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Lawsuit Threatened Over Appointed Police Chief Ballot Measure

Nearly a week after the county deadline for filing ballot resolutions, opponents of appointing Santa Clara’s police chief are threatening to sue over the March 2024 ballot measure. They say the language is misleading when it asks voters whether the City’s police chief should be an appointed position. The complainants make no similar complaint against the identical ballot language respecting the city clerk.

The ballot language was approved by the Santa Clara City Council on Dec. 5. The deadline for ballot measures for the March 5, 2024 primary election was Dec. 8. Despite this, the presumptive plaintiffs demanded the City change the ballot language.

The complainants include two dissenting members of the charter review committee that recommended the charter changes —Satish Chandra and Joyce Davis — and former civil service commissioner Carolyn McAllister. Davis was a member of a Diversity, Equity and Inclusion task force that actively lobbied the council to retain the elected police chief last year, before the subject was ever discussed by the council.

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The current ballot measure reads: “Shall an amendment to the city charter providing that the police chief position be appointed by the city manager be adopted?”

They say it’s biased and misleading and they favor a change to: “Shall an amendment to the city charter, providing that the police chief position be appointed by the city manager instead of elected by the voters, be adopted?”

These changes were proposed by Mayor Lisa Gillmor and Council Member Kathy Watanabe at the Dec. 5 meeting, but the rest of the council declined to adopt them.

In a three-page letter, attorney Bradley Hertz of the Sutton law firm (www.campaignlawyers.com) wrote that the ballot statement wording “fails to inform voters that the police position is currently an elected position” and “is biased, likely to prejudice voters in favor of the measure, violates the law… and must be amended before being presented to the voters.”

Selective Hearing, Selective Information and Opinions of Partisans

As evidence of this “bias,” Hertz points to five things.

First, he claims City Attorney Glen Googins “acknowledged that the ballot question pushes the envelope by saying that if the question is challenged in court, a judge may agree that it is legally infirm.”

What Googins said at the Dec. 5 meeting about the language recommended by the charter review committee was, “I do believe the language that’s presented to you, in the form that’s presented to you, is legally compliant and defensible. That does not mean, however, that if that language is challenged, a judge would necessarily agree with me.”

He went on to say, “I want to assure the council and the public that with my impartial analysis, the 500 words that I’m allowed, there will be a lot of detail in there about what’s now being proposed and the consequences of that.”

Next, Hertz infers that the ballot language proposed by the committee was somehow steered by city staff because the staff gave the committee samples of “successful language in similar measures in other local jurisdictions.”*

This question also arose at the Dec. 5 council meeting, and Googins took pains to explain, “The staff’s recommendation here is based on the charter review committee’s recommendation and your direction back to us as to what to bring back to you. It’s not our recommendation. I wanted to be… explicit about that.”

Further attesting to bias in the ballot language, Hertz notes that an “election attorney put the council on notice that the ballot question was illegal” and that “the mayor and at least one council member  expressed concerns that the ballot question is confusing, biased and misleading.”

The “election attorney” in question was a commentor from the public at the Dec. 5 meeting, not legal advice sought by the city or other client.

Finally, Hertz marshals the Santa Clara police union PAC to testify to the bias, writing that the union “put the Council on notice of the results of a survey that revealed that 66% of Santa Clara citizens were not aware that the police chief is an elected position.”

This “confidential” poll was conducted by the police union, not an independent public opinion research firm. They surveyed 350 people, 73% of whom preferred an elected police chief and most of whom didn’t know the police chief was already elected.

Union president Jeremey Schmidt has offered the City $432,000 of dues payers’ money for a second such poll if the council agreed to “act on the results of the survey” — something some have called offering a bribe. The union is also running a petition to “protect the police chief.”

The police union PAC has played a role in Santa Clara politics since 2016. It helped fund independent expenditures into negative political campaigns that favored Gillmor and her political allies. It has also conducted polls that have been called misleading and politically motivated.

Current police chief Pat Nikolai was president of the police union for nearly two decades until he won an uncontested election for chief in 2020.

The Council met Friday afternoon at 5 p.m. in closed session to discuss the complaint but did not release any statement.

Sutton Law Firm specializes in political, campaign and election law. In a 2020 story on ballot language challenges, attorney Hertz described to CalMatters challenges like the one he’s advancing against Santa Clara as “an uphill battle.”

The firm recently represented an unsuccessful effort to block San Francisco’s campaign disclosure law mandating that political committees list their largest donors on campaign materials, claiming the required disclosures violated the First Amendment. The disclosure law was upheld.

* These “similar” measures, however, concerned city clerks, treasurers and attorneys. Ballotopedia — which includes election data since 2007 — doesn’t show a single ballot measure concerning electing or appointing a police chief in California.

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5 Comments
  1. Saber Rattling 2 months ago
    Reply

    As previously noted: The last city to change its city clerk charter in Santa Clara County was Morgan Hill and their 2018 ballot language read, “Shall the office of the City Clerk be appointed?”

    In King County, WA they put a measure on the ballot to change the Sheriff from an elected to appointed position in 2020. The ballot language read, “Shall the King County charter be amended to return the position of King County sheriff to an appointed position with a requirement for consideration of community stakeholder input during the selection process and to make the county executive responsible for bargaining working conditions with the department of public safety’s represented employees?”

    Neither of those ballot’s language needed to express that the Clerk or Sheriff positions were presently elected and no one in either voting district challenged the language used. I haven’t seen the letter from Bradley Hertz, does anyone know if he referenced case law that would give City Attorney Googins, City Manager Grogan, the City Council, or the voting public any reason to believe Mr. Hertz isn’t just saber rattling for a few easy bucks?

    According to a 2020 CalMatters report about lawsuits against state-wide ballot language, “… state courts seem generally inclined to defer to the Attorney General’s choice of verbiage” and in ‘slapping down’ many of those lawsuits Sacramento Superior Court Judge Laurie Earl wrote in her decision, “The Court is not a copy editor.” https://calmatters.org/politics/2020/08/california-proposition-descriptions-lawsuits-attorney-general/

    • Buchser 2 2 months ago
      Reply

      Thank you (Saber Rattling) and Carolyn Schuk for exposing and clearing up some of the smoke and spurious claims of this pending lawsuit. Glad Deanna Santana and Brian Doyle are no longer with us. Also hoping Nikolai and Haggag will be joining them soon. Then it shall be four down and only two more to go.

  2. Fred 2 months ago
    Reply

    These people are such idiots, and I wouldn’t be surprised if their legal whining is funded by the police union. City response should be: bring it!

    • Buchser2 2 months ago
      Reply

      I agree with you100%; this pending lawsuit is not about the misleading language on the ballot resolution. If this were true, their complaint would also include the ballot selection for our city clerk.

  3. Buchser 2 2 months ago
    Reply

    Just out. Today’s Mercury News (Jan 14th) contained a strongly worded editorial offering their support on Measures A and B for our City’s appointments for both our Police Chief and City Clerk.

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