After city officials bowed to pressure from referendum supporters and scheduled certification of their petition for tonight's council meeting, the landowners' attorney notified the city he will seek a temporary restraining order this afternoon against the council to prevent that certification.
The order was sought "so that no further action can occur until we can brief the court on the merits of our case," said Clark Morrison, the attorney for landowners Jennifer and Frederic Lin.
This move comes on the heels of a motion filed Thursday by referendum leader Kay Ayala, who argues the Lins violated her First Amendment rights when they filed a lawsuit in December asking the courts to reject the referendum petition.
"Their whole basis is unconstitutional. They are trying to squelch my client's rights to freespeech," said Ayala's attorney, Ronald Katz.
He argues the Lins' suit violates a state statute that protects individuals from strategic lawsuits against public participation.
Katz is confident the request for a temporary restraining order will not be granted by the court.
Ayala was named in the lawsuit because of her leadership role in the effort to overturn city approval of the 51-lot
Pleasanton City Clerk Karen Diaz is also named, because "our claim is that the city clerk is not permitted to certify the petition results," Morrison said.
Morrison argues the petition cannot be certified because the process itself was flawed. He says because signature gatherers did not circulate the development plan and all related documents, they essentially misled people on what they were being asked to overturn.
Morrison contends the city should not act on the petition until after the Lins' Feb. 22 court date. Katz, however, argues that once he filed the anti-SLAPP motion and a hearing was scheduled for March 11, the courts will freeze any action on the Lins' lawsuit.
Morrison disagrees and said in his experience, it is not unusual for the courts to resolve SLAPP suits after the original lawsuit is settled.
It is this kind of legal maneuvering and uncertainty City Attorney Michael Roush said he was trying to avoid when he advised the City Council last week to wait on taking action on the petition.
"I was looking at it in terms of being practical," Roush said. "But there was a very strong feeling on the behalf of the proponents of the referendum, that in absence of a court order to stop, we should proceed with election code procedure."
Under the elections code, once the city receives official written certification from the county, the city clerk certifies the petition before the council. Then the council must decide to send the petition to the ballot or invalidate its prior approval.
Diaz said that in order to place the referendum on the June ballot, the council has to do so at its March 4 meeting, three days before the March 7 deadline to put a measure on the ballot.
Roush had recommended the council wait until after the Lins' lawsuit is heard in February. He had also warned that if the city moved forward, the Lins would most likely file an injunction.
The council meets at 7 p.m. in the council chambers, 200 Old Bernal Ave., Pleasanton.
Meera Pal covers Pleasanton. Reach her at 925-847-2120 or email@example.com.