City spent up to $180K on its outside legal fees
CITY HALL — Untold hours and money City Hall used to sue itself and lose over a voter-approved initiative might finally pay off for residents who supported Proposition LL and attorneys who helped shoulder the cause.
City Attorney Marsha Moutrie announced on Tuesday after a closed session that the Santa Monica City Council agreed to settle the case in which City Hall sued City Clerk Maria Stewart in a strategic effort to challenge the constitutionality of Proposition LL, an initiative approved by Santa Monica voters in 2000 that prohibits public officials from receiving gifts and campaign contributions from companies that contract with the city of Santa Monica for more than $50,000.
The Supreme Court’s March decision to not review the case means that the lower courts’ decisions to make the initiative a law will likely be final, since the measure has never been put into effect in Santa Monica.
As a result, City Hall agreed to pay $229,191 to attorney Fred Woocher, who represented the Foundation for Taxpayer and Consumer Rights (FTCR), for his efforts in helping the nonprofit group succeed in upholding the case.
Carmen Balber, one of the foundation’s consumer advocates, said her group warned City Hall officials that their decision to try to fight the initiative would ultimately end up being costly.
“They spent a big expenditure in order to try to violate the voters’ will,” Balber said.
Representatives from City Hall didn’t comment on how many hours and how much money it spent trying to fight the constitutionality of Prop. LL. Several in-house attorneys worked on the case, and an outside law firm was hired to handle a portion of the legal battle.
“The (settlement) is for the proponents of the initiative who challenged the city’s ability to obtain a ruling on the constitutionality of the initiative,” said Deputy City Attorney Jeanette Schachtner. “So, as it stands, we don’t have a judicial determination as to whether the initiative is constitutional.
“There is nothing more we can do with this particular lawsuit.”
City Hall has spent up to $180,000 in outside legal expenses for services related to the case, Schachtner said.
City Hall officials didn’t comment on how they will enforce the initiative.
Nearly 60 percent of Santa Monica voters in November of 2000 voted in favor of Prop. LL, which was designed to stop city workers and elected leaders from collecting cash, gifts and other perks from individuals who are affected by their decisions.
City Hall officials immediately criticized the new proposition, calling it poorly written, overly broad and a threat to the constitutional rights of everyone from low-level city workers to elected leaders sitting on the Santa Monica City Council.
The city argues that a zoning administrator — an appointed official who has discretion to approve routine applications for zoning permits — would violate the law if he accepts sports tickets from a family friend who happens to be a partial owner of a construction company that does business in Santa Monica.
“Determining which officials are actually covered... presents a question of some complexity,” wrote Deputy City Attorney Tony Serritella in his brief to the Court of Appeals. “This court can save the initiative by reforming the term ‘public official’ to mean only those persons who hold local elective office.”
The city also asked that the initiative not include nonprofit organizations, so that the officers, directors and volunteers would still be able to contribute to the campaigns of public officials. In addition, the city argued that the ban on campaign contributions to Santa Monica officials who subsequently pursue federal and state office can be severed without invalidating the law.
The city argued that the criminal and civil penalty provisions of the law could violate due process because “it’s hard to imagine how a public official is supposed to know, for example, the identities of all persons who hold more than 10 percent... equity, participation or revenue interest, or who is a trustee, director, partner or officer of a person or entity receiving a public benefit,” according to Serritella’s brief. City attorneys asked that the law be more specific to say that public officials “who knowingly or willingly” accept contributions are violators.
Just how to avoid those problems without blatantly ignoring the will of voters was a major concern to city officials. In May 2001, City Attorney Marsha Moutrie recommended, and the City Council agreed, that the city should file a lawsuit against itself. It sued City Clerk Maria Stewart, who, on Moutrie’s advice, had refused to implement the law for fear of it treading on the constitution.
The City Council wanted clarification too, but it also wanted to make sure the city was honoring the “will of the people” — the majority of voters who approved the law. And suing the group that forced the measure onto the ballot, called the “Oaks Project,” wasn’t an option because city officials didn’t want to appear to be going against the will of the people, officials said.
So the only way city officials thought they could clarify the law’s constitutionality was to sue its own city clerk for not enforcing it, then wait for a judge to rule.
Santa Monica Superior Court Judge Debra Yang dismissed the suit in April 2002 because the city had no legal grounds to sue because no one had challenged the law. The trial court and the court of appeals agreed with the Oaks Project that there was no actual disagreement between the city of Santa Monica and the city clerk, and ruled that City Hall could not sue itself in order to get rid of a voter-approved initiative. The March 2004 announcement by the California Supreme Court defers to those previous rulings.
Originally published in the Santa Monica Daily Press print edition on August 12, 2005. Read the original PDF.