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Legal Arguments Show That Marina is Wrong |
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February 13, 2001 Robert Wellington, Esq. [Sent By Fax [(831) 373-7106] and U.S. Mail] Law Offices of Robert Wellington Re: City of Marina v. Armstrong Ranch Property Owners et al., Monterey County Superior Court; Case No. 52386 Dear Mr. Wellington: On behalf of LandWatch Monterey County ("LandWatch"), I am writing to request that the City of Marina ("City") voluntarily dismiss the above-captioned complaint. Now that the voters have approved Measure E, the City has a clear and unambiguous duty to defend it. Building Industry Assn. v. City of Camarillo, 41 Cal.3d 810, 822 (1986). Indeed, the Supreme Court has strongly suggested that, as the City Attorney, you independently have the duty to defend the Measure on behalf of the people, rather than to advance the agenda of the City Council majority attempting to thwart it. Arnel Development Co. v. City of Costa Mesa, 28 Cal.3d 511, 514 n. 3 (1980). Instead of carrying out your duty to defend Measure E on behalf of the people, you have filed a lawsuit on behalf of the City Council against LandWatch and various other parties, claiming that the City has been informed, in some unspecified way, that Measure E might be inconsistent with the revised General Plan hastily adopted by the City Council on the eve of the election. We are aware of no authority whatsoever that allows the City Council to seek declaratory relief against initiative supporters to test the validity of a duly enacted ordinance. Indeed, our research indicates that such an action is plainly impermissible. The City's choice of LandWatch as a defendant in this case is especially disturbing. The allegations set forth in the Complaint suggest that the City Council views LandWatch as being the sole party responsible for defending the Measure. (All of the other named "defendants" allegedly contend that the Measure is unlawful). Although not the official sponsor of Measure E, LandWatch, like several other organizations (including Marina 2020 Vision, The League of Women Voters of the Monterey Peninsula, and the Sierra Club) did support the Measure's passage. So, of course, did the majority of City voters. Now that Measure E has become the law of the City, LandWatch bears no more responsibility for defending it than any other person--specifically including any of the individual Marina voters who supported the initiative, many of whose names are known to the City, because they published their support in newspaper advertisements in favor of Measure E. The City's choice of LandWatch as a defendant appears to be based wholly on its members' exercise of their constitutional right to engage in First Amendment protected activity to support the measure. California has enacted a statute precisely to prohibit this kind of "Strategic Lawsuit Against Public Participation." The law provides for a defendant faced with such a lawsuit to file a special motion to strike under Code of Civil Procedure section 425.16. An award of attorneys' fees and costs to LandWatch is mandatory if LandWatch prevails on such a motion. Because the City Council's filing of this action is plainly an unauthorized waste of taxpayers' funds, the public officials authorizing it could be held personally liable for reimbursing such fees. See, e.g., Stanson v. Mott, 13 Cal.3d 206, 226-27 (1976) (holding that "public officials must use due care, i.e., reasonable diligence in authorizing expenditure of public funds, and may be subject to personal liability for improper expenditures made in the absence of due care"). We regard the City's Complaint as establishing a "road map" for Measure E opponents, inviting a challenge to its legality, and since I understand that a Cross-Complaint has now been filed, it appears that the opponents are putting this "road map" to immediate use, and are now directly challenging the validity of Measure E. Since this Cross-Complaint has been filed, as noted above, the City must defend against that suit, and not seek to force private parties to shoulder that burden. See, e.g., Camarillo, 41 Cal.3d at 822; Arnel, 28 Cal.3d at 514 n.3. That is the process by which the City upholds the law. We are confident that Measure E will withstand any legal challenge by its opponents. According to both the City's Complaint, and the Cross-Complaint, Measure E's opponents contend that it is invalid because it adopts General Plan policies that, allegedly, conflict with the revised General Plan hastily adopted by the City Council on October 31, 2000. We note that no such argument would have been possible if the City Council had waited a few more days, until the November 7, 2000 election, to see if the voters approved Measure E. This is something that we and more than a hundred Marina citizens specifically requested. However, as you know, the City did not wait to see what the people of Marina thought, but even so, the alleged General Plan inconsistency does not remotely undermine the validity of Measure E. Instead, in recognition of the fact that a hostile City Council has no power to undo the will of the people*, the remedy would be for the City Council to amend the General Plan to conform to Measure E. See, Gov't Code § 65754; Garat v. City of Riverside, 2 Cal.App.4th 259, 302-04 (1991). Indeed, you yourself informed the voters that this would be the appropriate remedy in the Impartial Analysis of Measure E. As you there explained: "If the City's current General Plan is revised or amended prior to the adoption of this measure, that new General Plan would have to be further revised or amended by the City as soon as possible to the extent that it, or any provisions in the new General Plan are inconsistent with any provisions and policies of this UGB initiative measure." With respect to the Cross-Complaint challenging Measure E, which was invited by the City's action, the official sponsors of Measure E, and other supporters, may choose to intervene, particularly if the City does not vigorously defend the Measure. But that will be their choice, not the burden randomly forced upon LandWatch in this case by your office. Moreover, the City may not properly abdicate its duty to defend the initiative in court. Accordingly, if the City does not dismiss their "declaratory relief" lawsuit voluntarily by February 20, 2001, LandWatch intends to bring a special motion to strike, demurrer, or other appropriate motion to dismiss the City's lawsuit. If forced to do so, LandWatch will also seek its attorneys fees and costs, as well as other appropriate sanctions against the City, the City Council members who voted to bring this suit, and any other appropriate officials. As you will recall from our telephone conversation, you promised to send me a copy of the City's Complaint, and I promised, in return, to acknowledge service. So far, I have received nothing from you--although I do understand that you have provided a copy of the Complaint to Shute, Mihaly and Weinberger, who helped draft Measure E. I want to clarify for the record that so far you have not made the required service of the Complaint on LandWatch, nor will any communication with LandWatch substitute for any required service on Ken Gray, the official proponent of Measure E, or on Marina 2020Vision. I hope that the City Council will decide to dismiss its "declaratory relief" action, on or before February 20, 2001, and that the Council will thereafter take all appropriate action to provide a strong and effective defense for Measure E. Because your office has already taken the position that Measure E is invalid, it appears that your offices, as well as the firm of McCutchen, Doyle, Brown & Enersen, are disqualified from representing the City to defend the Measure. Therefore, it is imperative that the City immediately secure independent outside counsel to defend Measure E on behalf of City voters.
cc: City of Marina |
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