Metropolitan News-Enterprise


Monday, October 15, 2007


Page 1


Fourth District C.A. Rules:

Anti-SLAPP Statute Does Not Bar Ballot Initiative Challenges


By STEVEN M. ELLIS, Staff Writer


The state’s anti-SLAPP statute does not bar suits to determine the constitutional validity of proposed ballot initiatives, the Fourth District Court of Appeal ruled Friday.

Div. Two reversed Riverside Superior Court Judge E. Michael Kaiser’s order striking a suit by the City of Riverside, which sought a declaration that a measure to amend the city’s charter with respect to its practice of eminent domain was invalid and not the proper subject of a local initiative.

The proposed initiative would have prohibited the city from using eminent domain to take private property to be used for economic development, defining such term as any activity to increase tax revenue, tax base, employment, or general economic health that did not result in the transfer of land to public ownership, a common carrier, or a private entity for the purpose of removing a harmful use of the land.

It also provided that private property acquired through eminent domain could not be transferred to a private entity for 15 years after acquisition, unless it was to be transferred to public utilities or common carriers, or a private entity occupying an incidental area in a public project, i.e., an area not exceeding 10 percent of the total square footage of the property at issue, and provided that neither the city nor any of its departments could undertake a contractual obligation to use its powers of eminent domain.

The matter arose in October of 2005, when Ken Stansbury and the group Riversiders for Property Rights submitted the proposed initiative to the city, along with a request to forward the text to the city attorney to prepare a ballot title and summary.

In November of 2005, the city filed a lawsuit seeking a declaration that the proposed initiative was invalid because eminent domain, a matter of statewide concern, was not subject to amendment by local initiative. The city also sought relief from any obligation to place the proposed initiative on the ballot, and alleged that the proposed initiative was self-contradictory because of the restriction on transfer of taken property to private entities for 15 years, even where such taking and transfer was allowed by the initiative.

Stansbury and the group responded with a motion to strike the suit, arguing that it violated the state’s anti-SLAPP statute and was filed with the intent to invalidate the petition before voters could even consider it.

The anti-SLAPP statute provides a mechanism for quickly identifying and eliminating strategic lawsuit against public participation brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances.

The trial court granted Stansbury’s motion on March 10, 2006, and the city appealed.

On appeal, the city pointed out that the group had failed to complete the necessary process to place the initiative on the ballot, and asked the court of appeal to take judicial notice of the fact that an identical initiative petition had been filed on May 30, 2006.

Despite ruling that the appeal was technically moot, the court held that the issue presented was a matter of broad public interest and likely to recur, and exercised its inherent discretion to consider the issue.

Justice Douglas P. Miller opined that the trial court should have denied Stansbury’s anti-SLAPP motion because Stansbury failed to establish that the city’s lawsuit arose as a result of protected activity.

“By its declaratory relief action, the City was simply asking for guidance as to the constitutionality of the proposed initiative,” he said.

“Indeed, the City did nothing to limit respondents’ activities in connection with the initiative, nor did the City, by its action, otherwise impact respondents’ First Amendment rights. Moreover, it was proper for the City to initiate its declaratory relief action as a means of disputing, in a preelection challenge, the validity of the initiative.”

Miller characterized Stansbury’s argument that his right to petition the government was not complete – and thus could not be challenged – until after a proposed initiative was placed on the ballot and submitted to the electorate as a “faulty premise.” He pointed to previous opinions by the court of appeal that pre-election review of ballot measures is appropriate where the proposal’s validity is in serious question and the matter can be resolved as a matter of law before unnecessary expenditures of time and effort are placed into a futile campaign.

Sweeping aside Stansbury’s contention that a citizen’s right to petition his government is sacred, Miller said that this argument overlooked the fact that no constitutional right exists to place an invalid initiative on the ballot and reversed the trial court’s decision.

Miller was joined in his opinion by Justice Betty Ann Richli, and Acting Presiding Justice Jeffrey King.

Attorneys on appeal were Kevin K. Randolph, Kevin T. Collins, Daniel M. Fuchs, and Howard B. Golds of Best, Best & Krieger for the city; and Richard Brent Reed for Stansbury. Riversiders for Property Rights did not file a brief.

Counsel for the parties did not return calls seeking comment.

Amicus briefs were filed in support of the city by the League of California Cities and the California Association of Counties; and in support of Stansbury by the ACLU Foundation of Southern California and Jeff B. Furchtenicht.

The case is City of Riverside v. Stansbury, E040125.


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