• OP ED in Mercury by J.R. Fruen

Why is Council Member Scharf still suing Cupertino?

Unbeknownst to many in Cupertino, the legal battle over Measure C continues. Despite the Initiative’s defeat last November, Better Cupertino exponents, including now-Council Member Steven Scharf, and Better Cupertino PAC President, Xiangchen Xu, quietly maintained an appeal of an August court ruling supporting the City Council’s ballot description of Measure C.

However, with the collapse of Measure C at the polls, the substance of this appeal—largely a dispute over the correct interpretation of the Initiative’s text—became moot. No action of any court can now change the words that appeared in ballot pamphlets to affect an election in the past. Yet Measure C proponents persist. In so doing, they waste valuable staff time and drain Cupertino’s resources. Why?

The only plausible explanations should worry every taxpayer and resident of Cupertino: a desire for vindication, and a wish to claw back misspent attorney’s fees. It should shock the conscience that a group claiming to represent “the residents” of this city (let alone a sitting Council member) should exact further costs on Cupertino for no meaningful purpose beyond fueling Better Cupertino’s Political Action Committee and burnishing the vanity of its leaders. No reasonable person should accept this abuse.

Some Better Cupertino figures justify the ongoing court case by claiming that the city has protracted the litigation through its refusal of the group’s settlement offer. Better Cupertino exponents already lost three distinct legal disputes involving the meaning of Measure C. Why then should the city give over on litigation it can reasonably expect to win, especially when the terms of the putative settlement offer remain publicly unknown?

Furthermore, examining the Court’s docket reveals that the Better Cupertino appellants—not the city—have taken almost every opportunity to prolong the litigation. Most recently, they requested a two-month extension to file their opening arguments. At one point, the Court had even dismissed the case for failure to meet a filing deadline and the Better Cupertino appellants petitioned to set that dismissal aside.

These same figures also oddly protest that the city drags out the lawsuit to legally shield information illuminating how the ballot description arose. This explanation crumbles under minimal scrutiny. If Better Cupertino honestly wants the litigation to cease, then those prosecuting this suit could hasten its end by simply filing to abandon their appeal. Whatever impediment the case caused would vanish with it. Even so, the Public Records Act and other provisions of California law protect much (if not all) of the information Better Cupertino exponents might seek long after such litigation resolves.

Mr. Scharf recently voted against a $25,000 educational speaker series on development matters for the community, yet he and his fellows seem perfectly happy to waste Cupertino’s money on pointless litigation. If they care more about Cupertino than being right, then they should terminate this crusade now, or voluntarily and fully reimburse the public coffers if they lose this appeal.

J.R. Fruen

Cupertino resident