San Diego City Attorney Makes Rare Request To Pull Ballot Measures
Monday, June 25, 2018
Credit: Milan Kovacevic
Robert P. Ottilie, attorney, Law Office of Robert P. Ottilie
Mara Elliot asks two San Diego judges to consider removing two ballot measures that call for the redevelopment of the Mission Valley stadium site.
San Diego's ballot box showdown over Mission Valley redevelopment plans began in early 2017.
It was a year-and-a-half ago on the USS Midway Museum aircraft carrier flight deck in San Diego Bay where SoccerCity backers launched a bid to lure an MLS expansion team to San Diego.
San Diego soccer fans cheered loudly in hopes their enthusiasm would translate into support for SoccerCity, a multi-billion dollar proposal to reshape the Mission Valley Stadium site.
In fact, more than 100,000 city residents signed a petition to put the measure on the ballot and once the signatures were validated by the Registrar of Voters, the city council put the measure on this November's ballot.
But now SoccerCity is locked in a battle with a competing plan for the stadium site. And last month, San Diego's city attorney asked the courts to do something that's rarely been done, kick the two voter-backed initiatives off the ballot. She argues neither of them are legal.
FS Investors has proposed building a sports stadium, housing, commercial space and a river park on land where the city-owned SDCCU stadium now sits. That facility used to be the home of the Chargers football team and it still hosts the SDSU Aztecs football team.
Almost a year later, San Diego State University officials unveiled its vision for Mission Valley.
The plan calls for construction of a sports stadium, housing, commercial space and river park, which all together would be part of an auxiliary campus.
Boosters gathered more than 100,000 signatures, and the city council approved putting the measure on the ballot this November. Friends of SDSU wanted voters to have a choice between the two plans and they got it.
Unless, of course, City Attorney Mara Elliot convinces the courts that the initiatives should never go before the voters.
Taking rare action
Elliott argues neither initiative protects the city's interests. She contends the measures conflict with the city charter, state law and interfere with government functions.
In the press release that announced the moves, Elliott called the lawsuits a legal review. And while a legal review is requested in the writ of mandate filings, the legal action specifically asks the courts to remove both measures from the ballot.
Council member Barbara Bry was convinced and supported the move.
"I'm not a lawyer. I did vote to go forward with the lawsuits because I believe it's important, if we can give voters clarity about legal issues ahead of the election, it's the right thing to do," Bry said.
A vocal supporter of the SDSU West plan to sell 130 acres of the Mission Valley site to San Diego State, Bry agrees with the city attorney that the initiatives might exceed the voter's power to act at the ballot box.
"What I wanted was legal clarity. So if people vote on something and later it's found illegal, why? We should have told them ahead of time that it was illegal," Bry said.
Move could be costly
Elliott has hired outside legal counsel, the law firm of Olson Hagel & Fishburn LLC, to help with the case.
"Why are we spending money to take something off the ballot that 250,000, approximately, voters in San Diego have said they want to see go to the ballot?," said Scott Sherman, city councilmember for District 7.
Sherman fears the city could end up paying several hundred thousand dollars challenging measures that may not even pass. He represents the Mission Valley area and he's a long-time supporter of the SoccerCity plan.
Sherman voted against the city attorney's request in April's closed-door meeting but he ended up on the short end of a six-to-three vote.
"We're paying our own attorneys. We're paying an outside firm. We're possibly paying the legal costs of the other side when this comes down and goes to the ballot and we're spending all that money on something we don't even know will pass the ballot," Sherman said.
Having a city attorney with concerns about a local ballot initiative is nothing new.
Jan Goldsmith held the city's top legal position in 2016 when Measure D was on the ballot.
That complex initiative championed by Cory Briggs could have set development rules for the city's bayfront and Mission Valley. Goldsmith saw legal flaws in the measure but decided to make his concerns public without asking for removal from the ballot.
"We chose on the Briggs initiative to actually give that advice in public and not attack it. So that the voters, the council and everybody knew if this thing passes, here, its muddy waters," Goldsmith said.
Voters rejected the measure soundly at the polls, so any questions of legality were resolved without involving the courts.
It is rare, although possible, according to Goldsmith, for a judge to pull a voter-backed initiative off a ballot. This situation is complicated by the fact that there are two competing measures facing challenges in separate courtrooms.
"It's a really difficult situation. It's certainly possible that a judge could throw both of them off. Throw one of them off. It's unlikely because that's not the way judges act. The court decisions basically say, 'Do everything you can to keep that; these initiatives on the ballot,'" Goldsmith said.
KPBS reached out to Elliott to talk about the writs of mandate filed against SDSU West and SoccerCity. She did not return email requests seeking comment. When KPBS approached her outside city hall, Elliott declined a chance to comment saying litigation is ongoing. Elliott referred KPBS to the news release on the city attorney's website.
Hearings are scheduled for each issue in July. The city is hoping for a decision before Aug. 6, which is the last date for election materials to be filed for November.
KPBS is a service of San Diego State University.
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