14 Jun San Bernardino County Cancels the Citizens Votes, for a 3rd Time!
Original article written by and posted on Below is an excerpt of the full article.
As what is arguably the most dynamic independent public interest group in San Bernardino County, the Red Brennan Group this week scored what was by some counts its sixth major victory for the hearts and minds of the 2.2 million people that live in the county. Nevertheless, and despite strides other entities involved in public policy advocacy can only marvel at, the coalition once again finds itself on the verge of being outmaneuvered by the political and legal establishment it is up against, such that all of the group’s efforts involving the expenditure of hundreds of thousands of dollars and the investment of thousands of hours toward achieving its goal of reform are to come to naught. On June 7, the county’s voters by a comfortable margin gave approval to Measure Z, which called for the rescission of the San Bernardino County Board of Supervisors’ 2018 move to expand the applicability of Fire Protection District Service Zone Five.
The Red Brennan Group’s leadership, which is convinced that the county had made misrepresentations about the necessity and validity of the FP-5 expansion and sincerely believes that the county board of supervisors’ straight out violated the basic tenant in the California Constitution granting taxpayers the right to ratify by a majority vote any taxes they are going to pay with its use of a protest process to expand the boundaries of the FP-5 assessment zone to cover all of the county’s unincorporated areas, further believes that the San Bernardino County Firefighters Association’s assertions made during its 2020 campaign in opposition to Measure U that the county does not have the means to continue to provide fire service to its remote rural areas as it has historically done was disingenuous. In previous years, the Red Brennan Group notes, based upon the revenue the county receives from landowners in those in the form of unfettered ad valorem property tax, the county met its obligation to provide all types of basic services, including fire protection.
While property owners in the unincorporated county areas are now being strapped with a FP-5 assessment they never approved and never before were obliged to pay, according to the Red Brennan Group, the county is accumulating substantial financial reserves defrayed by an illegal form of double taxation. They pressed forward with an effort to qualify once more an initiative for the ballot challenging the FP-5 expansion, and indeed succeeded in gathering a sufficient number of signatures to put another version of Measure U on the ballot this year, one designated as Measure Z, after the registrar of voters certified that enough valid signatures had been affixed to the petitions seeking the initiative. The county and its fire district/fire department sued the county registrar of voters to prevent it from including Measure Z on the ballot.
In that lawsuit, the county/fire district/fire department asserted that the petition used by the Red Brennan Group was factually incorrect and had misled voters who signed it. The Red Brennan’s contention that the tax is unconstitutional was false, the county maintains, since in previous legal sparring over FP-5, San Bernardino Superior Court Judge Donald Alvarez made specific references to court precedent in other jurisdictions in California whereby the language in California’s Constitution requiring a two-thirds vote on general or special taxes was held to not apply in circumstances involving annexations into previously existing assessment districts, as is the case with what what San Bernardino County did with FP-5, the county claimed.
Judge David Cohn, who considered the case, rejected the Red Brennan Group’s contention that the will of the requisite number of voters who had signed the petition had to be complied with, and he ruled in favor of the fire district. On March 29, Cohn made a finding that the petition misrepresented the fire tax as unconstitutional. The Red Brennan Group disputed that and filed a petition to a state appeals court. The appeals court, seeing that there was an April 1 deadline for printing the June 7 ballots, agreed to hear the matter and ordered that the ballots be printed with Measure Z on it.
The county pushed forward with its challenge of Measure Z. On May 31, after the appeals court denied the petition from the Red Brennan Group and lifted its earlier stay, Cohn ruled that his judgment that Judge Alvarez’s ruling that FP-5 is constitutional should be upheld was consistent with the law and case law. Thus, Cohn ruled, even if the voters on June 7 passed Measure Z, the rescission of FP-5’s applicability to all other unincorporated areas outside of Silverlakes and Helendale will not stand.
On June 7, the county’s voters indeed passed Measure Z. As of today, Friday, June 10, the registrar of voters’ tally of the Measure Z results show 27,554 votes of 58.69 percent in favor of it and 19,395 or 42.31 percent opposed to it. Judge Cohn’s ruling will not necessarily prove the last word on whether the FP-5 assessment is applied to the entirety of incorporated San Bernardino County, according to the Red Brennan Group.
“If current returns hold, voters have enthusiastically opted to repeal the Fire Protection Service Zone Five special tax,” the Red Brennan Group said in a statement. “Election returns to date indicate the “Yes” or repeal votes for Measure Z are nearly 60% while the “Np” votes trail at 40%. Local headlines have trumpeted the demise of Measure Z at the hands of Superior Court Judge David Cohn. However, an appeal to Cohn’s decision was in place prior to the election. Final passage of Measure Z is still an entirely viable scenario.”
Consistently, while Kiernan Brennan was yet alive and in the time that the group now functioning in his memory have been pushing for public agency reform in San Bernardino, those advocates have time and again found themselves, as a consequence of their advocacy, at odds with the expense of government. That earned the Red Brennan group the enmity of the political establishment in San Bernardino County.
With the Measure R effort a decade ago, Kiernan Brennan alarmed the members of the board of supervisors, as it was then composed and which at that time had but a single member who is on that panel today, over the prospect that their own financial interest might be impacted by the reform. Today, the board, with four different members than were serving in 2012, is as fiercely resistant to seeing their personal financial circumstance affected by reform.
In 2020, when the board of supervisors sued its own clerk to prevent the actuation of Measure K, the Red Brennan Group leapt into the breach, asking the court to take stock of the consideration that legal action the board was taking was against an individual answerable to the board who would not be likely to resist with any intensity the board’s interpretation of the law and the constitution. The Red Brennan Group’s attorney, Aaron Burden, made a motion before the court that the Red Brennan Group be granted status, as the sponsor of Measure K, to intervene and participate in the lawsuit the county board of supervisors was pursuing in the effort to overturn Measure K. Also seeking to intervene and oppose the board of supervisors in preventing Measure K from being implemented was the Inland Oversight Committee, represented by attorney Cory Briggs.
Judge David Cohn, as the attorney hearing the case, initially, held the position that neither Burden nor Briggs nor the Red Brennan Group nor the Inland Oversight Committee were parties involved in the matter, as the board of supervisors’ suit was filed against the clerk of the board, and as such they as outsiders did not have status to involve themselves in the proceedings. After nearly two weeks of consideration, Judge Cohn, in accordance with settled law, approved the Red Brennan Group’s motion to intervene, though he ruled the Inland Oversight Committee no standing in the matter. Immediately upon Cohn granting the Red Brennan Group status to intervene, Burden made a preemptive challenge of Judge Cohn, based on the group’s belief it would not be able to have a fair and impartial trial or hearing before him. The matter was then sent to Judge Alvarez for his consideration.
The Red Brennan Group’s action in challenging Judge Cohn, based upon whatever rationale Burden and the organization’s leadership had, whether it was valid or invalid or for whatever tactical reasons they possessed, was ultimately a strategic faux pas of the first magnitude. Having already established itself as pursuing an agenda contrary to that of the county’s political establishment, suggesting by its challenge of Judge Cohn that he was incapable of dealing with the issues the group was raising fairly and squarely was taken not only as an affront by Judge Cohn, but by the remainder of Brethren on the Superior Court.
As the champion of San Bernardino County’s common men and common women, the Red Brennan Group long ago assumed a stance out of step with the ethos of rank and privilege that comes with the territory of serving as a so-called “public servant” in San Bernardino County, stations which by their very definition place them above the average citizen and which carry with them an authority that can be defied only at one’s peril. Burning whatever bridge the group might have had with the ultimate arbiters of and determiners of the social pecking order in the county, no matter how tenuous that link might have been, did not redound in any wise to the Red Brennan Group’s benefit. Rather, Judge Alvarez, at some level ultimately to the vindication of his colleague Judge Cohn, entered a decision last year that has so far prevented the Red Brennan Group from taking possession of the victory – involving a supermajority of San Bernardino County’s voters – it scored with the passage of Measure K.
The Red Brennan Group has appealed Judge Alvarez’s decision, and the appellate court has yet to make its decision on whether the voters’ call for restoring the members of the board of supervisors to the status of citizen legislators is one that should be heeded. Most recently, when the board of supervisors challenged the Red Brennan Group’s successful effort to put Measure Z on this week’s ballot, the court’s executive echelon routed the case to the courtroom of Judge Cohn, with whom, as a consequence of its December 2020 challenge of his fairness, it was automatically off on the wrong foot. Such is the fate of those who challenge what they consider tyranny, at least in San Bernardino County.
Tom Murphy, a spokesman for the Red Brennan Group said, “Despite news headlines to the contrary, Measure Z remains very much alive both from a political and legal standpoint. From the political perspective, it is obvious district voters see the special tax exactly for what it is – a scheme concocted by senior county bureaucrats to end run voter-enacted limits set by Propositions 13 and 218. From the legal perspective, the proponents’ attorney appealed Judge Cohn’s flawed decision the moment it was released. The matter is now in the hands of California’s 4th District Court of Appeal. If Judge Cohn’s decision is overturned, and it should be, Measure Z will be enacted and voters freed from this unjust tax.”
Full article: A 3rd Time, County Thwarting Public Interest Group’s Victory At The Polls