February 13, 2001
Robert Wellington, Esq. [Sent By Fax
[(831) 373-7106] and U.S. Mail]
Law Offices of Robert Wellington
857 Cass Street, Suite D
Monterey, CA 93940
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.
* See, e.g., DeVita v. Napa County, 9 Cal.4th
763, 796-97 (1995) ("We see no difference in
principle between an initiative which bars a
city council from repealing newly enacted zoning
restrictions, and one which freezes existing
restrictions; either, to be effective, must
limit the power of a hostile city council to
evade or repeal the initiative ordinance");
Rossi v. Brown, 9 Cal.4th 688, 715-16 (1995)
("The people's reserved power of initiative is
greater than the power of the legislative body.
. . . [A]n initiative measure may be
amended or repealed only by the electorate.
Thus, through exercise of the initiative power
the people may bind future legislative bodies
other than the people themselves.") (Emphasis in
original).
cc: City of Marina
Marina 2020 Vision
Ken Gray
Shute, Mihaly and Weinberger |
