Judge Rules for City in Citizen Lawsuit

Furchtenicht says decision will chill initiatives

By Nao Braverman
A three judge panel in the State Court of Appeal reversed the demurrer granted to local citizen Jeff Furchtenicht in 2006, and affirmed denial of his anti-SLAPP motion against the city of Ojai on Monday.
“The appellant judges seem to say I did exactly what I was supposed to do,” said city attorney Monte Widders.
But Furchtenicht maintains that the sweeping court decision was a terrible one, that will rob the public of its right to freely propose an initiative from here on.
The dispute which began during the 2006 City Council elections, comes to surface once again in time for this year’s election debates.
The two-year-long battle began when Furchtenicht proposed two citizen’s initiatives to the city regarding chain stores and affordable housing in August 2006.
Widders declined to prepare a ballot title and summary for the initiatives, claiming that they were not submitted in the proper format, and asked him to withdraw them, rewrite them and resubmit them.
Widders had argued that the initiatives were too vague, directing the council to “consider” and take measures to address the affordability of housing, and discourage chain stores from opening downtown, instead of proposing actual legislation.
When Furchtenicht refused to withdraw the initiatives and rewrite them, Widders took him to court, stating that he needed the opinion of a judge.
In response, Furchtenicht filed a demurrer and anti-SLAPP (Strategic Lawsuit Against Public Participation) motion, declaring that the lawsuit was intended to obstruct his right to propose initiatives.
At the end of November 2006, Ventura County Superior Court Judge Ken Riley granted Furchtenicht the demurrer on the grounds that even if the alleged complaints were true, there was no legal basis for a lawsuit. However, Riley found Widders “well within his official duties to deny Mr. Furchtenicht’s request to title and summarize the two initiatives,” according to the minutes of the hearing.
Riley also denied Furchtenicht’s SLAPP complaint. Both Furchtenicht and Widders left the courtroom believing that the decision had been made in their favor.
Furchtenicht was not pleased with the judge’s dismissal of his anti-SLAPP motion, however, and appealed that portion of the decision in early 2007, this time with the American Civil Liberties Union defending him pro bono.
ACLU attorney Peter Eliasberg said that the city attorney should not be able to impede in the initiative process which essentially gives citizens a voice.
In response the city asked to appeal the entire decision, not just the anti-SLAPP portion, so that the case could be reviewed in its entirety, according to city manager Jere Kersnar.
An oral argument was held on July 9, and the three judge panel issued a unanimous decision, Monday, in favor of Widders.
The written decision states that the three judge panel agreed the demurrer granted to Furchtenicht was erroneous. Since Widders did not claim the authority to make the decision himself, regarding the initiatives, but asked the opinion of a judge, he was not claiming any authority beyond his ministerial duties, according to the judges. It also adds that there is no constitutional right to place an invalid initiative on the ballot. Although characterized as ministerial, the duty to prepare a ballot title and summary requires professional skills and judgment, according to Judge Steven Perren’s written decision.
The judges accepted Widders’ claim that he could not conceive of a ballot title and summary of the initiatives that would not be misleading to voters, according to Perren’s written report.
Moreover, Perren adds that Widders was not acting on his opinion of the content of the initiatives, but the format in which they were written. Had he acted on his opinion of the content of the initiatives, that would have been unconstitutional, according to the report.
Perren also comments on Furchtenicht’s argument that if his measures were presented to the City Council prior to the 2006 election, the voters would have the opportunity to consider their council members’ positions on the issues included in his initiatives at the upcoming election.
Perren states that “if the proposed measure does not enact legislation or if it seeks to compel legislative action which the electorate has no power to compel, it should not be on the ballot.”
Ironically, the proposed initiatives and the lawsuit have been hotly debated by the council members who are running for re-election this year, and their opponents.
Councilwoman Rae Hanstad said the court decision validates the city’s position legally and logically.
Opponent candidates Suza Francina and Betsy Clapp criticized the incumbents for allowing the city to proceed with a lawsuit that has now cost taxpayers more than $93,000.
Widders maintains that he gave Furchtenicht the opportunity to avoid the lawsuit.
“I tried to negotiate with him,” said Widders. “I told him to withdraw the initiatives and resubmit them in the proper format.”
However, Furchtenicht explains that he, in turn, responded to Widders, saying that he would withdraw the initiatives if the city would have the topics he addresses in his initiatives placed on the agenda of a future council meeting. Furchtenicht says that there was no attempt to respond to his suggestion from either city staff or council members.
“I didn’t take that as a genuine offer to negotiate,” said Furchtenicht.
The topic of affordable housing has since been discussed extensively at council meetings and an ordinance regarding chain stores was passed.
“I think that indicates that we are not opposed to bringing those issues to council,” said Hanstad.
Furchtenicht said he worries that the court’s decision sets a problematic precedent. It gives the city attorney power to quell a citizen’s initiative before the public and City Council get an opportunity to see it, he explained.
“I don’t know that Widders had bad motivations or not,” he said. “But now this legislation is ripe for abuse by people who do have bad intentions.”
Furchtenicht said he was not yet sure whether the ACLU would be interested in appealing the court’s decision. Eliasberg did not return calls in time for press.
However, both incumbents said they would not vote to continue fighting the case if it were appealed.
Kersnar confirmed that the lawsuit has cost $93,000 to date and is not sure if there are additional costs for which the city has not yet been billed.
The written report states that costs on the appeal are awarded to Widders although neither Widders nor Furchtenicht are yet sure exactly how much that will be.