City Attorney’s Lawsuit, Which Asked The Court To Relieve Him Of His Duty To Prepare Ballot Titles And Summaries For Proposed Measures That Were Unconstitutional, Was Timely-Filed

In Widders v. Furchtenicht, (— Cal.Rptr.3d —, Cal.App. 2 Dist., Oct. 20, 2008), a California Court Appeal considered whether a city attorney was limited to a 15-day period in which to file a lawsuit seeking a judicial declaration that he was relieved of his duty to prepare ballot titles and summaries for proposed measures that were unconstitutional. The Court of Appeal held that the city attorney was not limited to a 15-day filing period.

Facts

Jeff B. Furchtenicht submitted two ballot initiative measures directing the Ojai City Council “to exercise its ‘informed judgment’ to craft and adopt laws relating to chain stores and affordable housing.” One of the initiative measures directs the Ojai City Council to “urgently consider and take measures to” prohibit or deter national chains and franchise operations within City’s limits. The second measure orders the City Council to “urgently consider and take measures to address affordability of housing within City.” The measures provided that, if the City Council did not adopt the ordinances, they should be submitted to a vote of the people at the November 7, 2006, general election, or a special election.

Ojai’s City Attorney, Monte L. Widders, informed Furchtenicht that the measures were “an improper exercise of the initiative power conferred by the California Constitution because they do not propose actual legislation.” Widders claimed that the measures amounted to invalid attempts to enact indirect legislation. Widders told Furchtenicht that he should withdraw the measures and then resubmit them in their proper form. Widders further informed Furchtenicht that, if the measures were not withdrawn by September 15, 2006, Widders would be forced to seek declaratory relief from his duty to comply with Election Code § 9203, which provides that a city attorney must supply city election officials with a ballot title and a summary of a proposed measure.

On September 4, 2006, Furchtenicht e-mailed Widders asking him for authority supporting his refusal to prepare a ballot title and summary. Widders provided Furchtenicht with the requested authority. Furchtenicht later told Widders he would only withdraw the measures if the City Council would put the issues contained in the proposed measures on successive council agendas.

Widders filed a lawsuit seeking declarations by the court that the proposed measures were facially unconstitutional; the ballot titles and summaries would mislead voters; no additional funds should be used to process the proposed measures; and he should be relieved of his duty to comply with § 9203. Furchtenicht asked the trial court for judgment in his favor because Widders failed to file his action within 15 days. He also filed an anti-SLAPP motion.

The trial court found that Widders failed to timely-file his lawsuit because he did not file it within 15 days of his receipt of the request for the ballot titles and summaries. The court, however, found that Widders acted within his official duties when he denied the request to title and summarize the initiatives. The trial court also denied the anti-SLAPP motion.

Decision

The Court of Appeal held that the trial court erred in ruling that Widders had filed his lawsuit too late. The court stated, “There is simply no authority for the proposition that the 15-day time period referred to in section 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 statutes.”

Government entities and officials who are “charged with failing to perform ministerial duties under the Elections Code may assert invalidity of the initiative measure as a defense in actions brought to compel performance of the duty after the statutory period for compliance has passed.” The court found no legal distinction between raising the invalidity as a defense and allowing an official who is charged with the ministerial duty to come to court and seek judicial authorization for the decision regarding his or her ministerial duty if “the claim is brought within a reasonable period of time after it [becomes] clear that attempts to avoid litigation [have] failed.” Also, “Widders did not have to wait for Furchtenicht to sue him in order to obtain judicial relief” from his obligation to perform his duty.

The court also rejected Furchtenicht’s claim that judicial review is not allowed at the “prepetition” stage in the initiative process. The “prepetition” stage is the period of time “before an initiative petition has been circulated for signatures.” The court found that Furchtenicht did not establish that “prepetition” review of initiative measures is prohibited by the Constitution.

The California Supreme Court recognizes that the governmental official who is “responsible for preparing ballot titles and summaries may seek judicial relief from that duty.” There is no constitutionally protected right to place an initiative on a ballot if the initiative is invalid. If people sign a petition to place an initiative on the ballot, voters will presume the measure will be on the ballot if a sufficient number of signatures are gathered. The “Supreme Court has recognized there is no value ‘in putting before the people a measure which they have no power to enact.'” Circulating and collecting signatures for an invalid ballot measure may “serve to undermine public confidence in the process.” It was appropriate for Widders to seek judicial guidance on how to proceed in light of his belief that there was no way he could provide “a ballot title and summary that would not be misleading to the voters.

The court also held that the trial court did not err in denying Furchtenicht’s anti-SLAPP motion. Widders met his burden of demonstrating that he would prevail on the merits of the claim. “Furchtenicht’s proposed initiative measures were an improper exercise of the electorate’s initiative power.” The proposed measures do not contain actual ordinances or statutes. The proposed measures merely state policies and direct the Ojai City Council to enact laws in line with these polices. Widders acted properly in seeking relief from his duty to prepare titles and summaries. Accordingly, the trial court properly denied Furchtenicht’s anti-SLAPP motion.

Questions

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Mona Ebrahimi | 916.321.4500