ojai news at The Ojai Post :: blog, newspaper, events in Ojai, California

HRC has cancelled all TV and public appearances for tomorrow. Writing the speech she never expected to give?

Clinton now needs to bow out gracefully. The Dems need to put all of their energy towards defeating the Repubs. They have lost a lot of valuable time.

She has no intention of stopping. The math didn't change last night, it changed last February. She hasn't been able to garner the nomination since then, yet she continued and spent millions and millions of dollars. Don't look for her to end her struggle with reality before June 3rd.

The OVN has written an article about the city's lawsuit against Jeff F. and his initiatives of two years ago. The article is similar to all of their other reporting on the issue in that it largely takes the side of the city attorney Monty Widders and the city council that voted to SLAPP Jeff and then voted to try to battle the ACLU in appellate court.

Following as FYI is a comment and supplement I posted in supplement to the OVN's front page article on the status of the SLAPP lawsuit vs. initiatives. (See spk's link above.) Please forgive the length. Oral argument is coming up Wednesday morning, July 9. Interested Ojaians may attend!

Thank you Nao Braverman and OVN for bringing a little light to this issue.

Some points to supplement the article:

1. City officials continue to publicly claim their issue was with the “format” of my initiatives. However, Mr. Widders’ objection to my initiatives has never been to their “format.” Instead, he has challenged their substance as “unconstitutional”, citing as authority a single case from an appeals court out of our district. I am an attorney, and I read the case he cited. I believe it is thin authority at best for his sweeping objection to the proposed initiatives. More importantly, if allowed to stand, it is the sort of objection that I believe would allow a city attorney, acting alone, to block any initiative he did not like, at inception.

2. The article omits a critical fact when it recites that Mr. Widders “… asked Furchtenicht to withdraw the initiatives and when Furchtenicht did not do so, Widders took him to court.” Here’s what actually happened: In response to Mr. Widders’ refusal to provide title and summary, and his threat to sue me if I did not withdraw, I told Mr. Widders in writing that I had no desire to litigate, and I offered to withdraw the initiatives in favor of putting the underlying subject matter on a council agenda for public discussion. The city council’s first opportunity to consider this proposal as a council would have been at its September 26 meeting. Mr. Widders filed his lawsuit on September 25, without accepting or rejecting my offer.

$78,000 (and counting) later, it is worth asking why Mr. Widders could not wait one day before filing his lawsuit, to permit the city council to decide whether it preferred to publicly discuss the underlying issues of affordable housing and independent businesses over a lawsuit.

All the communication prior to Mr. Widders filing his lawsuit was in writing, and can be read on the Ojai Post. I encourage everyone to read this for themselves:

http://www.ojaipost.com/2006/10/ojai_ballot_initiatives_the_co.shtml

3. The article says that Judge Riley “dismissed the case on the grounds that even if the alleged complaints were true, there was no need for a lawsuit.” The standard is not that there is “no need” for a lawsuit, but that the complaint on its face failed to state a cause of action. That is, Mr. Widders’ lawsuit was invalid on its face, and could not proceed. Ojai taxpayers should understand this, and consider how they would react if they personally hired an attorney who billed them for filing a lawsuit that is thrown out of court on its face.

4. According to the article, Mr. Kersnar says the city would not have filed its own appeal “had Furchtenicht not appealed the denial of the anti-SLAPP motion first.” This minimizes what the city is doing in its appeal. As it stands, Mr. Widders’ cross appeal is anything but inconsequential; it constitutes an attempt to create a new right for a city attorney to refuse to process initiatives, killing them at inception, when he thinks they are “unconstitutional.” This new right would be directly contrary to current law as set forth in a case called Schmitz v. Younger, in which our Supreme Court held in no uncertain terms that the duty to title and summarize an initiative is “ministerial” and may not be refused by a ministerial official because the official believes the proposed initiative is unconstitutional.

It is worth repeating the question I asked Mr. Widders in writing almost two years ago, before he filed his lawsuit: “[H]as the City authorized you [Mr. Widders] 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.”

Why didn’t Mr. Widders simply provide the title and summary? Why are Ojai taxpayers bankrolling what amounts to an attempt to roll back their rights?

5. Nao brings attention to amicus curiae, the Initiative and Referendum Institute. The Initiative and Referendum Institute (“IRI”) is an independent, nonpartisan institute located at USC. They are represented by the law firm of Kirkland & Ellis, one of this country’s largest and most respected law firms, and one that is often at the forefront of cases of Constitutional law before the U.S. Supreme Court. Nao’s article summarizes some of what is in the IRI’s amicus curiae brief. There is more. A sample:

“This [Widders’] lawsuit is precisely the kind of action that arises from protected activity and that the anti-SLAPP law was enacted to guard against. The lawsuit was not designed to obtain declaratory relief; a declaration that the proposal was unconstitutional would have achieved nothing for Mr. Widders, who had already killed the initiative by his failure to prepare title and summary. Rather, Mr. Widders’ suit is the typical SLAPP suit, the goal of which is not to prevail, but rather is filed “solely for delay and distraction, and to punish activists by imposing litigation costs on them for exercising their constitutional right to speak and petition the government for redress of grievances.””

That is the view of the IRI, an independent educational and research organization concerned with the statewide ballot initiative and referendum process, as stated in its brief. If Mr. Widders’ action were not something we should all be concerned about, people should ask themselves why the IRI is in this case – and, why it is supporting me, and not Mr. Widders.

Finally, perhaps the most important and costly aspect of this for Ojai is that, whatever Mr. Widders’ intentions may have been, as a SLAPP his lawsuit has been very effective. It has completely distracted and dissuaded me from moving forward on affordable housing and independent business issues. A number of other citizens have refrained from, and even withdrawn participation in, public petition in order to avoid being sued. We have seen that the underlying issues, of achieving affordable housing with existing housing stock, and preserving and promoting independent businesses, have been pushed from the public agenda, rearing themselves in narrow fashion in the form of the formula business ordinance, or in the case of affordable housing, being co-opted into a development agenda through the state housing element process. The specific policies raised in the initiatives have not seen the light of day. Nearly two years on, we as a community are paying the price.

For those interested in following this further, the oral argument is set for July 9, not July 11, in the state court of appeals in Ventura.