Judge rules against author of Measure M on ballot language

By Doug Spoon, Editor

A Riverside Superior Court judge has denied the petition by a Menifee resident challenging the City of Menifee’s election wording for Measure M.

In what really is a moot point because ballots have already been mailed to voters, Wednesday’s ruling supports the City’s defense in the lawsuit. The suit, filed Aug. 10, was brought by John Smelser, the author of the ballot measure asking voters to repeal the 1 percent sales tax funding public safety, known on the 2016 ballot as Measure DD.

In the lawsuit, first reported here on Sept. 19, Smelser asked that the language submitted for the Measure M tax recall initiative be changed, saying it was “false, misleading and inflammatory.” The law requires the city to approve a resolution to place a recall measure on the ballot. The ballot language crafted by city attorney Jeffrey Melching 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?”

In his petition, Smelser asked that the ballot language be rewritten, and if ballots had already been printed, that they be reprinted with revised language at the expense of the City of Menifee.

In her ruling issued on Wednesday, Superior Court judge Irma Poole Asberry denied Smelser’s petition. The seven-page ruling described the background of the case and the reasons for denial, including:

-- Smelser failed to initiate a hearing on a schedule that would not interfere with the printing of ballots. According to the lawsuit, the Registrar’s deadline for final drafts submitted for printing was Sept. 15. The hearing date was set for Oct. 9, and “court records do not show any requests to advance hearing or to expedite proceedings prior to the hearing of 10-9-20,” the judge’s ruling states. By Oct. 9, ballots had already been mailed out.

“That timing issue made it impossible for the court to grant him any relief,” Melching said today.

-- Smelser’s attempt to file an amended petition last week was not proceduraly allowed because the city had already filed a response in connection with the hearing.

“Mr. Smelser was required to get Court approval prior to filing the amended petition,” Melching said. “Since he failed to get that Court approval, the Court ‘struck’ the amended petition and proceeded to hear the case based on Mr. Smelser’s original petition.”

-- According to the court, two elements must be proven for Smelser to win his case – that the ballot language was false, misleading or inconsistent with the requirements of the statute; and that a ruling in his favor would not interfere with the printing or distribution of elections materials. Judge Asberry ruled that “the first element is not discussed here since it is clear that Petitioner is not able to satisfy the second element.”

“The first issue was not addressed by the Court,” Melching said. “It was addressed in the City’s briefing, and the City’s position was and remains that every word in the ballot question is true. Put another way, there are no false or misleading words in the ballot question.”

-- Smelser failed to name the city clerk as an “indispensable party to this action, as required by law.”

“For the Court to grant a meaningful order, it has to have power of the person that it issues the order to,” Melching said. “In this case, if Mr. Smelser had been successful in his arguments, the Court would need ‘jurisdiction’ over someone, so that it could order a change to the ballot materials. That 'someone' is the city clerk, because she is the elections official under the Elections Code. That’s what makes her indispensable. Without her as a party to the lawsuit, the Court had nobody to issue an order to.”

Measure DD was approved by 68 percent of voters in 2016 to help fund police and fire services and infrastructure. It generated more than $10 million in revenue in the last year. In a poll regarding the Measure M recall measure conducted by Menifee 24/7 over the last month, 59 percent of those responding have said they would vote no, thus voting to keep the tax.