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Judge rules in favor of petitioners

Linda Satchwell
Staff Writer
5/12/2010


    In a stunning victory for tax limitation initiative proponents, Butte Superior Court Judge Thomas Kelly ruled in favor of their right to write the ballot language; ordered Plumas District Hospital to hold a mail ballot election Aug. 31; and granted a temporary restraining order preventing the hospital from selling any more bonds until the election has occurred.

 

    Kelly made a point of saying that he had read every petition, reply, supplemental memorandum of points and authorities, and declaration—in short, every last word on the case — before he made his judgment.

    He also heard oral arguments and responses from both Holly Whatley of Colantuono & Levin, counsel for PDH, as well as Bret Cook, counsel for the petitioners. He thanked both sides for the quality of their arguments.

    He then made a statement of personal neutrality, claiming that local judges had rightly recused themselves because they were taxpayers in the district, whereas he was not.

    After oral arguments, he made a point of reviewing the elections code in front of the court, and then said “just now and prior” that he had reviewed the elections code, which is central to this case.

    As a further move to establish his neutrality, he said, “No matter how I rule, I’m not saying whether I think the initiative should fail or succeed.”

    In a precursor to all three rulings, Kelly pointed to elections code 9302, saying that “the initiative process is a special breed of cat . . . it’s a process whereby a group of people prepare a petition, circulate it, and . . . it becomes a ballot measure. This is not the Legislature creating something to vote on. It’s not two people running for office. It’s a unique process.”

    It appeared that Kelly read his role as that of making sure the will of the people, as laid out in the elections code, not be impeded. In other words, he maintained a petition that legitimately follows process should come to a vote in what he determined was a timely manner.

    He implied, as well, that the will of the people necessarily must be subject to constitutional restraints—to potential rulings regarding validity. He was, in fact, pointing out the balancing act between the will of the people and the rule of law.

    “Over the past few years,” said Kelly, “there’s been a lot of these (initiatives) statewide. Some of which have then had to withstand judicial scrutiny because … right now the validity, constitutionality of this initiative is not important.    “It may be before a judge if it passes. If it doesn’t pass, there’s no need to scrutinize it for validity or constitutionality.”

    His portion of that equation involved respecting the elections process when “the people” have adhered to its requirements.

    Kelly acknowledged, however, that a further determination might be required regarding the initiative’s legality.

    Kelly ruled against PDH’s ballot language, reasoning that when people make their decision to sign a petition, they’re doing so after reading the language of the petition. “And then they sign or don’t sign based upon that,” said Kelly.

    “It seems to the court that the ballot question as framed by the district alters the language of the initiative, and it does include some argumentative language about the effect of the initiative if it were to pass.”

    He said that, under election code 9315, both sides could file written arguments that will come out in the sample ballot.     Kelly proceeded to dictate the ballot language, which was substantially the same as that in the initiative petition: “The district’s resolution number 2010-5, which authorizes the election on the petitioners’ initiative, shall be amended to read substantially as follows: ‘Shall the property tax assessment not exceed $50 per $100,000 in assessed value for all bonds sold or to be sold in Plumas Hospital District as authorized by Measure A in the special election July 22, 2008? This rate shall not increase for any bonds authorized for sale on Measure A.’”

    Regarding the date of the election, Kelly was short and to the point. The petition was submitted to the district, with all necessary signatures, in November 2009, and the district appointed an election official four months later, in March 2010.

    He also pointed out that Measure A had been a mail ballot election. Kelly then ordered the election to take place Aug. 31, 2010 as petitioners had requested.

    On the third issue, that of the restraining order, Kelly reasoned that if PDH sold any more bonds, it would “potentially result in a higher tax rate per $100,000 assessed valuation. So the court will grant a preliminary injunction through and including the date of the election precluding the hospital district, its agents, or employees . . . from selling any additional bonds.”

    Kelly said that he found this case interesting and that he’ll “check the voting result on Aug. 31.”

    Court adjourned with the nearly 40 spectators looking either shocked or jubilant, depending on what side they were supporting.  

    Calling it “the people’s initiative,” petitioner Skip Alexander applauded the judge for making his decision “on the merits of our case,” adding that petitioners were only “asking for our right to the initiative process.”

    Dick Hathaway, PDH’s chief executive officer, had a more laconic response. “We’re disappointed with the judge’s ruling,” he said.
    

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