In
response Furchtenitch told Widders he hoped the issue would not be
taken to court. If the city placed the substance of his proposed initiatives
on an upcoming meeting agenda, he would withdraw the initiative proposals.
Though
the city did put the substance of both of Furchtenitch's initiatives
on a meeting agenda, Furchtenicht was not informed, and did not withdraw
his initiatives. Subsequently, the city took Furchtenicht to court.
In
response, Furchtenitch filed a demurrer, which is a plea for dismissal
of a case on the grounds that even if the facts of the complaint are
true, there is no legal basis for a lawsuit. He also filed an anti-SLAPP
motion, claiming that the lawsuit was intended to obstruct his right
to propose initiatives.
In
November, 2006 the Ventura County Superior court dismissed the case
and granted the demurrer but denied the anti-SLAPP motion.
According
to Superior Court Judge Ken Riley's findings, Widders was "well
within his official duties to deny Mr. Furchtenicht's request to title
and summarize the two initiatives."
According
to the hearing's minutes, Widders was not required by law to do anything,
thus a lawsuit was not needed. The anti-SLAPP motion was denied according
to Riley because "it was not the right to petition that caused
the lawsuit," but rather Furchtenitch's failure to withdraw the
initiatives.
Despite
the court's granting the demurrer and denying the anti-SLAPP, the
language of the court findings still resulted in both sides convinced
that they had won the case.
"The
court found that I was right in refusing to write a ballot title and
summary if the measures are unconstitutional, " Widders had said
after the hearing.
Jay
Leiderman, Furchtencht's attorney said he was delighted with the findings.
"It shows that the case has no merit and in essence should have
never been brought to court."
Leiderman
said it did not make sense that the court granted the demurrer and
did not grant the anti-SLAPP motion.
So
Furchtenitch appealed the anti-SLAPP motion with the ACLU and Mitchell
Silberberg & Knupp LLP defending him pro-bono.
"California
has set out a process for people who want to get measures on the ballot,"
said Eliasberg. "All of that is built into the elections code.
It's all part of the process of giving citizens a voice. For one it's
not a city attorney's job to stop the process. And someone who wants
to participate in the process shouldn't find themselves in a lawsuit."
Widders
was represented by two attorneys, his partner and Fillmore city attorney
Roger Meyers, and another associate of his firm, Nancy Hartzler. Each
of the three attorneys was paid the standard $150 per hour for their
work on the case.
So
far the lawsuit has cost the city slightly more than $20,000, said
city manager Jere Kersnar.
"I
would emphasize the city is not initiating this action," said
Kersnar of Furchtenich's appeal. "The city is being forced to
defend itself."
But
whose fault it is that the case was brought to court in the first
place is still a point of contention.
"I'm
sure that paying Widders to fight the case has cost the city a lot
more than it would have to pay him to write a ballot title and summary
even if it were withdrawn in the end," said Eliasberg.
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