Ballot bollocks

This November, the ballot for Alameda voters will contain a measure to incorporate the existing rent stabilization ordinance into the City Charter.  Ordinarily, the Merry-Go-Round wouldn’t pay much attention to the actual ballot question the electorate will be asked to vote for or against.  It’s all just a bunch of legalese, isn’t it?

Then we remembered the lecture delivered to Council a few weeks ago by Catherine Lew, the political consultant hired by staff to put together a City-sponsored ballot measure for an infrastructure bond.

Her staff had spent “countless hours,” Ms. Lew told Council, “refining” the wording of the ballot question.  “In the world in which we travel,” she intoned, “the mere turn of a phrase, the adjustment of just three or four words in that ballot question, can render it unviable.”

If an expert like Ms. Lew – whose success rate on ballot measures is (according to her) 95 percent – considers the words used in the ballot question so important, we thought we’d take a closer look at the item on next Tuesday’s agenda in which Council will decide the ballot language for the rent measure.

What we found just doesn’t smell right.  Indeed, if we weren’t so trusting by nature, we’d suspect that those local politicians who yearn to endear themselves to tenants’ advocacy groups are trying to stack the deck against the initiative.

First, the background.  After multiple meetings, Council passed the rent stabilization ordinance in March 2016.  Among other things, the law requires landlords to submit proposed rent increases exceeding five percent to the Rent Review Advisory Committee.  It also limits the grounds for eviction and mandates payment of relocation fees.

Council submitted the ordinance to the voters for “confirmation” at the November 2016 election.  The ballot question for what was known as Measure L1 read as follows:

City of Alameda Measure:  Shall the voters adopt the City’s March 31, 2016 Rent Stabilization Ordinance, which (a) limits residential rent increases to once annually, (b) requires mediation for all residential rent increases above 5%, including binding decisions on rent increases for most rental units, (c) restricts reasons for evictions, (d) requires landlords to pay relocation fees when terminating certain tenancies, and (e) permits the City Council to amend the ordinance to address changing concerns and conditions?

The voters approved Measure L1 by 56 percent to 44 percent.  At the same time, they rejected an initiative – known as Measure M1 – proposed by the Alameda Renters Coalition to prohibit all terminations of tenancy except for “just cause.”  It got only 34 percent of the vote.

After the election, staff suggested several revisions to the text of the rent stabilization ordinance, none of which materially changed its substance.  But when Council discussed those changes, freshly re-elected Councilwoman Marilyn Ezzy Ashcraft floated, out of the blue, a proposal to amend the ordinance the voters had just confirmed to insert the same sort of “just cause” prohibition the voters had just rejected.  Newly elected Vice Mayor Malia Vella quickly endorsed the idea, and, after a momentary lapse that led to his vilification by the tenant advocacy groups, Councilman Jim Oddie also saw the light.  Council subsequently passed an ordinance adding the ban by a 3-to-2 vote.

Alameda landlords responded with a two-pronged attack.  They prepared a petition for a referendum repealing the just-cause ordinance.  And they drafted a second petition for an initiative putting the original rent stabilization ordinance into the Charter.  By enacting the just-cause ban the electorate had turned down a few months earlier, the landlords argued, the Council majority had “subvert[ed] the will of the voters of Alameda.”  The only way to stop them from taking similar actions to promote the “agendas of radical rent-control activists” was to “take away the ability of the Council to modify the Ordinance by making it a Charter Amendment.”  If the ordinance were incorporated into the Charter, the landlords correctly stated, a simple majority vote by Council would not be enough to change the law; it would take a vote by the people themselves.

Both petitions got enough signatures to qualify for the ballot.  (ARC and its supporters, including State Assemblyman Rob Bonta, contended that the signatures had been obtained by fraud, but the Alameda  County District Attorney found that no “actionable wrongdoing” had occurred.)  Rather than submit the referendum repealing the just-cause ordinance to the voters, Council decided – with ARC’s concurrence – to rescind that ordinance altogether.  Which left the initiative for the Charter amendment.

A local measure appears on the ballot in the form of a 75-word “ballot question.”  Under state law, the ballot question must be a “true and impartial statement of the purpose of the measure” and “neither an argument, nor . . . likely to create prejudice, for or against the proposed measure.”  The language used “cannot favor a particular partisan position.”

For the initiative to incorporate the rent stabilization ordinance into the Charter, the task of drafting the ballot question fell to the City Attorney’s  office, and, in particular, to Assistant City Attorney John Le (at least it was he who defended it before Council).  The ballot question presented to Council last October was straightforward.  It read:

City of Alameda Ballot Measure:  Shall the Charter be amended by incorporating Ordinance 3148, which (a) limits residential rent increases to once annually, (b) requires a process for review of residential rent increases above 5%, (c) restricts reasons for evictions, and (d) requires landlords to pay relocation fees when terminating certain tenancies, and by amending Ordinance 3148 to eliminate the sunset date of December 31, 2019, and the City Council’s authority to amend Ordinance 3148 in response to changing conditions and concerns?

This language surely seems like a “true and impartial” description of the initiative.  Since the measure would incorporate an existing ordinance into the Charter, the voters ought to be told what current law provides, and this the ballot question does, by using almost exactly the same words to describe the rent stabilization ordinance as the ballot question for Measure L1 did.  Likewise, since the measure would amend the Charter, the voters ought to be told what its impact on the ordinance would be, and the ballot question does this as well, by making clear that the initiative “eliminate[s]” Council’s “authority” to amend the ordinance.  (The reference to the sunset date reflects a procedural change made by the initiative.)

Now, we might quibble on a few points of draftsmanship, but it would be difficult for anyone to claim, with a straight face, that the ballot question drafted by the City Attorney failed to comply with the requirements of state law.  Yet Ms. Vella, joined by Ms. Ashcraft and seconded by Mr. Oddie, objected to it anyway.

As often happens, we struggled, when watching the video of the October 17 Council meeting, to parse Ms. Vella’s words to discern her point.  Her initial problem with the ballot question appears to have been that it didn’t “clearly articulate” that, if the rent stabilization ordinance became part of the Charter, Council couldn’t amend it.  It seems to us that the draft does just that.  Ms. Vella went on to urge that the ballot question be revised to “spell out the inverse” of what it actually said.  And what was the “inverse”? Assistant City Attorney Le inquired.  “The inverse,” Ms. Vella responded, “is that the people of the City of Alameda would actually have to vote on any changes in terms of the threshold rent increases, the process, and whether or not you’re moving, or just cause eviction.”

Well, that language definitely is clearer (we guess).  In any event, whatever Ms. Vella meant, Mr. Oddie declared he agreed with her.  Then it was Ms. Ashcraft’s turn.

During the Vice Mayor’s exchange with Mr. Le, Ms. Ashcraft had been tapping away at her iPad to compose a new ballot question on the fly.  She ended up putting the cart before the horse.  Her proposal began by asking, “Shall the City Charter be amended to eliminate the City Council’s authority to amend Ordinance 3148 in response to changing conditions and concerns?”  Then came an edited summary, cribbed from the City Attorney’s draft, of the tenant protections that Ordinance 3148 provided.  Nowhere did Ms. Ashcraft’s proposed ballot question ask whether voters approved incorporating the ordinance into the Charter – which, of course, was the stated purpose of the initiative in the first place.  Nevertheless, she pronounced herself pleased with her handiwork.  “I actually bought you a few more words,” she told her colleagues.

Mayor Spencer then assumed the somewhat uncommon role (for her) of offering a compromise.  After consulting with City Attorney Janet Kern, Ms. Spencer suggested that Council approve placing the initiative on the ballot and then “give Member Ashcraft, Vice Mayor Vella, and anyone else the opportunity to craft 75 words” and submit a hard copy for consideration by Council and the public.  Her motion carried unanimously.

The staff report for Tuesday’s meeting does not contain any submission by Ms. Ashcraft or Ms. Vella.  But apparently the two have made their views known behind closed doors, since City Clerk Lara Weisiger told us it was her “understanding” that “Vice Mayor Vella and Councilmember Ezzy Ashcraft provided feedback to the City Attorney’s office” about the wording to go on the ballot.

Whoever the author(s) may be, the new ballot question reads as follows:

City of Alameda Initiative Measure:  Shall the Charter be amended by incorporating the City’s Rent Review, Rent Stabilization and Limitations on Evictions law, with the following modifications: (a) preclude City Council from amending the law in response to changing conditions and concerns, and require voter approval instead, and (b) eliminate the December 31, 2019 sunset clause?

From our perspective, it’s hard to see how this language improves on the version of the ballot question presented to Council last October.

True, at the outset it identifies the ordinance being incorporated into the Charter – but only by its title.  By contrast, the prior draft summarized, briefly but accurately, the tenant protections provided by the ordinance that will become part of the Charter if the initiative passes.  Maybe the savviest of voters will recognize that the phrase “Rent Review, Rent Stabilization and Limitations on Evictions law” refers to the ordinance that Council adopted, and the voters confirmed, in 2016 – and not, for example, to the other rent-related ordinance Council adopted, and then rescinded, in 2017.  Or maybe not.

(Sure, a diligent voter might cure any confusion by reading the full text of the ballot measure in the voters’ pamphlet.  But, as Ms. Ashcraft herself warned, only a “minuscule percentage of the voting public . . . actually reads through that.”)

Likewise, the original language drafted by the City Attorney more accurately describes the process of incorporation than the Vella/Ashcraft version does.  The initiative doesn’t put a “modified” version of the rent stabilization ordinance into the Charter, leaving the original in the Municipal Code.  Instead, it expressly repeals the article in the Code that codifies the ordinance.  It thus “eliminates” – the word used in the City Attorney’s draft; consult your own Thesaurus for synonyms – Council’s “authority” – ditto – to make changes to the ordinance.

Finally, the emphasis on the “preclusive” effect of the measure is misguided.  In fact, every Charter amendment imposes the same restrictions on Council’s authority as those ascribed to the initiative:  if the legal rules are embodied in the Charter itself, only the voters, and not Council, can revise or repeal them.  We don’t see why it is necessary for the ballot question to highlight that this Charter amendment does the same thing that every other Charter amendment does.

We can hear the response from our critics now:  All this is so much nitpicking.  Were we not inclined to defer to Ms. Lew’s expertise, we might find ourselves on the defensive.  But there’s another point to consider:  Not only must the ballot question be “true,” it also must be “impartial” and neither argumentative nor prejudicial.

The law firm representing the initiative’s sponsors contends that the Vella/Ashcraft version of the ballot question contravenes this principle.  In a letter sent to Council, attorney Bradley W. Hertz of the Sutton Law Firm objected particularly to the omission of the summary contained in the City Attorney’s October 2017 draft.  This deletion, he argued, “eviscerate[s] what is currently an appropriate and legal description of the measure.”  Moreover, by deleting the summary and focusing on the preclusive effect, the City is “putting its proverbial ‘thumb on the scale’ against the measure, in violation of the most fundamental notions of due process and fair play.”

Mr. Hertz, of course, is an advocate, and his hyperbole is understandable.  To us, the most troubling feature of Vella/Ashcraft version is that it is not so much a statement intended to provide the information voters need as an argument designed to appeal to a sentiment they presumably share.  Who doesn’t want Council to be able to “respond” to “changing concerns and conditions”?  Consider the alternative:  Council can ignore reality and stick to a course that is doomed to fail.  Who favors that?  Suggesting that a Yes vote on the initiative will “preclude” our elected officials from doing their job – well, that does strike us as misleading.

Years ago, a movement began in legal circles to require that contracts be written in “plain English.”  The Merry-Go-Round humbly suggests taking that approach to the ballot question.  Here’s an example of what voters might see:

   Council passed a tenant protection ordinance.

                  The voters confirmed it.

                  Now, some people want to put it into the City Charter.

                  If it goes there, only the voters can change it; Council can’t.

                  Is that okay by you?

We don’t know what Ms. Lew would think of our ballot question, but we hope we can count on Ms. Ashcraft to endorse it.  After all, it contains only 38 words.

You’re welcome.

Sources:

Initiative petition: 2017-10-17 Ex. 1 to staff report – REVISED Notice of Intent and Full Text; AFFRC, The Charter Amendment Petition

Original ballot question: 2017-10-17 staff report re landlord initiative

New ballot question: 2018-03-20 staff report re Nov. 2018 ballot measure2018-03-20 Correspondence

State law: McDonough v. Superior Court_ 204 Cal. App. 4th 1169

 

 

About Robert Sullwold

Partner, Sullwold & Hughes Specializes in investment litigation
This entry was posted in City Hall, Housing and tagged , , , , , , , , , , . Bookmark the permalink.

3 Responses to Ballot bollocks

  1. Tawney says:

    Again, a thoughtful analysis.
    Thank you.

  2. nyborn2013 says:

    Excellent. Thank you Robert. One word seems to stand out as I read your blog. T R U S T. As George and Ringo once sang – “it don’t come easy, you know it don’t come easy.”

  3. barbara thomas says:

    Perfect! Your version is true, impartial, simple to understand. And free? Of course Ashcraft will want to watch re-runs of her ditzy pontifications on the issue, Vella will point out that Alameda could be sued, Oddie will crash just to avoid another OddieGate, mean while we have paid Ms. Lew and Mr. Hertz how much? If only we could fill our potholes with these lawyers words! I would add a caveat to your statement “if the legal rules are embodied in the Charter itself, only the voters, and not Council, can revise or repeal them.” Of course Council and staff can just ignore or interpret away the vote of the people in the Charter, just as they are doing with Measure A (Charter 26-1,-2, -3) every time they approve a development that has more than 22 units per acre and 2000 square feet of footprint for each dwelling built. Neither the Council nor staff have that power, only the people or a Judge.

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