City, County deny resident's charges in Measure M lawsuit

By Doug Spoon, Editor

The City of Menifee has made a legal challenge to a lawsuit filed by the proponent of a ballot measure to repeal the Measure DD 1 percent sales tax.

Menifee resident John Smelser joined resident Anne Pica and supporters in getting enough signatures to qualify Measure M, which is the November ballot measure that will ask voters to repeal the sales tax. Listed on the 2016 ballot as Measure DD, the tax was approved by 68 percent of voters to help fund police and fire services and infrastructure. It generated more than $10 million in revenue in the last year.

Smelser’s lawsuit, filed Aug. 10 in Riverside Superior Court, alleges that City officials illegally submitted their own ballot language for Measure M, ignoring the the language that appeared at the top of petitions signed by more than 2,700 residents. That language read as follows:

“If approved by a majority of the voters in Menifee voting on the measure, the initiative would repeal the one percent (1%) retail transactions and use tax which was adopted by voter initiative in 2016 through the passage of the "Menifee Public Safety/Traffic Congestion Relief/Vital Services Measure"(Measure DD"). Specifically, if the initiative is approved, the Chapter of the Menifee Municipal Code that memorializes Measure DD (Chapter 3.26) would be repealed.”

Smelser’s objection is to the official ballot language, written by Menifee city attorney Jeffrey Melching and approved by resolution of the City Council at its June 3 meeting. As part of the resolution, the ballot language approved for the Measure M tax repeal initiative is as follows:

“Shall the measure repealing the voter-approved, locally-controlled Measure DD sales tax generating over $10,000,000 per year in local funding that cannot be taken by the state used to maintain Menifee 911 emergency response; school and police patrols; street and road repairs; traffic reduction; senior and youth programs; parks and other general services, be adopted?”

Noting the drastic difference between the two statements, Smelser (right) alleges in his lawsuit that the City “not only altered the approved ballot title and summary but also have made it biased, false and misleading as well as in direct violation of the law.”

In responding to Smelser’s lawsuit, the City of Menifee filed a motion to demurrer, which is essentially a request to dismiss the lawsuit as legally insufficient. That motion is scheduled to be heard Oct. 26. In its response to Smelser, the City answers several paragraphs in his lawsuit by stating they “contain Petitioner's legal theories, argument, and conclusions to which no response is required.”

Citing sections of the California Elections Code, Melching indicated in an email to Menifee 24/7 that Smelser is misinterpreting the law. In addition, Melching said it was he – not Smelser – who wrote the initial summary to which Smelser refers, as required by law. Melching said the summary is not intended to be the ballot language.

“While those words served an important purpose in this process (they appeared at the top of every page of the petition that Mr. Smelser circulated), they are different from, and would not qualify as, a ballot question for a number of reasons," Melching said. "Foremost among those reasons is that those words are a summary, not a question. Phrasing as a question is important, so that people can understand what a ‘yes’ means and what a ‘no’ means.

“Mr. Smelser is not authorized by the Elections Code to prepare the ballot question. That was the City Council’s job. Mr. Smelser could certainly have suggested a ballot question to the City Council prior to the adoption of Resolution 20-913 at the public City Council meeting on June 3, 2020. But he did not do so.”

In the email to Menifee 24/7, Melching (left) referred to Section 9215 of the Elections Code, which gives the local legislative body three options when a recall petition qualifies for the ballot:

a.  Adopt the ordinance [recalling the tax], without alteration, at the regular meeting at which the certification of the petition is presented, or within 10 days after it is presented.

b. Submit the ordinance, without alteration, to the voters. That in essence would’ve placed the recall measure on the ballot without City objection, using Melching’s exact language.

c. Order a report pursuant to Section 9212 at the regular meeting at which the certification of the petition is presented. When the report is presented to the legislative body, the legislative body shall either adopt the ordinance within 10 days or order an election pursuant to subdivision (b).

Section 9212 gives the City the right to request a report of city staff detailing, among other things, the fiscal impact of such a recall and its effect on “funding of infrastructure of all types."

After choosing option C, the City Council a month later received a report outlining negative effects of the removal of the tax, stating, in part:

-- A loss of 17 percent of the overall City budget.

-- A loss of 29 percent of the budget for the Menifee Police Department (about a $4.3 million reduction); 25 percent of the Fire Department budget; 33 percent of the code enforcement budget; and 13 percent of the Capital Improvement Project (road improvements) budget.

-- A reduction in road improvements, including street resurfacing projects. Funding to supplement construction of the Holland Road Overpass, Bradley Road Bridge over Salt Creek and other projects would be decreased.

As part of the resolution approved by the City Council, the ballot language was crafted as required in the form of a question, asking voters to vote yes or no on Measure M.

In his lawsuit, Melching also named the Riverside County Registrar of Voters as a party of interest. In an email to the Registrar’s office on Aug. 5, Smelser said that if the ballot language as approved by the City appeared on the ballot, the County would be included in the lawsuit. He also asked the County to reprint the ballots at the City of Menifee’s expense.

In a response to Melcher filed Sept. 16 in Riverside Superior Court, the Registrar’s office denies every one of Smelser’s allegations, including a “denial of the relief sought.” And while stating it is taking a neutral position in the complaint because it is a pre-election challenge, the County stated that the City of Menifee “is properly viewed as asserting its own personal right and interest under Article II, Section 8 of the California Constitution.”

One can understand why so many residents continue to ask questions about the issue and are confused by one aspect or another. The recall measure on the ballot will be Measure M. The tax it is designed to repeal has been known since 2016 as Measure DD. If you support the Measure DD tax, you vote no. If you are against the tax, you vote yes.

For more information on both sides of the issue, watch the Menifee 24/7 Candidates Forum here.