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    Superior Court Strikes Out Portions Of Candidate Statements By Schoolboard Challengers Barton & Ellis As False Or Misleading, Leaves 10 of 14 Other Statements Intact...With Caveat

    (February 9, 2006) -- A Superior Court has stricken portions of ballot statements by School Board candidates Michael Ellis and David Barton -- who are challenging incumbent School Boardmember/president Dr. Suja Lowenthal and School Board member/VP Jim Choura -- ruling parts of the Ellis and Barton statements were false or misleading by clear and convincing evidence and ordering LB's City Clerk not to include them in the official voters' pamphlet.

    Among the verbiage stricken by LB-based Judge Roy Paul was a statement by candidate Ellis: "Please join the over 4,900 classroom teachers who have endorsed my campaign." The Teachers Association of LB (TALB) [which has not yet officially endorsed Ellis] represents roughly 4,900 teachers...and the Court noted that there's no evidence that all of them support Ellis.

    Ellis' attorneys contended it's common practice for candidates backed by a union to say they're backed by a union's members. Judge Paul was unpersuaded, saying he found no such exception [to false or misleading statements] in the CA Elections Code.

    Candidate ballot statements are printed and distributed at taxpayer expense, and the Elections Code allows any voter of the relevant jurisdiction to seek an injunction to prevent the printing of a ballot statement that is "false, misleading or inconsistent" with requirements governing candidate ballot statements.

    Seven plaintiffs (four from contested LBUSD district 1, three from LBUSD district 5), represented by attorney Doug Haubert of Aleshire & Wynder, LLP, sought an injunction to prevent the printing of 14 assertions in the Ellis and Barton ballot statements.

    Judge Paul let 10 of the 14 challenged statements remain intact but stressed repeatedly (we counted at least three timess) during his Feb. 8 ruling (delivered at late afternoon from the bench after reviewing both sides' legal briefs, reading cases and hearing morning argument) that in leaving some statements intact, the Court wasn't ruling the statements were accurate, only that they weren't shown to be false or misleading by the higher standard of "clear and convincing" evidence required by the Elections Code. ["Clear and convincing" is even more evidence than the usual "preponderance of evidence" sufficient in civil cases; in both cases, a plaintiff has the burden of proof.]

    To underscore the point, Judge Paul indicated at one point [paraphrase from our notes] that he wasn't giving the Court's seal of approval to the challenged statements' accuracy. The Court said its ruling was guided by the principle that the U.S. Constitution's First Amendment gives political speech wide leeway and lets voters sift through political speech.

    The Court struck Barton's claim that LBUSD had squandered "tens of millions" of tax dollars since Barton had provided no way of arriving at the figure...but let the political charge stand without the figure.

    The Court struck part of Ellis' statement that the Board had "cut 400 teaching positions but purchased a luxurious multi-million dollar [HQ] office building for bureaucrats," noting the building was acquired in 1995 before the incumbent Schoolboard was in office...and also too long ago to be linked to recent teacher position reductions. The court changed Barton's statement to read "almost 400" teaching positions [reduced since the 2002-03 school year].

    And despite a sworn declaration submitted on behalf of the plaintiffs/residents, Judge Paul let stand charges regarding LBUSD's drop out rate and class sizes.

    Following the court session, TALB Executive Director Scott McVarish (who was in the courtroom audience to hear the judge's ruling) said he considered it basically a victory since 10 of 14 challenged statements remained. However, Mr. McVarish acknowledged that the Court's decision to disallow verbiage implying union members' individual support for union-backed candidates would likely draw attention from campaigns statewide. [Union backed candidates in various elections commonly say they're backed by "police" or "fire" or "teachers" support based on union endorsements.]

    Attorney Haubert for the residents/plaintiffs said he was pleased by the outcome, noting that the court determined that both the Ellis and Barton candidate statements contained false or misleading statements.

    In a statement emailed to, School board President Suja Lowenthal called the Court's ruling "a victory for the people, who are entitled to receive true and accurate information in their ballot statements...I am encouraged by the fact that the court ensured that patently false statements will not be printed on his ballot statement at taxpayer expense."

    Schoolboard VP Jim Choura said in an emailed statement, "I appreciate the citizens coming forward and spending their time and effort. I was impressed with the judicial system and believe it to be fair. I applaud Judge Roy L. Paul for his diligence.

    I am not 100 percent happy with the outcome, but I am 100 percent happy with the System giving the voters a chance to keep misleading information from the sample ballot.

    The Court's ruling only applies to the official candidate ballot statements, printed and mailed at taxpayer expense. It doesn't affect statements in non-taxpayer paid campaign materials."

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