Citations
- 126 Cal. App. 4th 43
Full opinion text
Opinion
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 nonprofit 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)(l)-(7)), and Pasadena initiative § 1703, subds. (a)(l)-(7)) cannot receive certain specified “personal or campaign advantages” (defined at § 2202, subd. (c), and § 1703, subd. (c), respectively), from the recipient of such a benefit (as defined at § 2202, subd. (b), and § 1705, subd. (a), respectively.) (Santa Monica initiative § 2203, subds. (a), (b); Pasadena initiative, § 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.” (§ 2204, subd. (a); § 1705, subd. (a), respectively.)
(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 . . . .” (§ 2204, subd. (b); § 1705, subd. (b), respectively.)
(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. (§ 2205; § 1706, respectively.)
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. (§ 2206, subds. (a)-(c); § 1701, subds. (a)-(c), respectively.)
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.
THE SANTA MONICA LITIGATION:
In November 2000, almost 60 percent 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 preelection 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.
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 “[fjaced 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 nonjusticiable 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 percent 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 (art. 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 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 René 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 Government Code 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 Government Code 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 . . . [Government Code] 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 nonjusticiable 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 Government Code 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. 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.
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 Government Code section 34460.
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 intervener, 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 [97 Cal.Rptr.2d 280] [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 [6 Cal.Rptr.3d 367] (City of Burbank)', Application Group, Inc. v. Hunter Group, Inc. (1998) 61 Cal.App.4th 881, 893 [72 Cal.Rptr.2d 73] [A determination regarding the justiciability of an action under Code Civ. Proc., § 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 [61 Cal.Rptr. 618] (California Water & Telephone Co.); Bixby v. Bixby (1953) 120 Cal.App.2d 495, 499 [261 P.2d 286] [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 [218 Cal.Rptr. 778] (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 party presents its arguments. (Harman v. City and County of San Francisco (1972) 7 Cal.3d 150, 159 [101 Cal.Rptr. 880, 496 P.2d 1248] (Harman); Fiske v. Gillespie (1988) 200 Cal.App.3d 1243, 1247 [246 Cal.Rptr. 552] (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 [5 P.2d 585] (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 [107 Cal.Rptr. 123].) 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 sufficient 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 page 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. [Citation.] . . . [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, 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. 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. 1247.)
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 [49 L.Ed.2d 826, 96 S.Ct. 2868]; Selinger v. City Council (1989) 1216 Cal.App.3d 259, 270-271 [264 Cal.Rptr. 499] (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 a 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 importantly],” 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.)
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, fin. 3, 164 [145 Cal.Rptr. 542, 577 P.2d 677] [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 [277 Cal.Rptr. 363] [litigant mounting First Amendment “overbreadth” challenge to governmental speech restrictions need not show his own conduct could not be regulated by statute; 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 [2 Cal.Rptr.2d 648] [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. 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.
2. Santa Monica’s claims are not ripe.
A controversy “ripens” once it has reached, “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.) Ripeness is aimed at “preventing] courts from issuing purely advisory opinions. [Citation.] It is rooted in the fundamental concept that the proper role of the judiciary does not extend to the resolution of abstract differences of . . . opinion. It is in part designed to regulate the workload of courts by preventing judicial consideration of lawsuits that seek only to obtain general guidance, rather than to resolve specific legal disputes. However, the ripeness doctrine is primarily bottomed on the recognition that judicial decisionmaking is best conducted in the context of an actual set of facts so that the issues will be framed with sufficient definiteness to enable the court to make a decree finally disposing of the controversy.” (Pacific Legal Foundation v. California Coastal Com. (1982) 33 Cal.3d 158, 170 [188 Cal.Rptr. 104, 655 P.2d 306] (Pacific Legal Foundation).)
A two-pronged test is used to determine the ripeness of a controversy: (1) whether the dispute is sufficiently concrete so that declaratory relief is appropriate; and (2) whether the parties will suffer hardship if judicial consideration is withheld. (Farm Sanctuary, Inc. v. Department of Food & Agriculture (1998) 63 Cal.App.4th 495, 501-502 [74 Cal.Rptr.2d 75] (Farm Sanctuary, Inc.).) “Under the first prong, the courts will decline to adjudicate a dispute if ‘the abstract posture of [the] proceeding makes it difficult to evaluate . . . the issues [citation], if the court is asked to speculate on the resolution of hypothetical situations [citation], or if the case presents a ‘contrived inquiry [citation].’ Under the second prong, the courts will not intervene merely to settle a difference of opinion; there must be an imminent and significant hardship inherent in further delay.” (Id. at p. 502.)
This action fails both prongs of the ripeness test. First, the declaratory relief action, by which Santa Monica seeks “the benefit” of judicial guidance “as to the constitutionality of the Initiative,” is insufficiently concrete and fails to touch the legal relations of parties with actual adverse legal interests. (See Pacific Legal Foundation, supra, 33 Cal.3d at pp. 170-171.)
The Initiative’s requirements and restrictions are directed only at “elected or appointed public officials] acting in an official capacity,” who are vested with the discretion to approve public benefits. (Initiative, §§ 2202, subd. (d), 2203, subd. (a).) It is only those public officials who are constrained by the Initiative’s requirements and restrictions as to receipt of “personal or campaign advantages.” Those city officials (1) are prohibited from receiving specified “personal or campaign advantages” from one on whom a public benefit has been conferred; (2) must engage in due diligence to determine whether a public benefit has been conferred, and to monitor personal or campaign advantages so that improper “advantages” may timely be returned; and (3) must “provide, upon inquiry . . . , the names of all entities and persons known to them who respectively qualify as public benefit recipients . . . .” (Initiative, §§ 2203, subd. (a), 2204, subds. (a), (b).) Moreover, only those enumerated public officials who receive personal or campaign advantages, and not the city or its clerk, risk enforcement of the Initiative through civil or criminal proceedings brought against them. (Initiative, § 2206.) Indeed, only one minor provision, requiring notification of the Initiative’s terms and provisions to prospective contractors, is directed at the city. (Initiative, § 2205.)
The city clerk insists the Initiative is unconstitutional and, because she is concerned about infringing upon the constitutional rights of persons or entities who would be affected by the Initiative, refuses to implement its provisions until the constitutional issues are resolved. However, as the trial court correctly concluded, no showing has been made that the clerk “has any remaining duties or obligations under the Initiative such that her asserted ‘refusal’ to implement the Initiative has any legal effect sufficient to support this action.” As Santa Monica’s designated “elections officer,” the clerk receives campaign disclosure statements for review to ensure they “conform on their face with the requirements of the Political Reform Act.” (Cal. Code Regs., tit. 2, § 18110; see Gov. Code, § 84215.) However, neither these ministerial duties nor the Initiative charges the clerk with the responsibility to ensure the disclosure statements comply with the Initiative, much less bring an action to enforce its requirements, should she suspect a violation. Based on these limited facts, we agree with the trial court that no danger is presented that the clerk will be forced to “violate individuals’ civil rights” simply by receiving campaign disclosure statements for filing under the Political Reform Act. In sum, this controversy has not yet reached the point where it is “ ‘definite and concrete, touching the legal relations of parties having adverse interests.’ ” (Pacific Legal Foundation, supra, 33 Cal.3d at pp. 170-171, citation omitted.)
The action also fails the second prong of the ripeness test. No showing has been made that the withholding of a judicial determination will result in an imminent, significant hardship. Santa Monica and at least two other cities have attempted to judicially resolve the issue of the Initiative’s constitutionality since late 2000, when they participated as an amicus curiae in the Vista appeal. However, Santa Monica’s dogged pursuit of litigation “to eliminate the lingering uncertainty that has existed and continues to exist concerning the constitutional validity of the Initiative” is not sufficient to give rise to an actual justiciable controversy. It is not sufficient that the issues encompassed by the Initiative involve a sizeable public interest. As the trial court concluded, “[w]ithout proper grounds for justiciability, the court would be rendering an improper advisory opinion,” which that court declined to do, as do we. Even if Santa Monica and the city clerk—or the clerk and FTCR— fundamentally disagree as to the constitutionality of the Initiative, no justiciable conflict exists. “ ‘A difference of opinion does not give rise to a justiciable case until an actual controversy arises.’ ” (Wilson v. Transit Authority (1962) 199 Cal.App.2d 716, 722 [19 Cal.Rptr. 59] (Wilson).)
B. This is not an appropriate “validation action.”
Implicitly acknowledging this action fails to satisfy the traditional tests for ripeness and standing, Santa Monica and the city clerk insist we should nevertheless reach the merits of their constitutional arguments as a common law “validation action,” under Golden Gate, supra, 214 Cal. 308, and City and County of S.F. v. Boyd (1943) 22 Cal.2d 685 [140 P.2d 666] (Boyd), and their progeny. Again, we disagree.
Even validation actions are not exempt from the traditional principle that a justiciable action must satisfy the requirements of both ripeness and standing. “It is, of course, the prevailing doctrine in our judicial system that 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, is collusive and will not be entertained; and the same is true of a suit the sole object of which is to settle rights of third persons who are not parties.” (Golden Gate, supra, 214 Cal. at p. 316; accord, Boyd, supra, 22 Cal.2d at pp. 693-694.) As the trial court observed, the cases on which Santa Monica and the city clerk rely involved a justiciable dispute between parties directly affected by a public entity’s proposed action, or were based on an actual duty owed by a public official whose refusal to perform was legally impeding the ability of the public entity to fulfill its functions. This is not such a case.
In Golden Gate, a bridge and highway district sought to compel the secretary of the district’s board of directors to execute bonds to raise funds for highway and bridge construction. The secretary’s signature on the bonds was required by statute for the bonds to properly issue and become operative. (Golden Gate, supra, 214 Cal. at p. 316.) The secretary refused to sign the bonds based on his belief that the statutory grant of authority to the district to levy and collect a direct annual tax to pay off the bonds was unconstitutional. He also believed that, if he signed the bonds, “he would be acting in violation of his public duty, and assisting in the deception of prospective purchasers of the bonds ... a step which might conceivably involve a personal liability on his part,” in the event his belief about the unconstitutionality of the act was ultimately deemed correct. (Id. at p. 317.) Under those circumstances, the Supreme Court held, “[a] genuine controversy existed . . . between petitioner and respondent as to matters vitally affecting the duties and perhaps the liabilities of the latter.” (Ibid.)
In Boyd, a taxpayer sued a city controller to enjoin payment of certain wages to employees of the municipal railway, claiming their compensation exceeded the rates authorized by the city’s wage laws. (Boyd, supra, 22 Cal.2d at p. 693.) Due to the pendency of that action, the controller refused to approve the railway employees’ wage claims. The city and its public utilities commission sought a writ of mandate to compel the controller to make the payments. The Supreme Court found the controversy justiciable, not just a collusive suit filed to determine a point of law or to settle the rights of absent third parties. The court held the controller “would be acting in violation of his public duty if he authorized payment of claims that involved an illegal expenditure of public funds.” (Id. at p. 694.) His ability to approve the wage payment claims depended upon the validity of the ordinances authorizing the compensation, and resolution of that question required construing the city charter and applying its provisions in light of the facts of the case. Because the taxpayer’s action challenged the controller’s right to approve the payments, a real controversy was found to exist with regard to his duties. (Ibid.)
The other validation actions on which Santa Monica and the city clerk rely involve factual contexts in which actions were instituted against similarly recalcitrant public officials whose actions were essential to implementing the laws or financial transactions. (See Santa Clara County Local Transportation Authority v. Guardino (1995) 11 Cal.4th 220, 228 [45 Cal.Rptr.2d 207, 902 P.2d 225] [bonds could not issue because auditor-controller refused to sign them]; City of Long Beach v. Mansell (1970) 3 Cal.3d 462, 477 [91 Cal.Rptr. 23, 476 P.2d 423] [city sued city manager and clerk to compel them to perform ministerial duties essential to the city’s ability to perform contractual agreements with third parties].) Neither action was brought solely for the abstract purpose of determining whether the bonds or contracts were valid. Rather, they were instituted to prove the bonds or agreements were valid and to obtain conclusive judicial determinations that they should issue and/or be enforced. By contrast, the tepid allegations of Santa Monica’s complaint do not contend that the Initiative is valid; the complaint seeks only a determination regarding its validity. Moreover, unlike the cases on which Santa Monica and the clerk rely, the clerk’s personal belief regarding the Initiative’s unconstitutionality, however genuine, has no bearing on its enforcement, and she has not taken any act to prevent or obstruct the city’s ability to implement the Initiative.
In sum, this action presents no actual controversy necessitating judicial intervention. Accordingly, any decision on the merits would leave this court in the role of issuing an improper advisory opinion in a case involving a contrived dispute in which “there is virtually but one party.” (People v. Pratt (1866) 30 Cal. 223, 225.) We agree with FTCR: “Permitting the validity of a voter-enacted initiative to be determined in a lawsuit in which both parties and their attorneys not only believe, but have affirmatively stated in prior judicial proceedings, that the measure is unconstitutional makes a mockery of ‘one of the most precious rights of our democratic process’ (Associated Home Builders etc., Inc. v. City of Livermore (1976) 18 Cal.3d 582, 591 [135 Cal.Rptr. 41, 557 P.2d 473]) and breeds disrespect for the integrity of the judicial process.” This case, filed by Santa Monica to secure a legal determination or to settle the rights of absent third parties, is precisely the type of case the Supreme Court admonished “will not be entertained.” (Golden Gate, supra, 214 Cal. at p. 316; Boyd, supra, 22 Cal.2d at p. 694.)
C. An otherwise nonjusticiable action may not be entertained simply because it involves issues of public concern.
Explicitly acknowledging the long-standing principle that courts typically will not address issues unnecessary to the disposition of an appeal, Santa Monica and the city clerk nevertheless urge us to resolve the issue of the constitutionality of the Initiative because of its public import. We decline to do so.
We may not disregard the long-standing principle that, even in circumstances when an issue involves significant public interest, California courts adhere to the even older, and more important, judicial policy against issuing advisory opinions. “[Njeither we nor the trial court can give advisory opinions or resolve disputes over matters which involve parties not before us even if the parties are united in their desire to have the court resolve unripe issues or claims which the parties have no standing to assert.” (Korean Philadelphia Presbyterian Church v. California Presbytery (2000) 77 Cal.App.4th 1069, 1081 [92 Cal.Rptr.2d 275].) This policy is driven largely by a recognition that courts are unable properly to adjudicate issues when only hypothetical facts are involved. (See Pacific Legal Foundation, supra, 33 Cal.3d at p. 170.) That very concern exists here. As the trial court correctly found, “the mere fact that the subject matter of the Initiative touches upon issue [sic] of genuine public concern does not obviate the need for a proper showing of both standing and ripeness.”
We recognize the constitutional questions posed by Santa Monica and the city clerk undoubtedly are of significant interest and continuing public import. As both the City and its clerk point out, significant substantive issues remain and must, at some point, be addressed on their merits. Those issues include such important constitutional questions as whether, as the clerk contends, the Initiative is invalid because it discriminates in favor of those who oppose specified city projects, even if they do so for self-interested or competitive reasons, whether the Initiative is unconstitutionally underinclusive with respect to its proscriptions against those who receive certain public benefits, but impermissibly sweeping with regard to its allegedly overbroad bans on contributions and employment. Strong public policy and public interest principles are at stake, issues which are of great interest to the parties to the litigation and the public at large. That is not enough. It is wholly inappropriate to resolve those abstract issues in the absence of evidence regarding the existence of an actual controversy or the ripening seeds of one. Courts are not free to render advisory opinions regarding controversies which the parties fear will arise, but which do not presently exist.
PASADENA ACTION
A. The anti-SLAPP motion.
At issue in this portion of the consolidated appeals is whether the trial court erred in denying FTCR’s anti-SLAPP motion. (Code Civ. Proc., § 425.16 (hereafter section 425.16 or the “anti-SLAPP statute”).) The antiSLAPP statute reflects the Legislature’s intention to curb meritless “lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances.” (§ 425.16, subd. (a).) To address that concern, the statute provides that a “cause of action against a person arising from any act of that person in furtherance of the person’s right of petition or free speech under the United States or California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.” (§ 425.16, subd. (b)(1).)
The trial court is required to engage in a two-step process to resolve an anti-SLAPP motion. “First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity. The moving defendant’s burden is to demonstrate that the act or acts of which the plaintiff complains were taken ‘in furtherance of the [defendant’s right of petition or free speech under the United States or California Constitution in connection with a public issue,’ as defined in the statute. (§ 425.16, subd. (b)(1).)” (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67 [124 Cal.Rptr.2d 507, 52 P.3d 685] (Equilon).) Second, if “the court finds such a showing has been made, it then determines whether the plaintiff has demonstrated a probability of prevailing on the claim.” (Ibid.) The moving party bears the burden on the first issue; the responding party on the second. (Shekhter v. Financial Indemnity Co. (2001) 89 Cal.App.4th 141, 151 [106 Cal.Rptr.2d 843] (Shekhter)) “Only a cause of action that satisfies both prongs of the anti-SLAPP statute—i.e., that arises from protected speech or petitioning and lacks even minimal merit—is a SLAPP, subject to being stricken under the statute.” (Navellier, supra, 29 Cal.4th at p. 89, italics omitted.) The trial court’s rulings on both issues are reviewed de novo. (Kajima Engineering & Construction, Inc. v. City of Los Angeles (2002) 95 Cal.App.4th 921, 928 [116 Cal.Rptr.2d 187].)
1. The acts which led to filing the first amended cross-complaint against FTCR arose out of FTCR’s protected First Amendment activities.
The threshold issue in ruling on an anti-SLAPP motion is whether “the challenged cause of action is one arising from protected activity.” (Equilon, supra, 29 Cal.4th at p. 67.) The trial court agreed with Pasadena and ruled that FTCR’s motion foundered on this first prong because Pasadena’s cross-action was not motivated by a desire to punish FTCR or chill the exercise of its First Amendment rights. Rather, the goal was only to obtain a judicial determination that the city was not required to perform any of the ministerial duties necessary to certify the election results required by Government Code section 34460 because the Initiative was unconstitutional.
The trial court misconstrued the law. In Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728 [3 Cal.Rptr.3d 636, 74 P.3d 737], the Supreme Court reiterated the controlling principles: “In Briggs v. Eden Council for Hope and Opportunity (1999) 19 Cal.4th 1106 [81 Cal.Rptr.2d 471, 969 P.2d 564] (Briggs), when first construing the ‘arising from’ prong of section 425.16, we held on the basis of the statute’s plain language that a defendant moving specially to strike a cause of action arising from a statement or writing made in connection with an issue under consideration in a legally authorized official proceeding need not separately demonstrate that the statement or writing concerns an issue of public significance. (Briggs, supra, at p. 1109.) And in a trio of opinions issued [in 2002], we held that the plain language of the ‘arising from’ prong encompasses any action based on protected speech or petitioning activity as defined in the statute (Navellier, [supra,] 29 Cal.4th [at pp. 89-95] . . . rejecting proposals that we judicially engraft the statute with requirements that defendants moving thereunder also prove the suit was intended to chill their speech (Equilon, supra, 29 Cal.4th at p. 58) or actually had that effect (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 75 [124 Cal.Rptr.2d 519, 52 P.3d 695] [(Cotati)].)” (Jarrow Formulas, Inc. v. LaMarche, supra, 31 Cal.4th at pp. 733-734.) The trial court mistakenly relied on the absence of evidence that Pasadena meant to chill FTCR’s exercise of its First Amendment rights as the ground for denying the anti-SLAPP motion.
Regardless of the mistaken rationale for the trial court’s ruling, we must exercise our independent review to determine whether the ruling was correct. We must determine whether Pasadena’s cross-action against FTCR arose out of FTCR’s actions in furtherance of the right of free speech or petition. (Navellier, supra, 29 Cal.4th at pp. 89-95.) Conceding “[t]here is no easy answer to that question,” Pasadena asserts that two “acts” led it to file its cross-complaint, neither of which was intended to advance any person’s right of free speech or petition in connection with a public issue. Those acts were: “(1) the approval of the initiative by the voters; and (2) the initiative measure becoming law.” We conclude otherwise.
Turning first to the latter point, Pasadena’s cross-action against FTCR could not have arisen from the “Initiative becoming law.” The Initiative did not become law until after the cross-action was filed, and only after the trial court found no merit in Pasadena’s assertion it had “no duty to take any of the actions set forth in Government Code section 34460 with respect to the [Initiative].” FTCR is correct: “[T]he gravamen of [Pasadena’s] Cross-Complaint was a request for a judicial declaration that [Pasadena] had no duty to perform precisely those acts that were necessary in order for the Oaks Initiative to become law. The First Amended Cross-Complaint thus tried to prevent the Oaks Initiative from becoming law; it did not ‘arise from’ the initiative measure becoming law.” Second, even if we agreed that the act which led to the filing of the cross-complaint against FTCR was the voters’ approval of the FTCRsponsored Initiative, that approval would represent, among other things, a paradigmatic exercise of FTCR’s and the voters’ engagement in “conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.” (§ 425.16, subd. (e)(4); see also id., subd. (e)(2) [covered acts include statements made in connection with an issue under consideration by a legislative body, or other legally authorized proceeding].) Advocacy for an Initiative and adoption of the measure are, without question, a fundamental exercise of the First Amendment right to petition. “Courts have long protected the right to petition as an essential attribute of governing. [Citation.] The California Constitution declares that ‘people have the right to . . . petition government for redress of grievances . . . .’ [Citation.] That right in California is, moreover, vital to a basic process in the state’s constitutional scheme—direct initiation of change by the citizenry through initiative, referendum, and recall.” (Robins v. Pruneyard Shopping Center (1979) 23 Cal.3d 899, 907 [153 Cal.Rptr. 854, 592 P.2d 341].)
The allegations of the first amended cross-complaint asserted against FTCR reveal that Pasadena’s cross-action was based on FTCR’s intervention in the pending Amy/Pasadena litigation, an act undertaken by FTCR in furtherance of its constitutional rights of free speech and petition. After detailing the background of FTCR’s joinder of Amy’s effort to compel the city to perform its post-election duties, Pasadena’s cross-complaint alleges: “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 in its Complaint in Intervention that the Mayor and City Clerk must perform the duties set forth in Government Code 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 Government Code 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 . . . .”
Similarly, in opposition to the anti-SLAPP motion, Pasadena insisted FTCR had been sued and was a proper defendant in the cross-action precisely because FTCR chose to intervene and demand that Pasadena certify the Initiative: “FTCR is a proper party cross-defendant. Again, FTCR, as the admitted sponsor of the initiative, voluntarily intervened in this lawsuit and has joined petitioner’s request that the Court order certain actions which would trigger operation of the initiative. It is remarkable that FTCR says it cannot be sued as the sponsor of the initiative after it has filed a complaint as a plaintiff intervenor with respect to the same initiative.”
These statements indicate Pasadena’s cross-action against FTCR “arose from” FTCR’s constitutionally protected act “of filing litigation.” (Briggs, supra, 19 Cal.4th at p. 1115.) They also indicate the gravamen of Pasadena’s cross-action against FTCR was not the constitutionality of the Initiative, but the dispute over Pasadena’s refusal to comply with Government Code section 34460 and its “legal rights and duties” under that statute. The principal thrust of the action, and the only matter then “at issue” between FTCR and Pasadena, was the dispute over Pasadena’s duty to perform the ministerial obligations imposed by section 34460. To the extent relevant, the constitutionality of the Initiative was an issue only as support for Pasadena’s contention that the unconstitutionality of the Initiative obviated its obligations under the Government Code. Indeed, both Amy and FTCR correctly asserted—and the trial court correctly agreed—that the constitutionality of the Initiative was irrelevant to the Pasadena officials’ duty to perform certain ministerial duties under section 34460. (See Kevelin v.