Upland municipal officials, including the mayor, city council and City Attorney Stephen Deitsch argumentatively and deceptively sought to mislead the city’s residents and voters with both the language contained in the Measure N, the ballot measure seeking approval of an additional one-cent sales tax, and what they tried to pass off as Deitsch’s “impartial analysis of the proposal” that was to be included in the sample ballot and other materials sent to voters prior to the election, a Superior Court Judge ruled on Wednesday.
In a last-minute move, the members of the Upland City Council on August 8 arranged to have the Upland city clerk schedule a “special” meeting of their body for August 9 at 12 noon, just five hours before the deadline for submitting an application to place a measure on the November 5 ballot. At the August 9 meeting, the city council rescinded action it had taken on July 22 asking the San Bernardino County Registrar of Voters to place a measure before the city’s voters in November asking them to revamp the city’s business licensing ordinance and its business tax schedules. The measure proposed on July 22 would have provided, if passed by the city’s voters, the city with additional revenue in the $3.5 million range. The measure the city council voted to spring on the county elections office later that day and on the voters in the upcoming election called for a one cent per dollar sales tax override which, city officials said, would result in revenue well above the $3.5 million mark, that being somewhere in the $20 millio to $21 million range annually.
Contained within the agenda packet for the August 9 vote was the language of the measure – which had never been seen by anyone beyond City Hall – as well as what was supposed to be a straightforward and unbiased analysis of what the impact of the measure would be if it were to be passed. That analysis, written by the city attorney – Stephen Deitsch of the law firm of Best Best & Krieger – was sent along with the application for the ballot measure to the registrar of voters office. That analysis was to be included with the election information materials that go to the voters, which would also consist of a 250-word argument in favor of the measure, a 250-word argument against the measure, a 250-word rebuttal of the argument in favor of the measure and a 250-word argument in rebuttal of the argument against the measure.
While common citizens have the right to submit a proposal to the registrar of voters office for inclusion on an upcoming ballot, doing so brings with it that the proponents submit with the petition for the measure the valid signatures of 8 percent of the voters who voted within the jurisdiction where the measure is to apply during the most recent gubernatorial election. In the case of Upland at present, this would mean 1,195 signatures of Upland voters deemed to be valid by the registrar of voters office. The city council, however, based upon its authority as the city’s duly elected decision-makers, could do so with a simple majority vote at a regular council meeting or a four-fifths vote at a special or emergency meeting.
Thus, in a normal process to qualify a measure for the ballot, there would be a lead time of months, with an opportunity for the public to examine the proposal and study its language, as well as the so-called impartial analysis of the measure that is to be presented to the voters, who based on those unrushed and contemplative examinations, would be able to come to a conclusion as to whether they individually, in the privacy of the ballot booth or in filling out a mail-in ballot, deemed the measure worth supporting with a yes vote or rejecting with a no vote.
What the Upland Council had accomplished with its movement in one direction in sponsoring the business tax rescheduling and then abruptly abandoning it and switching to the sales tax proposal was to deprive virtually everyone in the community other than a few select individuals working for the city who were in favor of the measure of seeing it before it was submitted to the registrar of voters, knowing what its substance and contents were and evaluating the “impartial analysis” to see if it, in fact, offered an unbiased size-up of what the measure actually proposes. Moreover, with the ultimate “drop dead” deadline that the registrar of voters had of August 19 of arguments for and against measures and August 21 for submitting rebuttals to those arguments, Upland city officials were making it extremely challenging for those who might be inclined to oppose the measure to articulate first conceptually and ultimately in writing both the argument against the measure and the rebuttal of the argument in favor of it.
When Lois Sicking Dieter and a handful of other Upland residents were able to obtain the staff report for the August 9 special meeting, they hastened to assimilate the information they had been provided. The proposal was dubbed the City of Upland Infrastructure, Public Safety and City Services Measure, which called for proposing to the voters a question worded thusly, “To improve and maintain infrastructure, including repaving major roads/ neighborhood streets, and repairing potholes/sidewalks; and preventing cuts to 9-1-1 emergency response, neighborhood police patrols, gang/crime prevention and addressing homelessness, shall the measure establishing a one-cent sales tax, generating approximately $20,000,000 annually for general city services, which cannot be taken by the State of California, with citizen oversight, audits, disclosure, and local control by Upland, be adopted?” Voters are to have the option of voting either “Yes” or “No.”
Two years ago, the Upland City council had sought approval of a virtually identical measure, which had been dubbbed Measure L by the registrar of voters at that time. In placing that measure before the voters, the city had adhered to the rules which pertain to tax measures, using plain language that gave an accurate description of what the measure entailed and what the consequence of passage would be. Those rules are embodied in Elections Code Section 13247 and Elections Code Section 13119.
Elections Code Section 13247 and Elections Code Section 13119, which require, respectively, that the measure language which appears on the ballot – known as either the measure statement or ballot question – be concise and not be stated in a way that is argumentative or worded in a way intended to prejudice the voter one way or another with regard to the content and intent of the measure.
Elections Code Section 13247 provides as follows: “The statement of all measures submitted to the voters shall be abbreviated on the ballot in a ballot label. The ballot label  shall be followed by the words, ‘Yes’ and ‘No’”
Elections Code Section 13119(a) states, “The ballots used when voting upon a measure proposed by a local governing body or submitted to the voters as an initiative or referendum measure, including a measure authorizing the issuance of bonds or the incurrence of debt, shall have printed on them the words ‘Shall the measure (stating the nature thereof) be adopted?’ To the right or below the statement of the measure to be voted on, the words ‘Yes’ and ‘No’ shall be printed on separate lines, with voting targets.
Elections Code Section 13119(c) states, “The statement of the measure shall be 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.”
Elections Code Section 13247 states, “The statement of all measures submitted to the voters shall be abbreviated on the ballot in a ballot label as provided for in Section 9051. The ballot label shall be followed by the words, ‘Yes’ and ‘No’.”,
In 2022, the city submitted a measure with language that abided by Elections Code Section 13247 and Elections Code Section 13119. The registrar of voters office designated that submission as Measure L. After a spirited campaign in which city officials and their allies campaigned in favor of Measure L and a group of Upland residents, including former City councilman Glenn Bozar and former City Treasurer Larry Kinley, campaigned against it, Measure L failed to gain passage, garnering 10,222 votes or 44.6 percent in favor and 12,697 or 55.4 percent in opposition.
Sicking Dieter and those she was networking with recognized that city officials were in the process of pulling a fast one. Instead of playing by the rules as the city had in 2022, offering the voters the measure and spelling it out in plain language, what the city was doing was hiding the ball, and not providing the ultimate decision-makers, the voters, with a clear picture of what they are to vote on.
At the expense of $10,000, she retained attorney Cory Briggs, who filed a petition for a writ of mandate, naming the City of Upland, Upland City Clerk Keri Johnson and San Bernardino County Registrar of Voters Stephenie Shea as respondents. The crucial portion of the petition for a writ of mandate stated, “With respect to the statement of Measure N: The statement, as set forth in the resolution, does not follow the statutorily prescribed format: “Shall the measure (stating the nature thereof) be adopted? The statement is not a true and impartial synopsis of the purpose of the proposed measure. The statement is expressed in language that is argumentative and/or likely to create prejudice for or against the measure.”
Sicking Dieter’s filing states, “For all these reasons, petitioner respectfully prays for… a judgment or other appropriate order determining or declaring that the ballot statement (also known as the ballot question) for Measure N does not fully comply with all applicable laws; a writ of mandate compelling respondents and real parties in interest to correct the ballot statement for Measure N; (and) injunctive relief prohibiting respondents and real parties in interest (and any and all
persons acting at the request of, in concert with, or for the benefit of one or more of them) from taking any action on any aspect of, in furtherance of, or otherwise based on the ballot statement for Measure N unless and until respondents comply with all applicable laws, as determined by the court.”
On Wednesday, August 28, Superior Court Judge Stephanie E. Thornton-Harris, having considered the petition and opposing papers filed by the Richard T Egger an attorney with the law firm of Best Best & Krieger, told those assembled in the courtroom, which included Egger, who was present to represent the City of Upland and City Clerk Keri Johnson in conjuction with another attorney with Best Best & Krieger who was there, Michael J Thies; San Bernardino County Deputy County Counsel Jolena E. Grider, representing the registrar of voters office and Registrar of Voters Stephanie Shea; Stephen Parker, Upland’s assistant city manager; Naseem Farooqi, a consultant assisting the supporters of Measure N; Sicking Dieter; and Briggs, that she had concluded the language of the measure and the measure statement were out of compliance with Elections Code Section 13247 and Elections Code Section 13119.
Egger, who had hopes that Judge Thornton-Harris was going to dismiss Sicking Dieter’s petition outright, immediately switched gears, fearing that any resistance on the city’s part would result in Measure N being pulled from the ballot entirely.
When Judge Thornton-Harris suggested rephrasings to the verbiage to bring the measure language into what she said would be rough compliance with Elections Code Section 13247 and Elections Code Section 13119, Egger accepted it in all of its particulars, heartened especially by the judge’s willingness to allow references in the measure language relating to infrastructure maintenance and improvements as well as public safety, which he at that point was prepared to see deleted if that was to have been the price for keeping the measure on the ballot.
The court recessed while Briggs left the interior courtroom to discuss with Egger, Thies, Parker and Farooqi a compromise on the language out in the hallway, while Sicking Dieter and Grider remained in the courtroom. Briggs returned to the courtroom, and brought Sicking Dieter out into the hallway, where a final determination of what language would be acceptable was made.
Ultimately, under the guidance of Judge Thornton-Harris, the wording with regard to the ballot language was reworked to “City of Upland 1% Sales Tax For General City Services: Shall the measure establishing a one-percent retail transactions and use (sales) tax, generating approximately $20,000,000 annually, until ended by voters, for general city services, such as the improvement and maintenance of infrastructure and provision of public safety services, be adopted?”
Judge Thornton-Harris further directed that “The city attorney’s analysis will delete, in the sentence beginning with ‘It is estimated’ in the second paragraph, all words after ‘such as’ and replace them with ‘the improvement and maintenance of infrastructure and provision of public safety services.’ All other language in the analysis remains unchanged.”
-Mark Gutglueck