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.