By Hillel Aron
By Joseph Tsidulko
By Patrick Range McDonald
By David Futch
By Hillel Aron
By Dennis Romero
By Jill Stewart
By Dennis Romero
When Santa Monica voters handily approved a Ralph Nader–backed anti-political-corruption initiative last November, the town’s reform-minded city government — which boasts one of the strictest campaign-finance laws in the state — found itself in an awkward predicament.
Instead of embracing Proposition LL, the liberal City Council balked at enacting the new law, which restricts city officials from taking campaign contributions or jobs from sources who have benefited from their votes or actions. Before placing the measure on the ballot, council members had warned that the initiative would chill participation on the city’s numerous volunteer boards and commissions, since officials suspected of violating the law could be sued by private citizens.
Santa Monica officials weren’t alone in their opposition to the new law sponsored by the Oaks Project, a nonprofit group headquartered in their own back yard. In Claremont, where two commissioners resigned after an identical measure swept to an easy victory in March, the City Council declared the law unconstitutional and refused to enforce it.
In Pasadena, city officials hired outside counsel to help them figure out what to do about the law, which, more specifically, prohibits officials from receiving gifts or jobs from public-benefit recipients for one year after the expiration of their terms, one year after the official’s departure from office or five years from the date the official acted to approve the allocation, whichever comes first.
Last week, volunteers of the Oaks Project, which sponsored the ballot initiative in six California cities, got tired of waiting for it to be adopted. Last Tuesday, they petitioned Los Angeles County District Attorney Steve Cooley and California Attorney General Bill Lockyer to file for writ of mandate compelling Santa Monica, Claremont and Pasadena to enforce the new law. (Identical measures failed in Irvine; passed in Vista but garnered fewer votes than a competing initiative placed on the ballot by the City Council; and passed overwhelmingly in San Francisco, where Oaks Project volunteers have met with the city’s Ethics Commission to discuss ways to enforce the measure.)
“As a citizen, I am obliged to follow the law, even those laws I disagree with,” Oaks Project volunteer Sue Castagnetto said in a statement issued to the press. “City officials in Claremont, Pasadena and Santa Monica should have to do the same. The Attorney General must take up this case to send a message to these cities, and those across California, that public officials cannot ignore the law simply because they do not like it.”
Within hours of the Oaks Project’s petition, Santa Monica’s city attorney, Marsha Moutrie, recommended in closed session that the City Council initiate a lawsuit against the measure. Moutrie pointed out that in a suit filed by Vista, a trial court had found the measure to be unconstitutional; an appellate court, however, will not rule on it, because a competing measure got more votes and was signed into law.
A lawsuit, Moutrie wrote in a three-page memo to the council, would test whether restricting campaign contributions violates the right to political expression. “Additionally, the measure appeared to be pre-empted by both federal and state election laws, to interfere with individuals’ rights to pursue lawful employment, and to force individuals to choose between exercising their First Amendment rights and seeking such governmental approvals as business permits.”
Moutrie said that initiating a lawsuit to test the constitutionality of Proposition LL was the best of several options facing the city. Other options were to refuse to enact the measure, thereby bucking the will of the people; to adopt the measure, and ignore the Vista ruling; or to take no action and wait to be sued.
“Of these four options, [filing a lawsuit] appears preferable,” Moutrie wrote in her memo to the council. “It is the only one which would allow the city to both protect individual rights and take action in response to the voters’ decision.
“If the ultimate decision of the court is that Proposition LL is constitutional, then the city can proceed to implement it without fear of trammeling individual rights,” Moutrie wrote. “However, if as appears much more likely, the measure is finally determined invalid, then individual rights would have been preserved, this specific controversy would have been resolved, and any similar, future measures may be drafted in accordance with the court’s decision.”
But in such a lawsuit, who would be suing whom? In the most likely scenario, City Clerk Maria Stewart, who would help monitor the law, would file a nonconfrontational suit against her own employer seeking a constitutional ruling. The tactic was used after Proposition 13 left many cities uncertain about that law’s application, Moutrie said.
Paul Herzog, president of the Oaks Project, questioned the city’s actions and its ability to file a suit against Prop. LL, which was approved by 58 percent of Santa Monica voters. “It’s now the city’s obligation to defend it [the measure]. It’s their obligation to implement the measure,” Herzog said. “To use taxpayer funds to prevent an initiative from going into effect that protects taxpayer funds, the irony is apparent.
“The question is, ‘Are the city officials doing their job, which is to represent the public?’” Herzog said. “They’re looking for a way to thwart the will of the voters. It’s a real slap in the face of the public.”
Herzog, who called the Vista decision “political,” said he is confident the political-reform initiative would stand legal muster.
In a declaration to the California Court of Appeals that heard the case brought by Vista earlier this year, an expert witness for the Oaks Project wrote that the law is constitutional and “narrowly tailored to the compelling state interest it addresses.”
“The seminal question . . . is whether the electorate employing these public officials is constitutionally barred from requiring as a condition of that employment the sacrifice of private benefit inuring to them from beneficiaries of their public decisions,” said professor Robert C. Fellmeth, executive director of the Center for Public Interest Law based at the University of San Diego Law School. As to whether the law interfered with an individual’s right to lawful employment, Fellmeth wrote, “From the official’s perspective, he or she is free to seek employment and benefit from any one of over one million employers in the state, and tens of thousands within the county . . . In context, the limitation is not overly broad.”
Later this month, the Santa Monica City Council will hold a public hearing on whether to file a lawsuit. Oaks Project organizers expect there will be plenty of opposition.
“They may realize filing a lawsuit is the last thing people want,” said Oaks organizer Carmen Balber. “People will be out there to express their outrage. Santa Monica is known as a progressive city. The initiative’s success was yet another expression of voter will to keep Santa Monica the most progressive city it can be.”