November 2018 Seawall Bond Going to the Supreme Court

 On November 6, 2020 this Certiorari Petition was submitted for review by the CA Supreme Court. 

Appeal of ruling for November 2019 PROP A - "AFFORDABLE HOUSING BOND"

 In January 2020, the Superior Court of San Francisco ruled against our challenge to the legality of this election. See "2019 Proposition A - SF "Affordable" Housing Bonds - Post Election Challenge" below. 

An appeal was filed. Due to all the issues with COVID-19 the process has taken a long time to get going. However the appeals court recently accepted the application however delayed, and the process has started.

Unexpectedly, the City Attorney's office filed a Motion for Preference to the court in an attempt to speed up the process. Apparently, the City is feeling an economic pinch and wants access to this money ASAP. Currently these lawsuits are holding up $1B in bond money. 

You can read our Response to Motion for Preference here. 

The Court ruled against. That's OK. I can handle it. Will be filing our opening brief early next month. Stay tuned.  

The Opening Brief for the Appeal filed November 6, 2020.

Appeal of November 2018 Ruling on Seawall Bond

We filed an Appeal to ask the Appellate Court to overturn the ruling of Judge Schulman. The City filed a motion in Opposition. We filed an Opposition Statement. The court decided in our favor and accepted the case.

Here is our opening brief.  By order of the court, copies were submitted to the California Supreme Court. Here is the Defendant's reply. Pitiful.

Got tied up with the lawsuit challenging the November 2019 Prop. A and missed the January 13th deadline. Submitted an application to file a late reply brief. Called the court first to get instructions about how to proceed. Was told on the phone to bring everything down and the court would likely accept. But when I arrived, a clerk told me they couldn't receive my paperwork until the court accepted the late-filing application. And that the City needed to be served the late application on the City. After returning to post the proof of service, I had one more question. Another clerk answered but said the other clerk was wrong. That the court would stamp all the paperwork as received and I COULD leave it all there....but it wouldn't be formally accepted until the extension was granted. And that I had to serve the stamped reply brief on the City. I had to go back and serve them again. Be very careful about who you accept information from. ONLY accept information from the head clerk of the Division of the Court you are filing in. The others don't know anything but are liberal with advice and opinions that may not be true.

Here is our Reply brief to the Defendants' reply. I waived the need for oral arguments. If the City does also, the appeal will be decided based on paperwork alone. Copies were also submitted to the CA Supreme Court.

The Court ruled against our case. Here is their logic. And Here is our response to that logic. The decision in this cases was delivered "Not for Publication". However the City wanted the court to release it for publication. There are other lawsuits similar to mine filed around California. The lawyers representing the local governments wanted to use this decision as evidence that the courts are rejecting these claims. The Court allowed the publication for this purpose. It initially seemed a setback. But then it was learned that the Supreme Court hears very few cases from the Appeals Court unless they are published. 

As a last ditch effort, this Request to Reconsider their decision was filed. It was rejected. This is going to the CA Supreme Court.  

2019 Proposition A - SF "Affordable" Housing Bonds - Post Election Challenge

Here is our opening Statement about the illegality of Proposition A in the November 2019 election.

Happily, presiding Judge Garret Wong mostly followed the law and set a "Hearing date" within the time limits of California election law. That is a first for us. Previously, all "hearings" were scheduled according to traditional Civil Law. Election Law trials are supposed to happen fast. Unfortunately, it isn't supposed to be a "hearing" as stated by Judge Wong. It's supposed to be a Trial. And, Judge Wong assigned the hearing to the courts of Judge Schulman, the same judge ruling against me and other taxpayer initiatives previously.

As it appears Judge Schulman has a bias toward City Hall and against us and San Francisco taxpayers, I decided to file a Peremptory Challenge to his involvement in this case. The law says a single challenge can be filed with no questions asked to remove a Judge.

In a most unusual move, Judge Schulman then ruled in his own favor filing an Order to Strike my Peremptory Challenge. An Objection to his Order was immediately filed. Anyone really interested in getting into the details of the corruption of the court really needs to entirely read this. Here we reveal we have the information from City Hall that these judges are receiving payments from the City. These payments are not reported on their Form 700 statements of financial conflicts of interest. How can judges be ruling on matters involving City Hall while at the same time taking money from them?

An on-line complaint was filed with the CA Fair Political Practices Commission (FPPC) about Judge Schulman. They replied with this rejection of the complaint. When pressed informing them that these monies paid to judges were not "salary", they sent this reply. Apparently judges are exempt from FPPC requirements. How about that? A judge is allowed to rule on cases involving the government when receiving money from them and they don't have to report it.

On January 16th the Court responded with a preliminary judgement completely ignoring our Objection to the judge's order and responding with specious arguments proven false in our objection. Looks we are going to have to appeal this one too.  Here is the final judgment. Criminal.

It appears Judge Wong wasn't really into following the law from the beginning. We have 60 days to file another appeal.

 

2019 Proposition A - SF Affordable Housing Bonds petition for Writ of Mandate

More of the same from City Hall. This measure violates the law in exactly the same way as the 2018 Prop A. Except this time, we caught it early and filed a Writ of Mandate to remove it from the ballot.

See Writ Here. Exhibits A - E Here and F - M Here. 

The Superior Court of San Francisco ignored and violated CA Election Code 13314 (a 3) that clearly states if an elector files a Writ of Mandate to remove an illegal item from the ballot, "The action or appeal shall have priority over all other civil matters. Our Writ was filed August 27, 2019. The Court did not act in accordance with the law and seemed to be in collusion with counsel for the Defendants to delay the process and harm this action. The hearing is now scheduled for October 11. See here. The defendants are seeking another demurrer from the court. See here.  When will the lawlessness of City Hall end?

Here is our reply and request to disqualify the judge.

The judge issued a preliminary ruling before the hearing. We objected to ruling and attended the hearing. As expected, the judge ruled against us on all counts. You can read it HERE.

During this process we learned that judges across the state (not everywhere but most big counties) are receiving payments they aren't reporting on their Statement of Economic Interests Form 700. This was discovered by a Southern California lawyer named Richard Fine who discovered a small reference to it in the Government Code. It explains a lot of what we've observed. A judge who is the picture of impartiality in normal legal hearings that don't involve government, is deferring and has no challenges when the government is involved.  You can learn more about this HERE.

During the hearing, I asked the judge if he was receiving any supplemental benefits from any entity aside from the Legislature. He replied "I ask the questions in this court and not you." I then asked if that was a Yes or No. He said "It is what it is."

Subsequently, we filed a California Public Records request. And sure enough, this judge is receiving thousands of dollars from San Francisco but not reporting them on his Form 700, Statement of Economic Interests.   Follow this link and search on "Schulman".


Another thing we noticed, was that when the Board of Supervisors sent the language for Prop A to the Department of Elections, it included language they always include for bond measures stating:

"The City’s current debt management policy is to maintain the property tax rate for City general obligation bonds below the 2006 rate by issuing new general obligation bonds as older ones are retired and the tax base grows, though this property tax rate may vary based on other factors."

You can read the instructions HERE. But then we filed our petition for a Writ of Mandate where we called this out as a BIG LIE and provided proof in the exhibits. See Writ Here. Exhibits A - E Here and F - M Here. Taxes since 2006 have consistently gone up. When the measure was published, that language was removed. See HERE.

Happy to accept small steps in the right direction.

Demurrer sustained. We lost. But we intend to file a Post Election Challenge

San Francisco Libertarians File an Election Contest to Invalidate November's Proposition A Election Due To Violations of New Law


Complaint Filed in the Superior Court of California, County of San Francisco
Friday April 5, 2019

Press Release

www.LPSF.org website

Complaint 

Exhibit A (NOTICE AND DEMAND)


Judge Schulman sustains Defendant's demurrer. Appeal filed August 7, 2019 

Here is our filing requesting the Appellate Court to hear our case that Judge Schulman had wrongly ruled. But City Hall fought back asking the Court to deny the appeal. Read here. We replied and the Court accepted our case. Opening brief filed 11/26/2019.

November 2018 Proposition A "Seawall and Other Critical Infrastructure" Bond

2018 Proposition A Seawall Timeline

Timeline

1/1/2018 -  California State Elections Code, known as AB-195, became effective on January 1, 2018. There were big changes to the code

Section 13119.

13119.  (a) The ballots used when voting upon a measure proposed by a local governing body or submitted to the voters as an initiative or referendum measure pursuant to Division 9 (commencing with Section 9000), including a measure authorizing the issuance of bonds or the incurrence of debt, shall have printed on them the words "Shall the measure (stating the nature thereof) be adopted?" Opposite the statement of the measure to be voted on, and to its right, the words "Yes" and "No" shall be printed on separate lines, with voting squares. If a voter stamps a cross (+) in the voting square after the printed word "Yes," his or her vote shall be counted in favor of the adoption of the measure. If he or she stamps a cross (+) in the voting square after the printed word "No," his or her vote shall be counted against its adoption. (b) If the proposed measure imposes a tax or raises the rate of a tax, the ballot shall include in the statement of the measure to be voted on the amount of money to be raised annually and the rate and duration of the tax to be levied. (c) The statement of the measure shall be a true and impartial synopsis of the purpose of the proposed measure, and shall be in language that is neither argumentative nor likely to create prejudice for or against the measure. Material changes (areas of non-conformity) highlighted. 

Section 13119 is part of Chapter 2 of Division 13 of the Elections Code. 

Full Text of AB-195

Also, Beginning at Section 18000, the CA Elections Code describes crimes related to the Elections Code. Section 18401 is of particular interest. 

18401. Every person who prints any ballot not in conformity with Chapter 2 (commencing with Section 13100) of Division 13, or who circulates or gives to another any ballot, knowing at the time that the ballot does not conform to Chapter 2 (commencing with Section 13100) of Division 13, is guilty of a misdemeanor.
 

Full Text of 18401

History of Prop A.

4/18/2018 -  First known meeting of the Capital Planning Committee to discuss funding for the Seawall. In this meeting, they raise the amount of money planned to be raised by a G.O. Bond from $325M to $425M. 

Capital Planning Committee Memo re Seawall

5/1/2018 - Mayor Mark Farrell and London N. Breed (BOS President), Malia Cohen, Jane Kim, Aaron Peskin, Jeff Sheehy, Norman Yee, Ahsha Safai, Katy Tang introduce File #180454 Ordinance calling and providing for a special election to be held in the City and County of San Francisco on Tuesday, November 6, 2018, for the purpose of submitting to San Francisco voters a proposition to incur the following bonded debt of the City and County: $425,000,000 to finance the construction, reconstruction, acquisition, improvement, demolition, seismic strengthening and repair of the Embarcadero Seawall and other critical infrastructure, and related costs necessary or convenient for the foregoing purposes; authorizing landlords to pass-through 50% of the resulting property tax increase to residential tenants in accordance with Administrative Code, Chapter 37; finding that the estimated cost of such proposed project is and will be too great to be paid out of the ordinary annual income and revenue of the City and County and will require expenditures greater than the amount allowed therefor by the annual tax levy; reciting the estimated cost of such proposed project; fixing the date of election and the manner of holding such election and the procedure for voting for or against the proposition; fixing the maximum rate of interest on such bonds and providing for the levy and collection of taxes to pay both principal and interest; prescribing notice to be given of such election; affirming the Planning Department’s determination under the California Environmental Quality Act, and finding that the proposed bond is in conformity with the eight priority policies of Planning Code, Section 101.1(b), and with the General Plan; consolidating the special election with the general election; establishing the election precincts, voting places and officers for the election; waiving the word limitation on ballot propositions imposed by Municipal Elections Code, Section 510; complying with the restrictions on the use of bond proceeds specified in California Government Code, Section 53410; incorporating the provisions regarding the Citizens’ Bond Oversight Committee in Administrative Code, Sections 5.30-5.36; and waiving the time requirements specified in Administrative Code, Section 2.34.

History of 180454

5/11/2018 - The measure is Referred to Planning Department for environmental review; Office of the Controller for financial analysis report; and Mayor's Office, Office of the City Attorney, Department of Elections, Ethics Commission, Office of the City Administrator, Port of San Francisco, Bay Area Rapid Transit, Municipal Transportation Agency, Rent Board, and Recreation and Parks Department for reports and/or comments, pursuant to Rules of Order 2.22.4.

5/14/2018 - President Breed transferred this matter from the Government Audit and Oversight Committee to the Budget and Finance Committee.

5/24/2018 - Response received from the Planning Department stating that the matter is not defined as a "project" under CEQA.

5/30/2018 -  Response received from the Controller's Office.

5/31/2018 - Budget and Finance Committee met and introduced the following legislation.

180462

Resolution determining and declaring that the public interest and necessity demand the construction, reconstruction, acquisition, improvement, demolition, seismic strengthening, and repair of the Embarcadero Seawall and other critical infrastructure and the payment of related costs necessary or convenient for the foregoing purposes; finding that the estimated cost of $425,000,000 for such improvements is and will be too great to be paid out of the ordinary annual income and revenue of the City and County and will require incurring bonded indebtedness; affirming the Planning Department’s determination under the California Environmental Quality Act; finding the proposed bond is in conformity with the General Plan, and the eight priority policies of Planning Code, Section 101.1(b); and waiving the time limits set forth in Administrative Code, Section 2.34.

180461

Resolution amending the City’s ten-year capital expenditure plan for FYs 2018-2027 to increase the proposed Seawall Bond from $350,000,000 to $425,000,000 to fund Phase 1 of the Seawall Program.

180571

Ordinance adopting a question to appear on the November 6, 2018 ballot regarding the proposed ordinance to incur $425,000,000 of bonded debt of the City and County to finance the construction, reconstruction, acquisition, improvement, demolition, seismic strengthening and repair of the Embarcadero Seawall and other critical infrastructure, and related costs necessary or convenient for the foregoing purposes.

And considered and amended the original180454 "General Obligation Bond Election - Seawall and Other Critical Infrastructure - $425,000,000"

Here is a summary of the entire meeting.

Budget and Finance Committee Meeting

6/1/2018 - Clerk of the Board introduces 180571 introduces Ordinance adopting a question to appear on the November 6, 2018 ballot regarding the proposed ordinance to incur $425,000,000 of bonded debt of the City and County to finance the construction, reconstruction, acquisition, improvement, demolition, seismic strengthening and repair of the Embarcadero Seawall and other critical infrastructure, and related costs necessary or convenient for the foregoing purposes.

180571

6/12/2018 -  The amended "General Obligation Bond Election - "Seawall and Other Critical Infrastructure - $425,000,000" was sent back to the Board of Supervisors. Supervisor Peskin proposed an amendment to add

1) ‘e. The Seawall is a contributing resource to the Embarcadero Historic District listed on the National Register of Historic Places.’

2) And on Page 4, Lines 5-11, by adding ‘m. The Port, in consultation with the Board, will work with City transportation planners and conduct public outreach to determine the most financially feasible approaches to construction on the Seawall that minimize disruption along the Embarcadero.

3) n. At one or more hearings of the Historic Preservation Commission, the Port, in consultation with seismic and structural engineers, will analyze preferred alternatives for Seawall construction that minimize impact to the San Francisco Bay and preserve historic assets to the fullest extent possible.’, and on Line 20, by adding ‘help’ after ‘indebtedness to’, ‘overall’ after ‘finance the’, and ‘the Seawall Program, including’ after ‘cost of’; and making other clarifying and conforming changes.  

The Legislative digest was also revised by the Board of Supervisors to include the following:

1) Authorizing landlords to pass 50% of any property tax increases relating to the passage of this Bond on to tenants

2) The Board of Supervisors noted that the cost of this Bond is too great to be paid out of ordinary income and revenue.

3) Collection of taxes to cover the costs

4) Waiving the word count requirement of Sec 510 of the Election Code

5) Complying with the restrictions on the use of Bond proceeds Specified in California Government code Section 53410

6) Incorporating provisions regarding the Citizen Bond Oversight Committee in Administrative Code Sections 5.30-5.36

7) Waive the time of notice requirement in Administrative Code, Section 2.34

Document

Section 2.45 Select San Francisco Municipal Election Code. 

Section 510

Note Section 510 extends the allowable amount of words that can be used in a bond from the 75 words allowable in California State law (Section 9051) to 100 words. The actual word count in Proposition A was 136 words. When asked on March 1, 2019 by what authority can San Francisco override State Law and even San Francisco's Election code to do this, there was a response that did not address the question. See inquiry below.

Inquiry to City Attorney about Sec. 510

6/19/2018 - The measure passed by the Board of Supervisors on first reading.

6/26/2018 - Finally passed by the Board of Supervisors

6/28/2018 - Approved by the Mayor

7/12/2018  - File #189571 provides the question on the ballot, provide the deadline and authorize the controller to amend the question to conform to applicable amendments under state election law.

7/16/2018 - Board Chair intends to entertain a motion to refer item (180454) to the full Board as a Committee Report for consideration on July 17, 2018.

Minutes note:

Heard in Committee. Speakers: Supervisor Aaron Peskin (Board of Supervisors); Jon Givner (Office of the City Attorney); presented information and answered questions raised throughout the discussion.

Action:

RECOMMENDED AS COMMITTEE REPORT

Action text:

Member Stefani moved that this Charter Amendment be RECOMMENDED AS A COMMITTEE REPORT. The motion carried

Meeting Notes Here

7/17/2018  - SF Mayor's office and Supervisors Cohen, Kim, Peskin, Yee and Brown submit item #180571 to the Board of Supervisors. 

7/24/2018  Passed by Board of Supervisors unanimously with Fewer and Tang excused. 

7/26/2018  Mayor Breed approves as amended.

180571

History of File #189571

7/27/2018  The SF Board of Supervisors submit item #180454 entitled "General Obligation Bond Election - Seawall and other Critical Infrastructure - $425,000,000" to John Arntz,, Director of the SF Department of Elections

Document

7/27/2018  The Board of Supervisors revised File 180454 and submitted the revision to the Department of Elections

Document

7/27/2018  The Board of Supervisors with File #180571 further amends File #180454 to revise the Legislative Digest Ballot Question.

1st Version 180454

7/27/2018  The Board of Supervisors submits the Final Version of File #180454 "General Obligation Bond Election - Seawall and other Critical Infrastructure - $425,000,000"

7/27/2018 - Submitted to the Department of Elections

Here is the entire history of File 180454, the "Seawall and Other Critical Infrastructure - $425,000,000" bond proposal.

180454

Complete Budget and Finance Committee Minutes

BOS History of 180454 that eventually becomes Prop A

Final Version

7/30/2019  File DRAFT FOR CONSIDERATION is reviewed by the Ballot Simplification Committee who is charged with making sure the measure is worded in a way that is easily understood and neutral to be compliant with the law. 

DRAFT FOR CONSIDERATION

You can listen to it here.

https://sfelections.sfgov.org/ballot-simplification-committee-information-%E2%80%93-november-6-2018-consolidated-general-election

BSC - 2018.07.30-1

07/30/2018

Session 1  - Note the following

·                 -  The committee jokes about "why even mention a no vote."  0:48 

         -  The committee notes "there are not many details in the plan" 0:52

          -  Laughter in discussion about the possibility of "no tax increase with joke about Prop 13" 1:20

          -  The committee notes studies of Seawall inadequacy mentioned but not named  1:44

          -  Mention that there are no specifics about what work is being done  1:57

          -  Mention of “New State Law” regarding ballot measures and “City Wide Disaster” 2:06

          -  Board of Supervisors approved language 2:13

          -  Hyperbole about Seawall  2:15

During this session, the Ballot Simplification Committee was notified that the language was inaccurate, misleading, conjecture rather than fact, and promotional in nature.

Recommendation for Language

After this meeting the Ballot Simplification Committee held a private meeting without minutes to discuss public comment and submitted their final approved  version of File #18044 for the ballot. Version ignored public comment critical of their language.

Here is the final version submitted by the Simplification Committee.

Prop A Ballot Handbook

The Libertarian Party of San Francisco is selected as the Official Opposition to Proposition A.

http://www.lpsf.org/

Here is how the measure was worded on the Ballot along with all arguments for and against.

Full Text and Arguments

Copy above was created manually as the Department of Elections removed the link to their original page regarding this measure.

https://voterguide.sfelections.org/en/embarcadero-seawall-earthquake-safety-bond  (REMOVED)

See the entire measure below with Arguments on pages 60-67

Ballot Handbook Nov 6, 2018 election

8/6/2018   Prior to the Nov. 6, 2018 elections, the SF Department of Elections, City Attorney and SF Board of Supervisors  receive a Notice of California State Law regarding bonds in elections and a Demand that they be followed in the November 6, 2018 election. 

Notice and Demand

The Notice was titled "School Measures for June 2018 Primary / Election Code Requirements and Proposition 39 Qualifications." It was sent within the 10-day public examination period of the Proposition 39 ballot measures that were placed on the ballot by 40 different districts. It covered several areas where the election officials were not following the law. In every case where the law wasn't being followed, the elections officials were, figuratively, putting their thumb on the scales of justice (due process) to favor the government agency (the school or college district) over the Citizens.

11/6/2018 -  Proposition A passed by a vote of 288,146 (82%) to 60,276 (17.3)

11/27/2018 -  Director of Elections John Arntz certifies the election results

Arntz Certifies Results

3/11/2019 Michael Denny submitted a Sunshine inquiry to the Mayor's office asking who helped put together the language of that measure. Who was the bond counsel? And who were the financial advisors for the measure? So far, there is no reply.

Sunshine Inquiry to Mayor's office

3/22/2018  Mayor's office responds to the Sunshine Inquiry requesting an extension of time and providing a document from Capital Planning Committee.

Mayor's Office Reply

Capital Planning Committee Doc

As the Director of the  Department of Elections and the City Attorney abrogated their duty to the citizens of San Francisco to have the ballot conform to State and City Law, Michael Denny and Nicholas Smith filed a formal complaint against John Arntz and Dennis Herrera who both signed off on this misleading and illegally presented ballot measure to be published on the ballot. 

Complaint Filed in the Superior Court of California, County of San Francisco

Friday April 5, 2019

Press Release

www.LPSF.org website

Complaint 

Exhibit A

Judge Schulman sustains Defendants motion for a demurrer. You can read the transcript of the hearing HERE and the Court Order HERE 

Appeal filed with the First District Court of Appeals. Read HERE

Click Here