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Santa Ana Mayor and City Council June 18, 2024 Page 4 McDonough likewise involved language that clearly created an impermissible bias and was misleading. In McDonough, petitioners brought a pre-election challenge to a proposed amendment to the Santa Clara city charter, claiming the ballot question and the city clerkÓs analysis of the question were Ðmisleading and biased in favor of passage.Ñ 204 Cal. App. 4th at 1172. The ballot measure was titled ÐPension ReformÑ and contained the following language: To protect essential services, including neighborhood police patrols, fire stations, libraries, community centers, streets and parks, shall the Charter be amended to reform retirement benefits of City employees and retirees by: increasing employeesÓ contributions, establishing a voluntary reduced pension plan for current employees, establish pension cost and benefit limitations for new employees, modify disability retirement procedures, temporarily suspend retiree COLAs during emergencies, require voter approval for increases in future pension benefits? Id. at 1173 (emphasis added). The Court ordered the ballot title ÐPension ReformÑ to be amended to say ÐPension ModificationÑ because the word ÐreformÑ characterized the existing pension system as Ðdefective, wrong, or susceptible to abuse,Ñ and thus took a biased position. Id. at 1174-76. The court also ordered removed the italicized introductory language because the term ÐprotectÑ misled voters into believing that if the measure failed the public would lose the services. Id. at 1175-77. It was this implication that led the court to find the language Ðpartisan and prejudicial.Ñ Id. at 1176. There is no similar language in the Measure. Instead, the Measure uses the word ÐincludingÑ to indicate that taxpayers and parents are someÏbut not allÏof the noncitizen Santa Ana residents who would be impacted by the measure. The challenged language here also does not carry an overly positive connotation in the voting context, just as the terms ÐexclusionÑ in the tax context and ÐmodificationÑ the pension context are largely neutral. In contrast, the terms tax ÐexemptionÑ rejected by the Huntington Beach court and pension ÐreformÑ rejected by the McDonough court undoubtedly created bias. And, as noted, even if a court determined that the phrase Ðtaxpayers and parentsÑ carries positive undertones, California courts have emphasized that Ða ballot title need not be the . . . ÒfairestÓ that a skilled wordsmith might imagineÑ and that Ðthe judiciary is not free to substitute its judgment \[for a city councilÓs judgment\] given \[the\] deferential standard of review.Ñ Martinez, 142 Cal. App. 4th at 1248. * * * We urge the City Council to consider this information during its discussions about the ballot language. Thank you very much for your time and consideration. Sincerely, 5 Julia A. GomezAnisha Hingorani Annie Lai Senior Staff Attorney Policy Manager Director ACLU of Southern California Chinese for Affirmative Action UC Irvine School of Law Immigrant Rights Clinic 5 Grayson Rost, a legal intern at the ACLU of Southern California and student at the UCLA School of Law, provided research support for this letter. BNFSJDBO!DJWJM!MJCFSUJFT!VOJPO!GPVOEBUJPO!PG!TPVUIFSO!DBMJGPSOJB!