the measure accurately, the title need only be a title, and a way to a reference. The court finds that there is insufficient evidence of false or misleading language, therefore the request is denied
Joseph Whitcombe, the son of developer John Whitcombe of Covell Village fame had filed suit, pro se, that is as a citizen himself without the aid of counsel, objecting to the ballot language that will be going into the upcoming City ballot. According to him, Measure R purports to give citizens the right to vote in future issues about the use of open space, but this is misleading. Specifically, he was objecting to the title of the measure, as it will be written on the ballot.
After being pointed out that the language in the original ordinance was the same – the text of the amendment to the general plan, Article 1A, § 29-12.4.1 Title, says “This article shall be known as the Citizen’s Right to Vote on Future Use of Open Space and Agricultural Lands Ordinance” – Mr. Whitcombe argued that there is a difference between having the language “somewhere,” but not at the actual title spot.
Mr. Whitcombe argued that the language is misleading in that it makes people think that a vote for is a vote to preserve open space. As proof that people are misperceiving the measure, he offered yesterday’s front-page Enterprise article (which Reed refused to accept), pointing out that people think J and R cover “open space.” So, Mr. Whitcombe does not want an official publication by the City and County to say that R pertains to open space.
As a side note, Judge Reed asked Mr. Whitcombe if he had a problem with the impartial analysis by the City Attorney and Mr. Whitcombe said that he did not object to it, although he confessed that he had not yet read it.
From the City’s perspective, City Attorney Harriet Steiner argued that other than a few small technical changes, Measure R is exactly the same in language as its predecessor. In the impartial analysis, it says that R will extend the “citizens’ rights to vote.” She said that the ordinance and Measure J have been commonly known by this title, it has been known all along what it is called and what it means, and the voter pamphlet will reflect that. She said that the wording is clear, not misleading, not partial, not incomplete, not false, and not inconsistent.
Deputy County Counsel Hope Welton was there representing the county. She asked that the court make a ruling as quickly as possible since the materials are set to print on Friday.
There was some talk about whether Mr. Whitcombe had filed the complaint in a timely fashion. Apparently there is a 10-day period in which he can file. Ms. Steiner argued that the City believes that the last date to file was March 12, which would put this petition beyond and ten day period and therefore make it not timely. She added that this ballot question was not sprung upon the citizenry without warning…there have been notifications since January. Therefore, the City believes that the language proposed for the ballot is proper, accurate, not misleading, uses exact same wording as in 2000 has never been challenged, so should be left as is.
Mr. Whitcombe claimed that the ten day period began on March 15, which would have been the Monday following the filing deadline. However, Judge Reed made a determination on the merits rather than on the technicality.
Mr. Whitcombe responded that he did not see the relevance that this “misleading language” was successfully used before as he believed it should have been challenged before.
Commentary
On Thursday, the Vanguard openly wondered the purpose of such action. In his comments on the Vanguard article, Mr. Whitcombe explained:
“The lawsuit is only challenging the language on the official ballot stating that Measure R covers “open space” like parks, school sites, community gardens and play fields. Measure R doesn’t cover open space, so I want that language removed.
My goal is not to get Measure R removed from the ballot, just to ensure that there is a level playing field. “
Moreover, he contends this is an action as a concerned citizen not as some sort of power play by a developer.
“I’m filing the action without hired counsel (pro se) as a concerned citizen.
To characterize this as the developer steamroller in action is a bit of a stretch.”
Prior to the hearing, I might have disagreed with that expressed view, but after the hearing, I am inclined to believe that Mr. Whitcombe probably did this on his own, and it was not a well-conceived effort. In a lot of ways, it probably backfired on his intentions, by galvanizes support for Measure R at an earlier stage than it would have been galvanized without such an action.
Former Mayor Ken Wagstaff told the Vanguard following the hearing,
“I think that both the substance and the process used in this attempt to get Measure R off the ballot demonstrates how shallow the opposition to the measure is. I think actually it’s heartening to know that the Judge wasn’t at all fazed by any aspect of the presentation made. I feel that one of things that may have been overlooked by the opposition is that bringing this attempted action has simply galvanized the campaign for [Measure] R a lot earlier and with a higher level of energy than would have otherwise been the case.”
I simply do not understand Mr. Whitcombe’s objection to the use of the term open space in the title. This is not a new initiative and not a new concept. The public knows for the most part exactly what Measure R will do, because the law has been on the books for ten years. And in fact, it is a title, the measure itself spells out exactly what the law is.
If this is the best the opposition to Measure R can do, then they are doomed to failure. If anything this will not only harm the efforts to oppose a new citizen’s voting measure on the conversion of agricultural land and open space, but it will probably harm future efforts by the Whitcombe’s to get their developments past. As such, I cannot imagine that John Whitcombe is very happy with his son’s actions to date.
His argument was weak as presented yesterday and unfortunately he decided to take it upon himself to waste staff time in both the City Attorney’s office as well as the County Counsel’s office at a time when both offices are trying to reduce expenses. And to what end? To object to the title of a ballot measure whose corresponding ordinance has been on the books for ten years and part of our city’s nomenclature for at least as long.
I do think that the former Mayor is exactly right here. There was a sense prior to the past week that Measure R was a done deal. Now with the involvement of Mr. Whitcombe and his namesake by implication, supporters of this measure will have no such illusions.
—David M. Greenwald reporting
