Judge alters ballot language for 2 November initiatives

Ariel Hayat/Staff
Christopher Skinnell, lawyer for the plaintiffs, left, and Margaret Prinzing, the city's lawyer, appear at the Aug. 29 soda-tax hearing.

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An Alameda Superior County Court judge issued two rulings regarding contested ballot language for November ballot measures Tuesday.

Two parties of plaintiffs challenged the ballot language for a tax on sugar-sweetened drinks and an initiative regarding development in Downtown Berkeley. In both cases, Judge Evelio Grillo decided to amend portions of each ballot measure’s language.

In the case of the “soda tax,” Grillo replaced the phrases “high-calorie, sugary drinks” and “high-calorie, low-nutrition products” in the ballot language and city attorney’s analysis, respectively, with “sugar-sweetened beverages.”

The court found that the language’s characterization of the beverages advocated in favor of the tax and was misleading because the phrases were not defined anywhere in the proposed ordinance.

Grillo also struck the word “heavily” in the phrase “heavily presweetened teas” in the city attorney’s analysis, saying it implied the tax would only be levied on teas sweetened to a high degree, rather than those sweetened to some degree.

“The ruling and the changes to be made bring us one step closer to being able to fight this mess of a measure on a level playing field,” said Roger Salazar, the spokesperson for the opponents of the measure.

But the judge ruled against one of the plaintiffs’ claims — in particular, the disputed language in the tax analysis stating that the tax “would be payable by the distributor, not the customer.”

Though the plaintiffs argued that the language was biased and misleading — saying the tax would likely raise prices for certain beverages and affect consumers — the judge characterized the claim as speculation.

Grillo said voters could want to know the tax would not automatically increase the price of sugary beverages.

“(The decision) turned out great,” said Sara Soka, a campaign manager in favor of the tax. “We wanted to make it clear this is a tax on industry, not a tax on consumers.”

Grillo also amended ballot language for an initiative that would affect Downtown Berkeley development. Councilmember Jesse Arreguin filed a lawsuit two weeks ago against the city, alleging that the ballot question, as written by initiative opponent Mayor Tom Bates, was biased and misleading.

The judge changed language that said the initiative would reduce height limits, given that building heights are only limited in certain areas. He also replaced the phrase “impose significant new requirements” with the phrase “establish new requirements” for new buildings taller than 60 feet, ruling that the word “significant” implied a value judgement.

“I do not object to the judge’s changes in the ballot question, which are relatively minor. The text remains an accurate and neutral summary that gives voters a clear description of a complicated, 28-page initiative that has left many people confused,” Bates said in a statement.

Arreguin, who represented himself in the case, said a costly lawsuit could have been avoided in the first place if the majority of the council had not ignored his concerns about impartial wording.

“Unfortunately, we had to go to court to get language that simply met legal standards and had no improper advocacy,” he said.

Election materials were expected to be sent to the printers on or after Tuesday.

Nico Correia covers city news. Contact him at [email protected] and follow him on Twitter @nicolocorreia.