By David M. Greenwald
Executive Editor
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.
Yesterday was a lovely day. Too bad all these people spent it in a courtroom. Without Measure J they wouldn’t need to be in court.
yeah but what if the two parties are in collusion ?
Wow like that was painful to read; five minutes of my life I wish I had back. No wonder there are no comments (now one it appears). The only thing good was getting on my knees and thanking the Lord that I didn’t go into a law profession.
Just decide for us, please, what words mean, and then we can move on.
And why isn’t this like other ballot arguments ? — like ‘Measure XXX will kill puppies’ and then ‘Reply to Argument Against Measure XXX’ is ‘Measure XXX will NOT kill puppies’. Aren’t that how these things are usually handled ? Just contradict each other on facts, confuse the voters, and lay what’s real to waste ? Ain’t that America ?
And I keep thinking this is Bretton Woods — my locked-down-too-long mind thinks Dan Carson, West Side; Bretton Woods, West Side; DISC II, East Side. I can’t put together a person who lives on the Far West of Davis with a project proposal on the Far East of Davis. Error. Error. Error.
And here I’m gonna “Pull an RO” and comment on my comment to make a further point:
Someone remind me why a City Councilmember is suing citizens ? And why a Councilmember is the Honorary Chair of a Committee supporting a measure that citizens will be voting on ? And why anyone thinks that either of those above are a good look for a sitting government official representing the citizens of Davis ?
I mean there’s a difference between “The City Attorney said I could, mommy!”, and what mommy thinks is good behavior for their child. And yes, mommy is a metaphor for the citizens of Davis.
For one thing, the councilmember (in his capacity as a citizen, not a councilmember) is not suing anyone. He filed a writ to the court to change the ballot language.
David, you are dancing on the head of a pin.
My favorite past time
Alan, I actually enjoyed reading the article. I’ve been off the grid in Philadelphia visiting my 98 year-old mother for a week, so I hadn’t seen that the case was assigned to Judge Maguire. Based on my experience with the Water Rates and Sewer Rates case, I think he does his homework on both the issues and the law.
I believe his question regarding the General Plan is spot on.
I would have liked to have read about the questions he asked on the lack of binding commitments in transportation. When I read the first of those Baseline Features commitments, I don’t see anything about either funding or timeline, which makes me ask, “How can the City bindingly enforce that first commitment?” The simple answer to that question is that they can’t.
I also wonder when I read that first transportation commitment in the Baseline Features, why the intersections list doesn’t include the intersection of Mace Blvd with I-80 Eastbound. That is really the only meaningful intersection. Even if the commitments regarding the intersections of Mace and Alhambra Dr. and at Mace and 2nd Street are “binding” are they simply “fluff” without any commitment on the intersection of Mace Blvd with I-80 Eastbound?
The second, third and fourth “commitments” in the Baseline Features are simply planning steps. Nothing concrete (pun intended) there.
For the first and third Bicycle and Pedestrian commitments I don’t see anything about either funding or timeline, which again makes me ask, “How can the City bindingly enforce either of those commitments?” The simple answer to that question is that they can’t.
Regarding the GHGs situation, once again Judge Maguire seemed to be asking the right questions.
I look forward to his ruling later today.
So I finally found the document that lists the baseline features that’ve asked everyone about. It’s Resolution 22-010 Exhibit C. It doesn’t read like a legally binding contract.
As to binding commitment? The document says:
That’s kind of vague but at least initially it sounds like the city will continue to hold a hammer over the head of the developer through the entitlement process. I can understand the lack of hardline parameters and consequences being frustrating. But I think this process also recognizes the unpredictable nature of land development and construction. It’s been my experience that things never go as planned and that if a strict structure was caged around you before you’ve even had a single approval or entitlement it would be impossible to get things done because you’d always have to go back to a vote. I do think that some hardline parameters, commitments and consequences need to be made at the final permitting state (maybe at final map) and later . Maybe that’s the intention later on down the entitlement and development road.
If it was on the West side, can’t help but think that Dan Carson might be looking into legal actions to derail it – the opposite of what he’s doing now.
Had he not been part of the lawsuit against UCD years ago, an “innovation center” might have been built on campus by this point. (It was part of the UCD plan that was abandoned – apparently as a result of that lawsuit.)
Some people are more willing than others to throw someone else’s neighborhood “under the bus”, even through the use of legal actions. It’s unfortunate when they’re also elected to the council.
For that matter, one wonders what he (and his neighbors) thought of the Davis Innovation Center, which was proposed much closer to campus (and will now be covered with senior housing, instead).
I’m going to “pull an RO” here, and respond to my own comment:
That location would have also been much better for traffic flow (to/from the site) compared to DiSC, as well. For one thing, I-80 (at the point of connection with Highway 113) is multiple lanes at that point – as noted in yesterday’s article.
In addition, commuters from Woodland wouldn’t be going up and down Road 102 to Covell (and onto Mace) to access the Davis Innovation Center site, as they would with DiSC. In fact, they wouldn’t even be going through the city at all.
Nor would anyone need to travel through the entire eastern half of the city (and downtown), if they actually had some kind of connection with UCD.
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.
No change to wording (challenge denied).
No change to wording (challenge denied).
Strike the word “only”, and (for some reason) combine “Their only promise is”, into “They promise to . . .”
No change to wording (challenge denied).
Use figure of 20,000 metric tons instead, “as requested by Real Parties in Interest at the hearing”.
So just to be clear, the above result is overwhelmingly a “loss” for Carson and his developer friends, especially when compared to what they were seeking via the legal system. Unless the goal was to have a disproportionate (and personal) financial impact on the constituents he sued.
It’s unfortunate that (by the time the opponents learned of this lawsuit), it was too late for them to challenge the proponents’ ballot statements. Though that would likely have increased their (personal) legal costs, as well.
When do you suppose that Mr. Carson will disclose who paid for his legal costs?
I am sure the Vanguard will have a fact-based article on this ruling shortly. Perhaps the Vanguard might even ask the Real Parties (the Defendant’s) to comment on the ruling.
I think the Vanguard might also want to compare the veracity and truthfulness of the Plaintiff’s own Rebuttal Ballot Statement in light of this ruling.
Finally, perhaps in the interests of journalistic integrity the Vanguard might also want to revisit its article entitled, “Commentary: Wildly Inaccurate and Exaggerated Opposition Statement on DiSC2022” (https://davisvanguard.org/2022/03/commentary-wildly-inaccurate-and-exaggerated-opposition-statement-on-disc-2022/.
So, the complainants (“Plaintiffs”) aren’t “real parties”… no spin there! But others need to be held to different standards, right, Alan P? Yeah, right…
Real Parties in Interest is the legal designation to distinguish them from the respondents who were the city and county.
With team owner Dan Ramos watching from the Sky Box, the DiSC team gathers together to take the first snap of the game. In the huddle Honorary Captain and Quarterback Dan Carson exhorts his teammates “strike false and misleading language from the ballot argument … on one.”
They break the huddle trots up to the line of scrimmage for the first play of the game. Carson calls an audible at the line, “General Plan non-compliance! General Plan non-compliance!” The ball is snapped. Carson drops back and lofts a long pass to a streaking Amber Maltie. Referee Dan Maguire is right on top of the play, and the No On DiSC defense by Beverly Palmer, Alan Pryor, Michael Corbett, Stephen Wheeler, Darell Dickey, Juliette Beck and Roberta Millstein intercepts the Carson-Maltie pass … and runs it all the way back for a score! That makes the score Team DiSC zero and Team No On DiSC seven.
On the net play Carson’s audible at the line is “Almost no binding commitments!” For a second time Amber Maltie streaks down the field, but once again Carson’s pass is underthrown and the No On DiSC defense intercepts and carries the ball to the end zone. That makes the score Team DiSC zero and Team No On DiSC thirteen. The No On DiSC team decides to go for a two point conversion. They call the “No viable ways to improve this traffic mess” play, and the disheartened Ramos/Carson forces offer no resistance and the score is Team DiSC zero and Team No On DiSC fifteen.
In the next series of downs Team DiSC makes a bit of headway. Carson once again audibles at the line. “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!” is the play, and after a long review of the videos of the play referee Maguire agrees Team DiSC can have the word “only” removed if they successfully kick a field goal. They do, and the score is now Team DiSC three and Team No On DiSC fifteen.
As the No On DiSC team comes off the field they are heard to say what is the difference between the words “Their only promise is to” and the words “They promise to” ? Lots of people in the bleachers are asking the same question, especially since Referee Maguire has left the rest of the ballot statement “But figuring this traffic mess out later is not a plan!” unchanged.
On the next offensive series Carson calls the “Unmitigated Greenhouse Gas Emissions” play, and the No On DiSC defense returns to its earlier form and intercepts Carson’s underthrown pass, once again returning it for another touchdown. After the extra point the score is Team DiSC three and Team No On DiSC twenty-two.
With the remaining volume of GHGs portion of the game ending in a mutually agreed to compromise, the final score of the battle is Team DiSC 3 and Team No On DiSC 22. Not a shut out, but a pretty significant thrashing. Now it is on to the Ballot.
I think that’s about right – 3 points for striking the word “only”.
But clearly, the city needs a new Quarterback. (And I wouldn’t suggest the backup – Partida. They have the same game plan.)
And if they somehow win anyway, the city itself loses.
I have a somewhat different take, but more on that later.
Wow, MW, that was a lot of work and a lot of detail, but that was masterful. Round of applause.
Only thing I would add is that at the end of the game, Honorary Captain and Quarterback Carson storms the announcer booth, grabs the microphone and declares over the loudspeaker: “the score as compiled from the calls of the referee on various plays that made it appear that our opponents prevailed in the game played on this taxpayer-funded field — was false and misleading.”