Widders v. Furchtenicht
The decision came in yesterday in favor of City Attorney Monte Widders.
We conclude that the action was timely filed. While we recognize the strong public policy in favor of putting initiative measures before the electorate, that policy is not advanced where, as here, the proposed measures are plainly unconstitutional on their face. We further conclude that the action does not qualify as a SLAPP suit because Widders demonstrated that he is entitled to judgment in his favor as a matter of law. Accordingly, we shall reverse the sustaining of the demurrer, affirm denial of Furchtenicht's anti-SLAPP motion, and direct the trial court to enter judgment in favor of Widders.
Statement from Widders:
Dear Council: I have just received the decision in the Widders v. Furchtenicht matter. I have attached a copy of the decision to this e-mail for your review. As you can see, the Appellate Court upheld the City's position and found that Mr. Furchtenicht's initiatives were unconstitional on their face. They also found that Mr. Furchtenicht submitted the initiatives to the City for an improper purpose, attempting to "exploit the initiative process".( page 14 of Opinion). Finally, the Court finds that the Council's and my decision to "sue" Mr.. Furchtenicht in order to protect the right of the petition process, was proper. The Court states, "We must also protect against interference with its proper exercise, but must strike down efforts to exploit the power for an improper purpose. Here, the government official entrusted to present the people with a clear and unbaised statement of the two proposed initiatives, has asked the court to relieve him of duty to prepare ballot titles and summaries on the ground that the proposals are unconstitional on their face... Under the circumstances, it was proper for the court to proceed."( page 19 of Opinion). Let me know if you have any questions. Monte L. Widders, Esq. Myers, Widders, Gibson, Jones & Schneider, L.L.P. 5425 Everglades Street Post office Box 7209 Ventura, California 93006
In Mr. Widders reply to the Council, he puts the word "sue" in quotes, as if he does not believe or wish to convey the idea that declaratory relief is in fact a lawsuit. But it is, and as the following quote from a law school textbook demonstrates, it should only be filed after negotiations have failed.
Disputes regarding business transactions (including, of course, business transactions for household or personal purposes, a conventional definition of "consumer" transactions) often evolve over a period of time. Usually (it is to be hoped), people who make deals and then disagree about them will first attempt to adjust their differences privately, among themselves. Only after they have attempted to do so and failed and, further, deemed the controversy to be sufficiently substantial that legal counsel is needed to assist in the resolution of the controversy. Though seemingly more honored in the breach than the observance, the retained counsel should themselves attempt to resolve the matter through negotiation rater than rushing to file a lawsuit. Only if the attorneys are also unable to resolve the matter and the negotiation process has broken down completely should the controversy be submitted to a court.
However, yesterday's judgment states:
In a September 11 email, Furchtenicht rejected Widders's proffered authority and suggested: "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 [City Manager] Mr. Kersnar outlining options and making recommendations?" In a subsequent email, Furchtenicht stated that he would withdraw the measures only if the City Council complied with this demand. There was no further correspondence between the parties, and the measures were never withdrawn. On September 25, 2006, Widders filed an action for declaratory relief under Code of Civil Procedure section 1060, seeking declarations (1) that the proposed initiative measures are facially unconstitutional; (2) that ballot titles and summaries "would be misleading to the electorate"; (3) "that no additional public funds should be expended to process the proposed measures"; and (4) that he be relieved of any duty to comply with section 9203. Widders also moved for a temporary stay of his duty to comply with the statute, and asserted that the 15-day period for his compliance had passed due to his "attempts to avoid involving judicial resources by attempting to meet and confer with defendant . . . ."
That last sentence is interesting - Widders' attempt to "avoid involving judicial resources" appear to be based on this from the judgment:
Widders suggested that Furchtenicht withdraw the measures and resubmit them in proper substantive form. Widders also stated that he would "be forced to seek declaratory relief" from his duty to comply with section 9203 if the measures were not withdrawn by September 15, 2006.
Furchtenicht did indeed reply, and suggested he would withdraw the measures if the City Council would take up the matters for discussion. This request was ignored. It appears to me that rather than this being a negotiation, it was an ultimatum. And while it may have complied with the letter of the law, it clearly does not comply with the spirit of the law nor does it comply with the greater financial and social good of the Ojai community. This judgment is not a victory for the citizens of Ojai.
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Comments (20)
Regarding this excerpt from the ruling:
"We further conclude that the action does not qualify as a SLAPP suit because Widders demonstrated that he is entitled to judgment in his favor as a matter of law."
If I am interpreting this correctly, this means the court has determined that it is Monte Widders, not the voters, who has the authority to determine which initiatives are good initiatives and which are not. This appears to turn the California initiative system on its head, substituting the will of one man for the will of the people. Someone please correct me if I am misinterpreting this ruling -- for the sake of every Californian, I hope I am.
Comment #1 Posted by: Todd Miller | October 21, 2008 10:13 AM
That is exactly correct Todd. I'm going to repost our discussion from the candidate forum thread over here because it will be useful.
Comment #2 Posted by: spk | October 21, 2008 10:48 AM
From the Candidate's Forum thread:
SPK
I for one was very glad to hear that neither Horgan nor Hanstad are prepared to spend another dime pursuing this issue up to the State Supreme Court. A question was asked, if you are elected, would you vote to spend any more city money should the ACLU decide to pursue the case up to the Supreme Court? Sue Horgan said, unequivocally "NO!" Not to be outdone by her fellow incumbent, Hanstad also said NO forcefully.
Suza Francina asked if the city had any choice in the matter should the ACLU take what looks like a very controversial decision by the appellate court on up to the Supreme Court of California. Betsy Clapp went further to suggest that it's not up to the city council whether this issue continues to the Supreme Court and that we need to know if the prior decisions by the incumbents haven't locked us into a Supreme Court fight.
While it is true that the city council has no say in the ACLU's decision to take this case up to the Supreme Court, it is equally true that the the city council can decide if they are willing to pay the continued court fees required should Mr. Widders decide to continue fighting the issue. There is no reason the City of Ojai needs to continue any funding of this lawsuit that has now changed nearly 100 years of existing constitutional law with regard to our rights to direct democracy here in California. I believe for the worse. I think it is sad that Ojai, of all places, has bankrolled, with citizen's money, a court case that has now jeopardized a citizen's rights to direct democracy.
I was pleased to hear tonight that no matter who wins on Nov. 4th, with the possible exception of Mr. Lenehan who didn't seen interested in the issue, the candidates will not vote to continue spending city funds for this decidedly undemocratic fight.
_______________________________________________________________________
Todd
I'm really confused as to why Horgan and Hanstad would decide to draw the line at this particular juncture on a cause they so emphatically believed in. I gather that Horgan drew great pride and vindication from the appellate court's decision to effectively end California's initiative system. Why not commit hundreds of thousands of dollars of Ojaian's money to continue the fight if it is, in fact, so righteous? Heck, why not bankrupt the city to defend the its right to intimidate and punish citizens who wish to do nothing more than preserve the town they love?
_______________________________________________________________________
SPK
Todd, The reason Horgan and then Hanstad replied NO to the question listed above is that the evening's one and only applause line occurred when Betsy Clapp responded that she felt the City's decision to sue one of it's citizens was disgusting. The whole auditorium applauded after her statement. Both Clapp and Francina listed the decision to sue a citizen activist as the worst decision by the city council in recent memory.
The decision handed down yesterday by the appellate court does effectively end California's initiative system on the municipal level. It is highly unlikely that anyone on a local level will feel comfortable starting an initiative at that level knowing that an unelected city attorney can block it indefinitely and even drag you into court long before is ever sees the light of day in the signature gathering process. This is especially dreadful and suspect in cities where the city attorney is also the attorney that does the litigation for the city. In those cities, and Ojai is one, any litigation taken up on behalf of the city causes the city attorney to gain financially in the form of fees.
It is for these reasons that I think we have not seen the end of this issue in the courts. As I said above. I am extraordinarily pleased that both incumbent candidates have come out and said they will not vote to spend anymore of the city's money on this matter.
___________________________________________________________________
Todd
Sean,
I don't see why the court's decision would be restricted to initiatives at the municipal level. Why couldn't this terrible precedent be used as ammo to block all initiatives? Am I missing something?
____________________________________________________________________
SPK
Todd,
I agree that this decision prompted by Widders' and the city's lawsuit is a terrible precedent and will be used as ammo to block initiatives at all levels throughout California. However, it is uniquely corrosive to public participation on the municipal level because on the state level the initiatives are put through the Secretary of State's office. The Sec. of State's office is an elected position. Further, the Sec. of State does not stand to reap a monetary gain by initiating litigation against any prospective initiative.
By contrast, on the municipal level, often the gate keeper will be a private attorney hired by a city. Now, after this atrocious decision, that city attorney will be the ultimate decision maker and if he/she doesn't like an initiative, they can now simply ignore the initiative or even bring legal proceedings against the initiatives proponents as Widders did to Jeff with city funds. Finally, if as is the case here in Ojai, the city attorney is also the law firm hired to litigate for the city, there is an inherent conflict of interest.
Comment #3 Posted by: SPK | October 21, 2008 11:02 AM
what cutting dialog? spk & todd two movers and shakers...
Comment #4 Posted by: trollminder | October 21, 2008 07:00 PM
They say hard cases make bad law. I did not think this case was a
particularly hard one. But it has certainly resulted in making terribly
bad law.
While a "win" for Widders' position, this decision is a terrible loss for the people of the state of California. For the first time to my knowledge, an appeals Court concluded that a ministerial official like Widders may, all by himself, determine that an initiative is unconstitutional, refuse to process it, and then, if the proponent does not withdraw on demand, proceed to court to litigate whether he is correct or not. All before a single signature has been gathered.
The effect of this ruling, if permitted to stand, is to gut the right to initiative in the State of California, at least for those who propose initiatives that city officials do not approve. Unless backed by a substantial litigation war chest, a citizen will be ill-advised to propose any initiative that is not pre-approved by city officials.
The decision is also ripe for abuse. For the first time, a court has ruled that a city official on his own can refuse to provide a ballot title and summary, and therefore prevent a citizen from seeking signatures on an initiative petition, based on his own view that the initiative is "unconstitutional." We are certain to see this decision abused by officials who have conflicts of interest.
Indeed, it has been reported that Monte Widders himself recently had to recuse himself from advising the city of Ojai on its housing element, as a result of his private representation of a large affordable housing developer. Did Mr. Widders represent this client when he originally brought suit to squash these initiatives? One of the initiatives would have established in Ojai a policy to make existing housing affordable, rather than building new developments, directly contrary to the interests of an affordable housing developer.
Whatever Mr. Widders’ situation, if this decision stands we should be prepared for many examples to come of officials with conflicts of interest squashing initiatives they don’t like at inception based on this ruling.
This decision, if it stands, will chill the exercise of the right to initiative throughout the state of California. For those initiatives that are proposed, it will clog the courts with a huge increase in early stage litigation as city officials seek to block initiatives they don't like, before a community can consider the proposal and coalesce around it.
There are many who will like this decision. Not everyone in California is committed to the initiative right, especially when it can be used by ordinary people. Todd is right to ask how this will affect not just municipal initiatives, but statewide initiatives. We may have confidence that Jerry Brown does not want to get into the business of blocking initiatives. If you are a Republican, are you so confident that this or a future Democratic Attorney General is going to process your initiatives, when he could tie them up in court at inception? If you are a Democrat, how confident are you about a Republican Secretary of State having the power to make this decision on his own?
Do you appreciate Proposition 13, reducing property taxes and limiting property tax increases? Warren Buffet thinks it is a bad idea. He can afford much higher property taxes. How about you? Proposition 13 was an early example of a grassroots initiative, which gathered its momentum as its proponents went through the signature gathering process. Consider that with this decision, a ministerial official could have prevented Proposition 13 from ever circulating. Would Jarvis and Gann been able to muster the funds and attorney wherewithal at the outset to properly defend the many legal challenges that they later prevailed on, in order to move forward? Would the courts have given Jarvis and Gann any deference had Proposition 13 been challenged in a vacuum, before it had obtained any significant statewide support?
Before California adopted the right to initiative, “in the 1800s, only one kind of politics took place in California: corrupt politics, according to the Sacramento Bee, the leading newspaper of the time. The Southern Pacific Railroad, often called “The Octopus,” controlled almost everything in the state—the legislature, the courts, even the press. The initiative process evolved out of an attempt to wrest control of the state’s political process away from the special interests…”
http://www.healthvote.org/index.php/site/article/democracy_by_initiative
With this decision, we have taken a big step back, toward the politics of the 1800s.
Of course, now, if this decision stands, many initiatives will not be proposed. They will not be raised at all. City officials, county officials, legislators, fueled by their campaign contributors and cronies, will decide what is good for us.
What is doubly, triply sad is that the citizens of Ojai have been forcibly enlisted to bankroll this diminution in their rights. The City of Ojai has spent at least $83,000 in taxpayer dollars to date in this effort, and now has succeeded in establishing a precedent that, if it stands, will be used and abused statewide to deny fundamental rights to participate in government. Not just in Ojai but throughout the state.
Sean reports that at last night’s candidate’s forum, incumbents Sue Horgan and Rae Hansted swore they would not fund another penny on this lawsuit. If true, which I doubt, I can only say: Too little, too late.
In any event, the decision just came out yesterday. I am still digesting it. For now, I can agree unequivocally with Tyler:
"This judgment is not a victory for the citizens of Ojai."
Comment #5 Posted by: JBF | October 21, 2008 08:36 PM
The OVN posted an article about the forum and confirmed that the incumbents claim they would vote against spending anymore money on this case if the ACLU takes it up to the Supreme Court of California.
Comment #6 Posted by: Anonymous | October 21, 2008 09:49 PM
Interesting that it only took $100K and the unwinding of California's initiative system before Horgan and Hanstad wavered on their unwavering support of the SLAPP suit.
The thing that really strikes me is that it wasn't a crack group of neocons backed by funding from some shadowy reactionary billionaires that brought down California's cherished initiative system. In the end, it was dumb & dumber that accomplished that feat by complete accident. All they wanted to do was squash Jeff in a very public way. They ended up knocking over lady liberty in the process of their cavort through the democratic china shop. They don't even have the first clue of the damage they've done.
Comment #7 Posted by: Todd Miller | October 21, 2008 10:20 PM
I'm surprised this post has not generated more discussion. Perhaps it's been overshadowed by national and local elections and other news, financial and otherwise. Or perhaps it's because, like me, readers are hesitant to wade into the fray when it involves legal technicalities and requires familiarizing oneself with a complex case. Well, as a concerned citizen of the Ojai Valley for almost 40 years, I'll weigh in anyway, my judicial ignorance notwithstanding. It's just too important to ignore.
I read the entire decision and I'm troubled. I can see that perhaps Jeff erred along the way by stressing the lapsed 15-day time limit rather than focusing on other points or pressing the importance and urgency of the real issues of chains and housing and the overriding need, at that time, to have the council address them immediately. Apparently the court agrees that Widders was within his rights to refuse to put the initiatives on the ballot due to his preliminary opinion that they did not meet the test for constitutionally correct intiatives. But it was Widders acting on behalf of the city, not Furchtenicht, who initiated costly and time-consuming judicial action instead of responding to Jeff's conciliatory request for the council to take up the issues for discussion as a condition for withdrawing his intiatives. Nowhere do I see that Jeff "demanded" anything. Knowing that Jeff was not alone in his concern over chains and affordable housing, why didn't the council instruct Widders to negotiate in good faith and avoid the costly and divisive action of accusing him of misusing the initiative process?
While I don't feel qualified to speak in any more detail to the technicalities, I wholeheartedly concur with Tyler's opinion that the council's decision to, in effect, sue Jeff does not comply with the spirit of the law nor does it serve the residents of Ojai. I'm glad the voters of the city of Ojai proper are asking the incumbents to explain how they allowed this "travesty of justice" (my quotes) to occur. One would think that in a small, close-knit community like Ojai, where preserving the unique character of our valley is a value held by nearly everyone, the elected leaders would welcome discourse, debate, and, yes, even citizen action on issues of vital importance to the community's future.
Comment #8 Posted by: Lanny | October 22, 2008 11:40 AM
Lanny, I greatly appreciate the fact that you took the time to study the decision. I share your surprise that more have not weighed in on this post. I agree that it probably has to do with the fact that some may feel out of their depth due to the legal intricacies of the case.
I think this has been the fundamental problem with this issue. The proponents of the lawsuit, including Widders, Horgan, and Hanstad, have framed this issue as a legal imperative instead of what it really is: a question of how city council resolves disagreements with its citizens.
Council, including Horgan and Hanstad, contend that, because the initiatives lacked the proper form, they had "no choice" but to sue Jeff.
No choice but to sue? That's like saying each of us has no choice but to sue everyone we have a disagreement with. Someone walks on your lawn? Sue them. Someone insults you? Sue them.
The facts are plain in this case. Jeff offered a constructive, zero-cost solution to the impasse to council. Council's response? Lawsuit.
A number of people, including Widders and Brett Bradigan, have tried to minimize the effect of a lawsuit for declaratory relief. Widders has actually attempted to claim that declaratory isn't really a lawsuit. Bradigan has made it sound like traffic court.
As the facts plainly show, this was not traffic court. This is a major case in constitutional law that has the potential to go to the US Supreme Court. Anyone who has been in the scary position of being the little guy going up against a well-funded goliath in court knows well how truly terrifying and exhausting it is. Unfortunately, few have experienced this and have an appreciation for it.
I've been there. I've been on the business end of major litigation from a big organization that lawyers you to death. For those that haven't had that particular life experience, rent the Russell Crowe movie "The Insider" -- that's what it's like.
I ultimately prevailed in my case, and I have full confidence that Jeff will prevail in his. Having been in that hole before, I have a full appreciation for the fear and loneliness of that place. Jeff needs our full support. In addition to our empathy, Ojaians can show their support by voting out two of the champions of this travesty: vote Sue Horgan and Rae Hanstad out of office on November 4th.
Change begins at home. Vote for Suza Francina and Betsy Clapp.
Comment #9 Posted by: Todd Miller | October 22, 2008 12:43 PM
"There is a Fish in the Courthouse" is more than just a famous book of Ventura County corruption long known, it is a way of life for uncounted numbers working and self-serving
within this judicial branch of the state.
Attorneys,judges, special interests,politicians,industry sweethearts,banking board members,high-end contractors and developers, all line up at the trough to wallow and feast in public generated revenue swill. Any doubters need only catch the early show each day at the government center as mostly hispanic and working poor are efficiently run through the combine of traffic court, made to cough up money they don't have for reasons not made clear to them except to pay or else. Why do I know this fright show so well? I was tossed out of a rental from an Ojai slum lord, decided by a
biased municipal judge,finding as always on the side of the most monied interest. Also I was denied an "06 seat on the local city council because the county elections division who runs a fixed game, fabricated over a thousand absentee ballots from a total of four K. So this SLAPP decision is one in a long lineage of corrupt
county components so blatantly vile that it stretches over generations of history. Blessed be the peace makers, the meek in spirit, and the truth seekers, like JF, for theirs is the path of the rightous and good.
Comment #10 Posted by: pete lafollette | October 22, 2008 12:45 PM
It's in today's STAR:
http://www.venturacountystar.com/news/2008/oct/22/2-ojai-initiatives-ruled-too-vague/
CEJ was/is Jeff's lawyer?
Comment #11 Posted by: curious | October 22, 2008 01:04 PM
Here are two things (of many) from this opinion that jumped out:
“The circulation of a petition, particularly in a small town, can invoke the same level of "heated rhetoric" capable of creating "permanent rifts in a community" that a full-blown election campaign can.” (Page 13)
The court offers this as a key reason why an appointed city attorney should prevent an initiative proponent from circulating a petition he thinks may be unconstitutional.
But since when do we allow officials to stifle petitions so as to avoid “heated rhetoric” arising in a “small town”?
Maybe that is good reasoning for North Korea, or Soviet Russia. In America, though, I thought we were founded on the idea of unimpeded, robust debate being essential to enlightened self-government.
(The court is also just wrong. If anything, doesn't this case prove that allowing Widders to sue is exactly how to create the "rifts" and "heated rhetoric" the court is so afraid of?)
How about this gem?
“Widders asserted that he could not conceive of a ballot title and summary that would not be misleading to the voters.” (page 14)
The court offers this as a reason Widders should be allowed to refuse his duty and sue to be relieved of it.
So now Widders’ professional inability to do his job is why we have to pay him nearly $100,000 to go to court to be relieved of his duty?
Modest suggestion: Next time Widders finds himself unable to conceive of how to do his job, perhaps he can save us all the "heated rhetoric" and "rifts in the community" - not to mention nearly $100,000 - by just resigning?
Comment #12 Posted by: Anonymous | October 22, 2008 01:36 PM
Anonymous #13,
Please post your analysis here:
http://ojaivalleynews.blogspot.com/2008/10/city-council-candidates-debate.html
(see also Comment #12)
Comment #13 Posted by: To Anonymous #13 | October 22, 2008 01:51 PM
In case you didn't see my post on the candidate thread, let me say here: thank you for persevering, Jeff. You are a local hero and an Ojai Valley Treasure. I hope the ACLU pursues this, and this temporary defeat turns into a permanent victory. You may have a better chance now that the political winds are shifting.
I have my own experience of the corruption in the Ventura courts, both superior and appeal. Imagine the opposing lawyer being a judge himself in the same court and this not being disclosed. Imagine you and your lawyer being fined for perfectly legal proceedings to intimidate you. Imagine a judge commanding that your lawyer come to the backroom even after your lawyer says we have a right to a public hearing on the record and being haughtily refused. Imagine a judge signing a paper for the opposing side without even reading it, and then the opposing lawyer refusing to tell our lawyer what it was about. Imagine judges and lawyers in total violation of civil contract law.
Imagine this and much more. I know because I was there and it happened to me. I did it because I thought there was justice in the system. I know better now. It was a painful lesson but worth it to get the karma cleared. My family lost a half million fighting for justice (including the home our son was born in).
That's why I acknowledge you, Jeff, and your brave family. People don't join in on this discussion because they don't know; it hasn't hit them yet but it will. Then they'll know but not until then.
Some may not like the way Pete LaFollette says it but he's saying it the way it is. He's one ofthe LaFollettes from Wisconsin, the state I'm from, a progressive with a sense of truth, unlike the ones today.
The culture we have created is more corrupt than we realize, especially the courts, those virtually untouchables in the black robes. We live in denial, especially in a blessed place like Ojai. That's why people don't weigh in here. That and a lot of other reasons.
The brave few who do care enough to speak the truth are few and far between.
I was at the debate but I left before the SLAPP decision was announced. I stayed for the opening remarks. I had to leave after I heard Sue and Rae say how great they were and how much they did for the city. It was enough to make me sick.
Jeff, I wasn't planning on going to the debate until I met your wife and one of your children that afternoon. She said you'd be there. I said I probably wouldn't; I was burned out but I changed my mind and went. Tell her thanks; it was a learning experience, negative but positive too.
Wake up, Ojai. If this lawsuit doesn't wake you up to what is really going on in your town with your money, well then you're either too rich to care or to poor to care. Either way, we're all worse off. Or maybe you're one of the premature dead.
Thanks to all the brilliant commenters and to the Ojai Post for hosting a venue like this, unlike the phony "debate" Monday night.
Comment #14 Posted by: Dennis Leary | October 22, 2008 03:46 PM
According to the Star, Sue Horgan said: "The ruling clearly justifies the city's and Mr. Widders' actions."
The OVN reports that "Rae Hansted said the court decision validates the city’s position legally and logically."
Betsy Clapp and Suza Francina reportedly both called this the worst decision the city council has made.
Almost $100,000 later, Monte Widders is richer. The people of California are much poorer.
There is a clear choice this election in Ojai.
Comment #15 Posted by: Clear Choice | October 23, 2008 12:39 AM
JBF wrote #5 in part, "With this decision, we have taken a big step back, toward the politics of the 1800s."
Please, stop with the melodrama. Just write it in the proper form, like you were asked to in the first place. You weren't "crushed" and the ACLU picked up your nut so you aren't out any money. However, the citizens of Ojai are down $93K.
Please don't appeal this.
Comment #16 Posted by: Johnny Chingas | October 23, 2008 09:58 PM
Johnny,
The Ojai city council, representing the voters of Ojai, made the choice to commit $93K to sue one of its citizens. If you are unhappy with their choice on your behalf, I recommend that you vote the incumbents out of office on Nov. 4.
Comment #17 Posted by: Todd Miller | October 23, 2008 11:19 PM
Johnny, an unelected city official, who apparently represents a private client with interests adverse to the initiatives, who stood to make at least $93,000 if he advised suing and maybe a few hundred bucks if he did his job, advised filing a lawsuit. The city council backed him.
Here's what Monte Widders was told on this subject before he sued:
"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."
http://www.ojaipost.com/2006/10/ojai_ballot_initiatives_the_co.shtml
Monte Widders, in the face of that, refused to even allow the city council to consider the alternatives offered. He refused to acknowledge that he could have done nothing, just refused and not sued, and nobody was going to sue him. Instead, the day before the city council could have considered just putting the issues on an agenda, he sued.
$93,000 of yours and my money later, he has succeeded in establishing, for the first time, a new right of unelected city officials with clear conflicts of interest - like him - to block initiatives they don't like.
No appeal means that you will see this happen again and again and again.
Johnny Chingas, can't you see when you've been "chingased"?
Comment #18 Posted by: Anonymous | October 24, 2008 02:12 PM
Interesting thought:
Supposedly, these initiatives are unconstitutional because they do not directly enact legislation, but require the city council to adopt legislation based on the "concepts" laid out.
Has anybody looked at the state housing element law the city council is currently spending a fortune addressing? That law requires that the city council adopt ordinances that put in place a general plan with a housing element, in accordance with "concepts" laid out in the law. (See Government Code sections 65580 et. seq. and 65302.) It does not directly enact any general plans or housing elements. It does require a city council to do so, and to do it according to the concepts laid out in the statute.
If Monte Widders and this court ruling are correct, the city council should feel free to ignore the state housing element law. It is plainly unconstitutional on its face.
Funny, but didn't Widders himself, before he was recused for conflicts of interest, advise the the city council it is required to update the housing element in accordance with the statute?
Comment #19 Posted by: Housing Element | October 25, 2008 02:39 PM
Further to the prior post:
Could it be that the difference is that the initiatives required the city council to adopt ordinances that would limit new development; while the state housing element law requires the city council to adopt ordinances that would permit new development?
Gee. A citizen wants to propose a law that requires the city council to adopt ordinances limiting development. Unconstitutional! We must spend $93,000 and counting to squash this! It is so clearly unconstitutional that we cannot even let a petition circulate, because it would mislead people into thinking that it might become a valid law!!
The state legislature adopts a law that requires a city council to adopt ordinances expanding new development. City council, you must comply with this law! We don't dare fight it! It is clearly constitutional, and you must follow it!
Interesting.
Comment #20 Posted by: Housing Element | October 25, 2008 02:54 PM