Appeals court hears arguments over proposed Riverside ballot measure: Riverside CA Press-Enterprise, 9/5/07

By Doug Haberman

A three-member panel of appeals court justices heard oral arguments Wednesday in a case that pits Riverside resident Ken Stansbury against the city government in a fight over a proposed, but dead, ballot initiative.

The initiative, which Stansbury backed, would have severely restricted the city Redevelopment Agency's ability to use eminent domain to acquire private property to transfer it to a developer.

At issue is whether a trial court judge acted correctly when he threw out a 2005 city lawsuit against Stansbury and a group Stansbury represented called Riversiders for Property Rights.

Stansbury and the group were preparing in fall 2005 to circulate their petition to get the initiative on the city ballot when Riverside sued.

The city contended the initiative was invalid because eminent domain is not a proper subject for a local initiative but rather is a statewide issue.

The city Redevelopment Agency has filed 18 eminent domain cases since the start of 2004, primarily as part of efforts to revitalize downtown, Merrill Avenue across from Riverside Plaza and portions of University Avenue in the Eastside neighborhood.

The city suit sought a court ruling on the proposed initiative's legality.

Stansbury and the group filed a motion in response to the suit saying the suit was nothing but an attempt by the city to stifle their First Amendment rights.

Riverside County Superior Court Judge E. Michael Kaiser granted the motion and threw out the city's suit.

The city appealed.

In June, the 4th District Court of Appeal, Division 2, in Riverside issued a tentative opinion that would reverse Kaiser's decision.

The tentative opinion said there is no constitutional right to place a legally invalid initiative on the ballot. The law allows asking a judge to review a ballot measure for its legality before an election, the tentative opinion said.

Richard Reed, an attorney representing Stansbury, said at the time the tentative opinion was issued that existing law thwarts citizens' rights and needs to be changed.

Hearing's Arguments
Wednesday's half-hour hearing took place downtown in front of appellate court Associate Justices Betty Ann Richli, Jeffrey King and Douglas P. Miller.

Two attorneys argued on Stansbury's behalf that the tentative opinion was wrong. An attorney with the American Civil Liberties Union appeared with them but did not address the panel.

Los Angeles-based attorney Michael Chait argued that the city's suit attacked the First Amendment right to collect signatures on a petition for a proposed ballot measure.

The city suit - including a request for attorney's fees if the city prevailed - was an attempt to squelch that right, Chait said.

If the tentative opinion became final, he said, it would undercut existing law preventing such suits, which are known as SLAPP suits: strategic lawsuits against public participation.

Chait represents a citizen of Ojai who is facing a legal situation similar to Stansbury's, although not over a ballot measure concerning eminent domain.

Riverside attorney Richard Reed, who represents Stansbury, said a challenge to a citizens initiative should be allowed only after it has qualified to go on the ballot.

Furthermore, the city had no legal right to sue, he said. In interviews, Reed has said the city government must carry out the will of the people so it could not be harmed if the initiative passed. Only someone who could claim harm, such as a developer who expected to benefit from eminent domain, could sue, he said.

Howard Golds, an attorney with Best Best & Krieger representing the city, said the city lawsuit was against the content of the proposed initiative, not the First Amendment rights of anyone working to place it before the voters.

The city did nothing to prevent Stansbury and Riversiders for Property Rights from continuing to gather signatures or from speaking out on behalf of the initiative, Golds said.

"We're not attacking their right to petition," he said.

By filing the suit, "All that we're saying is: In our opinion, this initiative was invalid," Golds said.

Eminent domain has been a major issue across the nation since a June 2005 U.S. Supreme Court ruling.

Public agencies use eminent domain, also called condemnation, to acquire private property from owners unwilling to sell. It is typically employed to buy property for public uses, such as parks, libraries and street-widening projects. The agency condemning the property must pay fair market value for it.

The U.S. Supreme Court ruling upheld the government's right to use eminent domain for another purpose: to acquire land for private developers whose projects would create jobs and boost tax revenues.

Many people, including Stansbury, saw the ruling as an affront to private property rights. Stansbury moved to counteract the U.S. Supreme Court decision at the local level.

After Kaiser threw out the city suit, Riversiders for Property Rights reached an $11,000 settlement with the city in which the group gave up any further legal challenge.

The group disbanded, leaving Stansbury alone to fight the city.

Reed and Stansbury have said they will take the case to the state Supreme Court if necessary.

The appellate justices have 90 days to file their final opinion.

Riverside CA Press-Enterprise: http://www.pe.com