August 31, 2002

Candidates Mathews, Rotkin withstand challenge

By DAN WHITE
Sentinel staff writer

SANTA CRUZ — A judge has put an end to Aldo Giacchino’s efforts to keep former City Council members Mike Rotkin and Cynthia Mathews off November’s ballot.

Quoting from an Oregon case, Judge Richard McAdams said Friday that the court "should not upset the expressed will of the people on so flimsy a pretext."

The argument came down to conflicting views of a clause added to the City Charter in 1948. It states City Council members, after serving two consecutive terms, can’t run again until two years have passed after leaving office.

The hearing drew so many people that a few onlookers had to sit in unused jury chairs. But the topic of the day might have seemed arcane or dull under different circumstances.

Giacchino, 65, a management consultant and Westside resident, is a candidate for the City Council elections. He said the clause made Rotkin and Mathews ineligible because their last day of office was Nov. 28, 2000.

This charge led to argument about whether the definition of "a year" or "two years" can be slightly different depending on context.

McAdams said the clear intention was to prohibit three consecutive terms.

"It says two years, not four or something else," he said.

He said the law was intended to make council members, after two terms in office, sit out one election cycle.

"One year of course ordinarily means 365 days," he said. "But ... the meaning is dependent on the subject matter and the context. It could mean 365 days, 12 months, an academic year, an annual growing season ... or a political year."

Rotkin and Mathews said they felt vindicated.

"Justice was done," Mathews said. "This was clearly a diversionary tactic, and we can get on with the issues now."

After the proceedings, Giacchino said he has not ruled out filing another lawsuit trying to keep Rotkin and Mathews from serving if they win in November, based on the same two-year stipulation.

Giacchino said the judge’s decision "just continues the business-as-usual kind of situation that we had where the entrenched power structure keeps running serially, one year after the other."

Rotkin said he did not think a possible lawsuit would cloud the election because, he said, McAdams’ ruling all but guarantees such a challenge would fail.

But Giacchino’s lawyer, John Mueller, said there is no interpretive room in the precise language of the charter revision.

City Attorney John Barisone and Alan Smith, who represents Mathews and Rotkin, argued the charter had been interpreted in one way for 54 years, only to experience this first-ever legal challenge. Smith said a 1985 Supreme Court case left "precious little leeway" in making it difficult to vote for a certain candidate.

Mueller replied, "The idea that everybody sort of thought that’s what it meant — I think of my teenage daughter (saying) ‘Well, Dad, everybody’s doing it.’ " Mueller said "the people have spoken clearly" when they prepared the charter amendment. "There is no ambiguity. You have an obligation to further the will and intent of the people."

After the ruling, he said it is incorrect to think of the matter as a technicality.

"If a person needs 200 signatures to be eligible and has 170, is that a technicality?" Mueller said. "If he needs to be (age) 35 to run, is that a technicality?"

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