Three-judge Panel To Decide SLAPP Appeal

Lawyers say city attorney should not have refused to write 2006 ballot title

By Nao Braverman

The city and Ojai resident-attorney Jeff Furchtenicht will have to wait at least another month for a ruling that will decide the leagality of an anti SLAPP lawsuit. Oral arguments in the case were heard July 9 at the Second Appellate District Court of Appeal in Ventura, and lasted about 30 minutes.
According to city attorney Monte Widders, a court determination is due on Oct. 7, but should be issued sometime in September.
“We presented our argument and we hope the court will come back with the right decision,” said Michael Chait, of Mitchell Silberberg & Knupp, who is working alongside the American Civil Liberties Union in Furchtenicht’s defense.
Widders said he could not tell if the judges were leaning in either direction by the way they questioned both parties.
“It’s really hard to read them,” he said.
Furchtenicht appealed the November 2006 court denial of his anti-SLAPP (Strategic Lawsuit Against Public Participation) motion against the city.
At the oral argument earlier this month, his attorneys argued that Widders should not have refused to write a ballot title and summary for Furchtenicht’s proposed initiatives in August 2006.
Widders and the attorneys representing him argued that there are certain circumstances in which initiatives can be struck down before they are circulated. They believe that Furchtenicht’s proposals was one such circumstance.
But Furchtenicht and his representative disagree.
A Supreme Court case 30 years ago has already determined that a city attorney cannot refuse to write a ballot title and summary for an initiative, and then argue that it is not constitutional, according to Chait.
“There are times when it is proper to challenge an initiative before it goes on the ballot,” he said, “but it is clearly improper to refuse to write a ballot title and summary, to choose not to perform a duty that is required of you, based on your personal belief.”
City manager Jere Kersnar said that the ACLU and Furchtenicht want to change an existing law.
“The law says that there are certain circumstances in which an initiative can be challenged.” said Kersnar. “The ACLU’s view is that there should never be any pre-election challenges whatsoever.”
Furchtenicht and Chait deny that the ACLU has any intention of changing the law.
“It’s the exact opposite,” said Furchtenicht. “The ACLU is actually trying to defend the existing law. What Monte did was violate the existing statute.”
The initial dispute began nearly two years ago when Widders refused to prepare a ballot title and summary for two citizens initiatives regarding chain stores and affordable housing.
Widders claimed that the initiatives were not submitted in the proper format and refused to proceed with the process unless they were rewritten.
When Furchtenicht did not withdraw the initiatives, he was taken to court by Widders.
At the Nov. 29, 2006 hearing, a Ventura Superior Court judge dismissed the case. He said that even if Widders’ alleged complaints were true, there was no need for a lawsuit. He also denied Furchtenicht’s SLAPP complaint.
Furchtenicht appealed the denial of the anti-SLAPP motion with the ACLU on board. In response, the city filed a cross appeal, in order to have the entire case re-examined, according to Kersnar.
The three attorneys working for the city, Widders, his partner, attorney Roger Myers, and associate Nancy Hartzler, were each paid the standard $150 per hour for their work on the case. So far the lawsuit has cost the city more than $83,000, according to Kersnar. The city has not yet been billed for the hours spent on the oral argument in July, he said.
The ACLU has taken the case pro bono. Neither Furchtenicht nor Chait could say how much their work has cost the organization so far.