A superior court judge issued a tentative ruling Tuesday morning dismissing candidate Nick Josefowitz’s lawsuit seeking to move the election for the District 2 supervisorial seat from November to June.
Josefowitz, a BART board member, filed a lawsuit Feb. 1 against The City after the District 2 seat was vacated by Mayor Mark Farrell, who appointed Catherine Stefani to fill it.
Instead of having the election in November as scheduled, the lawsuit sought to move it up to June to share the ballot with the mayor’s race and the District 8 contest, where Supervisor Jeff Sheehy, who was appointed last year, is running in his first election.
Superior Court Judge Harold Kahn acknowledged in his tentative ruling Tuesday morning that it was difficult to interpret how provisions in the city charter determining the timing of elections for vacated seats on the board should be applied to the District 2 contest. But he said having the contest occur in November “is more likely consistent with the intent” of the voters who approved the charter provisions in 2001.
The city charter has rules about when an election must be held once there is a vacancy on the board. There is a provision about holding the contest at the already scheduled election for the seat vacated, but also another provision about holding the contest for the vacated seat at an election when there is another seat on the board up for election.
Josefowitz’s attorney Thomas Willis had argued the language was unclear and that the intent of voters was for an election to occur as early as possible, but Kahn said the charter language doesn’t express that.
“I believe I have thrown you a curveball,” Kahn said. His tentative ruling took an angle on the legal debate that the attorneys on both sides of the issue had not in their briefs.
Kahn said in the tentative ruling that both provisions haven’t applied to a vacated seat on the board since the 2001 provisions were adopted by voters, but in November 2016 voters eliminated odd-year elections, increasing the likelihood of such a possibility. He noted that if there was an election in 2017, then Sheehy would have stood for election last year and not in June.
“While now it seems obvious that both provisos could apply to a board seat, hindsight is often 20/20 when foresight is more cloudy,” Kahn said in the ruling.
The attorneys will submit responses Wednesday to Kahn’s tentative ruling and appear in court Thursday to deliberate the case further.
“The court got it right,” Jim Sutton, Stefani’s attorney, said after the hearing. “The court spent the time and figured out what we couldn’t.”
Josefowitz said he remained committed to the lawsuit. “This is fundamentally about trying to make City Hall more accountable to the voters and giving the voters their say on who their supervisor is going to be,” Josefowitz said. “We still believe that. The judge seemed opened to hearing more arguments on this. We are going to huddle back together and go back and look at some more case law.”
Kahn said during the proceeding that “I remain open to persuasion.” He also said that he wanted to give Josefowitz the time he needed to argue his position. “I want to get this right,” Kahn said.