Flood district says suit challenging flood fee election lacks legal basis

Marin Independent Journal
By Richard Halstead
Article Launched: 08/14/2007 05:23:58 PM PDT

The June election that created a new Ross Valley flood fee followed the letter of the law and there is no reason for a court to consider voiding the results, according to the Marin County counsel.

The assertion is contained in an official answer filed Tuesday to a lawsuit that asks the Marin Superior Court to throw out the election's results.

The suit, filed by San Anselmo lawyer Ford Greene last week, argues that the ballot used in the election was so poorly designed that it caused about 21 percent of the 8,059 votes cast in the mail-in election to be disqualified.

But "in 30 pages of pleadings, he fails to cite one law that was violated," said James Flageollet, chief deputy county counsel for the county of Marin, which represents the Marin County Flood Control and Water Conservation District.

By paying for a manual recount, Greene determined the measure would have failed by 147 votes if the disqualified ballots were counted. Of the 1,678 disqualified ballots, 730 were marked in favor of the flood measure, while 942 were against. Most of the disqualified ballots lacked necessary signatures.

Greene's suit contends that the warning to sign the ballot was poorly placed on the ballot and should have been printed in a larger, more prominent type face.

"My issue is not whether the county dotted all their i's and crossed all their t's," Greene said. "My point is that, as a practical matter, when taking an action that is going to remove a valuable right, the district failed to provide adequate notice of that."

In its answer, the district notes that 80 percent of the voters, including Greene himself, read the instructions and properly filled out and signed their ballots. "It is that vast majority of voters who should not be disenfranchised," the filing states.

In his suit, Greene also contends that the district never approved the form of the ballot, which was designed by private consultants.

"The form of the ballot in this case is what happens when a public agency delegates the mechanics of voting to an advertising agency," Greene said. "The result is media designed to sell what the agency has been employed to pitch."

Flageollet said the district effectively approved the ballot by signing off on its contents, "which are set forth in the election procedures." The law does not require that the district approve a specific ballot, Flageollet said.

Because the suit relates to election law, a hearing must be set within the next 23 days. After the hearing is completed, the presiding Marin Superior Court judge will have 10 days to issue an opinion.

Contact Richard Halstead via e-mail at rhalstead@marinij.com