San Jose Pension Ballot Wording Unlawful

April 11, 2012 ( - An appellate court agreed with San Jose, California, employees that the city’s June pension measure was unlawfully worded to sway voter support.  

The measure, called Measure B, will be voted upon on June 5. If passed, it will reduce pension benefits for new city hires and require current workers to pay more toward their retirement unless they switch to a plan with reduced benefits and cost. Retirees could also see a 3% annual cost-of-living increase suspended if the city declares a fiscal emergency, reports San Jose Mercury News.  

Last week Santa Clara County Superior Court Judge Kevin McKenneny ordered only minor revisions to the wording. However, employees appealed, arguing the words such as pension “reform” in the opening language and ballot summary are unlawful advocacy rather than permissible analysis.  

According to the news report, the appellate court’s decision overrules McKenney’s decision that the city could use the term pension “reform.”  

The justices—Franklin Elia, Nathan Mihara and Wendy Clark Duffy—wrote in their decision that “the word ‘reform’ in both definition and connotation evokes a removal of defects or wrongs.”  

“By combining this charged word with 'pension' in the title, all in capital letters, the city council has implicitly characterized the existing pension system as defective, wrong, or susceptible to abuse, thereby taking a biased position in the very titling of the measure itself," the justices wrote. The city instead should use "Pension Modification," they added.

The justices also cited what they called a "more extensive flaw" with introductory language in the measure stating that it aims to "protect essential services, including neighborhood police patrols, fire stations, libraries, community centers, streets and parks."

The justices argued those points "properly belong in the ballot arguments in favor of the measure, not in the ballot question, which must be cast in neutral, unbiased language," and they should be stricken, reports the San Jose Mercury News.