No one is coming to rescue this baby, and it’s a mess.
Last week 7th Judicial District Judge Mercedes Murphy ruled that the question whether the Sierra County Arroyo Flood Control District should be formed will be on the ballot, however, the candidates who would become flood control “directors” will not be on the ballot.
The kicker? The district court will decide who the first board of directors will be, should the measure be approved by voters. In November 2025, the people will vote in flood control directors of their choice.
It was Sandy Jones, the governor-appointed flood commissioner for Sierra County, who asked the court to decide if the directors could be on the ballot.
Mid-July Jones filed a motion to “intervene” in the court case filed by the Sierra County Commission that was heard by 7th Judicial District Judge Roscoe Woods on June 21. The county commission filed a petition for an “emergency hearing” on whether the question of a flood control district and its directors should be on the Nov. 5 ballot. Woods ruled that both the question and director candidates would appear on the ballot. For more detail, read: https://sierracountycitizen.org/question-of-whether-to-form-a-flood-control-taxing-district-will-be-on-nov-ballot-along-with-candidates-for-board-of-directors/
Jones’motion to intervene was heard by Murphy on July 24. She ruled that Jones couldn’t intervene as the county flood commission, only as a private individual, because the Sierra County Commission was his “fiscal agent.” She ruled that Patrick Griebel had a “conflict of interest” as Jones’ attorney, since he was essentially hired by the Sierra County Commission and could not be adversarial to them.
Later Murphy allowed Griebel to speak after he asked to “form a record, in case we appeal.”
Peter Auh, general counsel for the Office of the Secretary of State, attended the hearing, and made a verbal motion to also intervene in the case.
Auh said the Office had just learned of the county commission proposing to put the question and the five directors’ positions on the ballot.
Murphy asked Sierra County Attorney Adren Nance (Pato’s father is ill and Nance took his place) if he objected to Auh’s verbal motion to intervene. Nance said he did not, and Murphy allowed the SOS to enter as a party.
The Office of the SOS is “alarmed,” Auh said, that at this late date, in a general election year, this “rare” flood control district measure should be added to the ballot. “It’s inconvenient,” Auh said.
Nance said the SOS and the public have had “three months’ notice,” without stating what served as notice. He also said matters of “inconvenience” were irrelevant.
Nance’s claim of notice must be the sole public meeting the county commission has held on the matter the third week of April. At that time the commissioners passed a resolution expressing favor for putting the question on the ballot. The resolution also gave county attorney Dave Pato authority to petition the court. The court, not the county, has the authority to determine if questions concerning flood control districts go on the ballot.
Since the April meeting, the county commission has only held executive sessions on the flood control district. Why the SOS should be aware of county meetings or county court hearings is inexplicable.
Murphy asked Auh if he had read Nance’s response to Jones’ motion to intervene. Nance said he turned it in late—electronically around midnight, because the county commission only gave direction to him at noon on July 23.
Auh said he had not had time to read it.
Murphy summarized the arguments for Auh. Jones was arguing that the election code disallows local officials to be elected in even years. Local officials’ elections are held in odd years. Questions can be put on the ballot in odd or even years. The county, on the other hand, argued that the state statute on forming a flood control district allows the question and the directors’ candidates to be on the ballot in even years.
Murphy asked if Auh had a position. Auh said the SOS’s position was “to do both or do neither,” with the preference that neither the question nor candidates appear on the Nov. 5 ballot.
Murphy asked Nance why the county commission was insisting on the flood control district now. Nance said the commissioners “consider flooding is an emergency situation in Sierra County,” that the flood control district will address arroyos, while the flood commissioner addresses rivers and streams, and that plenty of notice has been given “and why wait?”
“We think we got it right,” Nance said, and argued for both the question and candidates to be on the ballot.
Murphy ruled that the candidates being on the ballot are in conflict with election law. She ruled that the question of the flood control district will be on the ballot.
She agreed with Nance’s argument that if the people vote in favor of the flood control district, then the directors’ board is automatically formed, “it’s just not peopled.”
Murphy also agreed with Nance’s argument that the court should decide who becomes a flood control district director, if the measure passes.
The state law on flood control districts, 72-18-15, says that if a director vacancy occurs, then the remaining directors’ will fill it until the next local election. If the remaining directors fail to fill the position in 30 days, then the district court will fill the position(s).
Since there are no directors, Murphy agreed the court will fill the positions until the 2025 local election.
Murphy agreed with Nance that the court will select the directors from among those who have submitted nominee petitions to the court. Nominees must submit petitions with a minimum of five signatures from county electors. An elector can only nominate one director; therefore the petitions must have no duplicate signatures.
If the candidates were to appear on the ballot, they would have an Aug. 7 deadline for turning in nominee petitions. It is unknown if this deadline holds, since Murphy ruled candidates will not be on the ballot.
I called the district court on July 29 to see if any nominee petitions have been turned in. The court clerk said I should address all questions about the flood control district, including nominees, to the county clerk’s office.
I spoke with County Clerk Shelly Trujillo on July 29 and she said, “We don’t have that information, that’s up to the district court. We won’t have that information because it’s a court case.”
Trujillo said she has to turn in the ballot question to the Secretary of State’s office on Aug. 27, which must approve the language of the question. She has been given that language, she said, but gave it back to county attorney Pato to translate into Spanish.
For related articles, read:
https://sierracountycitizen.org/grudge-match-or-good-government/
Hats off to Kathleen for explaining a situation that no one else will or is capable of doing. Sierra County would be a real news desert without her.