And the Victim is…
The SLAPP suit initiated by the city of Ojai against Jeff Furchtenicht as a means of intimidating a citizen from participating in their government has come home to roost with the announcement that the ACLU has joined the case on Mr. Furchtenicht’s behalf. SLAPP stands for strategic lawsuit against public participation. The acronym was coined in the 1980s by University of Colorado professors Penelope Canan and George W. Pring to describe a form of litigation filed to intimidate and silence a less powerful critic by so severely burdening them with the cost of a legal defense that they abandon their criticism.
In the words of Peter Eliasberg, managing attorney with the ACLU of Southern California, “We think it’s a SLAPP suit and we’re very strong supporters of SLAPP law. California has set out a process for people who want to get measures on the ballot. All of that is built into the elections code. It’s all part of the process of giving citizens a voice. For one, it’s not a city attorney’s job to stop the process. And someone who wants to participate in the process shouldn’t find themselves in a lawsuit.”
In response, city manager Jere Kersnar, had this to say: “I would emphasize the city is not initiating this action. The city is being forced to defend itself.”
It was predictable that the city would paint itself as the victim of the fight it started. It’s as though the city ripped a page straight out of the Karl Rove playbook, the one titled “What to do when intimidation doesn’t work.” Fortunately, our city has not yet discovered the chapter on water boarding.
The city’s original SLAPP lawsuit against Mr. Furchtenicht began last year when the city attorney refused to prepare title and summary for Mr. Furchtenicht’s proposed initiatives regarding chain stores and affordable housing, enabling him to collect signatures to place the initiatives on the ballot for a vote by Ojai’s citizens. Instead of performing the normally routine function of preparing title and summary, the city attorney threatened to sue Mr. Furchtenicht if he did not withdraw the proposed initiatives. Mr. Furchtenicht offered to withdraw if the issues of chain stores and affordable housing were placed on a future Council agenda for public discussion. The city refused and sued Mr. Furchtenicht.
What followed was a comic tragedy. In one of Ojai’s more bizarre City Council meetings, on September 26, 2006, city manager Jere Kersnar announced that the city was not exactly suing Mr. Furchtenicht, but merely requesting “declaratory relief,” from a judge – this in an absurd attempt to package a lawsuit on constitutional law as some kind of inert procedure. Once the city manager completed his sunny explanation of what the city was not doing to Mr. Furchtenicht, the city attorney proceeded to inform Mr. Furchtenicht that he was being served with a lawsuit. Apparently the city’s spin cycle was set to “train wreck” that evening.
It gets better. Though the Council vote to prosecute the lawsuit against Mr. Furchtenicht was unanimous, then-Council member Carol Smith, running for reelection at the time, nevertheless maintained at the OVN City Council candidate's forum on October 16, 2006, that the vote on the lawsuit was not unanimous and that she had, in-fact, voted against it. Ms. Smith later reversed herself, stating that while she really did vote for the lawsuit after all, she didn’t understand that she was voting for a lawsuit.
It’s comforting to know that they’re on top of things at city hall.
Plotting a way forward in the ugly legal quagmire of their making, the City Council, by a vote of 4 to 1, has endorsed a cross appeal against Mr. Furchtenicht. Embracing the notion that the best defense is a good offense, the city has taken yet another page out of the Rove playbook, the one titled “surge.”
This particular escalation is going to be pricey (and guess who’s footing the bill?) According to Mr. Kersnar, the city has already sunk over $20,000 into its opening salvo against Mr. Furchtenicht. That amount is likely to be a fraction of the final tab, which has the potential to wipe out much of the city’s much vaunted surplus for 2007. All this the result of some really bad advice, embraced by all five City Council members at the time. A second opinion or a single voice of reason could have saved tens of thousands of dollars and preserved our Constitutional rights intact.
The news is not all bleak though, as a winner is emerging from the rising ash heap. Though the City Council’s actions may devastate the city’s finances, they are a potential bonanza for the law firm representing the city in its escalation against Mr. Furchtenicht and the ACLU. In every war, there are profiteers.
The tragedy is that this was all easily avoidable. Though he had no legal obligation to do so, Mr. Furchtenicht nevertheless offered to withdraw the proposed initiatives had the Council merely placed the topics on the Council’s agenda. Though the Council rejected this very generous compromise that would have ended the impasse and saved the city a fortune, they instead committed the money, sued Mr. Furchtenicht, then proceeded to place the topics on the agenda anyway on January 9, 2007! If you’re getting the funny idea that your money is not being spent wisely by your city government, you’re not alone. You don’t need to be a constitutional scholar or parse elections code to know that something is amiss. Something is wrong with the way your money is being spent and the way your government resolves its disagreements. This is not a legal issue. It’s a common sense issue – sense which seems oddly uncommon these days at city hall.
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Comments (22)
I'm not sure how many people are reading the post, but I'm kind of surprised at the seeming lack of interest presented here.
Comment #1 Posted by: Anonymous | March 10, 2007 03:09 PM
See the Open Thread a few posts below for a lively conversation on this topic. The Ojai Post is receiving over 1500 visitors a day.
Comment #2 Posted by: Tyler | March 10, 2007 05:19 PM
Todd, you noted that OVN rejected your letter to the editor, but I bet if you stay within their wordcount you'll get in. Tyler, is that "unique" visitors?
Comment #3 Posted by: Lisa Snider | March 11, 2007 02:55 PM
My first guest editorial on this subject, "Who Decides?," had a word count of 826, which is within OVN's 850 word limit. My second piece, "Mayor Misses the Point," a rebuttal to former Mayor David Bury's guest editorial, weighed in at 268 words, well within OVN's 400 word limit for letters to the editor, as well as the 850 word guest editorial limit. While it is true that my latest guest editorial submission is relatively heavy at 960 words, I doubt seriously that this was the reason this one was rejected. Professional publications wishing to use a piece will often contact the author and request that it be trimmed to fit. I have had this experience with other publications, including VC Reporter.
Comment #4 Posted by: Todd Miller | March 11, 2007 03:53 PM
Lisa, if your point is to defend the OVN against allegations of obvious bias, by all means, try to do so. Todd's written, I think pretty well, two guest editorials and at least one letter to the editor. I've written at least five letters to the editor over the years. None of these have been published. In fact, until the post came along, thank you again Tyler, the only voice against the status quo in Ojai was The Voice which also serves Ventura County. I think you can see some obvious problems there.
The OVN must have some sort of stake in this whole lawsuit business. I'm not really sure why the editor of the OVN is so afraid to come down on the side of democracy and the citizens of Ojai. It seems like a great story that would sell lots of papers. For some reason they just want to keep printing the same wrong-headed, obfuscating tripe while disregarding facts.
Beyond that, why don't you address the subject of Todd's guest editorial rather than the extra 110 words.
Comment #5 Posted by: spk | March 11, 2007 11:30 PM
No, that wasn't my point.
Comment #6 Posted by: LS | March 12, 2007 08:17 AM
OVNews blog has taken down two posts I sent- one on the
ACLU and the other on Gang Activity- both central issues in city of Ojai's well being. Aside from International Polka Day and the Joy of Cooking, they are not allowing any
compelling posts of substance.
This coming from source of
professional journalism? PL
Comment #7 Posted by: anonymous | March 12, 2007 09:20 AM
I was not aware that OVN was actually censoring posts, Pete. I am very disappointed to hear that, though not surprised.
Comment #8 Posted by: Todd Miller | March 12, 2007 10:09 AM
...why waste our citizens’ money on special elections costing tens of thousand of dollars only to have the potentially unconstitutional results thrown out by the courts? -Mayor Bury's
written response to SLAPP.
Comment #9 Posted by: anonymous | March 12, 2007 11:44 AM
OOPS my bad on OVNEWS blog-
I found comments on Ojai Valley News Archived Posts.
So OVNews remains in good
standing in printing citizen's civic concerns?
Comment #10 Posted by: pete lafollette | March 12, 2007 12:18 PM
Regarding yet anonymous' comments:
First - with due respect to former Mayor Bury's legal competence as an architect, it is my understanding that Supreme Court precedents do not support his position.
Second - determining which initiatives are and are not proper is not the city attorney's responsibility. Per California law, this is the responsibility of the citizens of Ojai. Ojai is not a kingdom. Had the process worked as it is defined in the California Election Code, Ojai’s citizens would have had two opportunities to determine for themselves whether or not these initiatives were a good idea – the first in the signature collection stage, the second in the actual vote (assuming a sufficient number of signatures were collected). If you find the California Election Code disagreeable and are more comfortable with autocratic forms of government, you are most welcome to try to change the law (perhaps with an initiative). The issue here is not whether or not the initiatives are a good idea. The issue is who gets to determine whether or not they’re a good idea.
Finally – the city has already spent more money on its lawsuit against Mr. Furchtenicht than it would have cost to simply issue the title and summary in the first place and let the process work the way it is supposed to. It would have cost far less still had the city simply accepted Mr. Furchtenicht’s very generous compromise offer and place the issues on the Council’s agenda for public discussion – something they ended up doing anyway on January 9th of this year.
Comment #11 Posted by: Todd Miller | March 12, 2007 01:54 PM
For all that are involved here, something else must be taken into effect. It's a little something us poor folk in the boondocks refer to as GREED. I have lived in Ojai the majority of my life, and this is NOT the first time I can remember being outraged by the City Council. There seems to be an unwritten rule in effect with them when it comes to helping the needy here in this town. Whether it is the kids that want a more lively place to play than the parks ( Skate Park is one, pathetic, honestly, I've seen better ) and now the Council's obvious disdain towards people that cannot afford a 6 figure house. So what is being built in the spot where Mr Furchtnicht proposed for the low-income housing district?
Another STORAGE unit facility. WHY? There are no more families left in Ojai that NEED them.Most families with small kids have sold their houses and left the state of California altogether. These are the only people that would have NEEDED a storage facility. But we already have several such facilities. So what gives?
Another point here, since when did any of our Gov officials deem it possible on their end to make OUR governments THEIRS and theirs alone? Since when did our officials decide they alone have the RIGHT to choose whaqt is good and what is not good for their constituents? Or to point blank remove our rights to run this government as United States citizens? It is not up to ANY government official what is and what is NOT to be put on a ballot. If anything, the Council's decision is in blatant disregard of the Constitution and is therefore ILLEGAL. Charges should be brought against all involved, including the Attorney. Him especially.
Not to mention Mayor Bury should be removed at all costs for his apparent lack of judgment and common sense. Yes it would have cost Ojai a pretty penny for the special elections. All elections cost money. But the fact of the matter which has escaped our illustrious Mayor, is that he has spent the exact SAME amount in his Ahab's quest against poor people. With the ACLU involved now, it will cost us MUCH more. And to what point and purpose? The land in dispute is being built upon, yes folks, the STORAGE unit!! The lawsuit is just a ruse to use as a stalemate until the storage is built. Then when all is said and done, there will be nowhere to build the houses we so desperately need. Nice huh?
So even if Mr Furchtenicht wins, he loses.
Also makes one wonder exactly how much the City Council is getting out of this...
Comment #12 Posted by: Angela | March 13, 2007 01:03 PM
Angela -
David Bury is no longer on the City Council. He elected not to run for reelection back in November.
Comment #13 Posted by: Tyler | March 13, 2007 03:10 PM
Thanks for the update. It still doesn't help the problem at hand, now does it?
What about the rest of the Council? Why haven't they been charged? Or Bury for that matter? He shouldn't escape justice just because he prematurely retired.
Comment #14 Posted by: Angela | March 13, 2007 03:57 PM
Ha! no i wasn't much help. :)
Comment #15 Posted by: Tyler | March 13, 2007 06:21 PM
There's an old saying that goes like this: Never get a peaceful person mad, because peaceful persons are apt to get things done. Some peaceful folk in Ojai have seen the great outrage of the lawsuit against Jeff and the word is spreading.
Comment #16 Posted by: Sholom Joshua | March 13, 2007 09:24 PM
Congrats Todd, I see you have today's Guest Editorial in the OVN - well done.
Comment #17 Posted by: LS | March 14, 2007 08:56 AM
The city council doesn’t have to look far for an example of what even moderate leadership could look like on the SLAPP suit. As the OVN reported today, the Casitas Water District leadership has recognized that they were using public money to finance an attempt to create legal precedent rolling back environmental protections. Realizing this, the District is set to vote to abandon that lawsuit. A majority appear to recognize that even if they win, we all lose – they will have established a legal precedent allowing money interests to gut the protections of the Environmental Protection Act.
The Ojai city attorney's SLAPP suit over the initiatives is similar. The city is financing an attempt to create a legal precedent for rolling back the citizens' rights to initiative, creating a nonstatutory pocket veto for a city attorney. If the city attorney wins, we all lose. (And of course if he loses, we all lose too. Our rights will be vindicated, but at what cost? The city attorney’s SLAPP truly is a “lose-lose”.)
Since the city attorney’s position is contrary to Supreme Court authority directly on point, we can hope that his attempt to gut our rights is doomed. Nevertheless, why should we the taxpayers be bankrolling it in the first place? Is it too much to ask three of our city councilmembers to look to the Casitas water board for an example? If that is too much to ask, at the very least perhaps they can articulate what it is they are trying to accomplish with their lawsuit?
I suspect the answer won't be very satisfactory.
Comment #18 Posted by: Anonymous | March 14, 2007 01:40 PM
Thank you Lisa - I didn't even know until I saw your note. Sometimes Bret surprises me in a good way.
Comment #19 Posted by: Todd Miller | March 14, 2007 01:49 PM
Thanks to the OVN for publishing Todd's editorial and my letter. I'm impressed. I wonder how much the opposing pressure from the Post had to do with it.
It's almost like we live in a two paper town. The more the merrier, it's excellent for democracy.
Comment #20 Posted by: spk | March 15, 2007 11:09 AM
I just want to thank Todd and all the posters on this for keeping these issues front and center. When our local powers that be range as far as they have from the kind of common sense and forward thinking expressed in Todd's editorial, it is up to us the people to set things straight. The more people speak out and demand answers, the more likely we will have positive change as a result of this.
If only there were a way to require our city council members to stand up, individually, and explain their thinking in backing this whole debacle. The thought process required to do that would probably be enough to help reverse course.
Thankfully, at least from my perspective, the ACLU is now here to lead the defense of our rights; it is no longer just an individual citizen being hammered by the weight of the city.
Comment #21 Posted by: JBF | March 18, 2007 12:55 PM
Clearly, Jeff Furchtenicht is a leader. We should all be so active in our communities. He is an inspiration. It is important to speak up, no matter how uncomfortable it may be, for our children's sake. It would be easy for Mr. Furchtenicht to dismiss this and walk away (I'm sure he has better things to do) but he is fighting for our rights and I applaud him.
Thank you Mr. Furchtenicht. You are a role model for our children.
Comment #22 Posted by: Margret Greene | October 21, 2007 05:09 PM