Correspondence - Closed Session Item #1

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Santa Ana Mayor and City Council June 18, 2024 Page 3 Supervisors v. Super. Ct., 2004 WL 1945665 at *6 (Cal. Ct. App. Sept. 1, 2004) (concluding that ballot language stating that the charter amendment would ÐsupersedeÑ the dispute resolution process in the charter and ÐimposeÑ arbitration for union disputes was merely an accurate description of the measureÓs effect, and thus was not false, misleading, or argumentative). Instead, the test for the sufficiency of ballot language is Ðwhether it is partial (or false or misleading)Ñ and whether the language Ðsignals to voters the councilÓs view of how they should vote, or casts a favorable light on one side . . . while disparaging the opposing view.Ñ Martinez, 42 Cal. App. 4th at1248 (emphasis added). In Martinez, the petitioner unsuccessfully argued that the following ballot language was incomplete, misleading, and biased: COUNCIL MEMBER TERM LIMITS OF THREE TERMS; CITY LOBBYING, CAMPAIGN FINANCE AND ETHICS LAWS. CHARTER AMENDMENT AND ORDINANCE PROPOSITION __. Shall the Charter be amended and ordinance adopted to: change Councilmember term limits to three terms; restrict lobbyists from making campaign contributions, gifts and becoming commissioners; revise lobbyist registration thresholds; require contractors certify compliance with lobbying laws; extend elected officialsÓ post- employment restrictions; require ethics training; and revise requirements for independent expenditure and campaign contributions? 142 Cal. App. 4th at 1247. Although the court conceded that the heading of the measure could be more informative by stating that it would increase term limits from two to three terms, the court stressed that the language did Ðnot need to be the Òmost accurate,Ó Òmost comprehensive,Ó or ÒfairestÓ that a skilled wordsmith might imagine.Ñ Id. at 1248. The court ultimately rejected the challenge, emphasizing that the Ðjudiciary \[was\] not free to substitute its judgment given its deferential standard of review.Ñ Id. In the limited instances when courts have set aside biased language, the language was 4 also false or misleading and heavily favored one side. For example, in Huntington Beach City Council v. Superior Court, cited by Lacy, the Court of Appeal amended the following text because it included a term that disparaged the measure: ÐAmendment of Utility Tax by Removing Electric Power Plant Exemption.Ñ 94 Cal. App. 4th 1417, 1425, 1433-34 (2012). The Court reasoned that in the tax context ÐÒexemptionÓ carries the whiff of privilegeÑ by implying Ðunfair influence and special treatment.Ñ Id. at 1433-34. The court determined this language was also misleading because the energy company targeted by the measure did pay utility taxesÏjust not on wholesale natural gasÏ and thus the ballot titleÓs phrasing was inaccurate. Id. at 1434. The court therefore ordered the city to replace ÐexemptionÑ with Ðexclusion,Ñ a word that does not carry an overly positive or negative connotation in the taxation context. 4 LacyÓs brief only cited three cases to support its position. See, generally, Lacy, et al. v. Santa Ana City Council, et al., Case No. 30-2024-01402208, PetÓrsÓ Op. Br. (Cal. Super. Ct., Orange Cnty. June 4, 2024). One of those cases did not involve a challenge under the Elections Code at all. See id. at 11-13 (citing Citizens for Responsible GovtÓ v. City of Albany, 56 Cal. App. 4th 1199 (1997), a case at the motion to dismiss stage involving a post-election challenge to a gambling ballot measure where the Business and Professions Code, unlike the Elections Code, specifies the exact wording of the measure and the council deviated by adding superfluous language). The other two cases, discussed in this letter, involved clearly biased language that was also misleading. BNFSJDBO!DJWJM!MJCFSUJFT!VOJPO!GPVOEBUJPO!PG!TPVUIFSO!DBMJGPSOJB!