Petitions must be in Spanish, judge rules
Decision keeps general plan initiative off ballot for now

The Salinas Californian
Posted March 24, 2006

By DAWN WITHERS

A federal judge ruled Thursday that the Monterey County general plan initiative violates federal law and can't appear on the June ballot.

U.S. District Court Judge James Ware concluded the initiative, which would dictate where growth occurs in the county during the next 20 years, violates the federal Voting Rights Act because initiative supporters circulated materials only in English, and not in Spanish, while collecting signatures to qualify it for the ballot.

Ware agreed with three county residents who sued the county in February, saying the measure failed to meet the federal requirement that translations of ballot information be provided for voters who don't speak English.

"(Ware's ruling is) consistent with the purpose of extending the bilingual election requirements to all aspects of the electoral process," said Joaquin Avila, assistant professor of law at Seattle University and a lawyer for the plaintiffs in the voting rights case. "For that reason, it's a good opinion,"
The judge's ruling says it's the county's obligation to put a properly circulated initiative before voters and that it would have violated federal law had it placed the measure before voters in June.

Ware's ruling relied heavily on the Padilla decision, a ruling made by a three-judge panel of the Ninth Circuit Court of Appeals that was filed Nov. 23 and requires recall petition materials be translated into minority languages, following the provisions of the Voting Rights Act. The decision is under review by a full panel of Ninth Circuit judges.

General plan initiative supporters collected more than 16,000 signatures - a majority of which were certified by county Registrar of Voters Tony Anchundo - to place the measure on the ballot.

Initiative supporters sued after the Monterey County Board of Supervisors voted 3-2 on Feb. 28 to keep it off the ballot, saying the measure would pose an intrusion on state housing and annexation laws. In the meantime, another group had already filed the voting rights suit.

"It's a difficult to be in this position because the right of the people to petition their government is important, and the initiative process in California is so important," said County Counsel Charles McKee. "But it's inappropriate to go forward with an invalid initiative."

Initiative backers sued in state Superior Court to get their measure on the ballot, but the case was moved last week to federal court at the request of county lawyers, who said it made more sense for the ballot-placement and the voting-rights lawsuits to be heard together.

Ruling's impact far-reaching

Ware's ruling affects Monterey County, but if appealed and upheld by the Ninth Circuit Court of Appeals, it would apply to jurisdictions of the court subject to Section 203 of the Voting Rights Act, which requires that election materials be translated into minority languages when more than 5 percent of citizens of voting age are limited in their English skills and members of a single language group.

"I think it's a disappointment," said Chris Fitz, executive director of LandWatch, one of the plaintiffs in the ballot-placement suit.

Fitz said initiative backers did everything according to the law, and no one raised objections to the initiative when it was circulated before the public in October and November.

Fitz said backers will appeal Ware's decision to the Ninth Circuit Court of Appeals next week with a request for an expedited hearing, so the measure can still go on the June ballot. If they can't get a hearing in time for June, Fitz said, initiative supporters will call for a special election.

Fredric Woocher, a lawyer for initiative supporters, said the court's decision unfairly penalizes his clients because the county failed to comply with federal law. Woocher said the court's decision gives the county what it wants - no initiative on the June ballot.

"There are initiatives up and down the state that are in the same position as ours," Woocher said, and the timing of the court's ruling leaves many of them vulnerable to pre-election legal challenges.

Stephen Roberts, a lawyer with Nossaman, Gunther, Knox and Elliott, a San Francisco-based firm representing the county, said Ware's decision doesn't find the county violated federal law because it first received the initiative backers' intent to circulate the petition a month before the Padilla decision.

"I don't think it finds the county at fault," Roberts said. "Had the board gone ahead and put it on the ballot, then I think you could argue they were at fault."
Judge 'flat-out wrong'

When initiative backers appeal, the county's legal arguments against the initiative probably won't change dramatically, Roberts said.

Woocher said Ware's decision is rife with errors, and because of incorrect dates in the opinion, Ware's ruling is based on a false premise.

"The judge got the facts flat-out wrong, and it's unbelievably annoying," Woocher said.

In his opinion, Ware wrote, "This court finds that the 'Padilla' court's rationale with respect to recall petitions applies equally and perhaps more strongly to California initiative petitions because of the extensive (county) involvement in the initiative process."

County election officials, Ware wrote, not only review initiative-petition materials but draft a portion that is critical to the public's understanding of what they are signing.

"(Ware is) extending that (Padilla) case, but not breaking radical new ground," said Pamela Karlan, professor of public interest law at Stanford University Law School.

The general plan initiative would concentrate development in cities and five community areas, including Boronda, Castroville, Chualar, Fort Ord and Pajaro. It also would limit new subdivisions outside cities and community areas and require new developments to have 30 percent housing for low- and moderate-income people - 40 percent if the developments are built on public land.

The initiative is opposed by many business interests and some affordable-housing advocates.

Meanwhile, the county is advancing with its fourth draft of the general plan in the past six years, with officials hoping that, unlike the previous drafts, this one will receive approval from the Board of Supervisors.

Supervisors are scheduled to vote on the new draft by late July or early August. It has the support of county business interests, including agriculture and tourism.

Contact Dawn Withers at withers@thecalifornian.com.