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.