ACLU presses ahead with citizen lawsuit

By Nao Braverman
The American Civil Liberties Union appealed the court's decision upholding the city of Ojai's position in the lawsuit against local citizen Jeff Furchtenicht on Monday. If accepted, the appeal will be heard by the California Supreme Court. (Read petition for review)
The court will generally decide whether to take up the case, deny it or extend their decision within 60 days, or by the end of January, according to a court clerk. If a decision is not made by then, the court can take an additional 30 days to come up with a response by the beginning of March.
But Peter Eliasberg, the ACLU attorney defending Furchtenicht, is making the case that the lawsuit is significant enough to be considered by the California Supreme Court.
"The decision that was made in the State Court of Appeals would have a dramatic effect on the initiative process," said Eliasberg. "If a person proposing an initiative is afraid of being faced with a lawsuit before getting out of the starting gate, they would think three or four times before deciding to go through the process."
That, he said, is an obstruction of a citizen's right to circulate an initiative.
In October the State Court of Appeals 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.
A petition for rehearing of the lawsuit in the State Court of Appeals was denied on Nov. 18, before Eliasberg filed the appeal to the Supreme Court.
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. But neither have confirmed any promises to stick by their statements. Clapp did not answer phone calls in time for press. Horgan did say that she didn't want to spend any more money on what she considered a dead issue. However, she was not willing to speculate on how she would vote if she is wrong, and the case is taken up by the Supreme Court. Councilman Steve Olsen, Councilman Joe DeVito and Councilwoman Carol Smith all said they were not ready to comment until they had received more information and discussed the issue with city staff.
City manager Jere Kersnar said it was too early to discuss the issue. But if the case were to go to the California Supreme Court, statewide organizations such as the League of California Cities and the County Supervisors Association of California would likely get involved. If it reached that level, Ojai might not have much of a choice but to participate, he said.
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.
City attorney Monte 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 in the proper format. When he did not, Widders took Furchtenicht to court, and Furchtenicht responded with demurrer and anti-SLAPP motion. Both were denied in the State Court of Appeals.
The two-year-long battle has cost the city $93,810, according to Kersnar.