Thursday, April 12, 2012
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C.A. Scraps Title, Description of Pension Measure as Biased
By KENNETH OFGANG, Staff Writer
The title and description assigned by the City of San Jose to a June 5 ballot measure that would change the city’s employee retirement systems are biased and must be rewritten, the Sixth District Court of Appeal has ruled.
The justices Tuesday overturned a Santa Clara Superior Court judge’s ruling and granted a writ of mandate requested by four current and former city employees. The court held that by calling the measure “PENSION REFORM,” and stating in the description that the purpose of the measure was “[t]o protect essential services,” the city was seeking to enhance prospects of passage, rather than merely describing what the measure would do.
Measure B, approved last month, would require current employees to contribute more to their retirements plans and provide less generous benefits for future hires, and make other changes opposed by workers.
The City Council voted to frame the ballot question as:
“To protect essential services, including neighborhood police patrols, fire stations, libraries, community centers, streets and parks, shall the Charter be amended to reform retirement benefits of City employees and retirees by: increasing employees’ contributions, establishing a voluntary reduced pension plan for current employees, establish pension cost and benefit limitations for new employees, reform disability retirements to prevent abuses, temporarily suspend retiree COLAs during emergencies, require voter approval for increases in future pension benefits?”
Trial Judge’s Ruling
After the title and description were challenged in Superior Court, Judge Kevin E. McKenney accepted a stipulation that replaced “reform disability retirements to prevent abuses” with “modify disability retirement procedures.” He then found the amended description, as well as the title, to be sufficiently impartial to comply with relevant provisions of the Elections Code.
But Justice Franklin Elia, writing for the court, said no reasonable person could find the ballot title impartial.
“The word ‘reform’ in both definition and connotation evokes a removal of defects or wrongs,” the justice wrote. “By combining this charged word with ‘pension’ in the title, all in capital letters, the City Council has implicitly characterized the existing pension system as defective, wrong, or susceptible to abuse, thereby taking a biased position in the very titling of the measure itself. The title should be altered to read ‘PENSION MODIFICATION’ to eliminate the use of the argumentative word ’reform.’”
The ballot question, Elia went on to state, because it also used the word “reform” and because of the prefatory statement about why the council felt pension benefits needed to be reduced.
The justice acknowledged that voters have the right to an explanation of the city’s position.
“These points, however, properly belong in the ballot arguments in favor of the measure, not in the ballot question, which must be cast in neutral, unbiased language,” Elia explained. “Even if the preservation of City services and resources is a compelling reason to vote in favor of Measure B, the advocacy inherent in the introductory language of the ballot question is partisan and prejudicial.”
Amended Question
The court ordered that the question be amended to read:
“Shall the Charter be amended to modify retirement benefits of City employees and retirees by: increasing employees’ contributions, establishing a voluntary reduced pension plan for current employees, establish pension cost and benefit limitations for new employees, modify disability retirement procedures, temporarily suspend retiree COLAs during emergencies, require voter approval for increases in future pension benefits?”
The case is McDonough v. Superior Court (City of San Jose), 12 S.O.S. 1563.
Copyright 2012, Metropolitan News Company