COUNSEL:

Marsha Jones Moutrie, City Attorney, Jeanette Schachtner and Anthony P. Serritella, Deputy City Attorneys, for Plaintiff and Appellant City of Santa Monica.

Rutan & Tucker, LLP, John A. Ramirez, Joel D. Kuperberg and Michael R.W. Houston, for Defendant and Respondent Maria Stewart.

Strumwasser & Woocher, LLP, Fredric D. Woocher, Michael J. Strumwasser and Lea Rappaport Geller for Intervenors and Respondents Douglas Heller and The Foundation for Taxpayer and Consumer Rights.

Strumwasser & Woocher, LLP, Fredric D. Woocher, Michael J. Strumwasser, Lea Rappaport Geller and Samuel G. Goldstein, for Intervenors and Appellants Paul Monsour and Foundation for Taxpayer and Consumer Rights.

Michele Beal Bagneris, City Attorney, and Richards, Watson & Gershon, T. Peter Pierce and Craig S. Steele for Defendants, Cross-Complainants and Respondents City of Pasadena, Jane Rodriguez, City Clerk, and William Bogaard, Mayor of the City of Pasadena.

BOLAND, J.

SUMMARY

Lawsuits were brought relating to the enforcement of initiatives approved by voters in Santa Monica and Pasadena. The initiatives sought to prevent city officials from receiving certain advantages from persons or entities who derived benefit from discretionary decisions made by those officials. This case involves consolidated appeals challenging four separate rulings in the two actions.

In the Santa Monica suit, the trial court dismissed the action as a nonjusticiable controversy. We agree with that ruling. Not only does Santa Monica lack the requisite standing to challenge the constitutionality of the initiative, the claims asserted by Santa Monica are not ripe for determination.

In the Pasadena suit, the trial court denied an anti-SLAPP motion brought by the initiative's sponsor to strike Pasadena's cross-complaint granted a summary judgment motion in favor of the city, and denied the initiative sponsor's motion for attorneys' fees under the private attorney general statute. We disagree with those rulings. The acts which led Pasadena to file a cross-complaint against the initiative sponsor arose out of protected First Amendment activities, and Pasadena was not able to demonstrate the requisite probability of success on the cross-complaint. Additionally, the perfection of the initiative sponsor's appeal from the denial of its anti-SLAPP motion divested the trial court of jurisdiction to consider Pasadena's summary judgment motion. Finally, the initiative sponsor was entitled to recover attorneys' fees under the private attorney general statute based on the necessity of its private enforcement action.

FACTUAL AND PROCEDURAL BACKGROUND

THE OAKS INITIATIVE:

The Oaks Initiative (Initiative) is sponsored by the Oaks Project of the Foundation for Taxpayer and Consumer Rights (FTCR), a non-profit organization "dedicated to training community leaders to make democracy serve ordinary people." The Initiative is premised on a conviction that public benefits frequently are awarded on the basis of personal or campaign advantages, and not on merit or in the public good. Based on the premise that such awards undermine public confidence in democratically elected institutions, the Initiative declares "there is a compelling state interest in reducing the corrupting influence of emoluments, gifts and prospective campaign contributions on the decisions of public officials in the management of public assets and franchises, and in the disposition of public funds." In general terms, the Initiative prohibits city officials from receiving campaign contributions, employment for compensation, or gifts or honoraria of more than $50 for a specified time after the end of their term of office from any person or entity who or which benefited financially (by more than $25,000 over a 12-month period) from the officials' discretionary decisions made while in office.

The Initiative contains four requirements:

(1) City officials who exercised their discretion to approve a "public benefit" (defined at Santa Monica Initiative, § 2202, subd .(a)(1)-(7)), and Pasadena Initiative § 1703, subds. (a)(1)(-7)) cannot receive certain specified "personal or campaign advantages" (defined at §§ 2202, subd. (c), and 1703, subd. (c)), from the recipient of such a benefit (as defined at §§ 2202, subd. (b), and § 1705, subd. (a).) (Initiative §§ 2203, subds. (a), (b); 1704, subds. (a), (b).)

(2) City officials must "practice due diligence to ascertain whether or not a benefit ... has been conferred, and to monitor personal or campaign advantages ... so that any such qualifying advantage received is returned forthwith, and no later than ten days after its receipt." (Initiative, §§ 2204, subd. (a), 1705, subd. (a).)

(3) City officials "must provide, upon inquiry by any person, the names of all entities and persons known to them who respectively qualify as public benefit recipients...." (Initiative, §§ 2204, subd. (b); 1705, subd. (b).)

(4) The city must provide written notice of the provisions of the Initiative and its limitations to any person or entity "applying or competing for any benefit enumerated" by the Initiative. (Initiative, §§ 2205, 1706.)

Under the provisions of the Initiative, a civil action may be brought by any city resident "against a public official who receives a personal or campaign advantage in violation of" the Initiative, and a "knowing and willful violation" of the Initiative may also be prosecuted as a misdemeanor offense. (Initiative, §§ 2206, subds.(a)-(c); 1701, subds. (a)-(c).)

The Initiative has been adopted, in virtually identical form and over the strenuous objections of numerous city officials, by voters in several California cities, including Santa Monica and Pasadena. [FN 1]

[FN 1] The Initiative was also enacted in Irvine, Claremont and San Francisco. Of these cities, only San Francisco has implemented the Initiative.

THE SANTA MONICA LITIGATION:

In November 2000, almost 60% of Santa Monica voters approved the Initiative (also known as proposition LL) identified as the Taxpayer Protection Amendment of 2000 (sections 2200-2207) which, as enacted, amended the city's Charter.

Santa Monica officials were displeased with the Initiative's approval. City Council members had campaigned vigorously against its passage, had authored the official ballot argument opposing it and, after being sued by the Initiative's proponents, ultimately were compelled by court order to include an argument in favor of the Initiative in the ballot pamphlet. The city officials had serious concerns about the constitutionality and enforceability of the Initiative. At the time, an appeal by the Southern California City of Vista from a pre-election challenge to the Initiative was pending in the Fourth District Court of Appeal. In January 2001, Santa Monica received permission to join Pasadena in an amicus curiae brief filed in the Vista litigation challenging the legality of the Initiative. The three cities, also joined by Claremont, argued the Initiative was unconstitutional on its face and urged its invalidation. The Court of Appeal determined the appeal was moot because a proposition contradictory to the Initiative had passed by an even greater margin of yes votes. [FN 2]

[FN 2] The procedural history of the Vista litigation is significant to the arguments made here. In that case, Vista filed a pre-election challenge to the legality of the Initiative. The trial court found the Initiative unconstitutional and ordered the county registrar not to place it on the November 2000 ballot. On petition by the Initiative's proponents, the Fourth District Court of Appeal immediately issued an order staying the trial court's judgment. The appellate court's order had the practical effect of allowing the Initiative to remain on the November ballot. A majority of the voters passed the Initiative. However, because a competing proposition passed by an even greater margin, the Initiative was not enacted into law. As a result, the appellate court found the cities' challenge to the validity of the Initiative was mooted by the election results, and declined the invitation of Vista and amici Santa Monica, Pasadena and Claremont to exercise its discretionary authority and issue an advisory opinion on the constitutionality of the Initiative. The Court of Appeal did not merely dismiss the appeal, which would have left intact the trial court's ruling. Instead, the appellate court granted the writ of mandate requested by the proponents, vacated the trial court's ruling and judgment, and ordered the trial court to dismiss as moot Vista's challenge to the constitutionality of the Initiative.

In this case, Santa Monica and its City Clerk argue that the only court to address the merits of the constitutional challenges to the Initiative deemed those challenges well-founded. That assertion is incorrect. The Vista decision has been vacated and does not legally exist even as an unreported, non-binding trial court decision. It was effectively reversed by the Court of Appeal days after it issued.

In May 2001, Santa Monica City Attorney, Marsha Jones Moutrie, circulated a memorandum to the Santa Monica Mayor and City Council describing the background and purpose of the Initiative, her concerns about its constitutional validity, and the failed attempts to definitively adjudicate the Initiative's constitutionality. The City Attorney reiterated her belief that the Initiative was unconstitutional, and noted she had advised the City Clerk not to implement the Initiative until its constitutionality was resolved. Relying on the premise that it was "[f]aced with an initiative measure which has passed but been declared unconstitutional elsewhere," the City Attorney opined that Santa Monica "could: (1) refuse to implement the measure ... based upon the fact that a court has declared it unconstitutional; (2) implement the measure, ignoring the court decision, and thereby risk violating civil rights; (3) take no action on the measure and wait to be sued; or (4) initiate a lawsuit with the intention of obtaining a final appellate decision on the issue of constitutionality which would clarify the City's obligations." The City Attorney recommended filing a lawsuit challenging the constitutionality of the Initiative.

In a status report prepared for a City Council meeting two weeks later, City Clerk Maria Stewart informed members that, based primarily on the City Attorney's advice, she was refusing to enforce the Initiative until its constitutionality was determined.

In June 2001, Santa Monica filed an action for declaratory relief and a petition for writ of mandate against its City Clerk. The complaint alleges the existence of an actual controversy between Santa Monica and the Clerk, acting in her official capacity as the official responsible for the implementation of the Initiative's provisions, regarding their respective rights and responsibilities. It alleges the Clerk claims the Initiative is unconstitutional and facially invalid, and refuses to implement it. The complaint seeks a judicial declaration as to whether the Initiative "is or is not unconstitutional or otherwise illegal and unenforceable."

In July 2001, Santa Monica resident Douglas Heller, the official proponent of the Initiative in that city, and the Initiative's sponsor, the Foundation for Taxpayer and Consumer Rights (collectively FTCR), notified the trial court and counsel of their intent to intervene in the litigation solely for "the purpose of seeking its dismissal as a collusive, non-justiciable action, and as a misuse of taxpayer funds for private purposes." The court granted FTCR's request to intervene and permitted Pasadena and Claremont to participate in the action as amici curiae. Over FTCR's objection, the court scheduled a hearing and simultaneous briefing on FTCR's motion to dismiss and on the merits of Santa Monica's summary judgment motion which addressed the legality of the Initiative.

A hearing on FTCR's motion to dismiss and the parties' dispositive motions was conducted in January 2002. In March 2002, the trial court issued an order dismissing the entire action as a non-justiciable controversy. Santa Monica's motion for summary judgment was dismissed as moot. Judgment was entered in May 2002, from which Santa Monica appealed.

THE PASADENA LITIGATION:

1. FTCR's anti-SLAPP motion.

In March 2001, over 60% of Pasadena voters approved the Initiative, known as the City of Pasadena Taxpayer Protection Amendment of 2000, making it part of the city's Charter (Article XVII, §§ 1701-1708). City officials, including City Clerk Jane Rodriguez and Mayor William Bogaard, who had aggressively campaigned against the Initiative, were as displeased with the vote as their peers in Santa Monica, but chose to take a different approach. For over a year, the City of Pasadena, Rodriguez and Bogaard (collectively Pasadena) refused to perform the ministerial duties required by Government Code section 34460 (section 34460) to authenticate, certify and file copies of the Initiative with the Secretary of State, Los Angeles County Recorder, and the city's archives. Those acts were the necessary final steps before the charter amendment could officially take effect. (Gov.Code, § 34459.)

On March 15, 2002, Pasadena resident Rene Amy filed a petition for a writ of mandate and a complaint for declaratory and injunctive relief against Pasadena seeking to require it to authenticate and certify the Initiative and file it with the Secretary of State. Amy also filed a motion for issuance of a peremptory writ of mandate, which was scheduled for hearing. Pasadena answered the complaint, filed a cross-complaint against Amy and an opposition to Amy's motion. While acknowledging it had not complied with the provisions of section 34460, Pasadena insisted it had no duty to comply, and could not be compelled to comply, with the statute due to its belief the Initiative was unconstitutional.

Joined by Pasadena resident Paul Monsour, the official proponent of the Initiative in Pasadena, FTCR requested leave to intervene in the action on Amy's behalf. The unopposed request was granted and Monsour and FTCR filed a complaint in intervention. Monsour and FTCR asserted Pasadena had a mandatory ministerial duty to comply with the formalities of section 34460. Moreover, they asserted Pasadena's refusal to implement the Initiative and its use of public moneys to defend the action by challenging the validity of the Initiative was a wasteful and illegal expenditure of taxpayer funds which was necessary to be enjoined under Code of Civil Procedure section 526a.

Pasadena responded by filing a first amended cross-complaint for declaratory relief solely against FTCR, eliminating Amy as a cross-defendant. The pleading alleged:

"An actual controversy has arisen and now exists between cross-complainants and FTCR with respect to the legal rights and duties of the Mayor and City Clerk. FTCR contends ... that the Mayor and City Clerk must perform the duties set forth in ... section 34460. Cross-complainants dispute that contention and contend that neither the Mayor nor the City Clerk has any duty to comply with the provisions of ... section 34460, and have not yet complied with those provisions, because the Initiative to which those provisions would otherwise apply is unconstitutional and otherwise illegal on its face...."

The first amended cross-complaint prayed for a judicial declaration that Pasadena had "no duty to take any of the actions set forth in ... section 34460 with respect to the [Initiative]," because the Initiative "is unconstitutional or otherwise illegal and unenforceable."

FTCR moved to strike the first amended cross-complaint as a SLAPP suit. (Code Civ. Proc., § 425.16 [Strategic Lawsuit Against Public Participation].) FTCR argued Pasadena's action against it was meritless, and arose from acts taken in furtherance of its constitutionally protected rights of petition or free speech, specifically its sponsorship of the Initiative in Pasadena, and from FTCR's audacity in joining Amy's action against Pasadena after city officials refused to perform the final steps necessary to give legal effect to the voter-enacted Initiative. FTCR also argued Pasadena's action was a non-justiciable controversy improperly seeking an advisory opinion, and Pasadena could not establish a likelihood of prevailing on its claim against FTCR because city officials had a mandatory duty to perform their ministerial obligations under section 34460, irrespective of their views as to the constitutionality of the Initiative.

In opposition to FTCR's anti-SLAPP motion, Pasadena argued its cross-action against FTCR was not a SLAPP suit because the action was not intended to retaliate against FTCR for exercising its constitutional rights of free speech and petition. It asserted the cross-action was intended only to attack the Initiative on constitutional grounds, as to which it had shown a likelihood of prevailing. As a result, Pasadena argued FTCR could not satisfy its burden of showing the action arose from any act taken in furtherance of its rights of free speech or petition.

A hearing on May 31, 2002, addressed both Amy's petition for writ of mandate and FTCR's anti-SLAPP motion. At the conclusion of the hearing, the petition for mandate was granted on the ground Pasadena was required to comply with the ministerial requirements of section 34460, regardless of its position as to the constitutionality of the Initiative. The Mayor and City Clerk were ordered to certify the Initiative, and file it with the Secretary of State, County Recorder and city archives.

However, the trial court denied FTCR's motion to strike. It found the first amended cross-complaint was not intended to punish FTCR and did not arise out of any act taken by FTCR in furtherance of its state or federal constitutional rights of free speech or petition. [FN 3] Pasadena was instructed to prepare a proposed order, to which FTCR objected. The proposed order, in its original form, was entered by the court on June 21, 2002. Pasadena complied with the order to certify the Initiative on June 4, 2002, and it took effect two days later. On July 2, 2002, FTCR filed an appeal from the denial of its anti-SLAPP motion. [FN 4]

[FN 3] At the hearing, the trial court indicated it also intended to base its ruling denying FTCR's motion on an additional finding that Pasadena had shown a likelihood prevailing on the merits of its cross-action. However, after FTCR pointed out that the court could not reach that issue without first determining whether the cross-action presented a justiciable controversy -- an issue the court specifically declined to adjudicate--the court withdrew that ground as a basis for its ruling and found only that the cross-action had not arisen out of FTCR's exercise of any constitutionally protected activity.

[FN 4] An order denying an anti-SLAPP motion is immediately appealable. (Code Civ. Proc., §§ 1025.16, subd. (j); 904.1.)

2. Pasadena's motion for summary judgment.

On June 18, 2002, Pasadena moved for summary judgment against FTCR, arguing the Initiative was unconstitutional and preempted by state and federal law.

In its opposition to the motion, FTCR asserted the trial court lacked jurisdiction to consider the summary judgment motion because, under Code of Civil Procedure section 916, subdivision (a), its appeal from the order denying its special motion to strike stayed further proceedings on the first amended cross-complaint. FTCR requested the court to take the summary judgment motion off calendar pending the determination of the appeal.

Pasadena's reply insisted that the trial court retained the authority to address the merits of the summary judgment motion in that Code of Civil Procedure section 916 specifically authorized the court to "proceed upon any other matter embraced in the action and not affected by the judgment or order." (Code Civ. Proc., § 916, subd. (a).) Because the order denying the anti-SLAPP motion did not address the merits of Pasadena's arguments regarding the validity of the Initiative, Pasadena insisted the court was free to adjudicate the constitutionality issue.

FTCR's sur-reply reasserted that its appeal from the order denying the special motion to strike had divested the trial court of jurisdiction to consider Pasadena's motion. Based on its contention that the court lacked jurisdiction to consider the matter, neither FTCR's opposition nor its sur-reply addressed the merits of the motion for summary judgment.

FTCR's counsel appeared at the July 16, 2002 hearing on the summary judgment motion for the sole purpose of asserting again that the court lacked jurisdiction to consider the motion. The court indicated its likely agreement with that position and continued the matter for two days.

At the July 18, 2002 hearing, the trial court reversed its previous indication and ruled it was not divested of jurisdiction to proceed on the summary judgment motion. The ruling concluded the anti-SLAPP motion was denied solely because Pasadena's suit against FTCR was not intended to interfere with or punish FTCR for exercising its First Amendment rights of free speech and petition. The court found that, in denying the anti-SLAPP motion, it never reached the merits of Pasadena's constitutional arguments. Because those matters were not embraced within the pending appeal, the court concluded it was able to consider the constitutionality of the Initiative. FTCR requested a temporary stay of the proceedings to permit it to seek an extraordinary writ on the jurisdictional issue. That request was refused. The court then addressed the merits of the motion for summary judgment, and declared the Initiative unconstitutional and unenforceable in its entirety. Judgment was entered from which FTCR appealed.

3. FTCR's motion for attorneys' fees under the private attorney general statute.

In October 2002, Monsour and FTCR (collectively FTCR) moved for an award of attorneys' fees and costs under the private attorney general statute, Code of Civil Procedure section 1021.5 (section 1021.5). The motion was premised on FTCR's successful prosecution of the petition for writ of mandate, which resulted in an order requiring Pasadena to comply with the provisions of section 33460.

In denying the motion for attorneys' fees and costs, the trial court found FTCR had not satisfied the requirement of section 1021.5 that the party seeking fees show "the necessity and financial burden of private enforcement are such as to make an award appropriate." (§ 1021.5, subd. (b).) The court determined that, as an intervenor, FTCR had not contributed significantly to the action because (1) the court "probably would have granted" the writ petition based on Amy's arguments alone, and (2) FTCR had a "direct interest" in the implementation and enforcement of the Initiative inasmuch as FTCR had been "actively involved in the promulgation of this particular initiative ... and its adoption by many cities...." FTCR's final appeal is from the November 25, 2002 order denying the motion for attorneys' fees and costs.

DISCUSSION

SANTA MONICA ACTION

The threshold, but ultimately dispositive, question in Santa Monica's action against the City Clerk is whether the action presents a justiciable controversy, which was the basis for the trial court's dismissal.

A declaratory relief action may be brought under Code of Civil Procedure section 1060: "Any person ... who desires a declaration of his or her rights or duties with respect to another, ... may, in cases of actual controversy relating to the legal rights and duties of the respective parties, bring an original action ... in the superior court for a declaration of his or her rights and duties ... including a determination of any question of construction or validity arising under the instrument or contract.... The declaration may be had before there has been any breach of the obligation in respect to which said declaration is sought." However, "[t]he court may refuse to exercise [its] power [to] grant [declaratory relief] in any case where its declaration or determination is not necessary or proper at the time under all the circumstances." (Code Civ. Proc., § 1061.)

Before turning to the merits, we address the disputed issue of the appropriate standard of review. Santa Monica insists the standard of review from the trial court's judgment dismissing this declaratory relief action is de novo, because the appeal involves purely legal questions, including the question of whether the action presents a justiciable controversy. There is support for this position. (See e.g., Dolan-King v. Rancho Santa Fe Assn. (2000) 81 Cal.App.4th 965, 974 [if underlying facts are undisputed, trial court's decision to grant or deny declaratory relief presents a question of law, reviewed de novo].)

FTCR, on the other hand, relies on the long-standing rule that the decision whether to grant or deny declaratory relief is a matter within the trial court's discretion, and will not be disturbed on appeal absent a clear showing the discretion was abused, particularly where the court's ruling is based, in part, on factual determinations. (City of Burbank v. Burbank-Glendale-Pasadena Airport Authority (2003) 113 Cal.App.4th 465, 481 (City of Burbank ); Application Group, Inc. v. Hunter Group, Inc. (1998) 61 Cal.App.4th 881, 893 [A determination regarding the justiciability of an action under Code of Civil Procedure section 1060 "is ... a matter entrusted to the sound discretion of the trial court."]; California Water & Telephone Co. v. County of Los Angeles (1967) 253 Cal.App.2d 16, 23 (California Water & Telephone Co.); Bixby v. Bixby (1953) 120 Cal.App.2d 495, 499 [absent a showing of the abuse of discretion, trial court findings which appear to be based upon a reasonable analysis of the facts and circumstances will not be disturbed on appeal].) We need not resolve this interesting dispute. The trial court's ruling is correct under either standard. We turn to the dispositive question of the justiciability of this action.

"The concept of justiciability involves the intertwined criteria of ripeness and standing." (California Water & Telephone Co., supra, 253 Cal.App.2d at p. 22.) "Standing" derives from the principle that "[e]very action must be prosecuted in the name of the real party in interest." (Code Civ. Proc, § 367.) A party lacks standing if it does not have an actual and substantial interest in, or would not be benefited or harmed by, the ultimate outcome of an action. (California Water & Telephone Co., supra, 253 Cal.App.2d at p. 23; Sherwyn v. Department of Social Services (1985) 173 Cal.App.3d 52, 58 (Sherwyn ).) Standing is a function not just of a party's stake in a case, but the degree of vigor or intensity with which the presents its arguments. (Harman v. City and County of San Francisco (1972) 7 Cal.3d 150, 159 (Harman ); Fiske v. Gillespie (1988) 200 Cal.App.3d 1243, 1247 (Fiske ).) "Ripeness" refers to the requirements of a current controversy. According to the Supreme Court, "an action not founded upon an actual controversy between the parties to it, and brought for the purpose of securing a determination of a point of law ... will not be entertained." (Golden Gate Bridge Etc. Dist. v. Felt (1931) 214 Cal. 308, 316 (Golden Gate ).) A controversy becomes "ripe" once it reaches, "but has not passed, the point that the facts have sufficiently congealed to permit an intelligent and useful decision to be made." (California Water & Telephone Co., supra, 253 Cal.App.2d at p. 22, fn. omitted.)

The trial court correctly concluded this action fails both the standing and ripeness aspects of the test of justiciability.

A. The Santa Monica Action is not justiciable.

1. Santa Monica is not a proper plaintiff, and no legitimate basis justifies a departure from the general rules governing standing.

Generally speaking, "[e]very action must be prosecuted in the name of the real party in interest." (Code Civ. Proc., § 367.) Only the real party in interest has "an actual and substantial interest in the subject matter of the action," and stands to be "benefited or injured" by a judgment in the action. (Friendly Village Community Assn., Inc. v. Silva & Hill Co. (1973) 31 Cal.App.3d 220, 225.) In other words, a person who invokes the judicial process lacks " 'standing' if he, or those whom he properly represents, does not have a real interest in the ultimate adjudication because the actor has neither suffered nor is about to suffer any injury of significant magnitude reasonably to assure that all of the relevant facts and issues will be adequately presented." (California Water & Telephone Co., supra, 253 Cal.App.2d at pp. 22-23, fn. omitted.) Standing is measured not just by a plaintiff's stake in the resolution of an action, but by the force with which it presents its case. As stated in Harman, supra, 7 Cal.3d at p. 159: "A party enjoys standing to bring his complaint into court if his stake in the resolution of that complaint assumes the proportions necessary to ensure that he will vigorously present his case.... [W]e must determine standing by a measure of the 'intensity of the plaintiff's claim to justice.' [Citation.]"

Under traditional standing principles, Santa Monica, which bears minimal responsibilities under the Initiative, [FN 5] lacks direct standing to prosecute this action. The complaint does not specify any actual or threatened action which would injure the city or violate its rights. Rather, the complaint alleges only that Santa Monica is concerned that implementation of the Initiative might prospectively affect the rights of its volunteer and paid public officials. Santa Monica also does not allege any actual or threatened action on the part of the City Clerk -- who bears no specific duties under the Initiative--which injures or could injure the city. [FN 6] Finally, in light of Santa Monica's steadfast opposition to the enactment and implementation of the Initiative, the tepid nature of its allegations seeking to enforce the measure and seeking a judicial declaration as to whether the Initiative "is or is not unconstitutional," and its limited arguments in support of the Initiative, we have significant doubt Santa Monica is a "party with a true incentive ... to present arguments supporting [the Initiative's] validity." (Fiske, supra, 200 Cal.App.3d at p. 247.)

[FN 5] The Initiative imposes on Santa Monica only the affirmative obligation to inform prospective contractors of the terms and limitations of the Initiative. (Initiative § 2205.)

[FN 6] The City Clerk has certain record keeping requirements independent of the Initiative, which include the receipt and review of campaign disclosure statements. (Govt.Code, § 84215; Cal.Code Regs., tit. 2, § 18110.) However, as the Clerk concedes, those mandated duties do not include the duty to ensure the disclosure statements comply with the Initiative, nor the duty to file an enforcement action against an offending public official if they do not. We agree with the trial court's assessment that the Clerk's role with regard to the implementation of the Initiative is so remote she has no legitimate role to perform in this action. There is simply no danger the Clerk's fear she will "violate individuals' civil rights" will be realized.

The City Clerk asserts that standing requirements are not absolute. Standing rules are sometimes relaxed in cases involving challenges to the constitutionality of a statute brought by a party whose own rights are not impacted, but whose challenge is raised on behalf of absent third parties. Two intertwined factors must be examined to determine whether relaxation of the general rules is appropriate. First, the relationship between the litigant and the absent third party whose rights the litigant asserts must be so close that the litigant "is fully, or very nearly, as effective a proponent of the right as" would be the absent party. (Singleton v. Wulff (1976) 428 U.S. 106, 114- 116; Selinger v. City Council (1989) 216 Cal.App.3d 259, 270-271 (Selinger ).) Second, the ability of the absent party to assert his own rights must be determined. Even where the relationship between the litigant and third party is close, some "genuine obstacle" must prevent the absent party from asserting his or her own interests. (Singleton v. Wulff, supra, 428 U.S. at pp. 114-116; Selinger, supra, 216 Cal.App.3d at pp. 270-271.)

Selinger illustrates a circumstance where relaxation of traditional standing principles is appropriate. It involved city council's challenge to the constitutionality of a statute that provided for approval of land use and development permits by operation of law if a public entity failed to act within a specified period, but which did not provide for notice to adjacent property owners whose interests were potentially affected by the approval. The potentially affected property owners were not parties to the suit. The court rejected the argument the city lacked standing to challenge the statute. Because the rights of third party citizens were "inextricably bound up" with the city's duty to review and approve the permits, the court found the city had standing to challenge the absence of a notice provision in the statute. (Selinger, supra, 216 Cal.App.3d at p. 271.) "More important[ly]," the court also found that "genuine obstacles" prevented the absent property owners from asserting their own rights. Specifically, the statute afforded affected property owners only 90 days to challenge permit approvals. The shortened statutory time period, coupled with the absence of any provision for notice, meant that potentially impacted homeowners were unlikely to learn of their right to challenge the approval until after the expiration of the period for a challenge. Thus, the court found the city had standing to challenge the notice issue on behalf of the absent owners. (Ibid, citation omitted.)

The circumstances of this case are dissimilar from Selinger, and the authorities on which the City Clerk relies do not advance her argument. In the other cases cited, absent third parties faced the risk of civil or criminal penalties in order to mount their own First Amendment challenges to the statute. (See People v. Fogelson (1978) 21 Cal.3d 158, 162-163, fn. 3, 164 [party may mount facial challenge to constitutionality of ordinance requiring permit to solicit at airport, even though he never attempted to comply with permit requirement: " 'Standing is recognized in such a situation because of the dangers inherent in tolerating, in the realm of the First Amendment, the existence of a penal statute susceptible of sweeping and improper application ...' [citation.]"]; In re Andre P. (1991) 226 Cal.App.3d 1164, 1171-1172 [litigant mounting First Amendment "overbreadth" challenge to governmental speech restrictions need not show his own conduct could not be regulated by statute. The litigant has standing to challenge statute not because his own rights of expression are violated, but because of potential that the regulation's very existence may "chill" the constitutionally protected right of speech or expression of other parties not before the court.]; cf., Citizens for Responsible Behavior v. Superior Court (1991) 1 Cal.App.4th 1013, 1019-1021, 1027, 1032 [granting city declaratory relief in facial challenge to initiative which proposed to enact an unconstitutionally discriminatory regulatory scheme affecting the equal protection and due process rights of homosexuals or persons with AIDS, even though challenge was mounted only by city council, no member of which faced criminal or civil penalty for prohibited vote.].)

The authorities do not support the City Clerk's contention that courts "routinely adjudicate challenges to statutes on First Amendment grounds even where the particular constitutional deficiency of the statute may not affect the person making the challenge." While each case cited involved potential penalties or prosecution; this case does not. Nor does the record indicate any city official potentially impacted by the Initiative faces the risk of civil or criminal penalties in mounting a challenge to the constitutionality of the enactment.

We agree with the trial court. Even if Santa Monica -- which vigorously opposed enactment of the Initiative and has challenged its constitutionality at every opportunity -- could be as effective a proponent of the First Amendment rights as its absent public officials would be, no "genuine obstacle" prevents an absent public official from mounting a challenge to the constitutionality of the measure. In the absence of such an obstacle, no basis exists for the city's assertion of absent third parties' purported interests.

Finally, Santa Monica and the City Clerk assert that FTCR's intervention obviated concerns about the justiciability of this action. We do not agree. First, Santa Monica and the Clerk ignore the fact that FTCR sought to intervene solely to dismiss the action as a nonjusticiable controversy. Although FTCR opposed Santa Monica's summary judgment motion which defended the legality of the Initiative, its opposition was submitted over its objection and only because the trial court ordered it to do so. [FN 7] More fundamentally, even if FTCR's participation in the action on the merits obviates the problem of standing, Santa Monica has not overcome the impediment to adjudication of the related, and equally important, problem of ripeness. [FN 8]

[FN 7] By the time FTCR learned of this proceeding and sought leave to intervene to dismiss the action, Santa Monica and the City Clerk had already agreed on a briefing schedule for Santa Monica's anticipated motion for summary judgment. Santa Monica and the Clerk objected to delaying the hearing only to give FTCR an opportunity to act as a "suicide bomber" and "blow up the lawsuit." In response, FTCR objected to the requirement that it brief the complex constitutional arguments before the trial court determined whether the action could proceed. The court delayed the hearing on the summary judgment motion and, over FTCR's objection, ordered the parties simultaneously to brief the justiciability of the city's action and the substantive merits of the motions, and set the motions for a consolidated hearing. The court granted FTCR leave to intervene and ordered it to file a complaint-in-intervention, requiring that the complaint include allegations as to the constitutionality of the Initiative and not just the justiciability of the action, in the event the motion to dismiss was denied and FTCR chose to continue to participate in the action on the merits.

[FN 8] Santa Monica and the City Clerk rely on Division Seven's recent opinion in City of Burbank, supra, 113 Cal.App.4th 465, to support the contention that FTCR's presence as an intervenor, in and of itself, eliminates the standing issue. The circumstances in City of Burbank differ markedly from this case. First, in City of Burbank, the airport authority's standing was not at issue. Here, the Clerk is a nominal defendant purportedly sued over her refusal to perform duties she does not have, by a plaintiff with no standing of its own who seeks only to assert the rights of absent third parties. Second, the proponent of the ballot measure in City of Burbank agreed, at the city's invitation, to intervene in the action on the merits to challenge the plaintiff's claims of illegality and to seek a declaration that the ballot measure was constitutional and enforceable. (Id. at p. 471.) Here, FTCR sought to intervene for the sole purpose of dismissing the action on the ground the court lacked subject matter jurisdiction, an intervention opposed on that basis by both Santa Monica and the Clerk. FTCR was forced to mount a defense of the Initiative on the merits only because the court denied its request to conduct a separate proceeding on nonjusticiability arguments before it addressed the constitutionality of the measure.