City Hall may ask Supreme Court to review case
CITY HALL — The city sued itself and lost over a voter-approved initiative two years ago. It appealed the decision and, last week, lost again.
The California Second District Court of Appeals deemed that City Hall sued itself over the political reform initiative without solid legal footing. The court refused to consider a range of constitutionality concerns raised by the city.
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.
Officials at City Hall immediately criticized the new proposition, calling it poorly written, overly broad and a threat to the constitutional rights of everyone from low-level city clerks to elected leaders sitting on the Santa Monica City Council.
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 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 treading on the constitution.
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, which were spent on hiring outside law firms to help handle the case.
The law has never been implemented. “The case was very heavily litigated in the trial court. We set out to file a fairly simple lawsuit and... this was derailed into a procedural battle,” said City Attorney Marsha Moutrie, who added the total legal bills were unknown, but significant.
While the city sued, the advocacy group that put the initiative on the ballot steamed. Carmen Balber, from the Foundation for Taxpayer and Consumer Rights, which is headquartered in Sunset Park, called the city’s suit against itself a trumped-up attempt to circumvent voter will. She rebuffed claims the initiative was unconstitutional.
“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,” she said Tuesday. “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. They also con-tend 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 happens 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,” said Deputy City Attorney Anthony Serritella. “A more careful process of drafting could have avoided some of these problems.”
Examples of the law’s faults, Serritella said, go on and on.
“What we believe is that the standards that are set forth in the initiative are indefinite or uncertain,” added Serritella, illustrating his point with a portion of the law that 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. “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 appellate court 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.
“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 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.”
City Hall’s responding course of action has not yet been decided on, though Serritella said officials could either request another hearing, where the appeals court would reconsider or clarify its position, or officials could ask the California Supreme Court to review the case. Other additional alternatives may come up as time progresses, he added.
“There are still unresolved issues that need to be resolved,” Serritella said Tuesday. “Obviously, on our end, we’re disappointed that the court failed to reach those issues, that the courts instead side-stepped those issues on highly technical grounds.
“We think the court should have resolved those issues and both the city and the city clerk had standing to raise those issues, but at this point we’re left with the court of appeals decision,” Serritella continued. “We’re just in the process of digesting the decision and have not made a decision how to proceed.”
Originally published in the Santa Monica Daily Press print edition on February 2, 2005. Read the original PDF.