Judge Rejects Challenge To Measure J Language

By J. Douglas Allen-Taylor
Friday September 08, 2006

A Superior Court judge struck down the citizen challenge to Berkeley’s Measure J ballot language following an hour-long hearing on Tuesday, meaning that the legal analysis proposed by the Berkeley City Attorney’s office and approved by City Council on a divided vote will appear on the November ballot. 

Asked if the ruling by Judge Frank Roesch vindicates the city attorney’s position on the ballot statement, Deputy City Attorney Zack Cowan said “it was challenged. The court said the language was okay. That sounds like a vindication to me. We’re certainly happy. We think the ruling was correct.” 

Co-sponsored by Berkeley residents Laurie Bright and Roger Marquis, Measure J seeks to amend Berkeley’s Landmarks Preservation Ordinance and Demolition Permit Application for Non-Residential Buildings Ordinance. Bright and Marquis requested the Superior Court to overturn the descriptive language that will appear on the November ballot after the Berkeley City Council approved the language on a 6-3 vote at the Aug. 1 City Council meeting. 

Bright represented the appellants in the hearing while the City of Berkeley was represented by outside counsel, former Berkeley and Napa city attorney Tom Brown. The hearing was held on an expedited basis with the approval of both sides, because ballot language for the November election had to be approved by Sept. 7. 

In their appeal, Bright and Marquis charged that the ballot measure language drafted by the city attorney’s office misrepresented the measure in several instances, making it more likely that voters would cast their ballots against the measure. 

Among other things, the city attorney’s ballot language says that Measure J “would have the voters adopt, and in some cases lengthen, some City timelines to process permits that the City Attorney has advised can cause the City to violate state processing deadlines” and “would grant the Landmarks Preservation Commission authority to disapprove permits to demolish historic resources, and significantly limit the City’s ability to permit such demolitions, regardless of competing public interests.” 

Berkeley Landmarks Commissioner Lesley Emmington, who attended the hearing in support of the appeal, said that in Bright’s argument to the court, he said that analysis language “cherrypicked” certain aspects of the ordinance, “inducing the voter to reject the initiative, making it an argument against the initiative.” 

But Emmington said, “The judge ruled he could not honestly reach the point to say that the ballot language was misleading. He said that people really look at who endorses a ballot measure, rather than the ballot language itself. Some read it, but some don’t.” 

Emmington said that the judge was “deferential. He scheduled this as the last hearing of the day, so he could give it enough time.” 

She also praised Bright for “putting up a valiant effort at the appeal hearing.”