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SMART ignores state warning, sets rules for repeal effort

By BOB NORBERG
THE PRESS DEMOCRAT

The Sonoma-Marin Area Rapid Transit District adopted a controversial and legally questionable ordinance Wednesday that puts some restrictions on a citizens group’s effort to repeal the quarter-cent sales tax.

It would require the group, RepealSMART, to put on its petitions a cover sheet written by SMART attorneys that the agency says is intended to be an impartial explanation of what the petition will do.

“We are trying to protect the citizens’ right to know what is in the petition,” said Stephanie Moulton-Peters, a SMART director from Mill Valley.

The signatures that already have been gathered, which opponents estimate to be about 5,000, will still count and signature-gathering can continue as a matter of fairness, SMART directors said.

The ordinance still doesn’t resolve the question of how many signatures need to be collected, 15,000 or 30,000.

And RepealSMART leaders said although they “appreciate the fairness,” they are not sure they will follow an ordinance the secretary of state may eventually consider illegal.

“We are shopping for an attorney,” said Co-chairman Clay Mitchell of Windsor. “We will talk to the secretary of state, if she will talk to us.”

The legal jockeying at Wednesday’s meeting in San Rafael was set in motion when an attorney for SMART maintained last week that the agency has the power to oversee the election and that it can require opponents to attach its cover letter.

That prompted a rebuke this week from an attorney in Secretary of State Debra Bowen’s office, who told SMART that state election code already adequately covers the initiative election and SMART was exceeding its authority.

The opposition group has been collecting petition signatures since mid-September and hopes to have a measure on the ballot in the spring or November to repeal Measure Q, which provided a quarter-cent sales tax increase to help pay for the rail line.

While Measure Q needed a two-thirds vote to pass, and won approval of 70 percent of the combined Marin-Sonoma vote in 2008, a simple majority is all that is needed for repeal.

Opponents claim SMART’s plan is not adequately funded, the Santa Rosa to San Rafael route is shorter than promised to voters and the trains will not attract enough riders to reduce congestion or pollution.

The election ordinance was proposed by attorney Michael Colantuono of Penn Valley, east of Marysville, who was hired by SMART to interpret the legalities of the repeal of the transit tax, which is unprecedented in California.

He contends that neither the existing state election code nor Proposition 218 passed by voters in 1996 addresses an initiative in a special district like SMART’s that straddles county lines.

The ordinance, passed unanimously, sets SMART’s clerk of the board as the election official, settling the question of which county’s registrar would be in charge.

And the ordinance requires an impartial cover letter, called a title and summary, be given to SMART’s opponents within 48­hours and stapled on petitions by Oct. 26, much as it is now required on county and state initiatives.

SMART Chairwoman Valerie Brown said she talked to Bowen on Tuesday and described the differing views as a disagreement between attorneys.

Several members of the public said the board could avoid the controversy by simply calling an election itself.

“You have a responsibility to listen to the voters and put it back the voters,” said Joyce Garcia of Santa Rosa. “To do otherwise is irresponsible. It seems to me you are just afraid of the outcome.”

Chuck Reite of Tiburon told the board it was a bad political move to change the rules during the middle of the game.

“The secretary of state has spoken and said you are doing this at your own risk,” Reite said. “The public will remember how this comes down.”

Bill Kortum of Petaluma, however, supported the ordinance, which he said sets up the legal procedure so the signatures are not challenged in court.

Still unresolved is whether opponents need 15,000 signatures, as required under Proposition 218, or 30,000, as required by the election code in SMART’s ordinance.

“Somebody has got to make the decision. We are still in limbo on that,” Brown said.





24 Responses to “SMART ignores state warning, sets rules for repeal effort”

  1. GAJ says:

    @Another Perspective.

    What part of “we are broke” don’t you understand.

    If the County Supervisors have already declared that they don’t have the money to maintain current transportation infrastructure don’t you think it is reasonable to object to a project that will siphon untold millions from the County budget?

    Perhaps you believe that SMART will stand separately and never have an impact on the general fund.

    If so, I’ve got a white elephant rail project to sell you…oh wait…you’ve already “bought” it!

    “The SMART project is facing a significant shortfall, and that’s after some cuts have already been made to the plan voters in both Marin and Sonoma counties approved in 2008 with a quarter-cent sales tax. The Sonoma County Transportation Authority and the Metropolitan Transportation Commission were willing to invest to keep SMART on track, provided Marin County was on board to infuse the project with the remaining needed revenue.

    “This is essential,” said Marin County Supervisor Steve Kinsey, a TAM member. “It’s not just our $8 million.” Kinsey said that the combined contribution from the three agencies was $43 million, and it was contingent on all three entities agreeing to fund SMART.”

    http://marinscope.com/articles/2011/07/02/novato_advance/news/doc4e0b78cb5aa43666728651.txt

    Thumb up 3 Thumb down 0

  2. Graeme Wellington says:

    @Another Perspective still believes the dream. I told you the defenders of SMART would say these kinds of things. You’ve got to get yourself up to speed AP. There’s no reasonable person on planet Earth who could believe 1.5 billion dollars to lay tracks from Santa Rosa to San Rafael and 10 million a year in subsidies and a public cost of $86,000 per passenger per year is a wise investment or anything close to what was actually voted on.

    Holy S! SMART will cost the taxpayers $86,000 in government subsidy per passenger per year! Hey, just buy us all a V8 Audi instead?

    Thumb up 3 Thumb down 0

  3. Another Perspective says:

    Wow, so much angst over a public transit project that aims to improve a situation that people routinely cite as one of the biggest downsides of living here…the perpetual bottlenecks on 101. Is it a perfect solution? No. But better to take an incremental step towards improving things, one that we can build upon later, than sit on our hands for how many more decades while things continue to deteriorate.

    “We just want the voice of the people to be heard” I hear the repealites say. Let’s forget the fact that this project went through tons of protracted debate and several elections while it tried to secure the ridiculous 2/3 majority it needed to pass in this state. Reading through the commentary on this and previous threads it becomes obvious that this project is just the latest poster-child of a disgruntled right-wing minority who would have us believe that little ole Sonoma County is ground zero in a global UN plot to take over the world. Sigh…If you really believe that, why not pack up your guns and your canned food and move to the hills of Idaho or Montana where you can drive your gas guzzler as much as you want without any fear of encountering well considered urban planning, public transit, or maybe even taxes! All this agenda 21 nonsense really undermines the legitimacy of your your group’s appeal to the educated voter.

    Your mad at how your tax payer dollars are being spent to defend this project against your persistent attacks? While I’m sure I speak for plenty of us who are mad that SMART is wasting its already strained resources having to defend this project again, instead of just getting on with it.

    As to the latest issue…I see NOTHING in the cover statement that they provided that is overly one sided. It seems fairly typical of the language you routinely see in the voters booth. Couple this with the fact that one of your anti-transit zealots will be there filling the poor grocery shopper with lots of unfounded conspiracy theories about the SMART agenda, and I would argue that you are still coming out ahead in the propaganda battle. They aren’t even suggesting that the signatures already collected without this cover statement would be invalidated. So why all the fuss? Never mind I forget who I am asking.

    I really would like to see all the energy you folks are putting into fighting this thing put into some effort to actually make things better around here.

    Thumb up 0 Thumb down 6

  4. Commonsense says:

    “We are trying to protect the citizens’ right to know what is in the petition,” said Stephanie Moulton-Peters, a SMART director from Mill Valley.”

    It appears to me that what they are doing is creating a large and potentially wasteful conflict of interest, while attempting to protect their own interests, not the publics.
    This is changing the rules halfway and is not only inequitable, but frankly playing dirty, my disrespect for the SMART board has reached an all time high with this move and I’ll be talking to all freinds, family and neighbors that will listen about this and those who haven’t may now be moved enough to sign.

    Thumb up 32 Thumb down 0

  5. Money Grubber says:

    Local, State, and Federal American government are out of control with OUR money. They don’t need more tax money. They need 50% less than they already take from us.

    Half Million Dollar Federal Loan Guarantee For Jobs in Finland.

    ——————–

    “”The Department of Energy is standing by a $529 million loan guarantee to a company building an electric car line in Finland.

    A department official, in a lengthy response posted on a government blog Thursday night, confirmed that the company Fisker is assembling its Karma electric car at its “overseas facility.”

    ABC News reported that the Obama administration gave the green light for the company to move the manufacturing to Finland two years after announcing the loan.”

    ——————-

    Thumb up 19 Thumb down 2

  6. Jim says:

    On a side note…anyone catch the article in the Wall Street Journal yesterday (Oct 20) about the Chinese high speed rail project that RAN OUT OF MONEY?? Hmmm, I thought their trains were the model for ours (per Obama). Oh wait, they are. Over-promised, woefully underfunded, overpaid “management” and massive government subsidies just to build a train that runs in the red in perpetuity. Yep, we’re copying that model EXACTLY.

    Thumb up 31 Thumb down 1

  7. Jim says:

    “We are trying to protect the citizens’ right to know what is in the petition,” said Stephanie Moulton-Peters, a SMART director from Mill Valley.

    YEAH RIGHT! They are trying to protect their massive salaries and excessive pensions.

    Unfortunately, I’m one who believes that the Sheeple will not repeal SMART because they are just too stupid. They live in a fog created by the Utopia-minded morons who control this state via massive taxes, over-bearing regulation and handouts to non-productive citizens.

    Thumb up 14 Thumb down 9

  8. Mike says:

    This autocratic, arrogant, unelected board has operated this way since the beginning.

    Its time to stop this train to nowhere and end the taxes being spent on this boondoggle.

    Be real smart, Repeal Smart!

    Thumb up 32 Thumb down 0

  9. Graeme Wellington says:

    Those letters perfectly clear. Thanks for posting them. Seems to me in light of the warning, that SMART is acting maliciously and intentionally — subjecting them to punitive damages I believe.

    So, now our tax dollars are going to pay to settle a court dispute — a court dispute SMART intentionally caused.

    How many more ways can SMART waste our money or make bad decisions?

    The Press Democrat really needs to change editorial policy in light of the accumulated evidence. There’s no rational basis for our only local newspaper to support SMART and simultaneously ridicule Repeal SMART’s efforts.

    Thumb up 31 Thumb down 1

  10. John Parnell says:

    Chair Brown does not heed the decision when it is made, so why is she wondering about further interpretation of anything else? The Secretary of State told SMART it did not have the legal authority to make the law, which they then passed unanimously, putting themselves in legal limbo.

    I’m confused by part of this article. Ms. Brown spoke with Secretary of State Bowen, and she told her it was just a legal squabble between their lawyers, but go ahead and disregard the warning from her top lawyer that SMART was about to violate elections law?

    PS – It should be noted that Chuck Reite, who is quoted at the end of the article, is a retired federal judge. The guy knows his stuff.

    Thumb up 30 Thumb down 0

  11. John Parnell says:

    SMART has said that they are concerned that people don’t know what is in our petition, so they want to write the summary. Our initiative is very simple. It repeals Measure Q, the 1/4 cent sales tax. It does not dissolve SMART.

    Our petition is in booklet form, and may not be downloaded to be signed. There are 95 signature lines per booklet. If you would like a petition to circulate, or would like to sign a petition, please email us at info@repealsmart.org with your contact information.

    The Secretary of State has confirmed in the letter posted below that we do not need to post our initiative. However, we would like to make it available for all to read. Please read our initiative at:

    http://repealsmart.org/Repeal_of_the_Sonoma-Marin_Passenger_Rail_Act.pdf

    Thumb up 22 Thumb down 0

  12. John Parnell says:

    Here are copies of the Secretary of State’s letters to SMART. The second was not in the SMART agenda packet, as it is dated Monday – it is a bit more succinct.

    http://repealsmart.org/Finley_ltr_to_Colantuono_10_12_11.pdf

    http://repealsmart.org/Finley_ltr_to_Colantuono_10_17_11.pdf

    Thumb up 28 Thumb down 1

  13. John Parnell says:

    The SMART board broke the law today. These are the people we have entrusted with hundreds of millions of our dollars. Who would buy bonds from a group this ethically-challenged? They were warned by the Secretary of State that this ordinance was unlawful, and they lacked the authority to enact it. SMART’s new special counsel can contend all the billable hours he wants (on our tax dime at Farhad’s bequest), but this is not an issue between SMART and RepealSMART. This is between SMART and the State of California. We look forward to reading SMART’s “impartial” summary they would like to write for our petitions, but we fear that if we were to comply with SMART’s request, we would also be violating the law. Our petitions are legitimate without SMART’s tainted summary.

    “…settling the question of which county’s registrar would be in charge.” – the answer is now…neither? SMART honestly wants to be the elections official, and subvert election law, the registrars of voters & the Secretary of State. They actually really do want to validate & count our petitions, and write both sides of the ballot arguments. Why not let them count the ballots too?

    What finance person with half a brain would buy bonds from a special district that breaks election law & defies the Secretary of State in an attempt to stifle a repeal effort? (with a unanimous vote no less) SMART may have wanted to tie us up in the courts, but in reality, they just tied up their bond money until their court case with the State of California is resolved. This issue has nothing to do with RepealSMART. We have been following & will continue to follow state elections law, as directed by our attorneys, the voter registrars of Marin & Sonoma, and the Secretary of State.

    The Secretary of State told SMART’s lawyer on Monday: “…you are recommending that the District board pursue a course of action that under the law, it does not have the legal authority to follow…that…can only be done by the state Legislature or by statewide initiative, not by individual districts on an election-by-election basis.” This ordinance is therefore illegal, and RepealSMART is under no obligation to follow a law enacted by a body which has no legal authority in the matter. What defies logic is that the SMART board had this letter & knew they were breaking the law – but didn’t care.

    We had expected at least one board member to not go along with these lawbreakers. Supervisor Kate Sears was the State Deputy Attorney General. One would think that she knew better than to violate the law & instructions from the Secretary of State along with this arrogant bunch.

    Thumb up 47 Thumb down 3

  14. The Hammer says:

    “We are trying to protect the citizens’ right to know what is in the petition,” said Stephanie Moulton-Peters, a SMART director from Mill Valley.

    But it’s OK to lie to the voters as SMART did?

    Thumb up 47 Thumb down 4

  15. Steveguy says:

    Since when does a District get ordinance power ?

    If the SMART Board were elected for the position, then maybe. But not now.

    Can the Water Districts enact ordinances ? The Open Space District ? I don’t think so.

    This is blatant, and any bond purchasers should be aware. ( Probably Goldman Sachs anyways ). They say 2 year delay, yet want to rush to bonds right away, to the tune of $200 million plus.

    Repeal SMART

    Thumb up 56 Thumb down 0

  16. Wilson says:

    “Bring it back to the voters…or are you afraid of the outcome?”

    Great quote from the SMART board meeting there!!! Thank you to whoever said it.

    This action has pushed the SMART board beyond arrogance and into sociopath territory. Anybody not concerned about SMART is not paying attention.

    Thumb up 55 Thumb down 1

  17. Joyce Garcia says:

    I had mentioned, at the meeting yesterday, the arrogance one of the SMART board members who was quoted in the PD the other day…”SMART is going to do what SMART is going to do”. This arrogance cannot and should not be tolerated by anyone in these positions of “power”!!!!!! Don’t they realize that we ARE watching now? This is not the days of yesterday when the majority of ordinary citizens were sleeping…we know what is at stake now and are no longer afraid to stand up for what is right! Putting this back to the voters is the RIGHT thing to do!

    “We are trying to protect the citizens’ right to know what is in the petition,” said Stephanie Moulton-Peters, a SMART director from Mill Valley.

    Well, we have a right to what was voted on, and since it is no longer what citizens voted on, is it the citizens or the project Stephanie really wants to protect? I don’t feel protected!

    Bring it back to the voters…or are you afraid of the outcome?

    Go to repealsmart.org to get more information on where you can pick up a petition or where to sign one!

    Thumb up 62 Thumb down 1

  18. Really Big Fish says:

    They’re all Democrats. Pathetic corrupt hypocrites.
    This could be a big story for PD if only they were journalist.

    Thumb up 42 Thumb down 13

  19. Graeme Wellington says:

    Repeal SMART needs to just plow forward. The ordinance is ultra vires and can be ignored. Let SMART take legal action and try to enforce their ordinance.

    The repeal effort can just go about obeying the existing state law. The Secretary of State’s declaration that there was no rational basis for the ordinance is as clear an indication you’re ever going to get from the government that a law is invalid on its face.

    Thumb up 65 Thumb down 2

  20. Andy Cole says:

    I attended the SMART meeting yesterday.

    I believe the SMART Board realizes there is a good possibility that if their ordinance is challenged in court, they may not win.

    They are likely hoping that their ordinance is not challenged, especially by the Secretary of State. The Secretary of State would be a little harder to push around then RepealSMART, a mere citizen’s group.

    Regardless, tying the initiative process up in court makes economic sense for SMART. The longer a repeal initiative is kept off the ballot, the longer they have to try and sway voter opinion. Moreover, the longer they get to continue to collect the tax.

    So it makes sense for SMART to throw many millions of dollars on fancy lawyers to create and defend their ordinance.

    And no doubt the SMART Board is already putting political pressure on Jerry Brown and others at the State level to reign in the Secretary of State.

    Remember, that Jerry Brown recently appointed Kate Sears to replace Charles McGlashan on the Marin Board of Supervisors, which also gave her a seat on the SMART Board. Apparently, part of Jerry Brown’s litmus test for her appointment was that she tow the line on SMART, which she demonstrated during yesterday’s unanimous vote.

    What I found especially worrisome is SMART’s last minute amendment SMART to allow all signatures already collected by RepealSMART to count, but requires signers after October 27 be exposed to a “neutral title and summary” that SMART will provide.

    This looks like a Trojan Horse amendment. In addition to giving the SMART Board some political cover for the vote, the amendment will create two sets of signatures. Say Repeal Smart collects half the signatures before the 27th and half after the 27th. SMART, as the election official will rightly argue that people signed two different petitions and neither will qualify.

    At the very least, I think the bifurcation of signatures creates troubled legal water.

    Thumb up 54 Thumb down 4

  21. Social Dis-Ease says:

    Since when is Smart a legislative body.

    They are not ‘trying to protect the citizens’, they are trying to oppress the citizens.

    We do not want these foxes guarding our hen house.

    A lack of a provision for the citizen’s to contest their fait accompli only reinforces the arrogant, disrespectful attitude that this Agency has shown all of us. EVEN THE SECRETARY OF STATE!
    This isn’t make up the rules as you go club. This is OUR money. OUR communities.
    The secretary of State should adopt a proactive posture on this deal, as Smart has demonstrated a complete disregard for us. Complete disregard to the law!
    They are kicking sand in our face, but it’s still ‘gonna make a lot of people see what’s really goin’ on.
    This is a good place to draw a line in the sand.
    Otherwise we will lose control of OUR whole beach.
    Search: Smart Growth Fraud
    by Dr. Michael Coffman, to see why.
    Other information sources:
    Santa Rosa Neighborhood Coaltion.
    Democrats against UN Agenda 21.
    The Post Sustainability Institute.
    Freedom Advocates.

    Thumb up 50 Thumb down 4

  22. BigDogatPlay says:

    No surprise at all. In my mind I can hear Supervisor Brown telling her colleagues now…

    “We’ve got to save our phoney baloney jobs, ladies and gentlemen!!!”

    This is a bunch of elected officials, featherbedding on another government board, fighting to keep that board in existence any possible way they can so that they, the bureaucrats the board employs, and the consultants can continue to enrich themselves at the public trough.

    Follow this link and see exactly who should be getting voted out of office at the next available opportunity.

    http://sonomamarintrain.org/index.php/misc/about_us

    Thumb up 48 Thumb down 3

  23. Jim says:

    Is this a surprise? A corrupt, government funded disaster is trying to block the repeal effort that would eliminate their cushy, unnecessary “manager” jobs, that pay massive salaries and carry enormous pensions. Corruption right in front of our eyes.

    Doesn’t matter. The whole system is corrupt. Too many connected people and union members benefit from this joke called SMART so it’ll be repealed, and then tied up in the courts for years. While all this is happening 17 “managers” will continue to be paid enormous salaries and accruing their pension credits.

    The voters deserve this for being so stupid. When the pension bill comes, I’ll be out of the state, laughing as I spend the income I sheltered from CA state taxes. I didn’t vote for this waste, I’m not paying for it.

    Thumb up 57 Thumb down 4

  24. Money Grubber says:

    The SMART people misled the voters on the first election.

    They now fear that the voters won’t be fooled a second time.

    So, they engage in corrupt acts in an attempt to thwart the election process.

    I call that criminal. I call them criminal.

    Thumb up 60 Thumb down 4

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