A state appellate court has sided with a city attorney who declined to prepare ballot titles and summaries for proposed ballot initiatives because they were unconstitutional. The court rejected the initiative backer's arguments that the city attorney acted too late, that judicial review at the "pre-petition" stage was inappropriate, and that a lawsuit filed by the city attorney was a SLAPP.

The two ballot measures would have directed the Ojai City Council to adopt an ordinance limiting chain stores and franchise operations, and to enact laws addressing the shortage of affordable housing. Because the measures did not propose specific legislation, however, they amounted to unconstitutional uses of the initiative power, the Second District Court of Appeal, Division Six, concluded. Because of the measures' obvious defects, Ojai City Attorney Monte Widders was under no obligation to carry out the typically ministerial task of preparing ballot titles and summaries for initiative petitions, the court ruled.

On August 21, 2006, Jeff Furchtenicht, an attorney who lives in Ojai, submitted two ballot measures to the Ojai city clerk. Rather than propose legislation, the measures directed the City Council to exercise its "informed judgment" to pass law related to chain operations and affordable housing. On September 1, 2006, Widders said he would not prepare ballot titles and summaries because the measures were invalid. Widders and Furchtenicht communicated but reached no agreement and Furchtenicht would not withdraw the measures. On September 25, 2006, Widders filed a lawsuit asking a court to declare the measures unconstitutional and to relieve him of his duty to prepare ballot titles and summaries.

Furchtenicht responded by arguing that Widders filed his lawsuit too late and that it was an impermissible SLAPP – a strategic lawsuit against public participation.

Ventura County Superior Court Judge Ken Riley rejected the SLAPP argument but ruled for Furchtenicht nonetheless because Widders did not file suit within 15 days of receiving the request for ballot titles and summaries. On appeal, the Second District determined there was no 15-day statute of limitations and ruled squarely for the city attorney.

Under Elections Code § 9203, a city attorney has 15 days to prepare a ballot title and summary for a proposed initiative. Widders took no action within 15 days, instead requesting that Furchtenicht withdraw the measures and rewrite them. When Furchtenicht refused, Widders went to court – 35 days after Furchtenicht submitted the measures. Furchtenicht argued – and Judge Riley agreed – that Widders had acted too late for the court to intervene. The Court of Appeal disagreed.

"There is simply no authority for the proposition that the 15-day time period referred to in § 9203 was intended to act as a statute of limitations on a city attorney's right to seek judicial relief from his or her duty to comply with the statute," Justice Steven Perren wrote for the unanimous three-judge appellate panel.

Furchtenicht and the Initiative & Referendum Institute argued judicial review before an initiative petition has even been circulated for signatures was inappropriate. But the court found that Furchtenicht had no constitutionally protected right to place invalid initiatives before voters. Because Widders "could not conceive of a ballot title and summary that would not be misleading to the voters," it was appropriate for him to seek judicial guidance, the court ruled.

Furchtenicht appealed the SLAPP ruling, arguing the trial court incorrectly decided that Widders's lawsuit was not related to Furchtenicht's constitutionally protected right to petition. But the Second District declined to consider the argument because the trial court had also found that Widders acted within his official duties, and Judge Riley said he would have ruled for Widders had he filed his suit within 15 days.

"We agree with the trial court's implicit finding that Furchtenicht's proposed initiative measures were an improper exercise of the electorate's initiative power," Perren wrote. "The initiative measures at issue here do not contain actual statutes or ordinances. Rather, they are in the nature of resolutions that declare policies without providing the specific laws to be enacted."

Thus, it was proper for Widders to seek judicial relief and his lawsuit was not a SLAPP, the court concluded.

The Case:
Widders v. Furchtenicht, No. B196583, 08 C.D.O.S. 13334, 2008 DJDAR 15925. Filed October 20, 2008.
The Lawyers:
For Widders: Katherine Stone, Myers, Widders, Gibson, Jones & Schneider, (805) 644-7188.
For Furchtenicht: Peter Eliasberg, ACLU Foundation of Southern California, (213) 977-5204.