The City of Santa Monica has appealed to the California Supreme Court to continue a lawsuit against itself to overturn a local campaign financing measure approved by city voters in 2000.

The Santa Monica City Council voted Tuesday, March 8th, to send the lawsuit to the highest state court for a ruling on the constitutionality of the measure.

City attorneys have been in a four-year legal process that involves the measure’s sponsor and decisions by three trial courts and two appellate courts.

In 2000, 60 percent of Santa Monica voters approved the measure called Proposition LL and also known as the Oaks Initiative.

The measure prohibits City Council members and all city commissioners from accepting campaign contributions, expensive gifts and employment for six years after voting to give people a “public benefit” worth more than $25,000.

A nonprofit organization called the Oaks Project — a division of the Foundation for Taxpayer and Consumer Rights group, based in Santa Monica — sponsored the measure.

“The measure has some constitutional problems that arise mainly because of the staunch First Amendment protections that apply in the area of political participation, which includes political contributions,” said Santa Monica city attorney Marsha Moutrie.

Herb Katz, mayor pro tem, said almost every decision made by public officials in Santa Monica is a “public benefit” worth more than $25,000 to someone.

Council members said that enforcing the measure would disenfranchise almost every homeowner, contractor, business owner and anyone else who appears before the City Council, Planning Commission, Architectural Review Board and other commissions.

“Do we tell Mr. and Mrs. Jones [fictional homeowners] they can no longer participate in the election process for the next six years if they for some reason have to come before City Council to obtain a permit to remodel their kitchen?” asked Councilmember Bob Holbrook.

“That circumstance I can’t fathom actually being applicable to measure LL,” said Carmen Balber, a Santa Monica resident who works for the Oaks Project.

“That’s how we all read this measure,” Katz said. “What if that kitchen costs $35,000? In Santa Monica, that could easily happen. The City Council has faced this type of decision before and the Planning Commission faces it all the time.”

Public officials in Santa Monica are already limited to a maximum $250 campaign contribution in the city in addition to applicable state campaign law restrictions.

‘THE DILEMMA’ — Moutrie said the measure has “sweeping bans” that would freeze the City Council and city commissions.

The measure includes seven definitions of a “public benefit” between the City of Santa Monica and “any individual, corporation, firm, partnership, association or other person” that receives that benefit.

The measure’s bans apply to any public official who voted for or granted:

– personal services of a value in excess of $25,000;

-an agreement of a value in excess of $25,000 to sell or furnish any material, supplies or equipment;

– an agreement to buy or sell any real property, or lease any real property, of a value in excess of $25,000;

– an award to conduct any business activity for which the gross revenue is $50,000 and the activity involves no other available competitor to provide similar services;

– a land use variance, special use permit or other exception to a pre-existing master plan or land use ordinance pertaining to real property where such decision has a value in excess of $25,000;

– a tax abatement, exception or benefit not generally applicable of a value in excess of $5,000; and

– cash or anything else of a net value to the recipient that is in excess of $10,000.

Public officials would be subject to criminal prosecution and civil penalties if they accepted campaign benefits from people who received a “public benefit” from the official.

“The full enforcement of this measure as it is on paper would disenfranchise our whole population from the political process,” said Councilmember Kevin McKeown.

“I am all for electoral reform and clean financing, and I am frustrated by this,” McKeown said.

Balber said the measure is not as bad as the city believes.

She said all the city has to do is notify contractors of the measure’s provisions.

“This kind of system cannot be managed,” said Councilmember Bobby Shriver.

Councilmember Ken Genser said public officials might attempt to ask everyone if they received a “public benefit” from the city, but public officials are subject to criminal sanction if that information is not provided.

The city cannot keep a cost-effective database of everyone doing business with the city and would have no idea who ten-percent owners of companies are so they could be notified, Shriver said.

“The measure is also discriminatory because the bans apply in the situation where a public official voted for a project, but there is no equivalent ban on an official who votes against a project,” Moutrie said.

“For me not to be accused of violating the law, the safe thing for me to do is always vote no,” Holbrook said. “That is the dilemma.”

THE LEGAL PROCESS — The city sued itself in 2001 in a lawsuit called City of Santa Monica v. Maria Stewart.

Maria Stewart is the Santa Monica city clerk who certified the measure’s election results, but under Moutrie’s legal advice, refused to enforce the measure’s provisions.

The city sued itself to create a lawsuit that would get a court to rule on the measure’s constitutionality.

Oaks Project simultaneously put the measure on the ballot in five California cities where the measure was subsequently approved — Santa Monica, Vista, Pasadena, Claremont and San Francisco.

“I think we need to understand the message that was put out to the voters,” Genser said. “When this was being put on the ballot, voters were regularly approached at the supermarkets and elsewhere and asked ‘Do you want to end corruption at City Hall?’

“That’s the message the Oaks Project used to get this on the ballot. There is a bit of opportunism and demagoguery going on here.”

The Pasadena city clerk refused to certify that city’s election results.

Oaks Project filed a lawsuit to force the Pasadena city clerk to certify the results and the City of Pasadena filed a lawsuit challenging the Oaks complaint.

A trial judge in the Pasadena case ruled that the measure was unconstitutional and Oaks Project filed an appeal.

Before the measure was put on the ballot in any city, the City of Vista had filed a pre-election challenge and asked Santa Monica and other cities to join Vista.

“Santa Monica declined to join because pre-election challenges may be inconsistent with the city’s commitment to facilitating the broadest possible opportunities for public input,” Moutrie said in a staff report.

Vista went forward with the challenge and a trial judge ruled that the measure was manifestly unconstitutional.

Oaks Project filed an appeal.

While the case was pending in the Fourth District Court of Appeal, the measure was approved in Vista but voided by a competing ballot measure.

Santa Monica, Pasadena and Claremont joined Vista in seeking a decision from the Fourth District, but the appellate court said the case was “moot and should not be decided.”

After Santa Monica voters approved the measure, the city sued itself in June 2001 to obtain a final judicial decision on constitutionality.

Oaks Project intervened in the City v. Stewart lawsuit and “argued strenuously that the question of constitutionality should not be settled,” Moutrie said.

A trial judge ruled that Santa Monica’s “litigation was brought in good faith,” Moutrie said.

After a trial judge ruled in the Pasadena case, Santa Monica consolidated City v. Stewart with Pasadena’s appeal, which was heard in the Second District Court of Appeal in January this year.

The Second District appellate court declined to rule because of procedural issues, but “expressly recognized that the measure raises very serious constitutional questions of ongoing importance to the public,” Moutrie said.

“So far, we have had two trial courts say that the measure is unconstitutional and manifestly unconstitutional and two courts of appeal that declined to rule on the merits,” Moutrie said.

With last week’s City Council approval, the lawsuit will be sent to the California Supreme Court.

Moutrie advised the City Council that the state’s highest court does not agree to hear too many cases and may not pick up City v. Stewart.

Balber said the city is continuing a “useless process of petitioning the [state’s] Supreme Court.”

“We have, over the course of the last four years, seen hundreds of thousands of dollars of taxpayer money spent to fight the will of the voters,” Balber said.

Balber said individual public officials or contractors could sue if their constitutional rights were being infringed.

The city does not have the righte thetheright to use taxpayer dollars to sue itself to move the lawsuit forward, Balber asserted.

If the California Supreme Court declines to take the city appeal, City Council members said they would consider another ballot measure that they say is enforceable.

“We are not delaying or not trying to act on the will of the voters,” Shriver said.

“We need to achieve the goals of good and clean government, and make the way more enforceable, intelligible and transparent to people,” he said.

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