Judge knocks down attempt to change ballot arguments in California voter guide

SACRAMENTO, Calif. (CN) — A California judge on Friday denied an attempt to rewrite ballot arguments for a November initiative after a representative for an AIDS nonprofit asked the court to do just that.

The legal challenge centers on language in nonpartisan voter information packets that residents of some states, including California, receive prior to elections.

The ballot question in controversy — Proposition 34 — would require certain health care providers to spend 98% of their revenue from federal discount prescription drug programs on patient care.

If passed, the measure would apply only to providers that have spent more than $100 million on anything other than patient care over a 10-year period — and that also run multi-family housing with a minimum of 500 high-severity health and safety violations.

The reason the criteria are extremely specific is because the measure only applies to one entity in the Golden State: the AIDS Healthcare Foundation, said Beverly Grossman Palmer, an attorney with the Santa Monica-based firm Strumwasser & Woocher who is representing the group's interests.

“This is a very specific definition,” Grossman Palmer told Sacramento Superior Court Judge Stephen Acquisto at a hearing on Friday.

Bringing the suit is Ashoke Talukdar, deputy general counsel for the foundation. Among other things, he claims that arguments in favor of the proposition include false and misleading statements.

According to Grossman Palmer, proponents stated that the federal government offers discounted drugs through its federal 340B drug discount program, which isn’t true. Instead, she said drug manufacturers provide discounts to get them covered by Medicaid.

The proponents also stated that the ballot measure will punish health care providers who have committed financial abuses, like paying for the right to name a stadium or paying their executives millions of dollars. But those statements reference providers who wouldn’t be affected by the proposition, either because they don’t meet the specific definition or aren’t located in California, Grossman Palmer said.

“Californians are being sold this bill of goods,” the attorney argued.

Providing an alternative explanation for the ballot measure, the foundation argues the California Apartment Association had opposed its attempts to change the state’s rent control laws, including with a rent control measure also slated for the November ballot. The foundation says the apartment association sponsored Proposition 34 with the intent of destroying the foundation.

But pushing back on Friday, Sean Welch, an attorney with Nielsen Merksamer Parrinello Gross & Leoni who is representing the proponents, argued the judge had already heard theories about Proposition 34 — and that these theories were disputed.

“They are almost entirely irrelevant to the case before you,” he said.

Instead, he argued the judge must decide whether three statements in the proponents’ arguments were false or misleading — and that the burden is on the AIDS Healthcare Foundation to prove that they are. He further argued that statements about providers paying their executives millions of dollars and paying for a stadium’s naming rights are factually correct.

The foundation is arguing that proponents shouldn’t be allowed to present their views, Welch said. He argued that the California Legislative Analysist’s Office has an impartial explanation about the proposition. That analysis outlines definitions and effects from the measure and doesn't give a rationale for or against it.

As for the statement that the government — not drug manufacturers — provided discounted drugs, Welch said the AIDS Healthcare Foundation wanted to change voter-information language to better match its own arguments.

He made a comparison to elections, in voters choosing a candidate sometimes are technically voting not for that candidate but for electors. But saying that someone voted for a particular candidate wouldn't be an incorrect statement, he argued.

“All this other stuff, it’s noise," Welch said. "That’s what it is."

Grappling with the strange and technical case on Friday, Sacramento Superior Court Judge Stephen Acquisto commented in court on these esoteric legal arguments.

“Isn’t that inside baseball?” the judge said.

In the end, though, Acquisto denied the petition to change voter-information language, finding there was no clear and convincing evidence that it was false or misleading. The deadline to print voter arguments is Monday.

"[The AIDS Healthcare Foundation] continues to flail in court and attempt to prevent voters from having a say on Prop 34,” said Nathan Click, a spokesman for the Prop. 34, Protect Patients Now measure, in a statement. “Prop 34 is a critical taxpayer and transparency measure that ensures public dollars meant for patients actually reaches those patients.”

Talukdar in a statement said he was troubled the judge allowed what he called "verifiably false statements" to remain in the voter guide.

"Californians are entitled to accurate information, including the ballot arguments, about the laws they are being asked to vote on," Talukdar said.

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