Herhold: Suit raises questions about tactics of BART backers

By Scott Herhold
Mercury News

Article Launched: 09/19/2008 05:32:17 PM PDT

One morning in late August, Margaret Okuzumi, the head of the BayRail Alliance and a prominent opponent of the BART extension to San Jose, got a voice message on her cell phone from a Palo Alto lawyer representing a young woman named Bena Chang.

The lawyer, Robert Matz, had stern news. He was filing a lawsuit on behalf of Chang to overturn pieces of the ballot statement Okuzumi and others signed opposing one-eighth cent sales tax for BART on the November ballot. A hearing would come the next day.

Although the court documents did not say so, the Wellesley-educated Chang works for the Silicon Valley Leadership Group, the industry group whose CEO, Carl Guardino, is the champion of BART. It was Goliath taking on David.

In the end, a judge made modest changes in the opponents' argument. The story is worth telling for what it says about the campaign for the tax. It's hard to blame the opponents for concluding it was an attempt to stifle debate.

Okuzumi didn't get much sleep that night. A meticulous woman who backs up her arguments with reams of documentation, Okuzumi had to find a lawyer, raise money to pay him (at more than $300 per hour) and assemble documents.
Okuzumi was battling a bureaucracy as well as a powerful lobby. The lawsuit had the blessing of Valley Transportation Authority General Manager Michael Burns, who had signed a declaration pointing to alleged inaccuracies.

Judge rules

When the smoke had cleared, Judge Kevin Murphy awarded what was arguably a split decision to the opponents. He let stand their language castigating the VTA for running the least efficient light rail system in the nation. He approved statements saying the agency had cut service, delayed projects and not delivered on prior commitments. Murphy did strike a clause that suggested that the district could save the equivalent of the one-eighth cent sales tax by matching the cost structure of San Francisco Muni's system. The opponents had suggested measuring cost per hour, which Burns said was an inadequate measure.

You don't have to unwind all the intricacies to understand what was happening here. Political campaigns are based on charges and counter-charges. And opponents frequently disagree over facts.

Accuracy

Phil Yost, a spokesman for the Leadership Group, told me that the ballot pamphlet is important and the Leadership Group believes the factual statements have to be accurate. That's unquestionably true. But after examining the paperwork, I'm convinced all the statements fell within the realm of legitimate debate.

"They apparently thought they would stomp all over us just by brute force and paper overload,'' said Okuzumi.

Put it another way: Suppose every charge and counter-charge in a presidential campaign were subject to this vetting. Sarah Palin was against the Bridge to Nowhere? Prove it in court. Obama's plan won't raise taxes on the middle class? Tell it to a judge.

Better reasons exist to oppose the BART tax. It's a very costly system for the number of new riders it is expected to serve. It will suck money from bus and light rail service. This won't be the last tax.

But this little episode gives you insight into the tactics of Guardino, who has shown himself leery of dissent before (He once urged replacement of transit advisory board members who opposed BART).

It also raises questions about VTA manager Burns, who is clearly a partisan rather than just an administrator. Burns told me that he tries to give equal access to opponents of the tax. But one of his filings on behalf of the Leadership Group suit went to 83 pages. Need more be said?

Contact Scott Herhold at sherhold@mercurynews.com or (408) 275-0917.