Marin IJ

Marin IJ: State appeal court overturns Ross Valley flood fee

Posted: 03/11/2009 05:47:40 PM PDT

In a stunning reversal, the state Court of Appeal on Wednesday tossed out a controversial flood fee imposed in the Ross Valley, saying the election that authorized the tax was illegal because it violated the constitutional right to a secret ballot.

In a unanimous opinion, the court reversed Marin Superior Court Judge Lynn Duryee's trial court opinion upholding the Ross Valley Flood Control District fee, and ordered her to annul the 2007 mail-in election that enacted it.

San Anselmo Town Councilman Ford Greene, who pressed the issue in court, was jubilant, calling the ruling "a ringing vindication of the California constitution's bedrock principle that secret voting shall be honored, protected and used in our self government."

Greene added: "This is a victory for voting without anyone looking over your shoulder and a victory for protecting the voter's right to vote how he wants and be free from manipulation or retribution. The boogeyman of flooding no more trumps voting integrity than the boogeyman of terrorism should subjugate our legacy of putting the liberty of the individual first."

The appellate court embraced Greene's argument, declaring: "We set aside the district's fee election because the voters were instructed to cast signed ballots with their names and addresses printed on the face of the ballots and were given no assurances that the ballot would be kept confidential. The votes cast were not a reliable expression of the popular will."

The three-judge panel added that "the lack of secrecy in the district's fee election was a widespread violation of a constitutional safeguard of free elections. Although the record does not demonstrate that particular votes were affected by the lack of secrecy in a manner that changed the outcome, such a showing is unnecessary."

The court, in reaching its ruling, concluded that Proposition 218 in 1996, which was enacted to close loopholes in Proposition 13, required secret ballots for elections aimed at passing fee programs, even though it did not include specific wording saying so.

Supervisor Hal Brown, who championed the election, saying a flood control program was essential for the Ross Valley, called the court decision a mistake.

"We did it by the letter and spirit of the law," said Brown, who said he will urge the decision be appealed to the state Supreme Court.

"I'm never surprised by what the courts do," he said. "But what do you do, give up?"

Tom McInerney of San Anselmo, a labor lawyer who heads the town parks commission, said the high court probably will accept the case because it has wide ramifications for other elections across the state.

"The appeals court has misread the law," said McInerney, who represented the Flood Mitigation League and Friends of Corte Madera Creek, which entered the case to support the fee. "It's a complete misinterpretation of applicable law.

"This will be appealed."

Greene said Brown and McInerney are wrong. He said he doubted the high court would review the case because "there's not a dissenting opinion the county can hang its hat on."

The unanimous opinion was written by San Francisco Superior Court Judge Robert Dondero, who was temporarily assigned to the appeals panel.

"Repeating the same mistake over and over again will not help you get it right," Greene said of any bid to appeal the case.

It was not immediately clear whether a $645,000 consulting team hired last week to develop plans to reduce flood damage in the Ross Valley will continue its work, although Supervisor Brown said the program should not be delayed. The firm was hired with $1.3 million loaned by county supervisors to Ross Valley flood officials, with the expectation it would be repaid when the court upheld the fee.

The study funding was approved even though officials knew the court ruling was imminent.

The flood fee, narrowly approved in a mail-in vote, was designed to raise $2.2 million a year over the next 20 years. The tax averages $125 per parcel.

Greene's lawsuit challenged the election, saying it violated the right to a secret ballot. More than 21 percent of the ballots cast were tossed out because voters failed to sign them. Most other elections post a disqualification rate of 1 percent.

Although the tax squeaked by with a 65-vote margin, Greene's analysis of unsigned ballots indicated the measure would have failed by 147 votes if unsigned ballots had been counted.

Contact Nels Johnson via e-mail at ij.civiccenter@gmail.com

 

 
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