Revolt grows over Ross Valley flood vote

Richard Halstead
Marin Independent Journal
Article Launched:07/28/2007 10:19:09 PM PDT

A revolt sparked by last month's mail-in ballot to levy a flood fee on Ross Valley property owners is gaining momentum - with one lawyer saying he will file suit and two other veteran government attorneys saying a judge could toss out the election.

San Anselmo lawyer Ford Greene says he has decided to file suit to challenge the legitimacy of the election. Greene said his suit will assert that the design of the ballot was flawed.

Officials said the election passed by 65 votes after they disqualified 21 percent of the 8,059 votes cast because the ballots were not signed. By paying for a recount, Greene discovered the measure would have failed by 147 votes if the unsigned ballots were counted.

Of the 1,678 disqualified ballots, 730 were marked in favor of the flood measure, while 942 were opposed.

Green says voters may have failed to sign their ballots because the directions to sign it appeared on the back of the document in small print. No signature on the ballot is required in a typical election.

"It's in the smallest print on the other side, buried among other small print, down at the very bottom," Greene said.

At the same time Greene is gearing up to sue, the Marin United Taxpayers Association is soliciting donations with an eye toward filing its own lawsuit.

Association member Basia Crane said the suit would likely contend it was improper to exempt government-owned parcels from paying the fee. Timothy Bittle, director of legal affairs for the Howard Jarvis Taxpayers Association, warned the county before the election that this might constitute a fatal flaw. If the Marin taxpayers association doesn't file its own suit, it might give the money to Greene, Crane said.

"This can use more than one lawsuit," Crane said.

Two veteran Marin government lawyers - Hadden Roth, a former Marin County Municipal Court judge who now serves as town attorney for Ross, and Douglas Maloney, who served as Marin County's top lawyer at the Civic Center for 30 years before retiring in 1993 - both said the election stands a good chance of being invalidated by a judge.

"If in fact the judge feels the intention of the voters was not to pass this, it's going to be a difficult situation for him or her not to go that way," Roth said.

Maloney, the former Marin county counsel, said, "If I were (the) judge - unless there was something to prevent me from ruling otherwise - I would be inclined to say it isn't fair to do this without giving the people another shot at it."

Both lawyers cautioned they are unfamiliar with the applicable government statutes involved in the case.

"It's just an intuitive reaction," Roth said.

But Patrick Faulkner, Marin county's current county counsel who serves in Maloney's old job, said he is familiar with the law on the matter, and said the Ross Valley Flood Control District followed it to the letter.

"Ford can have his opinion on that but I think it's a valid ballot," said Faulkner, the lawyer who would defend the election in court. "He's an opponent of the tax so he's going to look for a reason to attack it."

The controversial ballot has drawn attention from the Marin Election Advisory Committee, which wants to take a closer look at the voting procedures used. But the committee, which advises the registrar of voters on voter participation and election integrity issues, stopped short of commenting on the results of the election itself.

Marin County Supervisor Hal Brown, who spearheaded the effort to raise funds for flood control, said he fears that nothing will be done to avert future flooding in the Ross Valley if the election results are thrown out and the fee can't be collected.

"If it goes to the courts, then the courts will decide whether we have flood protection or not," Brown said. "It could mean no flood protection."

About 1,200 homes and 200 businesses were damaged by the flooding that occurred across much of Marin in the early morning of Dec. 31, 2005, with downtown San Anselmo especially hard hit.

"We were fortunate no one was killed," Brown said.

The Corte Madera Creek Basin has flooded 14 times over the past 50 years. The flood fee would raise about $40 million for flood control projects in Fairfax, Greenbrae, Kentfield, Larkspur, Ross and San Anselmo, and make the district eligible for millions more in state grants.

Brown said he wasn't sure if the county, which provides the bulk of the flood control district's budget, would be willing to finance another costly election effort.

It paid MIG Inc., a Berkeley-based consulting firm, $300,000 to oversee the flood election campaign. The county also paid $185,000 to hire engineer Jack Curley to work on the project. The California Coastal Conservancy contributed $100,000 to help cover the costs of a computerized hydraulic model of Corte Madera Creek that identified key bottlenecks that cause flooding.

Because county officials called it a fee, and not a tax, the flood measure required a simple majority vote for passage, and not a two-thirds majority, as is required under Proposition 13. The vote was held under Proposition 218, which requires local governments to hold "protest" elections before imposing user fees on property owners. Items on a Proposition 218 ballot require only a majority to pass.

"This election was conducted by the Department of Public Works, not our office," Elaine Ginnold, Marin registrar of voters, has noted. "These ballots went out to property owners. They didn't have to be registered voters or even citizens."

State law does not require voters in a Proposition 218 election to sign ballots but the law does allow counties to impose conditions such as signatures, which the Marin Board of Supervisors did.

The controversial ballot was designed by the MIG consultants with help from attorney Samuel Sperry, a Proposition 218 expert with the international firm of Orrick, Herrington & Sutcliffe. Curley, the engineering consultant, said Sperry's pay was contingent on voters approving the fee - and he will get paid regardless of any suit.

Sperry declined to comment on any possible legal challenges to the election.

"MIG has done many elections like this," Faulkner said. "The ballots have been similar."

The controversial election has unleashed a tidal wave of furious critics, with many writing letters or e-mailing the Independent Journal.

One letter writer, Gordy Hall of Fairfax, on Saturday said county supervisors, and particularly Brown, should be held accountable, "including the possibility of recall."

The only elected official so far to call for a review of the vote, Fairfax Mayor Larry Bragman, said he thinks "there is sufficient cause for the court to look at it because of the rate of disqualifications."

Linda Remy, a health policy analyst for the University of California at San Francisco and a former Marin Healthcare District board member, said the high rate of unsigned ballots motivated her to offer Greene the aid of the Marin Health Fund in raising money for his suit. Since the fund is a nonprofit, donations made to it are tax deductible. Remy is the fund's president.

"When you have a situation where 21 percent of the ballots are invalidated, you've got problem with the way the election was conducted, because that has never happened before," Remy said.

Speak out on flood fee

Controversy is raging in the Ross Valley about an unusual mail-in election for a flood control fee, which the county declared was approved by 65 votes. Officials tossed out 21 percent of the ballots because voters failed to sign them - as instructed in small print on the reverse side of the ballot.

A count of the unsigned ballots indicates the measure would have failed by 147 votes if they were counted.

The measure required a simple majority vote for passage because county officials said it was a fee and did not require a two-thirds majority vote for passage as required for taxes by Proposition 13. Only property owners were allowed to vote in the flood election, but some property owners, like local government agencies, were exempted.

Supervisor Hal Brown has dismissed ballot critics, saying that unless a judge steps in to invalidate the election, "that means going forward, collecting the property tax" and making flood improvements.

What do you think? It's your turn to speak out.

What should county officials do? Should the unsigned ballots be counted? Should the election be held again this November? Is it time for a judge to look at the situation?

Write to: Independent Journal, P.O. Box 6150, Novato, CA 94948-6150. Fax 883-5458. Or e-mail to opinion@marinij.com

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