August 27, 2002

Candidate’s challenge to be heard

By DAN WHITE
Sentinel staff writer

SANTA CRUZ — A City Council candidate is getting his day in court to present his claim that former mayors Cynthia Mathews and Mike Rotkin can’t run for re-election to council in November.

Aldo Giacchino, 65, a management consultant and first-time candidate, has made good on his threat to seek legal recourse if the city denied his challenge to Mathews’ and Rotkin’s eligibility based on city charter limitations. Superior Court Judge Richard McAdams is set to hear Giacchino’s case Friday morning.

City Attorney John Barisone criticized the scheduling, saying Friday’s date gives him insufficient time to prepare a brief.

"Mr. Giacchino has been talking about (filing suit) since near the beginning of August, and filed on Aug. 26, and all of a sudden we have to be ready for trial," Barisone said Monday. He said Giacchino faxed in more than 30 pages of material Monday afternoon.

Giacchino, who could not be reached to comment, maintains Rotkin and Mathews can’t run because of a clause, added in 1948 to the city charter, saying an elected official who serves two consecutive terms is ineligible to run until at least two years have passed since the end of the politician’s last term.

The charter language is vague in this respect. It doesn’t say if it has to be at least two years to the day, or if "two years" can be interpreted in a more general way.

His challenge has triggered a debate, with some residents accusing him of meddling with democracy, and others praising him, saying he is forcing the city to live by its own rules.

Dan Haifley, executive director of O’Neill’s Sea Odyssey and a former staff worker for retired state Sen. Henry Mello, said Giacchino should let the voters decide whether Rotkin and Mathews deserve another term.

On the other side is paralegal and Felton resident William Rupert, who sent out a six-page, widely distributed letter based on research at the local law library. His letter asks Rotkin and Mathews to withdraw from the election.

If Rotkin and Mathews are forced out, Councilman Tim Fitzmaurice, a former mayor, would be the only candidate with both widespread name recognition and years of service in city government.

Rotkin and Mathews have hired a lawyer, Alan Smith, the city attorney for Watsonville, to represent them in the court case.

"John Barisone will be arguing the city is interpreting is charter correctly," Mathews said. "What we will be arguing is our rights to run as candidates should be defended as broadly as possible."

Mathews said she and Rotkin "entered in good faith based on past community practice."

She said they had every reason to be confident that they were eligible. "There was absolutely no reason to think otherwise. Other candidates have done this on numerous occasions without challenge. It is done in other cities."

She also accused Giacchino of introducing an early taste of negativity and division to the November elections.

Rotkin could not be reached to comment.

According to a letter-of-the-law interpretation of a year as 365 days, Rotkin and Mathews can’t run because the election is Nov. 5, and their last days in office were Nov. 28, 2000. But the city has maintained the intent of the law was to make a politician sit out one election cycle after serving two terms.

The City Attorney’s Office referred, in part, to a 1914 appellate court decision regarding a county’s right to hold a referendum on the sale of ‘‘alcoholic liquors" a few days short of two years after a similar referendum was held. The county’s right to hold the second referendum was upheld in the court of appeals.

Giacchino has maintained this is an irrelevant comparison and that the city is trying to interpret the law on the spot to serve its own purposes. Barisone said the case is relevant because the appeals court allowed the second referendum to be held based on the idea of a political year that doesn’t have to be exactly 365 days.

Paul Sanford, a lawyer who has been involved in various political causes, including the 2000 election campaign of then-district attorney Ron Ruiz, said he believes a court decision on the case could go either way. He predicted Giacchino’s challenge would fail, because the court would defer to Barisone’s judgment, "but that doesn’t mean it is not without merit."

One problem with the city’s denial, he said, is that the 1914 case is "not exactly on point." He said the 1914 case is about the time period between two elections, while the challenge to Rotkin and Mathews’ eligibility has to do with the time elapsed between the end of term and an election.

"It’s not apples to apples," Sanford said.

Giacchino is not the first to challenge a candidate’s eligibility based on the 1948 charter clause. It happened to Joe Ghio back in 1985, but the City Attorney’s Office gave him the go-ahead to run after citing the 1914 case.

Contact Dan White at dwhite@santa-cruz.com.