Metropolitan News-Enterprise


Tuesday, October 21, 2008


Page 1


Court of Appeal Clarifies Rule on Initiative Ballot Summaries


By SHERRI M. OKAMOTO, Staff Writer


A city attorney is not legally obligated to prepare a ballot title and summary for a proposed initiative measures that is clearly unconstitutional because it does not propose enactment of legislation, the Court of Appeal for this district ruled yesterday.

Although Elections Code Sec. 9203 provides that a city attorney must prepare a ballot title and summary for an initiative measure within 15 days of receipt, Div. Six ruled, Ojai City Attorney Monte Widders was entitled to seek and receive judicial relief from his duty to prepare ballot titles and summaries for two proposed measures that were facially unconstitutional, 

even after the statutory time for compliance had passed.

The appellate court reversed Ventura Superior Court Judge Ken W. Riley’s order sustaining Valencia attorney Jeff Furchtenicht’s demurrer to Widders’ claim for declaratory relief.

 Furchtenicht submitted two ballot initiative measures to the Ojai city clerk which directed the city council to “urgently consider and take measures” to prohibit national chain and franchise operations within the city, and to address the affordability of housing within the city.

Widders informed Furchtenicht that he would not prepare ballot titles and summaries for the measures because they did not propose any actual legislation. Widders suggested that Furchtenicht withdraw the measures and resubmit them in proper form, or else Widders would file a declaratory action for relief from his statutory duties.

After Furchtenicht declined to withdraw the measures, Widders filed an action seeking a judicial declaration that the measures were facially unconstitutional and relieving him of his Sec. 9203 obligations. Furchtenicht filed a combined demurrer and anti-SLAPP motion.

Riley found that Widders “was well within his official duties” to refuse to title and summarize the two initiatives and denied Furchtenicht’s anti-SLAPP motion. But Riley sustained the demurrer on the ground that Widders had failed to file suit within the 15-day time frame for compliance with Widders’ statutory duties, and because Furchtenicht had not brought an action to compel Widders’ compliance.

Writing for the appellate court, Justice Steven Z. Perren explained that the 15-day time limit in Sec. 9203 was not intended to act as a statute of limitations on a city attorney’s right to seek judicial relief from compliance with the statute.

He noted that officials who fail to perform ministerial duties under the Elections Code may assert the invalidity of the initiative measure as a defense in actions to compel performance after the statutory duty for compliance has passed, and in those circumstances, the refusal to act could be “‘retroactively validated’” by the judicial decision that the issue should not have been submitted to the voters.

“There is no legal distinction where, as here, the official charged with the ministerial duty comes to court of his own accord seeking judicial authorization for his decision, and the claim is brought within a reasonable period of time after it became clear that attempts to avoid litigation had failed,” Perren wrote.

Because Widders’ obligation to perform his ministerial duties was a continuing one, Perren reasoned, Widders’ claim was ripe for adjudication even though the 15-day period had passed. Widders also did not have to wait for Furchtenicht to file suit in order to obtain judicial relief because Widders could not forego his statutory duties without judicial authorization, Perren explained.

Concluding that Widders would have prevailed on his claim as a matter of law had the demurrer not been sustained on the issue of timeliness because Furchtenicht’s proposed initiative measures were an improper exercise of the electorate’s initiative power, Perren ordered the matter remanded for the trial court to enter judgment in favor or Widders.

Presiding Justice Art Gilbert and Paul H. Coffee joined Perren in his decision.

The case is Widders v. Furchtenicht, B196583.


Copyright 2008, Metropolitan News Company