City hopes state high court will consider Prop LL suit
CITY HALL — After twice losing a lawsuit against itself, City Hall has decided to seek redress from the state’s highest court.
The Santa Monica City Council agreed this week to ask the California Supreme Court to review a lawsuit it filed against itself over Proposition LL, an aggressive conflict-of-interest initiative passed by Santa Monica voters in 2000.
The idea, according to City Attorney Marsha Moutrie, is to get judicial review of a law she argued is unconstitutional and unenforceable, without directly treading on the will of Santa Monica voters.
A state appellate court last month refused to hear the case, ruling City Hall did not have legal footing to bring the suit against itself. That ruling affirmed a lower court decision against the city.
Nearly 60 percent of Santa Monica voters in November of 2000 voted for Prop. LL, which was designed to stop city workers and elected leaders from collecting cash, gifts and other perks from the groups or individuals who are affected by their policy-making decisions.
Officials at City Hall criticized the proposition as poorly written, overly broad and a threat to the constitutional rights of everyone from low-level desk clerks to elected leaders sitting on the Santa Monica City Council. In May of 2001, Moutrie recommended, and the council agreed, that the city file a lawsuit against itself. It sued City Clerk Maria Stewart, who, on Moutrie’s advice, refused to implement the law.
What followed was a legal struggle that has lasted more than four years, consumed untold hours of city attorney time, and cost tens of thousands of taxpayer dollars in outside attorneys’ fees.
Meanwhile, the advocacy group that put the initiative on the ballot has grown increasingly impatient. Carmen Balber of the Foundation for Taxpayer and Consumer Rights, which maintains its headquarters in Sunset Park, called the city’s suit a trumped-up attempt to circumvent voter will. She said Prop. LL could easily be enforced.
“It’s a very narrow circumstance, where you can see the direct line between the award of a public benefit by a city official and the thank you, the personal benefit paid by a company to that city official,” Balber said earlier this month. “It’s very narrowly tailored.”
City Hall has several major problems with the initiative. Among them are the city’s contention the language of the law would unnecessarily affect low-level workers; put too stringent fundraising limitations on local officials running for state and federal office; unfairly keep officials from taking certain types of jobs after leaving their posts; put too heavy a burden on officials to know the economic interests of outside parties; and conflict with state and federal law.
Officials also contend that civil and criminal penalties spelled out in the initiative are vague and overly broad, and that the initiative unfairly hinders donations from nonprofit groups.
To illustrate the impracticality of the law, the city argues a zoning administrator, an appointed official who has discretion to approve routine applications for zoning permits, would violate the law if he accepted sports tickets from a family friend who happened to be a partial owner of a construction company that does business in Santa Monica.
“I think there are a lot of drafting errors in the initiative,” Deputy City Attorney Anthony Serritella said after the appellate court loss. “A more careful process of drafting could have avoided some of these problems.”
“I think there are a lot of drafting errors in the initiative.” — ANTHONY SERRITELLA Deputy City Attorney
Examples of the law’s faults abound, according to Serritella.
“What we believe is that the standards that are set forth in the initiative are indefinite or uncertain,” said Serritella, adding that, for example, a portion of the law forbids officials from being swayed by members of the public with substantial interest in a company that may benefit from an official decision.
“How does the public official know the identity of all those persons?” Serritella said earlier this month. “Let’s say Corporation X applies for some type of a permit. How are elected officials to know that Citizen A holds 11 percent interest in the corporation that’s applied for the benefit?”
Though the California Second District Court of Appeals refused to consider many of the concerns raised in the city’s suit, arguing, in part, that there was no legal footing for City Hall to sue itself, it did recognize that the law raises issues of constitutionality.
It’s precisely those issues that City Hall is hopeful the Supreme Court will consider.
“As both the city and the clerk point out, significant substantive issues remain and must, at some point, be addressed on their merits,” the Jan. 28 appellate court decision reads. “Strong public policy and public interest principles are at stake, issues which are of great interest to the parties to the litigation and the public at large. That is not enough.
“Courts are not free to render advisory opinions regarding controversies which the parties fear will arise, but which do not presently exist.”
Originally published in the Santa Monica Daily Press print edition on March 1, 2005. Read the original PDF.