September 9, 2010
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Judge Calls Prop D Fiscal Impact Analysis “Deceiving”
Judge rules voters “more likely than not” could be misled by the City’s ballot information
(San Diego) – Superior Court Judge David B. Oberholtzer allowed the Proposition D fiscal impact analysis prepared by the City of San Diego to be published as submitted on the November ballot, while declaring on the record the analysis could be “deceiving” to voters in a proceeding held on Wednesday, September 8.
The court’s determination was made in the context of a lawsuit filed by plaintiff April Boling, former chairperson of the City of San Diego Pension Reform Committee, which alleged that the fiscal analysis is “not impartial, not accurate, and misleads the public” as required under California Elections Code §9295.
In his ruling denying Boling’s motion to remove the statement from the ballot, Judge Oberholtzer stated that he was persuaded by the argument in favor of removal, declaring “I believe that a voter of average intelligence, informed of the facts, could be deceived by the fiscal impact statement for Proposition D... Moreover, the ranges of savings available to the – or possibly realized by the City, are sometimes just too remote to include in a statement that should have some – clear advice to the voters. ” (Court transcript, page 3, lines 10-18).
In addition, Judge Oberholtzer stated, “I am finding by a preponderance of the evidence that it would be misleading.” (Court transcript, page 4, lines 3-5).
Judge Oberholtzer concluded that while the suit successfully met the preponderance of the evidence standard which usually applies in civil cases, it did not however present proof by the legal standard applicable to election cases of “clear and convincing evidence” to permit him to rule in favor of Boling.
While disappointed in the Judge’s decision, Boling and attorney Bob Ottilie were pleased with the Judge’s comments regarding the deceptive nature of the document.
“My client’s position has always been that the thrust of the Yes on Proposition D campaign was to make voters believe they are voting on cost-saving measures. In fact, Proposition D is a sales tax increase and nothing else,” said Ottilie. “The fiscal analysis prepared for Proposition D, which Ms. Boling contended was false and misleading, is the foundation for those arguments being made by the Yes on D Committee. It was therefore rewarding to hear the judge say that he believes that ‘a voter could be deceived’ as a result of the language in the fiscal analysis.
“Unfortunately, in these election cases, you have to prove your case by clear and convincing evidence, not the preponderance of the evidence standard utilized in the ordinary civil case,” explained Ottilie. “Consequently, because of that higher hurdle, the court could not rule for us but clearly sympathized with our arguments. His comments, along with several admissions made by the proponents of Proposition D in these two court cases, will help educate voters that this proposition is nothing more than a sales tax increase.”
“To put it bluntly, we simply want the advocates of Proposition D to tell the voters the truth,” said Boling. “Today the judge was clear that the proponent's fiscal analysis is misleading. Since it won't be pulled from the ballot, it will now be the job of the opponents of Prop D to be sure the voters fully understand the measure before they vote.”
NOTE TO EDITORS/REPORTERS: The transcript of the proceedings is available at this link: