Thursday, July 31, 2008

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.


Anonymous said...

Thanks for the update, OVN and Nao Braverman. Hope to hear more in Sept/Oct. Much appreciated!

Sespe Echo said...

Can Ojai do some fundraising for our CIVIL RIGHTS? Would like to donate.

lil' sir echo said...

me too!!

Pat McPherson said...

Thank you OVN for making the SLAPP appeal so clear to the public. Now get ready for the decision that comes down as it will be a VERY BIG DEAL. Here is why:

If the court decides it was not a SLAPP, even if we know our initiative is legal as in the case for Jeff Furchtenicht, the average citizen will not be able to afford the financial risk of being sued arbitrarily by a City. The entire initiative process will effectively be taken away from the average citizen. The only people that could afford to go up against the city in the future will be the big money interests like the developers and special interest groups. This truly will remove the initiative process as a means for the citizens to cause their government to do things they refuse to do on their own.

If the court decides it was a SLAPP, Jeff Furchtenicht & the ACLU would get their court costs paid, but no damages. But best of all for use citizens is that cities will know in the future not to falsely sue its citizens to stop the initiative process. The time for a City or anyone else to determine if an initiative is legal is after it becomes law, not when it’s just an idea that has not been voted on by the citizens.

It is a sad day that the City of Ojai has sued an average citizen that has two small kids, and has caused that family such grief. Our city has uselessly spent $83 thousand dollars of our money that could have been used for more important things, and we may end up with a decision from the court that will prevent us Ojai citizens from being able to exercise our right to introduce an initiative in the future. This is really stupid, and our City Council continues to allow good money to be thrown after bad.

I challenge the OVN to do some in-depth reporting on this. The decision that comes down from the appeals court will have far reaching affects and will get attention all over the nation. THIS IS A VERY BIG DEAL.

Anonymous said...

This is no big deal.

Just an ego-trip for an attorney who fancies himself a self-styled savior, and was too proud to simply rewrite the initiative as requested. He has no skin in the game, as the ACLU is picking up the tab. I hope his two kids will be proud of him one day, but this SLAPP suit won't be the reason.

Anonymous said...

Maybe it could have been written better, but that does not change the fact that judge threw out Monte Widders claim. The facts are, that city was wrong. Get it –WRONG!!!

It is insensitive of you to say this had had no affect on the Furchtenicht family. I suggest you ask those who know them. Even the “Doe’s that signed the initial initiative lost sleep over this issue, and some sought legal advice.

The SLAPP appeal will determine if Monte Widders can do it again to you or me. That outcome concerns me, and it should you to.

Anonymous said...

It is insensitive of you to say this had had no affect on the Furchtenicht family.
I said it was an ego-trip, don't misquote me. Jeff F. isn't representing me or anybody other than his own egotistical self; if he lost sleep, it is because his ego is on the line and not his wallet. And don't play the "victim", especially after you and your cohorts slam Widders, the City Council, etc. It is a legal matter now, so we will see what happens by October, no matter what invective or aspersions you throw out there.

Anonymous said...

Your comment “Jeff F. isn't representing me or anybody” is simply in error. At least a hundred “Doe’s” signed the original initiative and a lot of others supported it too.

Even if it was an ego trip for Jeff F, that does not change the fact that the judge threw out Monte Widders claim. The city was found wrong.

Could it be that Monte Widders is the one on an ego trip? But unlike Jeff F who received no money, Monty Widders is getting paid at our expense, no matter what the outcome? I don’t like to go here as it implies I know Monty’s motives, much as you seem to think you know Jeff’s.

The point Pat’s making is that now we are in this mess, after paying Monty a lot of money, if the appeals court says it was not a SLAPP, ANY city attorney in ANY city could sue ANY citizen if her or she wanted to squash an initiative. Is that what you want or do you just not get it?

If it is found the City’s actions were a SLAPP, would you still be blaming Jeff or would you think our attorney gave us bad advice and our City Council should have listed to the many citizens that stood before them suggesting they get second opinion.

If one were to follow your logic, every innocent person would always be guilty. Maybe you should consider moving to China if you support such totalitarian government. actions.

Anonymous said...

The point Pat’s making is that now we are in this mess, after paying Monty a lot of money....

Pat who?

Anonymous said...

anon 6:46 p.m. & 7:44 p.m.,

You are painfully misinformed. I'll remind you and everyone else that the city, under the aegis of Mr. Widders and with the votes of the city council sued Jeff. He had to pay a lawyer to defend against the initial SLAPP suit. The people you claim don't exist donated money to help Jeff pay his attorney. The judge threw Widder's case out court because it had no merit. At the same time, the judge decided NOT to call the city's actions a SLAPP suit. That is why the ACLU got involved in the whole case and decided to appeal to a higher court. Insanely, Widders with the votes of the city council except for Carol Smith, decided to cross appeal and pit the city against the ACLU!

The ACLU is in this fight protect the direct democracy provisions of the California Constitution. If the city of Ojai gets away with this type of lawsuit against a citizen writing an initiative, then any city in California can use the same SLAPP tactic to stop meddlesome citizens from engaging in their direct democracy rights under California's Constitution. If the judges decide along already existing case law and the Constitution, the actions of the city will be called a SLAPP and the $100k+ that they have already spent on Mr. Widders' firm will be added to the bill for the ACLU lawyers. In the end Jeff will not be reimbursed for the initial cost of his attorney, and he will receive nothing more than the knowledge that the direct democracy rights of fellow Californians is protected.

In short, you are completely wrong and you would be well served to inform yourself on an issue before shooting your mouth off. But, then again, you're anonymous so go ahead and blather away. I'll thank you to leave Jeff's kids out of this.


boris said...

SPK didn't you screw the pooch on the DeVito recall? I suppose your selling that as victory for democracy...

Anonymous said...

Well Mr/Ms Anon,

I'm not really sure about your bestial proclivities, but I don't seem to recall anything about a canine during that affair. It does strike me that we have a formula retail and restaurant ordinance on the books here in Ojai though.

Anonymous said...

It is a sad day that the City of Ojai has sued an average citizen that has two small kids, and has caused that family such grief.

SPK, you or another Jeff defender brought his kids into the discussion. The people that supported Jeff supported the idea of low-income housing (that would be paid for with someone else's money). Anyway, this conversation happened previously on this board, and will probably happen again when judgment is rendered at the end of Sept. Until then, feel free to pontificate about "civil rights".

lil bow wow said...

oh sean turn-off your computer and for christ-sakes get a life!

Anonymous said...

People who really cared about housing or chain stores actually went to the Council meetings.

Sespe Echo said...

Please, don't forget what was going on in Ojai when Monte rejected this initiative.
I lived through the attition on Montgomery street - the Smiegel/Rice/Whitman et al waxed to the pinnacle of developer abuse in Ojai with a city council being canine...bankers on board! Sue Horgan hugging Lois on the street after the temporary defeat in court ...Monte and Friends.
My neghbors to the south in a rental owned by the Oakview living Ojai citizens of the year had young visitors dying after visits to the rental.
To the north my neighbors brought fill into Libby Park, built their property out, brought trees down the drive and ripped my roof so it leaked -and then an adult child who returned rejected from boot camp did rubber laying wheelies within 10 feet of my bed.Terrorizing me not once,but over and over, joined by his home invasion robber brother for a few thrills during the Lost Arboles construction. What were those neighbors thinking? Abusing an ill neighbor doesn't make a well community. Calls to the cops did nothing..If I went to a city meeting the cute chief would shadow me to the kitchen after DeVito nodded.I called the parents They treated me with true contempt and refused to control their issue. And the neighbors who heard it did nothing. They were having their business packages sent to my address because of their very limited commercial access. Have you ever gotten a credit card in your name at your neighbors address? A simple A B or C omitted really changes an address after a number- amazing.
This, and more was going on while this initiative was proferred to the city.
By now you must be able to identify this writer......Not living in Ojai.
I mention this because we were just a side show in the rampant evil greed of Ojai to stamp out anybody who got in the developers way.
This ties over to Mallory Way as that Banker Becker kept us in an escrow to nowhere .... Ask me about the natural gasline rupture and the unwashed oak that fell. Accident? Perhaps. Why didn't the arborist respond?
Ojai, get some real people in your city council before the charm is poof, like the acoustics of Libby Bowl,changed by Lost Arboles Condos .














-Laurence W Britt

Namaste .

Fred Bunz said...

**News Flash**
I'm told Monte Widders has endorsed SuZa Franzina for mayor!!

Ojai Sun said...

Monte Widders is Suza's campaign manager? No Way!

Anonymous said...

check out this u tube video

Anonymous said...

Little Siddhartha Girl comes out of her garden.

She's been "looking at it for months". Months.

Welcome to the world, child.

devi dep bob said...

i don't get it... is suza lil' siddartha girl?

Anonymous said...

It's the girl in the video. C'mon, now. Try to keep up.

Anonymous said...

This thread just kinda dropped dead, didn't it? I guess the ACLU must have told JBF and SPK to STFU.

Anonymous said...

I heard the Court of Appeals has issued a ruling on Jeff's effort to uphold the rights of American's to vote on important local issues. I think we all owe Jeff a debt of gratitude for never giving up on this issue and not letting a bad ruling stand at the lower court levels.