Measure M Foes Mount 11th-Hour Offensive

In a last-minute move intended to prod county supervisors into dumping a half-cent sales tax from the November ballot, foes of the measure publicly warned the board Monday that the proposal suffers from significant legal problems.

The warning came on the eve of what will be a closely watched board vote set for today that will determine whether Measure M, the proposed sales tax for transportation, goes before county voters on Nov. 6.

Santa Ana lawyer Mark S. Rosen--who represents Drivers for Highway Safety and Citizens Against Unfair Taxation and individuals opposed to Measure M--said in a letter to supervisors that the proposed tax is “legally flawed in several significant aspects and that until these flaws are cured, it should not be placed on the ballot.”

The letter stirred an already-boiling political pot. Both sides of the Measure M debate are focusing on today’s vote. Although the supervisors say that they have no discretion in the matter, opponents are nonetheless pressing hard for the board to block a fall referendum.

Voters considered Measure M in 1989 and rejected it 53% to 47%.

Tom Rogers, a slow-growth advocate from San Juan Capistrano who opposes Measure M, said Monday that he and other opponents asked Rosen to draft the letter because they are convinced that the measure would not withstand a court challenge. The timing of Monday’s letter, Rogers added, was intended to influence today’s vote by convincing supervisors that legal obstacles would prevent Measure M from ever taking effect even if it passed.

Measure M supporters, however, dismissed the legal argument, saying that the proposal has been reviewed by several attorneys.

“It has been so thoroughly scrutinized by every body in this county, it would never have gotten this far if it were flawed,” said Reed L. Royalty, chairman of the Foundation for Consensus and one of the measure’s strongest backers. Royalty has been approached about taking on the task of chairing the fall campaign for Measure M, and he said Monday that he is considering that possibility.

County Administrative Officer Ernie Schneider agreed that the measure has been thoroughly researched. “Let’s wait and see if it passes, and then they can sue us,” Schneider said.

Two supervisors, Gaddi H. Vasquez and Harriett M. Wieder, are out of town this week, so the action today will come down to whether all three of those present vote to let the measure appear on the ballot.

Of the three scheduled to be in town, only one, Supervisor Thomas F. Riley, has publicly stated that he intends to press for the measure’s passage. Board Chairman Don R. Roth supports Measure M but has been reluctant to lead the charge, and Supervisor Roger R. Stanton has long said that the measure is likely to fail and should not go on the ballot this year.

Stanton, reading Monday from an opinion prepared by the law firm that advises the Orange County Transportation Commission, said the action to be taken today is a mandatory obligation of the board and something over which he has no discretion.

“I’m really angry that I’m being put in this position,” Stanton said, adding that he would have preferred to vote against the measure but that the absence of Vasquez and Wieder prevents him from being able to do that. “I have now an opinion . . . that says ‘the duty of the Board of Supervisors to call the election is a mandatory duty’ ” and is not discretionary.

If the board voted not to put Measure M on the fall ballot, Stanton said, that decision would probably face a successful legal challenge from supporters of the proposal.

It appears, then, that Measure M’s place on the November ballot is virtually assured, but opponents are still hoping that their arguments about its legality might head it off.

“We are advising you of these problems before the adoption of Measure M, in the hope that massive expenditures of monies can be avoided on both sides,” Rosen says in the letter. “We are further hopeful that these deficiencies will be addressed by the board rather than through the courts.”