Earlier this month, City Attorney James Sanchez sent a confidential memo to select staff. The city won’t release it, but multiple sources told SN&R that its contents explored ways to successfully quash the arena ballot initiative, which asks for voter approval of the Sacramento Kings deal. Sanchez looked at 10 possible scenarios. But his conclusion was, essentially, that even though the petitions contained multiple errors and deficiencies, a judge would ultimately find them compliant with election law.
This past Friday, however, City Clerk Shirley Concolino rejected the arena-vote petitions anyway.
Now, Sacramento Taxpayers Opposed to Pork and Voters for a Fair Arena Deal—the two groups vying to put the initiative on the June ballot—submitted an application in Sacramento Superior Court this week challenging the city’s ruling. They argue that their signature-gathering efforts amount to “substantial compliance” with election requirements.
But there’s more: The legal challenge also accuses the city clerk of bias and misconduct.
Initiative proponents, and even a few City Hall insiders, are calling the city clerk’s decision a “calculated political move” that had little to do with the law.
Others inside City Hall called her decision “punting.”
In the city clerk’s rejection letter to STOP’s founders, she describes her decision as strictly “ministerial.” She leaves it up to a judge to determine if the petitions are legal.
VFAD leader Craig Powell called her move “posturing.”
“She’s saying, ‘I’m just a robot. I’m just administering the laws and not exercising discretion.’ And that’s just absurd,” he said. He says the clerk and other city officials have been anything but impartial.
Powell claims that the mayor’s office and The4000—Kevin Johnson’s pro-arena attack-dog group—surely received copies of their petitions from the clerk’s office, which is prohibited. “A city employee was allowed to photocopy the petition variants” and leak them to the mayor’s office, he accused.
He also said the clerk deliberately stalled the county registrar’s petition validation for weeks, so that it would be more difficult to meet the March 4 deadline to qualify for the June ballot.
And, perhaps most brazenly, VFAD and STOP faulted Concolino for losing important paperwork.
In June 2013, when STOP began gathering signatures for the initiative, it filed a “proof of service” with the city clerk’s office on June 27. But in September, Concolino called STOP to say it didn’t file that paperwork, and that all the petitions gathered so far would be invalid.
STOP founder James Cathcart rushed to City Hall to prove he possessed a time-stamped copy of the original document. “But the original proof of service … was either lost or destroyed somewhere in the city clerk’s office,” Powell said. “That never happens, this never happens. It just vanished.”
Patrick Soluri, the attorney suing the city—including the deposition of two city staff (and more to come this week, he says)—over what he said is a fraudulent arena deal, thinks this disappearing document “could be a really big issue.”
“How could the clerk’s office lose such an important document?” he asked.
As recently as two weeks ago, the city hoped to use the lost-document snafu as grounds to reject the petitions, according to the city attorney memo.
Sanchez admitted that “there were some challenges as to whether [the paperwork] was submitted or not,” but would not comment on if his office would be investigating, or had already looked into, the matter. He said he would leave it to Concolino to comment on such issues (she did not respond to SN&R by deadline).
The city attorney—who told The Sacramento Bee last week that the judge’s petition decision would be “close”—explained to SN&R he was confident that a court would back the clerk’s decision to reject the flawed petitions. “This issue will turn on the integrity of the election process,” he said.
Steve Churchill, a local attorney and election-law expert, says that while judges are supposed to default to the initiative proponents in these types of cases, he has little clue how a legal challenge will play out.
On one hand, “the court must jealously guard the initiative process,” he said. But “the problem with [the STOP] petition is they’re trying to get an overall, horseshoes and hand grenades pass” when there are multiple mistakes, he added.
Rick Hasen, a law professor at UC Irvine, says a judge will foremost ask: “Were voters likely to be mislead?”
“The courts will sometimes excuse minor imperfections in petitions on grounds that the will of the voters, or the will of the petition signers, should be followed,” he explained, then adding, “But they’re not willing to cut too much slack.”
Similar cases favor STOP, and even the Supreme Court has ruled that certain mistakes and unintended errors were insufficient for disqualification from the ballot.
Powell keeps bringing it back to the Sanchez memo and the city’s bias. “What you have is a city clerk who is taking an action against the advice of her attorney,” he said. “You’reacting in bad faith.”