A motion of when a transportation tax measure could be on the ballot might be heard at the B. F. Sisk Courthouse in Fresno, seen here in a 2021 photo.
JOHN WALKER
jwalker@fresnobee.com
California Attorney General Rob Bonta has forced out the judge set to decide whether a Fresno County transportation tax measure will be on the Nov. 3 ballot.
Bonta’s office filed a motion to disqualify Fresno County Superior Court Judge Robert Whalen from deciding a lawsuit about the fate of Measure S, a proposed countywide transportation tax. But Whalen’s successor may be short-lived.
The case now goes to Judge Virna Santos, who has a connection with the legislator who wrote the law in question, and other supporters of the measure.
Fresno County Board of Supervisors Chair Garry Bredefeld said the county will also file a motion to disqualify Santos, the new judge..
Fresno County and two other plaintiffs sued the state, the Fresno County election clerk and supporters of a transportation tax measure slated to be on the ballot. The county said a law passed specifically to set the timing of the election, AB 1923, violated the county’s rights.
Bonta, representing the state, asked for a judicial change, as allowed by law.
“My client, or the other attorneys representing my client with me believe that Judge Robert M. Whalen, Jr., is prejudiced against the Defendant, or the interests of the Defendant, so that the Defendant cannot, or believes that it cannot, have a fair and impartial trial or hearing before such judge,” Deputy Attorney General Derin McLeod wrote, on behalf of the state.
The motion does not detail why the state believes Whalen is prejudiced against them.
Measure S, also known as the Better Roads, Safe Street plan, would establish a half-cent sales tax countywide, dedicated to transportation projects. It would replace Measure C, the transportation tax on the books since 1987, but expiring June 30, 2027.
Currently on the Nov. 3 ballot, Fresno County believes it should be on the March 7, 2028, ballot, instead. The supervisors passed a motion to place Measure S at the later date. A recently passed state law took away the supervisors’ ability to set the date.
The first hearing in the case has not been set. The lawsuit mentions a Sept. 9 milestone when ballots must go to the printers to be sent to overseas voters and members of the military.
Fresno County Superior Court Judge Robert M. Whalen Jr. SPECIAL TO THE BEE Santos assigned case
Santos is now the judge of record.
Prior to her 2022 appointment to the bench by Gov. Gavin Newsom, she represented four Fresno City Councilmembers — Miguel Arias, Nelson Esparza, Tyler Maxwell and Esmeralda Soria. At the time, the Fresno County District Attorney’s Office investigated the four councilmembers for violations of the Brown Act, the state’s open meeting laws.
No charges were filed. Arias, Esparza and Maxwell still serve on the Fresno City Council, all voting to support the Better Roads, Safe Streets plan. Soria, now a state assemblywoman, wrote the legislation that is the subject of the lawsuit.
Whalen won a 2022 election to the bench. Prior to becoming a judge, he served as a prosecutor and Clovis city councilman.
There are at least four sets of attorneys in the case. Brian Hildreth, based out of Sacramento, is the lead attorney for plaintiffs Fresno County, Fred Vanderhoof and Mike Der Manouel Jr.
Bonta’s office is defending the state. Gary Scott Winuk and Stephen J. Kaufman of Sacramento are defending Fresno County Clerk/Registrar of Voters James Kus.
Olson Remco LLP, a Sacramento firm, is representing the proponents of the measure — Fresno County Residents for Better Roads and Safe Streets, Fresno Mayor Jerry Dyer, Clovis City Councilwoman Lynne Ashbeck, Veronica Garibay-Gonzalez of the Leadership Counsel for Justice and Accountability, and supporter Joan Eaton.
The four attached their names to the paperwork in January submitted to Fresno County to collect signatures to place the item on the ballot and so were named in the lawsuit.
Advocates for Better Roads, Safe Streets hired Olson Remco to lobby the state legislature to pass AB 1923.
Virna L. Santos State of California
The Fresno Bee
David Taub joined the Fresno Bee in 2026 after reporting 10 years for digital publication GV Wire. He has worked in the Fresno market since 2007. Prior to moving to the Central Valley, he worked for TV and radio stations on the Central Coast. He has also worked behind the scenes in local TV and radio. During his career, he has covered City Hall, the state Capitol, the White House and several houses of government in between. When not in a reporting capacity, he works tracking stats for the Fresno Grizzlies as an official scorekeeper, and also with televised basketball and football games. He has worked the Super Bowl, NBA Finals, and several MLB games. Growing up in the San Francisco Bay Area, Taub is a die-hard Giants and 49ers fan. He graduated from the University of Michigan with dual degrees in communications and political science. Go Blue!