Thursday, August 25, 2011

Measure J Was Illegal -- And Too Extreme For Ventura

By now, everyone in town has heard that last Monday Judge Mark Borrell removed the parking initiative from Ventura’s local ballot in November.

The right to vote on public issues is important to us here in Ventura. Our city has a long history of citizen-driven ballot measures, including SOAR in 1995. Sometimes these initiatives have won, as SOAR did, and sometimes they have lost, as did the convoluted “view protection” initiative on the ballot in 2009. So it’s understandable that some people are mad that Measure J will not be on the ballot and will try to make the Judge’s ruling an issue in the City Council campaign this fall. At the same time a lot of people are relieved -- and look forward to a City Council campaign that focuses on more important issues than parking meters.

But before things heat up in the City Council race, I think it’s important to step back and understand two important points.

First, whether you like it or not, the right to vote on local issues is defined by state law. And in this case, Measure J clearly violated state law.

Second, no matter how you feel about the downtown parking meters, Measure J was a very extreme measure. In addition to removing the downtown meters, Measure J would have required 2/3 voter approval for any future attempt to charge for parking on city streets and any city-owned property.


Let’s begin with the first question: Why did Judge Borrell removed Measure J from the ballot?

We in California revere the right to initiative (where citizens place legislation on the ballot) and referendum (where citizens seek to overturn a City Council action via the ballot). Yet the California Constitution doesn’t permit us to vote on everything. For example, we can vote on legislative changes (like changing zoning ordinance to prohibit liquor stores in certain parts of town) but we can’t vote on how a law is applied to individual situations (like whether or not to grant a conditional use permit to a particular liquor store). That’s not me talking. That’s what the California Constitution says and how the courts have interpreted it.

More to the point, Ventura’s voters do not have the right to adopt an ordinance that conflicts with state law, any more than the City Council does.

While it’s very unusual for a ballot initiative to be removed from the ballot before it is voted on, courts have consistently confirmed that if an initiative is obviously unlawful there is no point in holding an election.

Which is what happened with Measure J. Measure J was a ballot initiative that would have removed parking meters and required future on-street and off-street parking decisions to be decided by the voters, not the City Council. That directly contradicts California Vehicle Code Section 22508 which states that parking meter actions are only subject to referendum – the right to veto City Council actions. California law does not allow voters to make parking laws of their own by an initiative, because doing so would make it difficult for a city to respond to traffic problems in a timely fashion. The exclusion of parking meters from the initiative process was tested in court and has been settled law since the Sixties.

In short: Carla Bonney, the local Tea Party leader who has been Measure J’s main proponent, could have gathered signatures to challenge the City Council’s action to install the paking meters at the time the decision was made (via referendum). But she was prohibited by state law from writing her own initiative law to govern local parking regulations.

All this seemed very clear to our City Attorney and to a majority of the City Council, which concluded it had no other option than to test Measure J’s validity in court. The proponents, of course, claimed that the lawsuit was seeking to “thwart the will of the people”. Yet they never really addressed the fatal defect: that their initiative ran afoul of the law.

In her statements before the City Council, Bonney did not seem to know the difference between a referendum and an initiative. In her interpretation, any ballot measure was a referendum until it was placed on the ballot, at which time the measure would become an initiative. She also repeatedly dismissed the long-standing California case law that forbids parking initiatives simply because the cases were old.

In court, the proponents argument was that the Vehicle Code didn’t apply to parking meters since they claimed the parking meters were not intended to control traffic. Instead, she argued that the City was really trying to create a “fee monopoly” with the paid parking system downtown. (I’m not sure how you create a monopoly by charging for 300 spaces when there are 2,000 nearby spaces that are free, but anyway, that was the argument.) It was a convoluted argument and Judge Borrell didn’t buy it. Instead, he followed the clear precedents of long-settled law.

That’s why Measure J was removed from the ballot,


It seems to me that the legal defects in the initiative itself were related to the way the whole anti-meter movement morphed over time. The movement began with concern by some downtown merchants that their business would be hurt by the meters. By the time it reached the ballot, it had changed into an effort driven mostly by members of the local Tea Party who claimed that American freedoms were at risk.

When the paid parking first went in, I attended a couple of meetings of local merchants who were understandably fearful that their business would be hurt. These meetings were attended by about 15 merchants (out of the approximately 160 merchants downtown.) In response, the city made significant changes: removing some of the meters, reducing the hours that the paid parking was in effect, and providing thousands of one-hour-free coupons during the Christmas season. Although we discussed other possible changes, even the concerned merchants could not agree on which to implement.

Meanwhile, the City used the money from the meters to heavily beef up the police presence downtown – with impressive results. Since last fall, downtown crime is down 40%. Retail sales actually increased – by about 3% over the prior year, despite an ailing economy. When downtown merchants had a strong Christmas season, most of them stopped complaining about the meters.

From the beginning, however, members of the local Tea Party championed the parking meters as their political issue. Led by Carla Bonney and Gary Parker, who owned American Flag & Cutlery on Main Street, they claimed the parking meters constituted an illegal tax. As it became clear that downtown had not become “a ghost town” (as some claimed) but in fact was doing well, the entire argument against the meters shifted away from the impact on downtown merchants and toward a Tea Party crusade.

Indeed, when Carla, Gary, and Randall Richman (who's not a Tea Party guy) unveiled their initiative last spring, it went far beyond removal of the meters downtown. It would have required 2/3 voter approval anytime the City wished to charge for parking on any city street or city-owned property. This extreme provision had wide-reaching implications. It would make it nearly impossible for the City to build another parking garage downtown. It would make it very difficult for the City to partner with Community Memorial Hospital in building parking for the expanded hospital. Neighborhoods that hoped to use parking revenue to improve their parks, as at Marina Park, would be out of luck. Even neighborhoods that wanted residential permit parking, as around the hospital, would have to win a 2/3 citywide vote because the City charges $10 per year for the permits.

Carla and her team worked hard and collected over 10,000 signatures. Most of those were undoubtedly local residents concerned about downtown parking meters. But in order to secure the signatures, the signature-gatherers frequently used arguments that were just plain untrue (such as the idea that the City Council wanted to charge astronomical parking fees for everyone in town to park in front of their own house.) But the signature-gatherers rarely mentioned the 2/3 provision to voters.

Tea Party representatives began appearing before the City Council to claim that parking meters were just the beginning of a comprehensive plan to implement the United Nations’ Agenda 21 effort to promote on sustainable development, which they believe is a worldwide plot to undermine private property and threaten other freedoms. (Tea Partiers around the nation have attacked local planning policies by using Agenda 21 as well.)

Once the initiative qualified for the ballot, it became quite clear that the whole effort had turned into e campaign by Tea Party activists to galvanize support for their political agenda.


Much as I admire Carla’s tenaciousness and her impressive signature-gathering effort, I just never believed she and her supporters were really in touch with Ventura’s voters. Sure, people are skeptical of government – and rightfully so. But do folks around town really think that the City Council is planning to charge people astronomical prices to park in front of their own house? Or that we are part of a vast United Nations conspiracy to rob us of our freedoms because we charge for 300 parking spaces Downtown? I think voters are far more concerned about maintaining our vital public services so that Ventura will be safe, clean city that’s a great place to live.

This is a small town, and I can tell you from personal experience that Ventura’s voters – while cautious – are nevertheless practical. They like their elected officials to be local folks in touch with what’s really going on in town, not with some imagined, extreme threat. Venturans may be receptive to the fiscal conservatism of Tea Party folks – and with good reason -- but they don’t usually fall for hyperbole, half-truths, or overheated conspiracy theories.

I’m not running for re-election this fall, but it seems to me that the 11 people who are in the City Council race would do well to remember the lessons of the whole Measure J episode. Instead of focusing on the few issues we disagree on, let’s debate who can best move us forward on the 95% of things that we do agree on. Let’s bear in mind that, while we live in a democracy, we are a nation, and a state, and a city of laws and we must respect those laws even when we don’t particularly like them. And in trying to make our community better, let’s focus on the practical steps that will move us forward – things that will, for example, reduce crime downtown – rather than getting sidetracked by the idea that parking meters in downtown Ventura are part of a United Nations plot to take over our community.



  2. Thank you for your comments, Mayor Fulton. As a business owner downtown, Fox Fine Jewelry, we find that most of our patrons are relieved that there are meters, because they can find a parking space for their short trips. There are a few who are strongly against them though.

    My observation of the most difficult aspect of the meters for clients is not the quarter they have to pay for 15 minutes, but nervousness about figuring out the machines. Once they've used them, then they realize they are simple.

    What's interesting about the meters is that pre meters, due to impacted street parking, most of my clients had to find distant parking and walk. The difference now is that you have the option for paid street parking.

    My stance? Business is up, crime is down and the streets are cleaner. But parking is just one of many aspects of running a successful business. I choose to accept the will of the majority and focus on creating a healthy business for our clients.

  3. Very informative, especially the "Legal Validity" part. Thank you for taking the time to explain the details of that.

    One note - I don't think people not agreeing on solutions is a red flag or problem that lessens the value of the input. It's a given. But they represent many others. I think it's admirable, and typical of our city, that their concerns were acted on.

  4. LOL... and you will selectively print those that agree with your agenda-- SHOCKED?? NOPE....

  5. Thanks to all who have commented. I apologize to Judge Borrell for misspelling his name, and I have now corrected it. To those commenters who criticized me (both of whom who have chosen to remain anonymous), I would simply note that they have made no concrete comments challenging anything I have said but, rather, have simply chosen to attack me personally. If there is anything specific these critics would choose to challenge, I would be happy to debate them. If they choose instead to limit their criticism to generalized personal attacks against me, there's not much I can do about that.

  6. Wow, what a deceitful, mean-spirited and offensive post! Thank you, Mr. Fulton, for deciding not to run for re-election and for publicly displaying the arrogance of today’s politician on every level.

    I hope that the candidates do, in fact, remember Measure J as dismissing more than 10,000 residents and the democratic process will be first and foremost on the minds of these voters including myself, my family and friends come November. We simply cannot wait to remind your fellow like-minded Councilmember’s Christy Weir and Carl Morehouse that they work for us and not the other way around.

    Someone that categorizes American citizens who highly respect our Constitution and the individual liberty it preserves via limited government as “extreme” should never have the privilege of holding an office.

    Thomas Jefferson said “the government you elect is government you deserve” which could not be more apropos with regards to this election season.

  7. Again, I appreciate everyone who comments. Our most recent commenter is certainly entitled to his or her opinion, either about me personally or the views I hope. But it seems to me that anybody who invokes the U.S. Constitution needs to be sure of their ground.

    The U.S. Constitution reserves all powers not given to the federal government to the states. The California Constitution gives the voters the right to initiative and referendum. A century of judicial interpretations have concluded that local voters cannot, even via the initiative process, override state law -- since under the U.S. Constitution the states are sovereign. The state has passed a law -- upheld by judicial review -- that says local voters cannot remove parking meters via initiative.

    I can understand why people fear for their freedoms and invoke the constitution in defense of their views. I can also understand why people don't like what happened to the initiative.

    In this case, however, the combined effect of the federal and state constitutions, judicial interpretations, and state law is that this initiative is unlawful.

    In invoking the Constitution, I believe it is important to respect what it says, the powers it gives to the states, and the legislative and judicial processes it establishes as the basis of our government. I believe this requires more from us than simply waving it around whenever we think our freedom is threatened.

  8. Bill Fulton is not running for reelection, so I guess he can be as snotty as he likes with no repercussions. Good to see that his true colors have been revealed here. It will remind all of us that we need to vote to unseat his like-minded colleagues who are seeking reelection this fall - Christy Weir and Carl Morehouse.

  9. Thanks again to all who have written. So far in these comments, I have been called snotty, condescending, deceitful, mean-spirited, and offensive. However, so far nobody has taken issue with any fact I have presented or any interpretation I have made. There is an old adage then when the facts are not on your side, attack the other person instead, and that seems to be happening in this case.

  10. I, too, am glad you're not running again... your blog has already been called what it really is by others so I will not go further except to add that, like so many others, you use your position to attack the Tea Party. Though I'm not officially a member, I strongly oppose the attacks on them for political reasons, rather than observing their stance as free American citizens. I repeat, I am glad that this platform for your unwelcome attacks will soon come to an end.

  11. I don't see him being snotty at all.

    I was concerned about how the parking meters would affect the merchants, and I think the city should keep monitoring the situation and adjust accordingly, and should again give out free coupons during the month of December.

    I think the meters are an annoyance to use, but I do like parking close to the place I'm going so I don't get hit up for money as I used to when I would have to walk a couple of blocks, a couple of the guys were very in your face and scary with their tactics.

  12. I don't think you should post any comments that post as anonymous.
    If you stand behind what you say....then quit choosing to post as anonymous.
    Quit hiding behind a keyboard!

  13. Wait a minute... somebody from the Tea Party doesn't understand how the law works, and doesn't know the difference between a referendum and an initiative? Gee, what a surprise!

    Having moved here from Dallas five years ago I'm amazed at how much time, effort and vitriol has been expended over these ONE DOLLAR per hour parking meters. If the city had completely eliminated free parking in the lots and garage as well I would understand it a little more. But they didn't... there's still plenty of free parking if you don't mind walking about, oh let's see, ONE BLOCK.

    Ventura, you've got it pretty good if this is the worst thing you can think of to fight over.
    Mayor Fulton, I admire your patience and willingness to explain your position and find common ground with the few noisy morons who keep hounding you about this. I would have told the whole lot to go jump off the pier long ago.

  14. Mayor Fulton, while I admit that I am not a resident of your town, I admire your apparent patience and willingness to work with what I assume is a vocal minority of purely self-interested residents who have failed to educate themselves about the issues. It is unfortunate that Tea Party members must continue to follow a stereotype of obnoxious and ideological tyrants who wield ad hominem attacks rather than logic, because at least some of their principles are worthy of discussion. Thank you for your hard work, and best of luck to you.

  15. It's funny that those who claim to run under the free market tea party banner would oppose the city essentially creating a market for parking. The old system of free parking is no different than communists handing out free bread. In the old system without market prices, supply and demand move out of equilibrium leading to scarcity. Just as bread became scarce in the soviet union without adequate pricing so to did parking in free priced Downtown Ventura.  The city has corrected this mistake by beginning to institute market prices for downtown parking.  If the tea partners are upset that the city has setup this marketplace there is another alternative..... Allow private companies to take over the pricing and management of the downtown parking. I can guarantee you that under a truely privatized system you'd be paying more than $1 per hour... And i can guarantee you that there would be no free coupons during Christmas, which would obviously be the most profitable time of the year for such a private company.  Either way it baffles me that people who fly under the supposedly libertarian tea party banner would oppose market prices to defend socialist free parking... But then again I've seen crazier things from the faux libertarian tea party before... Next time you walk in to a grocery store remember that no product in the store is free. Can you imagine if chocolate cake was free?? There would be an instant run on the cake leading to a shortage. So if cake isn't free and needs market prices to adequately manage supply why wouldn't parking require the same? In the end all resources are scarce and require pricing. I commend Mayor Fulton for sticking to his guns because Ventura is already beginning to reap the benefits a safer, more productive and efficient downtown.  For the so called "Tea Partiers" they should really educate themselves and read "The High Cost of Free Parking" by Donald Shoup instead of hurling insults at the Mayor. 

  16. I'm glad to hear that this measure wad thrown out. After the community meetings where they claimed this was some kind of conspiracy pushing agenda 21, I was like these people are crazy! I'm glad this went down in flames. Downtown is a lot nicer and parking is easier to find.

  17. First, I am broken hearted to hear that Bill is not running for re-election. I only wish that the village I live in had a village president as rational, reasonable, common sensical (is that even a word?), and knowledgeable about city planning as Bill Fulton.

    This referendum illustrates that the Tea Party lives in an alternative universe far removed from reality and uses the Big Lie at the local level as well as national. I don't think folks in Ventura know how fortunate they are. Where I live, there's a two hour parking limit (and it's enforced) in front our home and throughout our neighborhood, plus overnight street parking is prohibited. Now that's intrusive with no rational justification. I suspect the Tea Party people would say it's part of that international sustainability conspiracy -- even though these restrictions were in place decades before the word "sustainability" was even created.

  18. Someone beat me to it! I wanted to point out the irony that the anti-government Tea Party, which rails against "socialism," is apparently in favor of socialized parking. In other words, they think that the city government should make public resources available on a first-come, first-served basis without any concern for market forces. Would they take this position on anything else? Health care? Housing?

    It never ceases to amaze me how many "conservatives" can be so inconsistent in their beliefs. Our auto-centric transportation system is heavily government subsidized (just as our land use patterns are). Liberals like me might actually be able to find some common ground with right-wingers on certain issues because we think that the government should STOP subsidizing certain destructive transportation and land use policies. (Admittedly, I'm OK with the government subsidizing DIFFERENT policies, so maybe that's where the agreement would break down, but we could meet halfway at least...). But apparently the proposal that users should pay for the parking they consume, rather than expecting it to be provided free at government expense (aka "socialism") meets with the vitriol of the right wing!

    I thought the Mayor's post was not the least bit condescending or offensive. He pointed out the facts as they relate to the judge's decision, and he defended the policy on the basis of its merits (without resorting to pointing out the inconsistency of the Tea Party position...I couldn't resist that, though!). A respectful post and good politics, re-election campaign or not...

  19. Here is why the Tea Party people are not effective. Instead of addressing the issues they focus their arguments on emotionally charged hyperbole and distractions. If they continue to do so, they will continue to look ill informed and reactionary. I am not sure how that helps what ills America.

  20. Mayor Fulton - this was a very well presented and reasoned blog post. We need good public servants in this country like you to fight for rational policies.

    Its a pretty sad day when municipal parking regulations get caught in such heated political debate. If you study urban planning (which evidently Ms. Bonney has not) you will see that these rules are pretty much standard best practice for cities and town across the United States; parking meters have been in place in the U.S. since the 30s, decades before the UN's Agenda 21 came out, and are treated as pretty mundane civic matters in the rest of the country.

    To those who talk about how the city's parking policy is un-American, part of a global plot, violating the constitution, and use quotes by Jefferson - please tone down the rhetoric and check back into reality. To use this language to describe something so ordinary as municipal parking policy sounds ludicrous at best or intentionally deceitful at worst.

  21. As a grandmother who signed the petition, your words, Mr. Fulton, are a slap in the face to me, my husband, and the more than 10,000 voters and residents of Ventura. We sent a clear message to City Hall and your response was--go to hell!

    You can continue to portray yourself as the victim and bad mouth the Tea Party but it’s not going to hide the obvious contempt you have for the taxpayer and the traditional American way of life to the informed citizen who understands liberal tactics.

    We need more representatives like Neal Andrews and Jim Monahan who actually serve their constituents so Carla Bonney will get our vote in November.

  22. The Mayor has made the mistake of gloating too soon! The parking meters have become one of the main issues in our upcoming election and a motivation for a larger number of voters to go to the polls. It’s very possible that the elimination of Measure J will lead to a new majority at City Hall who honor the wishes of the voters by removing them.

    Maybe taking the people who pay the bills to court wasn’t such a good idea after all!

  23. bill...there's a great (now defunct) comic strip called "get your war on" by david rees. perhaps you've seen it.

    anyway, one great panel that i have hanging in my office is a character saying "if 'elitist' just means 'not the dumbers motherf****r in the room,' i'll be an elitist!"

    this is what you're contending with when your attempt to reasonably explain why you're glad that something that doesn't conform with the state's constitution and is bad policy in any event isn't on the ballot is called every pejorative term under the sun.

    for a more historically rooted version of what you're dealing with can be gained by reading lincoln's cooper union speech. good luck

  24. I can't believe how many people seem to be ignoring the issue that Measure J is illegal under California law! It doesn't matter that 10,000 citizens signed the petition. The measure was illegal and the courts would not have allowed it. Now--if the people want to get together and change the California Constitution so that it would be legal--that's another matter. Or if they want to carry the Measure on to the state Supreme Court and see if they would decide the Measure was legal--then they'd have a way to force the city to comply. But as it stands right now--even if the city complied with the requests of the petition signers--the Measure is ILLEGAL and the city could get into legal difficulties for implementing the citizens requests.

  25. @Tea Partiers:
    Not only is this initiative getting rid of a SOCIALIST (or communist, for you nutballs) perk that COSTS THE TAXPAYER, but creates a government controlled market for parking (if it weren't government controlled, prices would likely be higher).

    The lack of understanding on the part of many people here (ie. Marion B) makes me wonder if they completed school and how their ignorance of the law can be so widely held. Besides this, the "American way of life" isn't threatened by a parking meter, but rather by people who believe that the military shouldn't be cut down by a huge amount, who are against the government providing any services (the government provides services that don't make money, like roads, police, transit, firefighters, parks, etc.), and who believe that these things can be provided for a taxation amount of 0%.

    I see a bleak future for the US so long as nutjobs like the Tea Party have any sort of voice.

  26. “Unfortunately, Measure J's proponents didn't do their legal homework.”

    What the Mayor neglected to mention in his blog and the VC Star article was that Ms. Bonney did, in fact, seek legal guidance from our City Attorney before gathering signatures. After the requirements were met, he recommended the City Council test its validity by taking voters to court.

    I would invite Mr. Fulton to elaborate on this part of the story.

  27. This comment has been removed by the author.

  28. Bryan L.'s comment is a fair one, but this whole issue was aired out at some length at the July 11 council meeting. Yes, Ms. Bonney discussed her proposed measure with the City Attorney before she gathered signatured. However, as the City Attorney explained, whether we like it or not, it is not the City Attorney's job to provide legal advice to individual citizens who have drafted an initiative they are thinking of circulating. At that point it is his job to review the initiative for its form, not its substance, and write a "ballot title" to be used on the petitions.

    Indeed, from the point of view of legal ethics, it would be a conflict of interest for him to provide advice to the initiative's drafters, especially if the proposed initiative conflicts with the city's existing policies adopted by the City Council, whom the City Attorney also advises. Any private lawyer would recuse himself from such a situation and advise his prospective client to find a different lawyer.

    It is always a good idea for initiative drafters to obtain their own expert legal advice. By expert I mean not just any lawyer, but somebody who is well schooled in municipal law and relevant state laws (such as, in this case, the Vehicle Code).

    Many ballot measures with some legal deficiencies are placed on ballots throughout California, even if the City Attorney is concerned about their legality, and are sued and often struck down after the election. For example, Mr. Calonne had considerable concerns about the legality of Measure B, the view initiative that failed in 2009; and I believe parts of it would have failed in court if it had passed. But part of that measure was clearly legal and therefore a pre-election challenge was not warranted and would not have succeeded.

    I would note that although Mr. Calonne had concerns about the legality of Measure J from the time it was written, I believe at that time he did not think (as he did not think with Measure B in 2009) that those deficiencies warranted a pre-election challenge. It was only when the City Council specifically asked him to research the legality of the initiative that he did much more extensive legal research and found the court cases that were directly on point and caused the initiative to be removed from the ballot.

    You can watch the video of the July 11 council meeting here:

  29. To say that the Tea Party has been ineffective shows just how detached some are from reality. All you need to do is go back to the appointment of Scott Brown and our last national election when several Tea Party supported candidates were elected to Congress. They will also have a big say in 2012. Wait and see!

    Unlike many who posted here, Americans from all political parties have awakened and are thankfully participating in the democratic process.

  30. I agree with Lois P. People love to dismiss the Tea Party as wild-eyed lunatics when, in fact, they have proven to be extremely effective, savvy participants in the political process. Look how prominently their influence was felt during the debate on the national debt ceiling. Had it not been for the Tea Party's involvement, we would have ended up with Obama's original plan (higher taxes during a really bad economy - a recipe for disaster).

    I think it will be very interesting to see how the two Tea Party-backed candidates (Carla Bonney and Bill Knox) do in the City Council race in November. I'm sure they will be getting the support of a good number of the 10,000 folks who signed to parking meter initiative. Good luck to them both!

  31. “Turner, who ran as a staunch conservative embracing the Tea Party, will be the first House Republican representing this portion of Queens since the 1920s — a striking departure from its Democratic traditions.”

    For the complete story visit:

    And some think the Tea Party is ineffective!

  32. It appears to me that Bill and his buddies are either ignorant or think that "WE THE PEOPLE" are. The mayor and others must be aware that they are a dues paying part of ICLEI (United Nations affiliate) through SCAGG Planning and finally impacted through Ventura Compact. All of this in the name of Sustainability, Smart Growth, Going Green--- which is nothing more than a concentrated effort to control our housing, water, energy, transportation and land - by the elite few! We will be following the money (Federal Grants)-to see who is really benefitting. WE will be electing those who actually care about FREEDOM and have conservative fiscal values.


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