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Judge throws out petition seeking to block new 49ers stadium

By David Hudson
First Amendment Center

The San Francisco 49ers fared better in court Friday than they did in last season's NFC Championship after a superior court judge tossed out an initiative drive by opponents of the team's controversial voter-approved deal for a new stadium.

However, the petition backers contend there is nothing in California election code to allow a judge to dismiss the petition at the pre-ballot phase. They compared the actions of the 49ers in seeking to disqualify the petition as "gang tackling before the kickoff." The stadium opponents say they plan to seek review with an appeals court.

The controversy arose after voters narrowly approved two propositions in June 1997 that authorize the construction of a new football stadium. A group of opponents, led by the Virginia-based Voting Integrity Project, sued claiming that the football team and some city officials conspired to commit fraud to ensure a favorable result. Last month Judge Raymond Williamson Jr. dismissed that suit, ruling the allegations did not prove fraud.

The stadium opponents then began circulating petitions for a November ballot proposition that would repeal the June 1997 vote. Statements in that petition formed the basis of the latest court battle, including:

  • "The adoption of Propositions D and F at the June 3, 1997, special election was flawed by a blatant violation of state election laws …" and
  • "The June 3, 1997, special election on Propositions D and F was fundamentally flawed and resulted in a denial of secrecy of the ballot for all San Francisco voters…"

The 49ers argued in legal papers that the petition initiators "have committed a foul" and must "follow the rules." Attorneys for the team argued in a motion that the court "has the authority and duty to regulate abuses of the initiative process, particularly false statements in public documents fraudulently made to induce persons to sign initiative petitions" and that "there is no First Amendment right to make false and misleading statements in an initiative petition or about an initiative in an effort to qualify it."

Williamson sided with the 49ers in San Francisco Forty-Niners v. Nishioka because the petition contained, what he called, "flat-out misinformation" and "untruths" that constitute an "abuse of the initiative process."

Chip Nielson, one of the attorneys for the 49ers, said: "This is not a case about the First Amendment, but a case about false and misleading speech contained in a prescribed statutory document.

"We are very pleased with the judge's decision. Initially, we were concerned that the judge might be swayed by their waving around of the First Amendment, because judges are generally strong defenders of the First Amendment and because this sounds like protected political speech," he said. "However, the judge recognized that this is not about silencing campaign speech but about ensuring that government, taxpayer-supported documents do not contain bald-faced lies."

However, Charles Bell, attorney for the petition proponents, takes a much different view. He said: "I don't know of any case in California in which a judge threw a petition out because of the content of the petition. Petitions often contain advocacy statements which are hotly disputed. The judge was simply without jurisdiction to do what he did. His actions were tantamount to a prior restraint.

"As the other side has conceded, there is no specific statute on point which allows the judge to evaluate the content of the petition language at this state of the proceeding," Bell said. "And the reason for that is that our Legislature and most of our judiciary have been sensitive to the First Amendment. Unfortunately, this judge was not."

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Last system update: Friday, November 14, 2008 | 01:34:58
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