Ballot Initiative Update: Jeff Furchtenicht
We Have A Ruling!
Last week, Judge Ken Riley of the Ventura Superior Court granted my demurrer to Monte Widders' complaint, without leave to amend.
Translation: The court ruled that the city attorney's lawsuit on its face fails as a matter of law. The lawsuit never should have been filed, and cannot continue.
I am delighted and relieved. Thanks to Jay Leiderman for his strong efforts so far, thanks to Judge Riley for putting an end to this portion of the case, and thanks to all the members of the community who have supported this fight.
The court did not grant my anti-SLAPP motion, which would have had the same effect of dismissing the case, but requires the mandatory award of fees. There was no ruling on my request for fees, costs and sanctions on other grounds. I am reviewing this aspect of the ruling, and it looks like we still may have to appeal this portion. If so, we are only at the end of the beginning of the legal battle. If we take it on appeal, the city's misguided action may yet be fodder for what may be an important appellate ruling for the right to initiative and anti-SLAPP law.
The ruling also comes too late for the recent election, and too late for meaningful discussions of the underlying issues that could have taken place in the run-up to the election. I understand the city council has voted to put the underlying issues of affordable housing and chain stores downtown on upcoming council agendas in January. I have not been contacted or invited to be a part of this, and to my knowledge, none of the people who have been interested in the initiatives have been invited to be any part of whatever the city council is planning. Whether it is mere window dressing, or a first salvo at serious engagement of important issues, or a platform for us to hear about a new proposed massive "affordable" million dollar-condo development - to be subsidized by the taxpayers in order to defray the downturn in the market? - has yet to be seen.
This has been a painful battle to date, and looks like it unfortunately will continue. The fundamental imbalance of the city supporting Mr. Widders and his team of lawyers with taxpayer dollars - how many we can only guess - while I bear the burden in time, distraction and money I don't have only makes it worse. I hope the time for accountability is beginning. We could start by getting answers to a few questions:
1. How much has the city spent on this lawsuit? What was accomplished? Who benefited?
2. How can we prevent this misuse of our tax dollars and city resources in the future? Will the city at least publicly commit that it will not unlawfully impede initiatives in the future? That it will not authorize lawsuits against citizens who are trying to exercise their rights to participate and petition? Or must we expect more of the same?
3. Who was responsible for this lawsuit being filed? Was it Monte Widders leading an uncomprehending council? Was it the council directing Monte Widders to squash these initiatives despite his better advice? Was it just the blind leading the blind? What happened during the closed sessions?
4. The city council had multiple opportunities to listen and use common sense and responsible judgment to stop this lawsuit. Instead, every word I uttered, verbally during my "three minutes" at the podium or in writing, fell on deaf ears. Every word of the numerous citizens who spoke, wrote letters and editorials, and called, fell on deaf ears. What I told the council from the beginning about this misguided course of action is now coming true, and I expect will continue to come true. How can we get responsiveness in this council? Open ears and dialogue are always the preferable course. How can we make that happen between citizens and council? Are we doomed to debacle from a council that will not hear what is being said, only who is saying it?
5. Two members of the city council are in their seats after voting for this lawsuit, and permitting Monte Widders to seek its continuance beyond the election. Would they be in their seats if the public had the court's ruling before the election? Do we need a do-over? Carol Smith's margin looks large enough to say no with respect to her. But Joe Devito won by less than 80 votes over an attorney who was bound by his professional training, knowledge of the law and common sense to say that this lawsuit should never have been filed and would be dismissed. Joe Devito skated to victory on a public spin that this lawsuit was proper. Does this ruling not sway 80 voters toward the realization that perhaps attorney Lenny Klaif would be better suited to protect the city than Joe Devito? (Does this ruling not perhaps sway Joe Devito himself toward that possibility?)
Finally: Where do we go from here? The city filed a bogus lawsuit, and demonstrated that it will pursue a bogus lawsuit as far as it can rather than engage in dialog. The chilling lesson could be that it is futile to try to participate. I hope by fighting this, and continuing to fight it, that the lesson we all take away - council included - will be just the opposite.
- Jeff Furchtenicht
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Comments (8)
Jeff - thanks much for the article. One small thought - with an 80 vote margin, only 40 "hearts and minds" needed to swing...
Comment #1 Posted by: Tyler | December 6, 2006 03:43 PM
Jeff, it is very unfortunate that this whole event occurred. If there are expenses that you incurred, perhaps there is a way for us to facilitate a little fundraising.
On the topic of chain stores, a citizen working group is being formed and all are welcome to participate (including our elected representatives). If you are interested, send an email to kenley [at] neuhouse [dot] com or call me at 646-4832.
Comment #2 Posted by: Kenley Neufeld | December 6, 2006 04:21 PM
I have a question...
Can anyone explain to me how a judge can rule that a case has no merit but can then turn around and argue that the person's legal complaint which has no merit is acceptable?
A least according to the OVN it sounded as if the judge explained that Widders had the option of ignoring the initiatives all together which means he did not need to seek legal clarification for constitutionality. What are the implications of this? Does this mean if I were a city attorney I could theoretically ignore any initiatives that were submitted to me? Does this mean that the role of a city attorney is to interpret the constitution and then enforce his/her beliefs?
I'm very confused...
Duffy
Comment #3 Posted by: duffy mcpherson | December 6, 2006 10:13 PM
I came away from the OVN article with the same confusion Duffy. The notion that the city attorney is, in effect, an appointed king, doesn't sound entirely right to me.
Comment #4 Posted by: Todd Miller | December 7, 2006 06:16 AM
Jeff: On behalf of myself and many others who I know support what you did and want the same questions that you raise to be answered – Thank You! Your calm, balanced, sensible approach (coupled with your acquired knowledge, expertise and intellectual ability to take this on) has been well received - even in pockets of the community that you wouldn’t necessarily expect. Much theorizing has taken place with respect to the breakdown of the votes and what that implies about this community and its allegiances. Is it perhaps conceivable that (despite recent charges of an unenlightened majority) a certain amount of votes came in not necessarily to protect the status quo but because several candidates (for varying reasons) just didn’t seem palatable to some citizens – just didn’t “do it for them”? My opinion? Had you run along side Lenny, we just might now be looking at a very different City Council. Good luck to you as you move forward!
Comment #5 Posted by: Long Time Ojai Resident | December 7, 2006 08:25 AM
Congratulations, Jeff. I see this as a partial victory for truth and justice, due to your efforts, not the courts. I think the superior court had to grant the demurrer because Widders and the council had gone too far, and threatened the money system itself. Follow the money. The court would not take money away from one of its own, or award someone it dislikes money unless forced to. The court refused to speak to the truth of a SLAPP suit. The court and the council go together like hand and glove.
I'm sorry to be so negative, but I've dealt enough with the court and council to know from experience what their values are. I get some satisfaction from seeking truth, and speaking for justice, but to expect that the court or council has these interests at heart is an illusion they love to hide behind. My role is not to change them, but to change myself, using them as players in the game. I share this because I believe it is painfully true, and we benefit by being realistic. My beliefs are apparently shared by very few. That's OK, because I don't think truth has much to do with public opinion or votes.
I agree with the above comment that you would have made a good candidate, and perhaps made a difference in the election. I remember asking you to consider running. Persons like myself don't "do it" for the majority of voters. I ran in opposition to a system which I believe is harmful to the long term interests of Ojai. Under that system, the majority rules. Fair enough, but persons like yourself can help to change the system. Thanks again, for doing what you are doing.
Comment #6 Posted by: Dennis Leary | December 8, 2006 10:28 AM
Now that the Court has vindicated the justice of Jeff's position when will we be able to vote on these initiatives? I for one am glad to see that the council's ill-advised court action has failed in its effort to keep the people from voting on Jeff's important ideas. And it's nice to learn that we have lawyers like Jeff who are unwilling to walk away and give up when someone like Mr. Widders tries to prevent the people from exercising their right to vote.
Comment #7 Posted by: Laura | December 8, 2006 11:13 AM
Well, there you have it. Widder's lawsuit really WAS without any merit. This despite what the OVN printed in numerous articles and what the entirety of the city council was quoted as saying repeatedly. The upshot is that the city council of Ojai, acting on the advice of the city attorney effectively thwarted democracy. They used a lawsuit that has been shot down by a very conservative court. They went out in public and either lied or were incapable of understanding the facts before them. Does this make anyone else angry! It's only because Jeff had the wherewithal to go to court and keep fighting for OUR rights that we even know to what degree the city council has tromped all over democracy. At the very least, Jeff is owed individual apologies from each of the council members in public. In reality, they should all resign or, since they won't have the decency to do that, they should be recalled.
Comment #8 Posted by: Sean P. Keenan | December 9, 2006 02:25 PM