One thing is clear about the lawsuit filed Wednesday to remove
the Growth Control Initiative from the March ballot: The county’s
lawyers won’t put up a fight.
That’s because County Counsel Karen Forcum has been instructed
by the Board of Supervisors against defending its own case, leaving
the fate of the suit’s defense solely with the citizens group
fighting the initiative.
One thing is clear about the lawsuit filed Wednesday to remove the Growth Control Initiative from the March ballot: The county’s lawyers won’t put up a fight.
That’s because County Counsel Karen Forcum has been instructed by the Board of Supervisors against defending its own case, leaving the fate of the suit’s defense solely with the citizens group fighting the initiative.
The Board met in an emergency closed-door meeting late Wednesday morning and voted 4-1 to leave the county’s defense team out of it, according to an unnamed source close to the talks. That decision by the Supervisors may hurt the county’s case, an assertion on which Forcum declined to comment.
Every Supervisor, except Reb Monaco, reportedly agreed the county lawyers should watch the proceedings from the sidelines.
“I would have wanted the county supervisors to defend the position they took,” Monaco said.
San Juan Bautista resident Rebecca McGovern, with backing from the national environmental legal firm Earthjustice, filed the suit to remove the Growth Control Initiative from the ballot. The suit’s success could lead to re-enactment of the Board’s initial April decision to approve the ordinance outright. On Wednesday, a Superior Court judge set a hearing for Oct. 29.
The group opposing the initiative – the Farmers and Citizens to Protect our Agricultural Heritage – organized the signature referendum that is now the basis for the suit. The referendum omitted two statements mandated by the state Elections Code, which is a complicated set of rules partially intended to protect residents from political misconduct.
Those two omitted mandates included: the signing person being told whether the signature gatherer was paid and the signing person being notified the signature won’t be used for inapplicable purposes. The Board overlooked those exclusions and sent the measure to the ballot.
Trent Orr, an Earthjustice lawyer representing McGovern, said he has participated in other cases in which counties waived the right for a defense. And while working for Earthjustice, he has also pursued similar growth control litigation in other jurisdictions, he said.
“In this case, it reflects the Board’s ambivalence about this whole thing,” he said. “A majority of the Board supports (the initiative).”
Earthjustice also named the farmers group in the suit, which gives the group legal grounds to defend the case, Orr said.
The Board initially approved the Growth Control Initiative in April with a vote of 4-1, with Monaco being the lone Supervisor against it. In May, the farmers group presented the Board their referendum containing 5,344 signatures.
County Clerk John Hodges, after initially stamping a “certificate of sufficiency” on the referendum, later withdrew his vote of confidence after learning about the omissions. Two months later, the Supervisors unanimously voted to send it to the ballot, despite their lawyers and a hired elections law specialist advising them against it.
At the time of that decision, the Board remained cognizant it could lead to an eventual legal challenge, according to Supervisor Bob Cruz. He said staying away from the case will save the county money, while the lawyers representing the initiative’s opponents are capable of winning.
“Whoever challenges it (the suit), the judge will make that decision,” Cruz said.
The group opposing the initiative has been represented by Marin-based lawyer Marguerite Mary Leoni, who will reportedly defend the referendum’s legality in San Benito County court. Leone could not be reached for comment Thursday.
Forcum said the Board’s decision whether to defend the case could have been justified either way because the Supervisors supported the initiative, yet sent it to the voters after the referendum circulated.
“You can see the reason why there would be no reason for taking a position,” she said.
McGovern didn’t comment on whether the county not offering a defense would help her case.
“Errors were made and they were proven,” she said. “The only thing to be done is to correct the actions that occurred.”
The Growth Control Initiative, also known as Measure G, is intended to preserve the county’s agricultural landscape. The most controversial aspect of the initiative is a rezoning policy that restricts farmers and other landowners from subdividing their properties.
The authors of the initiative were not involved with the lawsuit, but they had heard rumors in recent weeks about its formulation, according to Janet Brians, a co-author and member of the Citizens for Responsible Growth.
Although she said the group has concentrated on educating residents of the initiative, she acknowledged her belief the referendum violated the law.
“The court is the right place to decide it,” she said.
