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Repeal SMART Appears Short of Referendum Goal

About 15,000 signatures would be needed at the minimum to force a voter referendum in Marin and Sonoma counties to stop funding for a passenger rail project, but only 5,471 were turned over in Sonoma County. The number is unknown in Marin until Monday mor

Repeal SMART, which hopes to cut off taxpayer money to the upstart and controversial Sonoma-Marin Area Rail Transit system, turned in 5,471 signatures to the Sonoma County Registrar of Voters office Friday afternoon and an uncounted number with the registrar in Marin County.

The referendum campaign needs a minimum of about 15,000 verified signatures to have a remote chance at eliminating a 20-year, quarter-cent sales tax increase in the two counties that funds the SMART system, which is targeted to deliver passengers between Santa Rosa and San Rafael by 2015 or 2016.

Elainne Ginnold, Marin's registrar, said the Repeal SMART organizers showed up at 3:40 p.m. Friday, too late to start counting and nail down a raw, unverified number of signatures.

"Quite a few of our staff finishes their day at 4 p.m., so we will start counting at 9:30 on Monday," she said.

In Sonoma County, assistant registrar Gloria Colter said Repeal SMART turned in 5,471 signatures, meaning the Marin petitions would have to have at least 9,529 signatures and then both counties would have to bat 1.000 in the verification process. In most referendum efforts, initiative organizers turn in many thousands of signatures more than that are required to compensate for a percentage of unverified signatures.

The SMART board of managers will determine how many verified signatures are needed to have them vote on placing a voter referendum on the ballot in the two counties. Repeal SMART has maintained that the minimum number of verified signatures would be about 15,000, but SMART General Manager Farhad Mansourian has said legislation shows it would need to be closer to 40,000.

Colter said Thursday that one of two formulas would be used — five percent of the number of voters in the last gubernatorial election (roughly 15,000); or 10 percent of registered voters in the last general election (roughly 40,000). The SMART board would determine that figure at an upcoming meeting.

"It is what it is," Repeal SMART's Clay Mitchell said Friday. "They're (the Sonoma-Marin Area Rail Transit district's board of directors) not going to call an
election anyway regardless of how many signatures were returned."

RepealSMART could take the issue to court, he said.

Ginnold said no verification of signatures would take place unless there were at least 15,000 signatures between the two counties.

Repeal SMART founder and treasurer John Parnell of Novato that "From what everybody said, you need 19,000 or 20,000 (unverified signatures) to be safe, and that 18,000 is just too close. We're going to be close. I don't know. I'm just really proud of the volunteers who worked so hard."

If the raw count exceeds 15,000, the registrar offices would have 30 days to verify the signatures.

Repeal SMART wants voters to vote again on the sales tax measure, which was approved in 2008 when the rail line and bike and pedestrian pathway was to run 70 miles between Cloverdale and Larkspur. The district has divided its plans into phases because of funding shortfalls, saying the rest of the line and pathway would be built when funding becomes available.

The SMART board a $103.3 million construction contract for track, bridges, station platforms and grade crossing along the 37-mile initial operating segment of the line between Guerneville Road in Santa Rosa and the Marin Civic Center.

Check out this story from the for more reaction and comments. Here's another from the Santa Rosa Press Democrat.

— Bay City News Service contributed to this report.

John Parnell January 29, 2012 at 01:02 AM
Susannah - Barry is correct. The Registrar wanted to start at 8:30-8:45, but I drop my daughter at school at 9, and she said she would wait for me, and if I wasn't there by 9:30, would start the count. Elaine was just being considerate. I have been very impressed with everyone who works at the Registrar of Voters offices of both counties. When SMART tried to blatantly steal the election by violating CA election law, it was the Sonoma Registrar who brought in her boss to stop Farhad from stealing her job. My only gripe is that when the registrars abdicated their authority to SMART in regards to letting SMART deem the sufficiency of our petition, they all but ensured that our petition would probably never get out of court. By deflecting that decision, SMART's illegal ordinance requiring us to include their "objective" summary falls into play. The Registrars told us that they wouldn't accept our signatures if we attached SMART's illegal summary; but then gave their authority to SMART to determine if our petitions were sufficient - not just the count, but all aspects. So if we had turned in 100,000 signatures, SMART still wouldn't have put it on the ballot as it lacks their summary, leaving the burden to sue on us. And since Farhad has already publicly stated that he would "take us all the way to the Supreme Court & beat our ass", before letting us vote - how long would it have been before we could have had that election?
Kevin Moore January 29, 2012 at 01:11 AM
Hi Eleanor, we met at a Novato City Council meeting and again at a SMART meeting. I was hoping you would be a council member at this time. People keep talking about more house, more lanes on the freeway, as if it is an endless cycle. The population growth has stopped. That usually puts the fear into politicians as they don't know how to deal with it. http://www.google.com/publicdata/explore?ds=kf7tgg1uo9ude_&met_y=population&idim=county:06097&dl=en&hl=en&q=sonoma+population#ctype=l&strail=false&bcs=d&nselm=h&met_y=population&scale_y=lin&ind_y=false&rdim=state&idim=county:06097:06041&ifdim=state&hl=en&dl=en
Tina McMillan January 29, 2012 at 04:51 AM
Bob I know you care about Novato and about getting a commuter rail established in Marin and Sonoma but your assumption that the folks gathering signatures for Repeal SMART are not doing enough to turn things around is flat out wrong. In fact, Toni is one of the most productive, civic minded people I have ever met. Toni Shroyer, one of the signature gatherers for repeal SMART and a community activist, was voted Novato Patch person of the year for all her efforts to help Novato including: Pennies for Police Dogs, advocating to make Wyndover safer for residents, reporting Brown Act violations, supporting a fiscally sustainable housing element by questioning affordable housing quotas and density requirements, painting over gang graffiti, picking up discarded shopping carts and the list goes on. Toni is not alone in making Novato a safer, saner place, many of the signature gatherers are also civic minded people who care enough to walk their talk. The Repeal SMART effort isn't about nay sayers or NOvatoers; a lot of these same people voted for SMART in 2008 because they thought they were getting a well managed commuter train. Questioning how the money is being spent when the plan takes on a completely different vision is a valid concern. Whether they have a sufficient number of signatures to put it to a vote or not is irrelevant. The issue is respecting their right to bring this issue back to the people.
Robert J. Cleek January 29, 2012 at 11:11 PM
Tina, Ms. Shroyer may well be the "Mother Theresa of Novato," but that has nothing to do the issue of whether disgruntled voters can perpetually stall the decisions of 70% of an electorate because they can't accept the outcome of our electoral process. While there is no question that its original incompetent management and an unforeseen ecomomic recession got SMART off to a rocky start, its perpetual opponents, who aren't opposed to transit, but really just to development, have played on the inflamed fears of the uninformed. It's called propaganda and it works only when voters are susceptible to manipulation. They have not been honest. Repeatedly. If we read these blogs, we see folks parroting the same misinformation over and over again. How many times do people have to be given the hard statistical facts that SMART already meets the density requirements of regional agencies. (Isn't the fact that MTC gave it millions proof enough that it does?) Their basic premise is that "They aren't giving us what we voted for, so we should get to do it over again." That's not true at all. Looking at it from the other direction, WE HAVEN'T GIVEN SMART WHAT WE PROMISED because we aren't spending what we used to spend when the quarter cent tax was proposed. That is, of course, no better reason for SMART to demand more tax from us than for us to throw the baby out with the bathwater simply because it has to be built in phases to remain affordable.
Stinky January 29, 2012 at 11:13 PM
Umm; Isn't that for the Town of Novato to do?
Robert J. Cleek January 29, 2012 at 11:23 PM
Continued: There are those still carping about "when the freight trains come..." They've been running every other day for months now and people don't even notice them. Nobody seems at all impressed by the fact that if the sales tax were repealed, we would STILL have to pay for the $100 million in contracts already let, $80 million of which were let before any opposition inititiatve existed. Stop-SMART isn't going to end the tax for a long, long time to come. Personal attacks on Mr. Mansourian, a long-time Novatan himself, betray a mean-spiritedness that is most unbecomming. Frankly, he's the best hope we've got for an efficient transit system. (The first thing he did when he took the job was demand complete accountability. He pulled the accountings together and published them for all of us to see!) Make no mistake about it, the population will continue to increase north of Novato, if not in Novato itself. Novato sits astride the 101 "transit corridor" and that freeway is going to remain a perpetual construction zone, adding lane after lane, and Novato hasn't a thing to say about that. A rail system is about the only alternative to more freeway lanes and its impact on our daily driving will be negligible. (We're talking two more stop-lights, at Olive and Grant, where on rare occasions, might delay us for less than a minute.)
Robert J. Cleek January 29, 2012 at 11:39 PM
Continued: But really, the most disturbing thing about the opposition to SMART doesn't have anything to do with SMART or transit at all. While nobody wants higher housing density in our community, the not-so subtle message that "density lets the riff-raff in," delicately put, is disgusting. Instigating fears of "illegal alien drug gangs," as one city council candidate's posters blatantly did, or equating all low income housing with increased crime statistics, borders on racism. It's a good thing to keep poverty out of Novato, but not a good thing to accomplish it by keeping poor people from moving here. Poverty is only solved by opportunity, and never by exclusion, which only concentrates and promotes it. Jobs prevent poor people, not initiatives that seek to "keep things just the way they are." I remember Novato before it even was a city. I'm betting darn near all these folks who are screaming the loudest about "density" are living in houses that were built since then. I don't think there is really any more room to build in Novato, or in Marin at all, save for some in-fill here and there. It isn't like anybody's going to be building another San Marin or Bahia anytime soon. Does Novato want to make its town motto: "Go away! We don't want your type here!?" I would defend anyone's right to bring an issue before the people, but I oppose pandering to fear, distrust and elitism to do so. However "civic minded" people may be, they have to "get their minds right."
Robert J. Cleek January 29, 2012 at 11:58 PM
It's all sort of like going to the beach on a sunny day. You there early because you want to get a "good spot." You find a nice spot and you set up your blanket and umbrella. Over time, more people who didn't get up as early as you did arrive and pitch their blankets and umbrellas a respectful distance away. Of course, as more and more arrive, the "density" increases and the distance between blankets decreases. Then, sometime in the early afternoon, since they alway sleep in, the teenagers arrive and start playing frisbee and football and crashing into people's umbrellas and kicking sand on their blankets. You have three choices: 1) You can go complain to the lifeguard or beach park ranger who will tell you they have just as much right to the beach as you do, 2) You can move your blanket and umbrella farther up the beach from the parking lot where it's not so crowded, or 3) You can remember when you were a kid and everybody over thirty thought you were obnoxious, smile at the thought of the fun they are having, too, and go back to reading your book. I think Novato's a lot like a beach on a sunny day. I think SMART provides us all away to get up and down the "beach" easier, making for a lot more "beach" and a lot less "density." "Your mileage may vary," as they say, but more often than any of us wish to admit, the best response to a challenge is accommodating the inconvenience... "Changing what can, accepting what we cant, knowing the difference" and all that.
Tina McMillan January 30, 2012 at 02:35 AM
Bob First, it took several separate elections to get the totals required to fund SMART. So now you say the Repeal SMART folks have no right to one election to question the changes made to the project. You can't have it both ways. Second, as far as Toni goes, you implied that the people working to Repeal SMART would do better spending their time to improve Novato. Well many have and continue to do both. Give them credit and stop assuming they are only naysayers. Third, I can accept your support for this project but not your unwillingness to allow the question of how it has been changed brought back before the voters. Many people did not vote for SMART in any of its recent incarnations because the numbers were flawed. I am not surprised that we have a much scaled down project with a longer time line. This has nothing to do with the downturn in the economy. From the beginning SMART supporters underestimated and misrepresented the costs associated with this project. Finally, I get that you want rail, that you believe in rail and that you are unequivocal in your belief that SMART, under the management of Farhad, is the way to go no matter what. This belief does not give you the right to condemn the process of using initiatives or referendums. I can appreciate other aspects of your argument but not your dismissive and derogatory attitude toward the folks behind Repeal SMART.
Alex Zwissler January 30, 2012 at 02:57 AM
Robert Creek...thank you so much. I'm with you 99% (won't even bother with my quibble)...I've been trying to muster the emotional energy to write my farewell piece to the Repeal folks, as I've commented on this issue over the last several months in support of SMART. You did it for me, and I just love the beach analogy. I don't really expect they will go away ("the new petition drive starts tomorrow!!), but I am now convinced they will never prevail. My thanks to the many folks on both sides of the issue who calmly and clearly expressed their opinions on these and other local pages. I hope the project will benefit from some of the input. To the anonymous ranters...meh, thanks for the laughs. Glad it's over...I'm off to other things.
Alex Zwissler January 30, 2012 at 03:22 AM
...sorry, Robert Cleek, not Creek...again thanks
Stinky January 30, 2012 at 05:22 AM
Yes, thank you VERY much Robert Cleek. A very well put analogy. No we can say goodnight to the repealers, may they live in peace.
Ellen Beck January 30, 2012 at 04:12 PM
I say beware of anything labeled "smart". Hmmm, post office "in the red", muni "in the red", Amtrack "in the red"..guess the stupid "smart" train will be added to the list. People need to see the $$ this will cost for what? So people can go shopping? Who's going to take it to work? They would have to drive to the station and take a bus after getting wherever..oh I know, they will bring their bike!!Yes they want to build low-income, cluster housing next to the stations...will take people's property stating the property is "blighted". CA is bankrupt we don't need this train!! Buses running on natural gas (yes, we have our own resources!!) that's a great idea!
Baxter January 30, 2012 at 04:42 PM
According to the I.J. this morning, SMART has yet another big "kink" to deal with. Whistlestop has filed a complaint against SMART and this is probably just the beginning of many lawsuits still to come. Beryl Buck would be rolling over in her grave if she knew there was the slightest chance of a negative impact on the Whistlestop facility and its services. No matter what anyone says, most of the elderly (especially the disabled) will not be using SMART on a regular basis. The train will not get them to doctor appointments, shopping, etc. The elderly will not be transferring from a train onto a bus, back onto a bus and back onto a train, etc. Whistlestop provides door to door service for every senior in Marin regardless of income. Aging bodies and broken hips are not income specific. SMART needs to bend over backwards and bend their rails if need be to accomodate Whistlestop. This non-profit service to our elderly cannot be thwarted in any way, shape or form.
Lee January 30, 2012 at 05:38 PM
Lemme tell ya, if you ever had to actually ride the commuter bus on a regular basis, you would never advocate for more!
Robert J. Cleek January 30, 2012 at 06:56 PM
Tina, I strongly support anyone's right to bring something to a vote using the initiative process. What bother's me is the huge amount of disinformation that was used in an attempt to sway the voters. I oppose this tactic whether it involves a little 70 mile transit system or the election of the President of the United States. Pew research says 12% of Americans still think Obama is a Muslim. The disinformation opposing SMART is no less erroneous. I have no intention to criicize Ms. Shroyer at all. I'm sure she is a nice person. I don't believe all SMART opponents are naysayers. I have my own criticisms of how SMART has been managed until recently, I do believe that, politically speaking, this "grass roots" opposition to SMART was amateurish and half-baked. They didn't have their facts straight to begin with, not did they honestly research the issues. Most significantly, had they proposed some constructive alternative, I believe they would have been much more successful. I agree completely that SMART initially failed miserably in addressing the costs associated with the project. I also feel that it was extremely irresponsible in tagging a 70 mile bike path onto the project as a carrot for the "greenies." While bike paths are great recreational resources, nobody is going to ever use a 70 mile bike path to commute between Marin and Sonoma. I strongly endorse Mr. Mansourian because I know him to be a highly competent and extremely honest manager.
Robert J. Cleek January 30, 2012 at 07:10 PM
When Mr. Mansourian was offered the job overseeing SMART's construction, a position for which he was highly qualified, he did not jump at the offer, but rather told the SMART board he had condtions which would have to be met. His first condition, if he were to take the job, was that SMART had to become completely and totally transparent. The board accepted this and the first thing he did was to collect and audit all SMART's accounts and projections. Then he published it all for us to see. That was a major step forward in correcting past management shortcomings. Finally, as I have said before, the essence of the opposition's position was quite clearly NIMBYism, elitism, and unenlightened self-interest. Attempting to convince people of one's position by appealing to their baser instincts isn't much to be proud of in my book. And, it's quite apparent that even in that, they weren't honest in their assertions. The low point had to be Mr. Parnell's assertion in a recent Patch article that SMART had officially started a formal program to hassle signature gathers with "thugs." When confronted with a demand for proof of that most serious allegation, he backed down and waffled, but he wrote what he did and that can't be denied. Enough of cheesy politics. The stakes are too high. We'll see more of it though. This is a Presidential election year. By the time it's over, we'll hear a year's worth of smutty lies about the candidates to sway the "airhead vote."
Robert J. Cleek January 30, 2012 at 07:21 PM
Yes, and from the IJ report, Whistlestop must be "out to lunch." Where were they when the EIRs were published years ago? They've been counting spaces they park in on the SMART right of way for years, now they won't be able to park on the railroad right of way and will have to find parking spaces elsewhere. This is grounds for a lawsuit forcing SMART to buy their building from them? I'm afraid the lunatics are running the asylum!
Tina McMillan January 30, 2012 at 08:09 PM
Bob I wrote Judy Arnold about the confrontation at Costco and there were indeed SMART supporters that attempted to interfere with the signature gatherers. Regardless of their reasons it was not appropriate to use this venue to debate SMART. It is up to individuals to vet the information from ProSMART and RepealSMART sources. If Mr. Mansourian wants to mend fences and create trust then collaborating with RepealSMART would make a difference by focusing on how this project can meet its financial goals and in the long run be managed with a reasonable budget since this will be a permanent tax payer funded expense. You're comments about growth in Marin, particularly Novato and San Rafael, are not accurate. Please read ABAG's, OneBayArea plan, and note the housing element and the mandated increases. Regional agencies are made up of representatives from cities and counties. The power of regional agencies to interpret legislation like SB375 is enormous. This is why I continue to post links to the history of the various agencies along with specific data from their websites. You can't deny what they themselves say about increasing housing along a transit corridor that includes SMART. This isn't about NIMBYism it is about being fiscally accountable for growth that will occur. This should all be a part of Novato's general plan which hasn't been updated since 1996 due to the inability to pass a housing element that was acceptable to the community at large.
Tina McMillan January 30, 2012 at 08:09 PM
continued Repeal SMART is made up of individuals that voted for SMART in 2008 only to discover that they had been "misinformed" about actual costs. Mr. Mansourian has a lot of work to do to make up for the mistakes made by the board and others that felt compelled to underestimate costs in order to get SMART passed.
Robert J. Cleek January 31, 2012 at 04:20 AM
Tina, I know there were people who hassled signature gatherers. What I criticized was Mr. Parnell's statement in this Patch that it was part of a "formal" program instituted by SMART. SMART is a government agency and if such an allegation were true, they might as well have been Brown Shirts. Turns out, there's no proof there was any connection to SMART at all. It was just some rude individuals. I know these grandiose planning schemes are nightmarish. They just love to publish "plans" telling us what it will all look like in 25 years. Fact is, Marin's population is leveling off and heading downward. Few who have kids can afford to live here. (Note the NUSD enrollment.) Marin is pretty well "built out" at this point. "Density" is where the battle will be. We have to take a strong stand in favor of local self-determination. That said, SMART doesn't have anything to do with it. We already have the density required for funding SMART, as evidenced by the millions MTC paid. However much we'd like to limit growth, there has to be some balance involved. Low density is a good goal, but it has to be profitable for people who are trying to sell their property. If somebody owns a (rare) patch of buildable land, they do have a right to sell it for the highest and best price. Limit density and you push that price down. When an area has low density, it becomes desireable and prices go up. Where is the balance point?
Robert J. Cleek January 31, 2012 at 04:30 AM
Remember, without SMART, that "transit corridor" is 101. How much more freeway can they build before Novato becomes another "wide spot in the freeway?" Remember that ABAG is an association that Novato's council, who we elected, decided to join. If we don't like ABAG;s attitude, we can simply elect council members who will tell ABAG where to get off. Sure, maybe we will have to pay a bit more in local assessments to keep the potholes filled, but the trade off will be worth it. When pressure is applied to increase density, the answer is push back. Shutting down a transit system that relieves the congested artery running through town doesn't solve anything. I don't see how SMART "misinformed" the public when the sales tax projections at the time were entirely accurate. The recession was a surprise. Why are people so up in arms about a relatively small tax that nets us a transit system while they are silent about the billions and billions that have been, and continue to be wasted on Dubya's Folly in the Middle East? It isn't like we aren't getting what we voted for, it's simply that it is going to take a while longer to pay for it. In the meanwhile, building what we can makes good sense. Already, SMART has made up for millions and millions in sales tax shortfall by taking advantage of the decrease in construction and bond interest costs. It makes no sense to wait until prices go up again so we can "afford" to build it.
Robert J. Cleek January 31, 2012 at 04:33 AM
Finally, Mansourian certainly does have his work cut out for him, which is why he is worth what he is being paid. It pains me to know how much work he has put into making SMART's information accurate and transparent, which it certainly wasn't before he came on board, only to find himself the butt of all sorts of unfounded criticism. Do people realize he told the board he would not take the job unless the books were wide open for everyone to see? When he was hired, he did just that. The critics should be aplauding him.
John Parnell February 08, 2012 at 02:50 AM
Robert - I just saw these comments of yours. Excuse me? What you are saying about me & the blocking campaign is totally untrue. It happened. The "low point" is the fact that it actually did happen. I'm truly disgusted that bully tactics like this occurred. I'm embarrassed that SMART supporters felt the need to engage in such undemocratic behavior. The end doesn't always justify the means. Farhad inadvertently began the campaign, when he repeatedly called Toni Shroyer a "liar & trust-fund baby" in front of the Novato post office. Bill Scott, also of Novato, physically came between petition signers & our petition in front of Costco, to the point that police had to be called. Personally, I like Bill - he's not just with the sheet metal workers union, but he's a friend of my Dad - but he BROKE THE LAW. Ben Boyce bullied & harassed one of our volunteers to tears, until she left the farmer's market. I think what you mean about me "backing down" is that I clarified that SMART was not itself orchestrating this campaign. It was managed by Lisa Maldonado of the North Bay Labor Council, Ben Boyce, and Steve Birdlebough, President of the Friends of SMART. They sent paid "blockers" to Marin from Sonoma. It is fact, and it is repulsive. You are right about our effort being amateurish, and that is why we didn't get enough signatures - not that the support wasn't there. But that's about it. (and I'm still looking forward to that beer one of these days)
LongTimeLocal February 08, 2012 at 03:57 AM
Yes, let's run it, but when there's no money to operate it shortly afterwards, do we get to vote again? It is actually one of those things that would raise my house value due to the location (well, it would be if the stations sold to us got actually built and it went somewhere useful for a decent number of people). Trouble is there's no thought gone into the operating costs so what happens when there's no money to run it?
Mark Schoenbaum February 08, 2012 at 04:22 AM
Of course you will get to vote again. You will get to vote for even more taxes!
Bob Ratto February 08, 2012 at 04:46 AM
Or you could always move to Sonoma...on the right side of Broadway just before the square, there is a railroad there that has been operating for many years..Train Town. About an equal projected impact on the commute.
Edwin Drake February 08, 2012 at 04:56 AM
Train Town is THE BEST! Anyone see today's IJ with county floating balloon for additional sales tax to help preserve ag and open space land? This was in the works and was ready to go when SMART tax knocked it off ballot, as powers that be felt two taxes would never get approved and they'd both lose. But it's back!!!
Bob Ratto February 08, 2012 at 05:19 AM
E Thanks I missed that. I vaguely remember that, and now it will be back. Funny how everyone at the BoS was so cryptic about it...so it will go SMART, then Parks, then SMART for our implemented and future taxes. Hoboville, here I come!
Robert J. Cleek February 08, 2012 at 09:29 PM
Hi John. I don't doubt people interfered with petition passers. My reference was to the allegation that SMART officially started a "formal campaign" of harassment. That was, I believe, the language you used. That caused me great concern, which abated when you clarified that it wasn't an official SMART activity. I don't condone harassing anyone and particularly not in the exercise of their civil rights. That said, when issues are passionately debated, particularly issues which have a direct bearing upon people getting work in an huge recession, it isn't surprising that signature gatherers aren't always going to get a friendly reception in the public square. Organized labor was exercising its rights when it expressed opposition to the repeal initiative attempt. I think it is a sorry commentary on the process when one side has to hire "paid blockers" to make it difficult for the other side's "paid signature solicitors," but I don't see anything wrong with the opposition positioning its proponents at the "point of sale" to pitch not signing a petition so long as each respects the other's right to state their position. I can't comment on Mr. Mansourian's alleged comments to Ms. Shroyer because I wasn't there, but, generally speaking, since Ms. Shroyer has apparently made herself something of a public figure hereabouts, she can't complain when she is taken as fair game for criticism.

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