Judge Clears Anti-Airport Initiative for Ballot

A judge has cleared an anti-airport initiative for Orange County’s March ballot but said Friday she has “grave doubts” about whether the measure is constitutionally valid.

Los Angeles County Superior Court Judge Dzintra Janavs rejected a request from pro-airport forces to keep the Orange County Board of Supervisors from placing the initiative on the ballot Tuesday. Though she had concerns, she said they were not “clear [enough] beyond question” to deny voters their say in the process.

But Janavs’ three-page ruling also raises the first indication that the Safe and Healthy Communities Initiative might run into legal problems if approved by voters.

Although the judge did not detail what she perceived as flaws in the initiative, airport proponents have argued in legal papers that the measure violates state law and the state Constitution.

The initiative would require approval by two-thirds of Orange County voters, rather than a simple majority, before county officials could build or expand airports, large jails near homes and hazardous-waste landfills.

The lawsuit seeking to keep the initiative off the ballot contended that the two-thirds vote is unconstitutional and that the initiative is illegal because it would provide an automatic referendum for any such public works project, rather than evaluating each project individually.

The measure also would preempt powers given to county supervisors by the Legislature, another aspect of the initiative that the suit contends would violate state law.

Airport opponents hailed Friday’s ruling as a victory because it clears the supervisors to move it onto the ballot. The judge’s warning represents merely “the unexplained musings of one judge,” said attorney Jeffrey Metzger, who chairs Citizens for Safe and Healthy Communities.

“This is a decisive victory,” Metzger said. “The voters will get to decide what happens next.”

Richard Jacobs, the San Francisco attorney who drafted the measure with the input of a coalition of South County cities opposed to a commercial airport at the closed El Toro Marine Corps Air Station, said that since Janavs didn’t explain her comments it is difficult to assess the seriousness of her concerns.

“Judges sometimes will try to throw a little bit to both sides,” Jacobs said. “The bottom line is, we won.”

Airport supporters, some of whom said they would use Janavs’ comments in future mail and cable television advertisements, said the judge’s warning clearly signaled that the initiative’s fate is in doubt.

“This is absolutely the best second choice imaginable when you can tell the electorate that this is a seriously flawed initiative and that the chances of it ever being implemented are very, very slim,” said attorney Dana Reed, who filed the suit on behalf of the pro-airport Citizens for Jobs and the Economy.

The judge’s ruling came one day after Sheriff Mike Carona issued a scathing analysis of the initiative, saying passage would threaten public safety and quality of life in Orange County. The sheriff said the measure would impose too many restrictions on the county’s ability to build jails and alleviate jail overcrowding, which could result in inmates being released early.

One constitutional law expert said that just because the judge is predicting “rough seas” over the measure’s legality, its opponents shouldn’t necessarily declare victory.

“By offering her own opinion on the merits, she may have unwittingly given an advantage to one side in the dispute, and that’s unfortunate,” said Robert Pugsley, a constitutional law professor at Southwestern University in Los Angeles.

But he said that the final legal challenge on the measure has yet to be decided.

If the judge truly believed the measure was fatally flawed, she would have removed it from the ballot, said Irvine Councilman Larry Agran, an airport opponent and attorney.

That happened in 1985 to an Agran-sponsored initiative that would have required approval by voters in Irvine for any project affecting the city that used city fees or taxes. The intent was to stop planning for what became the San Joaquin Hills toll road.

The measure was challenged and a judge removed it from the ballot. The state Supreme Court later upheld that action on a 6-1 vote, ruling that since the new road would be part of a statewide system, any vote on its future would have to be put to all California voters.

The county’s plans for El Toro call for it to become the second-largest airport in Southern California, serving as many as 28.8 million passengers a year by 2020. It is scheduled to open in 2005, though constant delays have pushed back every other aspect of the project.

The anticipated release Friday of 30 volumes of environmental documents was postponed until next month at the earliest because planners needed more time to complete technical reports, county officials said this week.