You know, they said the MUTA lawsuit against the County of Marin
was a "nuisance" lawsuit and the county lost.

You just never know about these matters as this involves Prop. 13
and interpretations by higher courts.

If Dennis Fishwick gets support to appeal the case, this could have
significant consequences for SMART.

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Novato man says SMART vote illegal, files suit
By Mark Prado
Posted: 06/01/2009 05:17:18 PM PDT


A former Novato councilman has filed a lawsuit against the Sonoma-Marin Area Rail Transit District, alleging the November 2008 election in favor of the passenger train project was tainted because Marin County did not provide two-thirds approval.

Former Novato councilman Dennis Fishwick - acting on his own behalf without an attorney - filed the lawsuit in Marin Superior Court against the district and SMART board, saying they stripped the right of Marin voters to reject the quarter-cent sales tax with a less than two-thirds approval.

State law requires a tax increase to receive two-thirds approval from voters.

Measure Q received 73.5 percent approval in Sonoma County, but only 62.8 percent in Marin. That caused confusion among some Marin voters, who thought the measure had been defeated.

But because state legislation in 2002 created the Sonoma-Marin Area Rail Transit District, the vote tallies were combined and reached 69.5 percent, enough to win. SMART officials maintain that satisfies state law.

But Fishwick, who served on the Novato council from 1991 to 1995, alleges that the vote requires a state constitutional amendment, rather than state legislation, to override the two-thirds requirement for a county.

"The constitution is clear; voters need to give two-thirds approval to impose a tax," Fishwick said. "The intent of the SMART legislation all along was to water down Marin's vote."

Fishwick noted Article 11, section 11(a) of the state constitution reads: "The Legislature may not delegate to a private person or body (the) power to make, control, appropriate, supervise, or interfere with county or municipal corporation improvements, money, or property, or to levy taxes or assessments, or perform municipal functions."
SMART attorney Greg Dion referred to the Fishwick claim as a "nuisance suit."

"We are not seeing anything there," he said, adding SMART's enabling legislation allows for ballot measures and doesn't violate the constitution.

The district has until June 15 to formally respond to the lawsuit.

It was former Assemblyman Joe Nation, D-San Rafael, who pushed the bill - AB 2224 - in the state Legislature to create the Sonoma-Marin Area Rail Transit District. The legislation allowed the districtâ which encompasses Marin and Sonoma counties - to introduce sales tax measures and condemn land and buildings as part of an effort to establish the 70-mile commuter rail line between Cloverdale and Larkspur.

The lawsuit also alleges the district violated the Ralph M. Brown Act for public meetings by not fully disclosing the intent of its Dec. 17, 2008 agenda. That's when the board formally approved an agreement with the state to begin to collect sales tax on April 1, 2009 for the train measure, Fishwick said.

"There was nothing on the agenda that said the agreement would be enacted," Fishwick said. "That has to be available to the public 72 hours ahead of time."

Dion responded that the issue was fully vetted in open session in July 2008, before the election, and that the December vote was a formality.