Ojai Lawsuit Set For Showdown
City, Furchtenicht both appeal parts of judge’s earlier decision
By Nao Braverman
Both the city of Ojai and local citizen Jeff Furchtenicht are appealing the decision made by a Ventura County Superior Court judge almost a year-and-a-half ago.
The ongoing case, which has already cost the city $78,771.83, according to city manager Jere Kersnar, was initially thrown out in late November 2006. Somehow the language of the judge’s ruling left each party feeling that the determination was made mostly in their favor. Furchtenicht’s anti-SLAPP (Strategic Lawsuit Against Public Participation) was clearly denied, however, prompting him to appeal that portion of the judge’s decision.
A cross appeal was subsequently filed by the city, and an oral argument is scheduled for this July.
The drawn-out dispute, began nearly two years ago, when city attorney Monte Widders refused to prepare a ballot title and summary for two citizen’s initiatives, proposed by Furchtenicht on Aug. 21, 2006.
Widders claimed that the initiatives, regarding affordable housing and chain stores in Ojai, were not submitted in the proper format, and were thus unconstitutional on their face.
The text of the first initiative directed the council to “urgently consider and take measures to address the affordability of housing in the city,” and the second asked the council to discourage chain stores from opening downtown.
“These are all nice goals,” said Widders, “but an initiative has to enact a legislation.”
He then asked Furchtenicht to withdraw the initiatives and when Furchtenicht did not do so, Widders took him to court.
At the Nov. 29, 2006 hearing, Ventura County Superior Court Judge Ken Riley dismissed the case on the grounds that even if the alleged complaints were true, there was no need for a lawsuit. Although Furchtenicht’s demurrer was granted, and this was the determination that Furchtenicht had hoped for, the judge also stated that Widders had been “well within his official duty to deny Furchtenicht’s request to title and summarize the two initiatives,” according to minutes of the hearing. Judge Riley also denied the SLAPP complaint, claiming that it was Furchtenicht’s failure to withdraw the initiatives, not the right to petition, that caused the lawsuit.
Furchtenicht then appealed the denial and the American Civil Liberties Union came on board to defend him.
Furchtenicht and his ACLU representative Peter Eliasberg’s position is that the city attorney should not impede in a citizen’s right to circulate an initiative.
“When the judge denied the SLAPP complaint, that was an error,” said Furchtenicht. “The city is trying to give the city attorney the power to pocket veto an initiative at its inception, which would be a serious diminishment to our right to petition. The last thing we want to have is Monte Widders walking away, thinking it was OK to do what he did.”
But Kersnar said that the city’s position was that the attorney should have some power to refuse to write a ballot title and summary for a measure that is not constitutional on its face.
“Let’s take an extreme example,” said Kersnar. “Let’s say a citizen wanted to propose a measure saying something as ridiculous as allowing discrimination. Then we don’t think the attorney should have to go through the process of writing a ballot title and summary of something that is obviously unconstitutional.”
Nonetheless, Kersnar said the city would have not have filed a cross appeal, had Furchtenicht not appealed the denial of the anti-SLAPP motion first.
“If the court is going to appeal only parts of the decision, we wanted the case to be reviewed in its entirety,” said Kersnar.
The reason that the ACLU took interest in the case, was that Widder’s decision to take Furchtenicht to court could have the effect of stifling public participation. If citizens are afraid of being sued if they propose an initiative, they would certainly be less likely to do so, explained Michael Chait, of Mitchell Silberberg & Knupp LLP, who is working with Eliasberg on the case.
The dispute also boils down to a debate over the appropriate timing of a challenge.
“There is a process, and people do challenge initiatives. But the appropriate time is after one has received enough signatures for an initiative to be placed on the ballot, not before, said Chait.
But the city’s position, according to Widders, is that a pre-election challenge from the city attorney is appropriate.
In an amicus curiae, or “friend of the court,” brief, in support of Furchtenicht, prepared by the Initiative and Referendum Institute, attorneys argue that the initiative process, where citizens are allowed to sell their ideas to fellow citizens, is as important, if not more so, than the placement of those initiatives on the ballot. The amicus brief cites research which supports the fact that the initiative process itself encourages civic engagement, and public participation in politics, and increases voter turnout. Therefore, such a process should not be prematurely impeded upon, according to the institute.
“Entertaining court challenges by public officials at early stages of the initiative process will prevent many of these effects — including increased civic engagement and satisfaction with government — from taking hold,” according to the amicus brief. “Moreover fewer citizens will propose any kind of legislation reform if they believe that by doing so they are exposing themselves to the risk of costly litigation.”
Furchtenicht said that the ACLU had taken on the case pro-bono but he wasn’t sure how much the case has cost them to date, or the amount that it cost him before the organization got involved.
The case is now in the State Court of Appeal, Second Appellant District, and the oral argument is set for July 11.
Whatever happened to this? Follow-up?
Widders certainly did not do his homework looking into the case law precedents the US Supreme Court has decided. Shame on him!I’m sure glad I don’t live within the Ojai city limits. You people disgust me.
Cathi E.You have spawn?? Post pixs of Romulus and Remus!!Signed , your undying public
Don’t forget to add a $3 millionpricetag the city spent for Arcade renovation that no one really wanted or voted on, the downtown business owners were not in on except to get baracaded by construction, strange fountains no one wanted, and a dysfuctional public rest room.PL
This is the first time I’ve perused this blog in several weeks. It will be several more months before I get that bored again.To SPK: I wouldn’t know you if you walked in right now and made yourself comfortable on my sofa. But I would like to borrow a quote my Uncle Chock utilizes for puffed-up, rambling, pseudo-intellectuals like yourself: kiss my ass. My 16-year-old would kick your vapid buttocks in a debate, and do so with a polite smile on his face. My 18-year-old would also reduce you to rubble, but he wouldn’t bother smiling while doing so.To Jeff: Hang in there, because you are doing what you think is right. It takes a kind of courage most people do not possess to openly take a stand, and a few people on this post apparently envy you for doing so. I’ve never been sure that the Widders’ move in your case was a SLAPP, but Riley’s opinion was so convoluted that he seemed afraid. Why is that? I am rooting for you, and for some legal clarity, in the appellate court. Good luck.And remember, Monte did file a SLAPP against Lisa Clark in the infamous arcade redevelopment case. He lost, as he lost his demurrer, his motion for summary judgment, and whatever else he could think of to throw Lisa out of court after Monte had decreed he could shut down her business whenever he felt like it. Jones & Briggs defended her for free, and Lisa won every time. I believe the city spent in excess of $200,000 on that folly.I would ask SPK to tell me if he has ever stood up for someone without hiding behind a computer screen, but I’m more bored now than I was before I looked at this blog. Adios. There must be something on cable.CEJ,ESQ, and psych major
“it seem as if there are, at the most, only 2 people here taking the side of the person who started this whole Punch & Judy show?”Well golly gee whiskers! Chain stores and affordable housing might interest more than one or two, wouldn’t you think?
This guy is an absoulute joke, he’s got nothing, and he knows it! Go home! Ojai has enough freaks already and we don’t need some jerk who whimpers like a baby sucking up tax dollars. If it weren’t for your ego, you would have refused the free services of a nominal group such as aclu.
Why does this thread keep returning to the topic of the feelings of the person who originally pushed the initiative? Wasn’t this supposed to be about something that was supposed to be good for Ojai? Where’s the selflessness here? If there is any, I just don’t see it. I just keep seeing comments about how someone is being disparaged. Well, so what? People disparaged Mother Teresa, and she just kept right on going. She never made her mission about her, and neither do other real givers. This seems to have all turned away from being about what’s good for Ojai, and instead appears to have turned into a cult of personality, and just one man’s personality, at that. If anyone had really wanted the initiative to succeed, they’d have done whatever it took to make that happen. Instead, it seems more as if someone just wanted to put on a big show and then act like a bird with a broken wing. By the way, why does it seem as if there are, at the most, only 2 people here taking the side of the person who started this whole Punch & Judy show?
Is it significant in any way that the word “lawyer” sounds so much like the word “liar”? Isn’t law supposed to be about the truth, and not about who can tell the most successful lie, over and over and over and over again, without shame?There was no SLAPP suit.I see a lot of similarities between the 2006 “initiative” (and I use that word very loosely) supporters and the Save Our State people. They both came to town behaving as if they had a mandate and proceeded to act as if it was their duty to save us from our stupid selves, and they never missed an opportunity to remind us of how stupid they thought we were. They still haven’t stopped. Neither group cared that less than one percent of the town’s population admired them or had any real interest in their message or goals. They both created huge straw men and, metaphorically speaking, threatened to set fire to them in the middle of town if they didn’t get their way. It was both sad and funny that some of these people actually got to meet each other face-to-face on the morning of the anti-immigrant protest, and that they were incapable of recognizing each other as soulmates. But, perhaps there was a reason that they were drawn together as they were on that morning. Fate offered them all the chance to experience a life-changing epiphany, and they all blew it, as far as I can tell.I feel as if I have been listening to the tale of a man who demanded to walk his neighbor’s dog after forcing his way into the neighbor’s home, and then threw the dog into Lake Casitas, called 911 so that there would be a credible witness to him swimming back to shore with the abused dog, and then sued the dog owner after said owner refused to pay public tribute to the alleged rescuer of the victimized dog.By the way, since the ACLU also defends groups like NAMBLA (the North American Man/Boy Love Association), it does not mean that they are actually on a person’s side or that they admire that person or that person’s tactics. Everybody gets a defense attorney, and there are lawyers who will take just about any kind of case if they think it will increase their street creds and their chances of getting hired for bigger and better cases. And, one more time, although I know that the person who obviously has all the answers keeps refusing to answer this question: What do you think the City thinks it is accomplishing?
Can anyone explain what the city thinks it is accomplishing?Asked and answered. You just didn’t like the answer.
“As far as trying to “explain”, you are playing “stump the chump”.” I guess the chump is stumped. Can nobody offer an answer? Is namecalling the best the city attorney’s supporters can muster? “The real answer will be decided in court.” This keeps getting repeated. What could the court possibly say that would make what the city attorney has done any better? Even if the court ruled for the city attorney all the way down the line, the City of Ojai pays him a bunch of money for accomplishing nothing for us, except beating back an anti-SLAPP motion that could never have been brought if the city attorney had simply done his job. No matter what the court does, Ojai loses. “… which is why you can’t get any traction here or anywhere else in town.” The Ventura judge threw Widders out on his face. The ACLU has come in. The IRI has come in. There is now a formula store ordinance. That, friends, is the definition of traction. On the Widders’ folly side, your “can’t do wrong” hero managed to pull something rare among lawyers, filing a lawsuit that was dismissed on a demurrer without leave to amend. For those of you who are vocabulary-challenged, that is something less than traction. It takes a pretty special lawyer to draft a complaint that is thrown out on its first go without leave to amend. (Unless, of course, its a SLAPP.) “Wow, you kind of leaned right into that one even though you were warned not to, didn’t you?… This was all brightly lit and neon painted cause-and-effect, and that’s how most people see it and will continue to see it.” Gosh, you know, if citizens who are threatened with lawsuits that are invalid on their face would just cow down and do what the would-be plaintiff – the one with the lawsuit that is invalid on its face – demands, we wouldn’t have these problems. Hey, I kind of like the logic. If you’ll only tell me your name, I’ll threaten to sue you if you don’t give me all your money. Then if you don’t give me all your money, I’ll sue you. And if you don’t like that, its all your fault for not giving me all your money in the first place. “Nobody except for a very small group of people in town believe that anyone was victimized…” The very small group of people seems to be those supporting Widders, all anonymously on this blog. They appear to consist of one or two people who repeat themselves, then start namecalling. Meanwhile, look at the city council meeting video linked above. Look at the video of any of the meetings on these subjects, and you will see more of our best citizens than have turned out on any subject in the last two years coming in, stating their name and address, and telling the city council that it has blown it here. And still, in all this, no answer to the question. Third time’s a charm, right? Never give up hope. Once more: Quite a few people attack the victim here. Can anyone explain what the city thinks it is accomplishing?
kia ora!blessings from the ACLU!as you bless our whole world.and also to all those in our sacred Valley home,who reside in consciousness, reside in loving respect of Earth Friend Jen’s buttocks and Jeff’s lawsuit!
This guy’s a joke! Way to go, Jeff, you’re a moron. Way to waste taxpayers’ money for your oversized ego.
if you ever get really bored, start at the most recent post on most any of the OVN or Ojai Post blogs and read them from most recent to the original post. it is pretty funny to see how far askew the rants go.