Legal expert: Sacramento Measure C’s late public notice makes it lawsuit material | Opinion

A city-backed measure on the March 5 ballot proposes to increase business operation taxes by a whopping 75% in the next few years, and if voters don’t reject it now, a Sacramento County Superior Court judge will likely reject it anyway, according to one of the region’s top lawyers and initiative experts.

A citizen lawsuit could follow if Measure C passes because the city violated its charter by failing to adequately provide the public with timely notice to oppose the measure with a ballot statement.

“Somebody would need to bring a suit to declare the measure invalid because it did not comply with the procedural requirements set forth in the city charter,” said Mary-Beth Moylan, a professor of law and legal practice at the University of Pacific’s McGeorge School of Law.

Moylan is an expert in California’s initiative process, and for the last two decades, she’s overseen the university’s online publication of every initiative on every state ballot. If there is an independent person to trust about Measure C in town, it’s her.

This business tax hasn’t changed in 32 years, and at nearly the last minute, the Sacramento City Council found itself rushing to get it on the ballot. The council approved the tax ordinance on Nov. 14 and gave citizens until the Monday after Thanksgiving — Nov. 27 — to submit an opposition statement for the ballot. None did, although one tried after the deadline.

The city failed to publish a notice of the council’s action in the city’s official newspaper, the Sacramento Bulletin, within 10 days as required by a section of the city charter. Instead, official notice was given more than two months later, on Feb. 7 — and that only happened after three requests from The Bee’s Editorial Board for a copy of the published notice.

The city is attempting to spin things as if everything is fine when it most certainly is not.

Assistant City Clerk Wendy Klock-Johnson says, “Although the ordinance text was not published in the city’s official newspaper, the Sacramento Bulletin, within 10 days of council action on November 12, the city council properly placed the measure on the ballot for voter approval.” Klock-Johnson makes abundantly clear that this noticing provision of the charter was violated.

Here, in listening to an expert, is where the city’s case falls apart.

The approval to place Measure C on the ballot, and the triggering of the public noticing retirement, are tied together. They are inseparable actions to place a lawful measure on the ballot. The very title of the agenda item, in government speak, makes clear: “Adopt an Ordinance amending Chapter 3.08 of the Sacramento City Code, relating to the Sacramento Business Operations Tax Update of 2024, to be published in full pursuant to Sacramento City Charter, § 32(d),” the latter being the public noticing requirement.

“(The city is) acknowledging they had an obligation to do that under the city charter,” Moylan said.

Failing to notify the public about the measure in a timely way has real-world consequences. “Because they did not give adequate notice ahead of time, people weren’t apprised of the possibility of being able to do an opposition statement,” she said.

Moylan said two important institutions on election matters, the California Secretary of State or the Sacramento County Department of Voter Registration and Elections, have no role in correcting a city mistake.

“They have a ministerial duty. The county registrar is not going to independently make an assessment of whether this is compliant,” she said. And it is too late for the city to correct its mistake this election cycle. “Removal from the ballot at this point, when the ballot is already out, is not going to happen.”

So that leaves two solutions. Either the Sacramento City Council takes matters into its own hands, or some citizen group does later.

“The suit would be brought in Sacramento County Superior Court,” Moylan said. The plaintiff would seek a “writ of mandate issued by a county judge” to declare Measure C invalid.

The case against the city’s handling of Measure C is clear. The path forward is not, beyond voting no and dispensing with Measure C the easy way.

“I am interested to know what the city is saying about this,” Moylan said.

So are we.

Coming next: Where is Mayor Darrell Steinberg?

This story was originally published February 13, 2024 at 5:00 AM.