Features

Oak-to-Ninth Referendum Lawsuit Dropped for Lack of Funds

By J. Douglas Allen-Taylor
Tuesday November 13, 2007

Members of the Oak-to-Ninth Referendum Committee have decided to drop their lawsuit over Oakland City Attorney John Russo’s decision last year to throw out petitions calling for a citizen vote on the controversial development project. But opponents and proponents of the lawsuit were as divided over the reason for voluntary dismissal as they were over the lawsuit itself. 

In a Friday afternoon press release issued even before the committee had formally decided to drop their lawsuit, Russo said that “the Referendum Committee has repeatedly tried to keep the public from knowing the facts of this case. Now, just before they have a chance to argue their case in court, they announce their intention to dismiss. That says a lot about the validity of this lawsuit.” 

But Oakland League of Women Voters president Helen Hutchinson, a spokesperson for the referendum committee, responded by telephone that “validity” had nothing to do with the committee’s decision to drop the lawsuit. 

“We dropped the lawsuit primarily because we ran out of money,” Hutchinson said. “We could never get to the heart of the matter because we were sidetracked by legal side issues.” 

Hutchinson said that the heart of the matter was “the development, first, and then our right to petition our government. And they were successful. They drained our bank account.” 

And Oakland Green Party member Kate Tanaka, a referendum committee member, said by telephone that “in order to get through the next round of depositions, we would have had to spend more than we currently have in the bank, and we weren’t sure that there wouldn’t have been another round of motions to follow. We were up against a phalanx of attorneys representing the city and the developers, and we only had one attorney ourselves.”  

Tanaka added that “it breaks my heart that we couldn’t get Russo inside a court to explain why he allowed City Council to approve the development agreement in violation of the City Charter.”  

Hutchinson said that her group had hoped to speak with supporters before filing the dismissal, but were pre-empted by the city attorney’s Friday press release. Hutchinson said that committee attorney Stuart Flashman plans to file the dismissal on Tuesday. 

The voluntary dismissal of the referendum lawsuit does not mean that the Oak-to-Ninth development will now go forward. Still pending is a consolidated lawsuit by a coalition of environmental organizations, one by Oakland environmental advocate Joyce Roy and the Coalition of Advocates for Lake Merritt (CALM) on grounds that the project violated the California Environmental Quality Act (CEQA), and the second by the Oakland Heritage Alliance calling for the saving of the Ninth Avenue Terminal. Under the Oak-to-Ninth development agreement approved last year by City Council, the terminal would be virtually destroyed. 

Members of the Oak-to-Ninth Referendum Committee—a coalition of local organizations including, among other groups, the Jack London Neighborhood Association, the Oakland Green Party, the Sierra Club, and the Oakland Green Party—filed their lawsuit more than a year ago after submitting more than 25,000 signatures on petitions calling for a referendum on the proposed 3,100-residential unit, 200,000-square-foot commercial space development Oak-to-Ninth project. 

Russo threw out the petitions in September 2006 on the grounds that the development agreement attached to the petitions was not the final version of the agreement ultimately approved by Oakland City Council on a 6-0 vote earlier that summer. 

In last Friday’s press release, the city attorney’s office said that “the signature drive used an incomplete and misleading version of the Council’s ordinance—one that gave incorrect information about important issues such as open space and public access to the waterfront. A committee leader admitted under oath that they knew they were using an incomplete draft of the ordinance.”  

Referendum committee members countered that the version of the agreement attached to the petitions was the version on the city’s website that the Oakland City Clerk’s office referred them to when they began their petition drive, and what Russo called the final version was actually amended following the council’s final vote on the agreement, an action committee members called a violation of the Oakland City Charter. 

The city attorney’s press release also added that “state law also required signature gatherers to be Oakland residents. Discovery revealed that some out-of-town signature gatherers lied under oath by claiming that they lived in Oakland.” 

Hutchinson said she did not know who was deposed during the discovery phase of the lawsuit or what individuals may or may not have said. But she added that the committee had a California Secretary of State’s opinion that the qualifications of signature gatherers should not be at issue in determining the validity of petition signatures. 

“But to argue that issue, we would have had to go to the California Supreme Court, and we didn’t have the money for that,” Hutchinson said. 

Tanaka added that “I would have thought that city officials would have been happy to work with us to determine if city residents actually wanted to have this project, instead of working so hard against us. I can’t tell you how outraged I am by this.” 

A year ago, when the referendum lawsuit was first filed, the Oakland city attorney’s office appeared far more sympathetic to the group’s claims than it did in last Friday’s press release. 

Last year, the former public information officer for the city attorney’s office, Erica Harrold, said in a telephone interview called it a “draconian state law” that mandates that a petition for a referendum overturning a city ordinance—including the final version of the ordinance—must be turned in no later than 30 days after the final passage of the ordinance, even though state law does not give a timetable as to when the final version of the ordinance must be made available to the public. 

Referendum committee members said they did not actually receive a copy of the ordinance—which even then proved to be the copy Russo did not consider to be the final version—until 10 days had already passed following the passage of the Oak-to-Ninth development agreement. 

“We need to rework the state law so that the 30-day clock doesn’t start ticking until there is publicly available a stamped, final version of the ordinance,” Harrold said last year. Until that law is changed, she added, “our hands are tied. What else can we do? The city attorney’s office believes we were on solid ground” in throwing out the petitions.