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Initial Correspondence, dated September 1, from City Attorney Monte Widders to Jeff Furchtenicht in response to filing of the ballot initiatives:

From: Jeff Furchtenicht
Date: September 4, 2006 11:06:36 AM PDT
To: (Monte Widders) xxxx@xxxx.com
Subject: Request to Prepare Ballot Title and Summary

Dear Mr. Widders:

Per Elections Code section 9203(a), your duties in preparing ballot titles and summaries are ministerial. Section 9203(a) does not call for you to render an opinion on the underlying validity of an initiative. Could you please provide some authority supporting a city attorney refusing to timely prepare ballot title and summary on the basis you have asserted?

Please note I am out of town on vacation all this week until the 11th (hence the email), but I will be able to access occasional email, and I expect to be able to respond to your letter on or before the 15th.

Thank you,

Jeff Furchtenicht
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Jeff Furchtenicht
Tel (cell): (805) xxx-xxxx
email:
snailmail: xxx, Ojai, California 93024

From: "Monte L. Widders"
Date: September 6, 2006 11:11:25 AM PDT
To: "Jeff Furchtenicht (E-mail)"
Cc: "Jere Kersnar (E-mail)", "Carlon Strobel (E-mail)"
Subject: City of Ojai/Request to Prepare Ballot Title and Summary
Reply-To:

Mr. Furchtenicht,

Attached to this e-mail is my response to your e-mail of September 4, 2006.

If you have any questions, please do not hesitate to contact me.

Monte L. Widders, Esq.
Myers, Widders, Gibson,
Jones & Schneider, L.L.C.
5425 Everglades Street
Post Office Box 7209
Ventura, California 93006
Telephone: 805:644-7188
Facsimile: 805:644-7390

ATTACHMENT: furchtenicht.pdf (8 pages, 450kb)

From: Jeff Furchtenicht
Date: September 11, 2006 2:41:11 PM PDT
To: (Monte Widders)
Cc: Sue Horgan, Carlon Strobel, Carol Smith, David Bury, Rae Hanstad, Joe DeVito, Cathy Elliott Jones, Jere Kersnar
Subject: Re: City of Ojai/Request to Prepare Ballot Title and Summary

Dear Mr. Widders:

You cite Brosnahan v. Eu as your principal case for the proposition that your pre-petition challenge to my initiatives is appropriate. Unfortunately, you have cited the dissent, which, as you know, is the position that is not the law in California. The majority actually held the opposite, declining to review the substantive validity of the proposed measure and sending it to the ballot. (FN)

Your reliance on American Federation of Labor vs. Eu is similarly misplaced. Nowhere in that case did the Supreme Court endorse the idea that a city attorney has a discretionary authority under Elections Code section 9203(a) to refuse to prepare a ballot title and summary based on his opinion that the underlying measures are invalid. Both American Federation of Labor vs. Eu and Brosnahan v Eu involve post-petition challenges to the measures at issue in those cases. In both cases the legal official charged with the statutory duty of preparing ballot title and summary performed their duties at the pre-petition stage. (Similarly, in Marblehead, your leading case for the proposition that my initiatives are invalid, the city attorney also did not refuse his duty to prepare ballot title and summary.)

Finally, in Jahr v. Casebeer, the county attorney did what you are doing, but the court never addressed, even in dicta, whether the county attorney had the authority to do it. Jahr leaves you with an argument simply that someone else has done what are doing before, without being challenged. As you know, the precedential value of such an authority is weak at best.

The issue is straightforward: Does a city attorney have a well-established discretionary power under Elections Code section 9203(a) to refuse to prepare a ballot title and summary if, in his opinion, there is some defect or underlying invalidity in the proposed initiatives? Under the current state of the law, the answer clearly is no. That being the case, has the City authorized you to refuse your statutory duty and commit the City to first-impression litigation seeking to establish this nonstatutory "right" of a city attorney to, in his discretion, quash initiatives he doesn't like at the pre-petition stage? That is litigation of a Constitutional dimension, easily likely to cost the City in excess of six figures before all is done. It is on an issue wholly unrelated to the City's business, and it is wholly unnecessary. You could just as easily perform your duties, as did the city attorney in your leading case of Marblehead, without committing the City to litigation at this stage.

Regardless, my intention in submitting these initiatives was not to litigate, or otherwise get bogged down in side issues. Instead, I proposed these initiatives because it is clear to me that, as a City, we urgently need to address affordability and the integrity of our downtown. Instead of litigating ancillary issues, can we as a community begin to address the issues raised in the proposed initiatives? Council members have recently expressed their concern over these same issues. City Manager Jere Kersnar, on the day after I submitted my proposed initiatives, did a great job putting together a presentation addressing the O-Hi Frostie situation. I thought his presentation was viewed by all as a very positive step in bringing light to the situation. Instead of litigating, why don't we have the affordability and chains vs. independents issues put on successive City Council agendas, with a presentation by Mr. Kersnar outlining options and making recommendations? I am copying each city council member on this email in the hope that perhaps we can make that happen. While I know the council cannot discuss this absent a meeting (which may be in order to rein in your threatened litigation), I am hoping one or more council members might individually let me know before your Friday deadline whether they might consider the solution I am suggesting. Alternatively, I understand Mr. Kersnar is out this week. I propose we wait until his return and see if we can't find a better solution to this matter.

Regards,

Jeff Furchtenicht

FN: According to the Brosnahan majority opinion: "As we have frequently observed, it is usually more appropriate to review constitutional and other challenges to ballot propositions or initiative measures after an election rather than to disrupt the electoral process by preventing the exercise of the people's franchise, in the absence of some clear showing of invalidity." 31 Cal. 3d 1, 4 (1982) [Emphasis added].

Brosnahan is especially illuminating for the matter at hand because it involves Proposition 8, the so-called Victim's Bill of Rights, which was enacted into law by initiative in 1982. Among other provisions, Proposition 8 contained the following language (now section 28(b) of Article I of the California Constitution), stating a "concept," to use your language, and directing the legislature to adopt legislation effecting that "concept". You will note the language is nearly identical in form to the initiatives I have proposed:

"(b) Restitution. It is the unequivocal intention of the People of the State of California that all persons who suffer losses as a result of criminal activity shall have the right to restitution from the persons convicted of the crimes for losses they suffer ... The Legislature shall adopt provisions to implement this section during the calendar year following adoption of this section." [Emphasis added.]

From: Jeff Furchtenicht
Date: September 11, 2006 2:42:15 PM PDT
To: Sue Horgan, Carol Smith, Rae Hanstad, David Bury, Joe DeVito
Cc: Jere Kersnar, Carlon Strobel
Subject: Initiative Solutions

Ladies and Gentlemen of the City Council:

I write to direct your attention to the last paragraph of my email response to Monte Widders, copied to each of you. I hope one or more of you might let me know individually before Mr. Widders' Friday deadline whether my proposal sounds like a better solution.

Thank you for your attention.

Regards,

Jeff Furchtenicht

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Jeff Furchtenicht
Tel: (805) xxx-xxxx
email: xxx@xxx.net
snailmail: xxx, Ojai, California 93024

From: "Monte L. Widders"
Date: September 12, 2006 4:26:27 PM PDT
To: "'Jeff Furchtenicht'" , (Monte Widders)
Cc: Sue Horgan, "'Carlon Strobel (E-mail)'", Carol Smith, David Bury, Rae Hanstad, Joe DeVito, Cathy Elliott Jones, "'Jere Kersnar (E-mail)'"
Subject: RE: City of Ojai/Request to Prepare Ballot Title and Summary
Reply-To: (Monte Widders)

Mr. Furchtenicht: I decline to litigate this matter with you via e-mail. I would, however, refer you to Legislature v. Deukmejian, (1983) 34 Cal. 3rd. 658, 667 and a rereading of American Federation of Labor v. Eu (at pages 696-697) wherein the Supreme Court, in both cases, adopted and "endorsed" Justice Mosk's standard for pre-election review set forth in Brosnahan v. Eu. Therefore, contrary to your assertion, it is the law in California. I also note that you have thus far failed to address the substance of the holding of Marblehead as it relates to your proposed initiatives. In any event, with respect to your offer of resolution, if you are suggesting that, if the Council were to request that the City Manager place the substance of your initiatives on a future agenda in exchange for you immediately withdrawing the two "Requests", I will communicate that offer to the Council. I would appreciate clarification of you suggestion.

From: Jeff Furchtenicht
Date: September 12, 2006 10:45:14 PM PDT
To: (Monte Widders)
Cc: David Bury, Carol Smith, Cathy Elliott Jones, "'Jere Kersnar (E-mail)'", Rae Hanstad, Joe DeVito, "'Carlon Strobel (E-mail)'", Sue Horgan
Subject: Re: City of Ojai/Request to Prepare Ballot Title and Summary

Dear Mr. Widders:

It is my hope you would decline to litigate this matter at all.

But to answer your question, if the City Council places the substance of my proposed initiatives on an upcoming meeting agenda, so as a city we can begin to meaningfully engage these issues, of course I would withdraw the proposed initiatives. I was encouraged by Mr. Kersnar's Frostie presentation, and I think that kind of approach is a very positive step. I hope one or more council members, and/or Mr. Kersnar, is interested in that, and I look forward to hearing from any of them to make it happen. I don't know that you need to have a role in any of that, but if you do think you can play a constructive role, of course I would welcome that as well.

Regards,

Jeff Furchtenicht

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