ACLU denied hearing in city lawsuit

By Nao Braverman

Ojai resident Jeff Furchtenicht and the American Civil Liberties Union were struck down several times, but that doesn't necessarily mean that they have given up yet.
The ACLU's petition for rehearing of the lawsuit between city attorney Monte Widders and Furchtenicht in the State Court of Appeal was denied Nov. 18.
An appeal to the California Supreme Court may be filed next.
"We think there were a number of mistakes and misstatements in the court's opinion," said Peter Eliasberg, the ACLU attorney who defended Furchtenicht in the case.
The petition for rehearing was received by the court Nov. 4, shortly after the State Court of Appeal reversed the demurrer granted to Furchtenicht in 2006 and affirmed denial of his anti-SLAPP (Strategic Lawsuit Against Public Participation) motion against the city of Ojai.
If an appeal is filed by Furchtenicht and the ACLU, the case would go the California Supreme Court, which only takes cases considered to be of statewide significance.
Should an appeal be filed, and if the Supreme Court were to decide to take the case, a number of statewide organizations like the League of California Cities and the County Supervisors Association of California would likely get involved, said city manager Jere Kersnar.
Mayor Sue Horgan and incoming Councilwoman Betsy Clapp both said at a candidate forum in October that they would not vote to spend any more money on the case, if it were appealed to the Supreme Court. Neither answered phone calls or returned messages to state whether their statements still stand. Councilwoman Carol Smith and Councilman Joe DeVito both said they could not take any stance on the issue at this time. Councilman Steve Olsen did not return phone calls in time for press. Councilwoman Rae Hanstad, although her last meeting will be on Dec. 2, said that she feels the city should focus instead on other legal priorities such as supporting the efforts of the Stop the Trucks Coalition.
The case has cost the city $93,810, according to Kersnar. Widders, his partner, attorney Roger Myers, and associate Nancy Hartzler, of the firm Myers, Widders, Gibson, Jones & Schneider, L.L.P. were each paid the standard $150 for their work on the case.
The two-year-long battle between the city attorney and Furchtenicht began when Furchtenicht proposed two citizen's initiatives to the city regarding chain stores and affordable housing in August 2006.
Widders declined to prepare the ballot title and summary for the initiatives, claiming that they were not submitted in the proper format, and asked Furchtenicht to withdraw them, rewrite them and resubmit them.
When Furchtenicht suggested that the initiatives be placed on a future City Council agenda, but did not withdraw the initiatives, Widders took him to court, stating that he needed the opinion of a judge.
In response Furchtenicht filed a demurrer and an anti-SLAPP motion, declaring that the lawsuit was intended to obstruct his right to propose initiatives.
At the end of November 2006, Furchtenicht was granted the demurrer but his anti-SLAPP complaint was denied.
Both parties 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, and appealed that portion of the decision in early 2007 defended by the ACLU. In response the city asked for the entire decision to be appealed.
A three-judge panel decided in favor of Widders on Oct. 20, reversed the demurrer and denied the anti-SLAPP motion.
The petition for rehearing filed 10 days after by the ACLU, was denied, leaving the case to be appealed to the Supreme Court if ACLU and Furchtenicht so choose.