THE SUTTON LAW FIRM
December 13, 2023
VIA EMAIL ONLY
Glen R. Googins, Esq.
City Attorney, City of Santa Clara
1500 Warburton Avenue
Santa Clara, CA 95050
RE: Proposed Charter Amendment to Make the Chief of Police Position Appointed by the City Manager - Demand That City Stipulate to a Judgment Amending the Ballot Question
Dear Mr. Googins:
Please be advised that we represent Santa Clara voters Satish Chandra, Joyce Davis and Carolyn McAllister ("Petitioners") in connection with this demand that the City of Santa Clara stipulate to a Judgment amending the ballot question for the proposed charter amendment to make the Chief of Police position appointed by the City Manager (the "Measure").
Because the ballot question as presently worded - "Shall an amendment to the City Charter providing that the Police Chief position be appointed by the City Manager be adopted?" - fails to inform voters that the Police Chief position is currently an elected position, it is biased, likely to prejudice voters in favor of the Measure, violates the law and must be amended before being presented to the voters.
As you are no doubt aware, California Elections Code section 13119(c) requires that ballot questions for local measures constitute "a true and impartial synopsis of the purpose of the proposed measure, and shall be in language that is neither argumentative nor likely to create prejudice for or against the measure." California courts interpret this provision to mean that ballot questions "must not be false, misleading, or partial to one side." (McDonough v. Superior Court (2012) 204 Cal.App.4th 1169, 1174.) Official ballot materials have long been considered to "have a substantial impact on the equality and fairness of the electoral process." (Patterson v. Board Supervisors (1998) 202 Cal.App.3d 22, 30.) The ballot question is held to an even higher standard — "hemmed in by the constitutional guarantees of equal protection and freedom of speech." In this regard, "the wording on a ballot or the structure of the ballot cannot favor a particular partisan position." (Huntington Beach City Council v. Superior Court (2002) 94 Cal.App.4th 1417, 1433.)
150 Post Street, Suite 405 • San Francisco, CA 94108
Tel: 415/732-7700 Fax: 415/732-7701 • www.campaignlawyers.com Glen R. Googins, Esq.
City Attorney, City of Santa Clara
December 13, 2023
California Elections Code section 13314 expressly provides a remedy where a ballot question deviates from legal requirements. Specifically, section 13314(a) requires that the Court issue a writ of mandate to amend ballot language upon clear and convincing proof that there is an error, omission, or neglect of duty in connection with the ballot question, and that the court's relief will not interfere with the conduct of the election.
By refusing to include specific information about the current state of the law relative to the Police Chief position being elected, the City Council is depriving the voters of critical information about important aspects of the Measure. Moreover, the City Council is obscuring key details of the Measure, thereby leaving voters uninformed and misled as to the Measure's practical effect. By omitting this information, the ballot question is biased in favor of the Measure.
Further, although California Elections Code section 9051 permits local ballot questions to be up to 75 words, the question as currently worded is only 21 words.
Accordingly, there is suflicient space to add words that would explain that the position of Police Chief is currently an elected position, thus making the ballot question impartial and legal.
Our review of what transpired at the City Council's December 5, 2023 meeting and prior meetings reveals the following, which we believe will assist our clients in making their case should adversarial litigation be required:
1) You appear to have 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;
2) Assistant City Manager Cynthia Bojorquez acknowledged that the ballot question was developed from successful language in similar measures in other local jurisdictions;
3) An election attorney put the Council on notice that the ballot question was illegal and engineered to get a Yes vote;
4) The Mayor and at least one Councilmember expressed concerns that the ballot question is confusing, biased and misleading; and
Glen R. Googins, Esq.
City Attorney, City of Santa Clara
December 13, 2023
5) The Santa Clara Police Officers Association put the Council on notice of the results of a survey that revealed that 66 percent of Santa Clara citizens were not aware that the Police Chief is currently an elected position.
In light of the foregoing, demand is hereby made that the City stipulate to a Judgment that amends the ballot question to read "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?" or words to that effect, such that the voters are informed of both the status quo and the proposed amendment to the Charter.
Because the time for the City Council to amend the ballot question on its own has passed, a court order will be required to amend the question. We request that the City agree to a Stipulated Judgment in order to avoid adversarial litigation. Should the City fail to do so, be advised that we intend to pursue the matter in court via a contested Petition for Writ of Mandate and Complaint for Injunctive and Declaratory Relief. If and when we prevail, be advised that we intend to seek attorneys' fees and costs from the City pursuant to California Code of Civil Procedure section 1021.5.
We look forward to hearing from you by the close of business on Thursday, December 14, 2023. Due to the truncated timeframe for resolving pre-election ballot disputes, we intend to file a lawsuit on or before Monday, December 18, 2023 and seek an expedited briefing schedule and hearing date.
Thank you for your attention to this important matter.
Sincerely,
Bradley W. Hertz
Glen R. Googins, Esq.
City Attorney, City of Santa Clara
December 13, 2023
CC: Lisa M. Gillmor, Mayor
Kathy Watanabe, Councilmember
Raj Chahal, Councilmember
Karen Hardy, Councilmember
Kevin Park, Councilmember
Sudhanshu "Suds" Jain, Councilmember
Anthony J. Becker, Councilmember
Jovan D. Grogan, City Manager
Hosam Haggag, City Clerk
Shannon Bushey, Santa Clara County Registrar of Voters
Tony Lopresti, Esq., Santa Clara County Counsel