e-Bulletin: Appellate Court Confirms Right of City to Seek Pre-Election Review of Ballot Initiatives

On October 12, 2007, the Fourth District of the California Court of Appeal issued a final published decision in City of Riverside v. Riversiders for Property Rights, emphasizing the ability — and even the duty — of cities to ask the courts for pre-election review of ballot measures.  In so doing, the Court of Appeal reversed a superior court ruling against the City.

The defendants in the case had submitted a proposed local initiative that would have radically restricted the City’s eminent domain rights.  The City asked the superior court for a declaration as to whether the City could place the proposed initiative on the ballot in light of case law calling eminent domain a matter of statewide concern not subject to local initiative.  The defendants brought a special motion to strike under Code of Civil Procedure section 425.16, the “anti-SLAPP” statute.  The trial court granted the motion, dismissing the action, and the City appealed.

The Court of Appeal agreed with the City that the declaratory relief suit did not arise from any protected activity by the initiative proponents because the City had filed its lawsuit “for the express purpose of determining the constitutionality” of the initiative.  Accordingly, the initiative proponents were free to continue to promote their proposed initiative by any legal means.  Thus, the anti-SLAPP motion should have been denied.  The Court also agreed with the City that, if the defendants’ position were adopted, then there could never be any pre-election challenge to any ballot proposition, when the state Supreme Court has repeatedly held that pre-election challenges are appropriate and sometimes necessary to preserve the validity of the electoral process.

In the end, the Court granted a full reversal of the trial court’s decision and awarded costs and potentially attorneys’ fees to the City.

BB&K Partners Kevin Collins and Howard Golds represented the City of Riverside in this case.

 Please contact your BB&K attorney in the Municipal and Redevelopment Law Practice Group to discuss how and when a municipality can challenge ballot measures before an election, or if you have any other questions pertaining to this case.

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Disclaimer:  BB&K eBulletins are not intended as legal advice.  Additional facts or future developments may affect subjects contained herein.  Seek the advice of an attorney before acting or relying upon any information in this communication.  (c) 2007 Best Best & Krieger LLP