Judge limits scope of flood fee suit

Rob Rogers
Marin Independent Journal
Article Launched:09/07/2007 11:36:51 PM PDT

In a blow to opponents of the Ross Valley flood control fee, a Marin Superior Court judge has placed limitations on the scope of legal challenges they can pose to the measure.

Judge Lynn Duryee declared Friday that anti-tax advocates can challenge whether the mail-in ballots sent to property owners in Fairfax, Greenbrae, Kentfield, Larkspur, Ross and San Anselmo met the standards of California law.

But that challenge was limited to the ballot itself, Duryee said, adding that speculation about why the county Board of Supervisors used the controversial mail-in election format for its flood control measure was not relevant to the case.

Ross Valley voters passed the flood control fee by 65 votes in the June 25 mail-in election. The average Ross Valley homeowner will pay $125 a year for the next 20 years on projects officials say will prevent the kind of floods that devastated the area on Dec. 31, 2005, damaging about 1,200 homes and 200 businesses. Supervisors said they the fee could raised to $40 million.

At Friday's hearing, San Anselmo lawyer Ford Greene argued that the large number of voters disqualified from the election - 21 percent, a number far greater than the 1 percent disqualified in most elections - raised questions about the ballot's validity.

Greene's own analysis of the disqualified ballots on July 23 showed that most of those ballots were discarded because they lacked voter signatures. Had the disqualified ballots been counted, the measure would have failed to pass by 147 votes.

Because voters do not sign their ballots in other elections, the requirement that they do so for the Ross Valley flood election was unusual, Greene argued.

"It constitutes a gigantic change in the rules," he said. "Was it a mistake, or was it more deliberate? I believe that what manipulated the form of the ballot is relevant."

That requirement has also been questioned by Fairfax Mayor Larry Bragman, who said it violated the principle of a secret ballot for elections.

"Ballot secrecy is really a bedrock principle of democracy, and I just think that it's imperative that it be protected and guarded," Bragman said outside court. "We have procedures available to ensure those protections. They weren't used in this case."

Attorneys for the county disagreed, arguing that the ballot in question should be judged on its own merits.

"The issues that have been spoken of are, we believe, immaterial," said Jim Flageollet of the county counsel's office said in court. "The ballot speaks for itself."

Duryee agreed with the county's position.

"Isn't the real question whether the ballot complies with the law?" she asked.

Despite the judge's decision, however, Greene insists he still has the ability to make his case.

"I'm not entirely sure the judge 100 percent foreclosed on the evidentiary proceedings with regards to the comparative rate of disqualification (of ballots)," he said after the hearing.

Greene will have until Sept. 21 to outline his case against the ballot in a legal brief. The county will respond with its own brief on Oct. 1, and Greene will offer his rebuttal on Oct. 9. Judge Duryee is scheduled to make a final ruling on the matter Oct. 15.

Despite the ongoing legal debate, the flood control fee will be included with this year's property tax bills for Ross Valley home and business owners, scheduled to be mailed at the beginning of October, county Treasurer Michael Smith said.

NEXT STEPS:

- Ford Greene will have until Sept. 21 to outline his case in a legal brief.

- The county will respond with its own brief on Oct. 1.

- Greene will offer his rebuttal on Oct. 9.

- Judge to make a final ruling Oct. 15.

Contact Rob Rogers via e-mail at rrogers@marinij.com