A judge disqualified himself Wednesday from hearing lawsuits
challenging the Growth Control Initiative’s placement on the March
ballot because he said the public could perceive a conflict of
interest.
Superior Court Judge Steven Sanders told the four involved
parties his decision at the outset of a hearing. Sanders, on the
bench for the past two years, served as the county counsel from
1988-2001.
A judge disqualified himself Wednesday from hearing lawsuits challenging the Growth Control Initiative’s placement on the March ballot because he said the public could perceive a conflict of interest.
Superior Court Judge Steven Sanders told the four involved parties his decision at the outset of a hearing. Sanders, on the bench for the past two years, served as the county counsel from 1988-2001.
A deferred hearing – with a visiting judge – was scheduled for Nov. 6 at 2 p.m. in San Benito County. The court’s executive officer, Alex Calvo, is currently attempting to secure someone for that duty. The county’s only other Superior Court judge, Harry Tobias, has also recused himself because his brother is involved in the suit.
Sanders recited his legal obligation to the attorneys and the gallery of residents and officials. As the public could “reasonably” doubt his level of fairness, he said, it became necessary to disqualify himself.
“I have no doubt that I am able to be impartial,” Sanders, however, affirmed.
San Juan Bautista resident Rebecca McGovern, backed by the environmental law firm Earthjustice, filed a suit Oct. 1. It challenges the legality of a signature referendum that overturned the county Board of Supervisors’ initial passing of the Growth Control Initiative as an ordinance in April. The signature referendum was organized by an anti-initiative group called the Farmers and Citizens to Protect Our Agricultural Heritage.
“I can understand him recusing himself,” Supervisor Reb Monaco said. “It’s part of the legal system. I think his reasons were justified.”
The Farmers and Citizens group is defending the case. Meanwhile, another group called Los Valientes recently joined the suit with accusations the Board illegally helped draft the initiative and violated the state open meetings law.
Spurred by Los Valientes’ involvement, the county recently hired a private Sacramento firm to represent the five supervisors.
Most of those allegations within Los Valientes’ suit refer to actions by Board Chairman Richard Scagliotti, who was the lone supervisor absent from the proceedings Wednesday.
The county, Earthjustice and the Farmers and Citizens group have all asked that Los Valientes and its lawyer Michael Pekin be stricken from the proceedings. The visiting judge, Sanders said, will likely address that request – as well as county-sought sanctions against Los Valientes – at the outset of next Thursday’s hearing.
With his three opponents crying foul that he has not followed proper procedure in joining the suit, Pekin plans to file an official Brown Act complaint this week and, with it, motion to intervene in the suit, he announced during the hearing.
Afterward Wednesday, the four parties involved said they were not surprised by Sanders’ decision. Pekin said he believes Sanders would have heard the case if his group had not joined the mix.
“I have the utmost respect for Sanders,” Pekin said, “and you know I didn’t make any noise to recuse him even though he’s been on the county counsel.”
Many of Los Valientes’ allegations, as the judge pointed out, allude to Board decisions during Sanders’ tenure as the county’s lead attorney. Sanders also acknowledged Wednesday he has not dealt – as the county counsel or as a judge – with issues related to Measure G; though he did mention previously knowing several people involved on all sides of the suit.
“I think he probably could have heard the case,” said Trent Orr, a lawyer for Earthjustice. “But if he feels there would be an appearance of possible bias, no one would challenge that.”
Tom Tobias, president of the county Farm Bureau and chairman of the Farmers and Citizens group, said the decision was somewhat disappointing. His group and its opponent, Earthjustice, have expressed an urgency in finalizing the case; both sides acknowledge the likelihood for an appeal from the loser.
And although the four parties used the opportunity of having everyone present Wednesday by holding settlement talks, Tobias said there was nothing, at least from his group’s side, to concede.
“There is no mediation on it,” he said. “We want it back on the ballot. There’s not much area to waver on.”
McGovern, the petitioner of the suit, agreed that settlement talks were an overly optimistic notion.
“The issue is very simple to me,” she said. “What’s there to settle?”
Pekin, however, said one thing became clear from the three hours of deliberating behind closed doors.
“The petitioner is in a very tight spot,” Pekin said.
Pekin also claims if McGovern wins, the initiative will not be re-enacted as the ordinance as it was initially approved by the Board. He argues the ordinance should have been nullified when the Board approved the signature referendum to send it to the ballot.
The initiative, called Measure G for the ballot, is an amendment to the county’s General Plan. Its most debated policy is a proposed change to zoning laws in the county. The initiative would restrict landowners’ ability to subdivide agricultural tracts of land.
