The petition, filed in court Friday on behalf of City Clerk Jane Rodriguez, challenges language in the ballot rebuttal argument submitted by Measure D opponents, Citizens for Responsible Government and its chairperson, Wayne Lusvardi. The petition was drafted by Colantuono & Levin, the same law firm that drafted Measure D.

According to the petition, rebuttal language saying the measure “would force the City of Pasadena to assess and collect Internet taxes … as soon as the current temporary federal ban expires or is overturned  by a New Congress,” is false and misleading.

But then the petition states:

“The current text of Measure D allows the City to tax internet access, but does not require it do so.”

The position consistently taken by the mayor and Council members has been  that the measure does not tax internet access.

Rodriguez’s attorney, Michael Colantuono told Pasadena Now he regrets that in the haste of preparing the petition the sentence was worded that way.

“Measure D does not tax the internet for two reasons,” he said. “One is federal law doesn’t let us, and two is the city council doesn’t want to do that.”

He said the sentence should have been drafted to read that the measure “arguably” allows the city to tax internet access. But he said he thinks the argument that it does is wrong.

In order for the court to order language in a ballot argument to be changed, Colantuono explained, the court has to be convinced the language is false and misleading by clear and convincing evidence. Simply because a ballot argument might be wrong, is not grounds for the court to change it, he said.

So, even though he said he thinks the argument that Measure D allows the city to tax internet access is wrong, he said he didn’t feel he would likely be able to convince a judge that it is false and misleading given the broad way in which telecommunication services is defined in the measure.

“The reason we used broad language is that we can’t see the future, he explained, “and we don’t want to have to go back to the voters every time the technology for telephone services changes.”

“So we wrote as broad a definition [of telecommunication services subject to the tax] as we could” he said, “and then said, but we’re not going to tax internet access.”

After Lusvardi raised the issue, the Council passed the first reading of an ordinance stating that nothing in Measure D is intended to tax internet access. The measure must be passed a second time before it becomes law.

The reason the ordinance wasn’t part of Measure D itself, Colantuono said, is because they wanted to give the city as much flexibility with respect to telecommunications services as possible and thought talking more explicitly about the internet “would have invited this confusing argument.”

“That strategic choice in hindsight probably wasn’t best,” Colantuono acknowledged, “because Mr. Lusvardi and those who think like him have chosen to make this an issue anyway.”

Lusvardi said the petition language shows he was right all along.

"It is now an established fact that the Mayor and City staff have been
lying to the public about Measure D from the beginning,” he said in a release.

“CRG demands that the City Council withdraw Measure D from the ballot and initiate an immediate investigation of what the Mayor and the City Manager and her staff knew and when they knew it in order to determine if they have been willfully deceiving the public and the rest of the  members of the City Council," he said.

Noting that Pasadena Mayor Bill Bogaard’s rebuttal argument says that "Measure D deals only with continuing the current UUT on telephone service,” and “does not tax internet access -- now or in the future," Lusvardi called on the City Clerk to initiate litigation by Monday's deadline “to strike from the Mayor's ballot argument his false statement that Measure D does not tax internet access.” 

Bogaard told Pasadena Now he was surprised by the language in the petition when he read it after it was filed and that he continues to believe Measure D does not tax internet access.
 
The petition, which names the Los Angeles County Board of Supervisors as the respondent, seeks a court order requiring the board to change the word “force” to “allow” or “permit” in the sentence in Lusvardi’s rebuttal saying the measure “would force the City of Pasadena to assess and collect Internet taxes.”

It also seeks to delete language in the rebuttal saying the measure would threaten residents’ privacy rights and could result in internet users being taxed for junk e-mail.
 
On Friday Los Angeles County Superior Court Judge Dzintra Janavs, sitting in downtown Los Angeles, set a hearing date for December 17. After Firday’s hearing Lusvardi’s attorney, Rene Amy, and Colantuono & Levin attorney Holly Whatley agreed to work together to try to come up with compromise language for the rebuttal argument that would satisfy everyone.