BILL ANALYSIS
SB 786
Page 1
Date of Hearing: June 23, 2009
ASSEMBLY COMMITTEE ON JUDICIARY
Mike Feuer, Chair
SB 786 (Yee) - As Amended: May 20, 2009
SENATE VOTE : 34-0
SUBJECT : ANTI-SLAPP MOTIONS: GOVERNMENT Attorney's Fees and
Costs
KEY ISSUE : SHOULD PERSONS SEEKING TO ENFORCE GOVERNMENT
TRANSPARENCY LAWS BE PROTECTED AGAINST ATTORNEY'S FEES LIABILITY
UNDER THE ANTI-SLAPP STATUTE?
FISCAL EFFECT : As currently in print this bill is keyed
non-fiscal.
SYNOPSIS
The anti-SLAPP law provides that a cause of action against a
person arising from any act in furtherance of the person's right
of petition or free speech in connection with a public issue
shall be subject to a special motion to strike, unless the court
determines that the plaintiff has established a probability that
she or he will prevail on the claim. A prevailing defendant in
an anti-SLAPP motion is entitled to recover his or her
attorney's fees and costs. This bill is sponsored by the First
Amendment Coalition to prohibit government bodies or entities
from recovering attorney's fees and costs in anti-SLAPP motions
against specified actions brought pursuant to the California
Public Records Act, Bagley-Keene Open Meetings Act, and Ralph M.
Brown Act. The bill comes in response to a recent court
decision imposing significant liability (reportedly in excess of
$80,000.00) against an individual who sued to enforce the Brown
Act and Public Records Act and was subject to an anti-SLAPP
motion by the governmental agency. Supporters argue that the
prospect of such liability is likely to deter effective
enforcement of these important good-government obligations.
Moreover, there is no evidence or reason to believe that law
suits to enforce these governmental obligations have frequently
been or are likely to be true SLAPP actions. Precluding
recovery of the government's attorney's fees, they contend, will
not bar use of the anti-SLAPP statute or prevent governmental
defendants who are wrongly sued from recovering attorney's fees
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when they otherwise prevail in the action. Opposition comes
from some local government agency associations who contend that
governmental defendants who are subject to actions under these
governmental openness rules should be treated no differently
than any other defendant in their assertion of the anti-SLAPP
motion.
SUMMARY : Protects enforcement of government transparency laws.
Specifically, this bill would prohibit a prevailing defendant in
an anti-SLAPP motion from recovering attorney's fees and costs
in the following actions: (1) whenever it is made to appear by
verified petition that certain public records are improperly
being withheld from a member of the public; (2) specified
actions involving meeting provisions of the legislative body of
a local agency or a state body; or (3) an action to obtain a
judicial determination that an action taken by a legislative
body of a local agency or a state body is null and void, as
specified.
EXISTING LAW :
1)Establishes the anti-SLAPP special motion to strike and
provides that a prevailing defendant shall be entitled to
attorney's fees and costs. (Code of Civ. Proc. Sec. 425.16.)
2)Requires, pursuant to the Ralph M. Brown Act (Brown Act), that
all meetings of a legislative body of a local agency be open
and public and all persons be permitted to attend unless a
closed session is authorized. (Gov. Code Sec. 54950 et seq.)
3)Requires, pursuant to the California Public Records Act (PRA),
that all state and local agencies to make their records
available for public inspection and copying upon request and
payment of fees, unless those records are exempt from
disclosure. (Gov. Code Sec. 6250 et seq.)
4)Requires, pursuant to the Bagley-Keene Open Meeting Act, that
all state boards and commissions publicly notice their
meetings, prepare agendas, accept public testimony, and
conduct their meetings in public unless specifically
authorized by the Act to meet in closed session. (Gov. Code
Secs. 11120-11132.)
COMMENTS : This bill, sponsored by the First Amendment
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Coalition, seeks to correct a perceived abuse of the anti-SLAPP
law by government bodies or entities that use the special motion
to strike to defend against actions brought pursuant to laws
intended to promote open government. Specifically, this bill
would prohibit prevailing government bodies or entities from
recovering attorney's fees in an anti-SLAPP motion for a limited
set of actions brought pursuant to the California Public Records
Act, Bagley-Keene Open Meetings Act, and Ralph M. Brown Act.
In support of the bill the author states, "Litigation to enforce
the open government laws that is dismissed on the motion to
strike creates a palpable chilling impact on citizen's
willingness to attempt to enforce the basic civic rights the
laws are intended to protect. Open government laws like the
Brown Act and the California Public Records Act provide that a
plaintiff suing to enforce them can be required to pay a
prevailing (government agency) defendant's attorney's fees only
upon a court finding that the plaintiff's case was
irresponsible: "clearly frivolous and totally lacking in merit
(Brown Act - Government Code Section 54960.5) or "clearly
frivolous" (California Public Records Act - Government Code
Section 6259 (d)). These good faith plaintiff protections allow
citizens to go to court if necessary with what they believe to
be meritorious litigation to correct unlawful government secrecy
without the chill of being saddled with crippling fee exposure
as the cost of losing."
According to the author, the problem to be addressed by the bill
is not a speculative risk. "In Californians Aware et al. v.
Orange Unified School District, No. G038499 (Cal.App. Dist.4
09/04/2008,) the plaintiff nonprofit organization and its
then-president, a community college professor, brought an action
under the Brown Act, the California Public Records Act and the
First Amendment seeking a declaration that the rights of a
school trustee under these laws were violated when the board
majority sanctioned him for critical comments made during a
public meeting and when those comments were edited out of the
district's publicly distributed and cablecast video recording of
the meeting. The case was dismissed on an anti-SLAPP motion by
the defendant school district, and the dismissal was upheld by
the California Court of Appeal. The plaintiffs were ordered to
pay the district's attorney fees totaling more than $80,000.
Since the nonprofit organization's resources were minimal, its
co-plaintiff president was required to pay almost this entire
amount, which meant a substantial depletion of his retirement
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funds. If this experience continues as even a remote risk, no
prudent person will use the courts to enforce open government
rights that recently were given fundamental constitutional
status, along with speech, press and privacy, by the voters in
the passage of Proposition 59 of 2004 (Article 1, Section 3
(b))."
SLAPP Cases Are Not Typically Filed Against Governmental
Defendants Under The Specified Good-Government Laws. Strategic
Lawsuits Against Public Participation (SLAPP suits), were first
defined by University of Denver Law School Professor George
Pring and University of Denver Sociology Professor Penelope
Canan in their seminal article, Strategic Lawsuits Against
Public Participation, (Social Problems, 35(5):506-519 (1988)),
as "civil lawsuits ? that are aimed at preventing citizens from
exercising their political rights or punishing those who have
done so."
While SLAPP suits "masquerade as ordinary lawsuits" such as
defamation and interference with prospective economic advantage,
they are generally suits without merit brought primarily to
chill the exercise of free speech or petition rights through the
threat of severe economic sanctions against the defendant, and
not to vindicate a legally cognizable right. (See Pring and
Canan, SLAPP: Getting Sued for Speaking Out, Temple University
Press, 1996.)
In 1992, the California Legislature enacted Code of Civil
Procedure Section 425.16 (SB 1264, Lockyer, Chapter 726,
Statutes of 1992) to provide a "special motion to strike" for
use by defendants in SLAPP lawsuits to obtain an early judicial
ruling and termination of a SLAPP suit arising out of the
defendant's exercise of his or her constitutional rights of
petition and free speech in connection with a public issue. The
anti-SLAPP statute also stays the discovery process until the
court has ruled on the motion. Thus, the statute is designed to
terminate SLAPP suits early on without a significant cost to the
defendant. A prevailing defendant on a special motion to strike
is also entitled to attorney's fees and costs.
In enacting the anti-SLAPP law, the Legislature expressly found
that "there has been a disturbing increase in lawsuits primarily
to chill the valid exercise of the constitutional rights of
freedom of speech and petition for the redress of grievances ?
that it is in the public interest to encourage continued
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participation in matters of public significance, and that this
participation should not be chilled through abuse of the
judicial process."
Although governmental entities have, somewhat controversially,
been held to have free speech rights, they are not the usual
targets of SLAPP suits.
Importantly, there is no evidence or reason to believe that law
suits to enforce the specific governmental obligations in this
bill have frequently been or are likely to be true SLAPP
actions.
This Bill Exempts Governmental Defendants From Attorney's Fees
Recovery Under Specified Provisions Of The California Public
Records Act, Bagley-Keene Act, And The Brown Act. The
California Public Records (CPRA) Act was enacted in 1968 with
the primary purpose of providing the public with an opportunity
to monitor the functioning of their government. In enacting the
CPRA, the Legislature declared that "access to information
concerning the conduct of the people's business is a fundamental
and necessary right of every person in this state." (Gov. Code
Sec. 6250.) Pursuant to the CPRA, all governmental records must
be disclosed to the public, upon request, unless there is a
specific reason not to do so, such as preserving an individual's
right to privacy. If an agency improperly withholds records, a
member of the public may enforce his or her right to do so
through a civil action, and is entitled to recover attorney's
fees and costs. (Id.)
The Bagley-Keene Open Meeting Act (Bagley-Keene), set forth in
Government Code Sections 11120-11132, covers all state boards
and commissions. Generally, it requires these bodies to
publicly notice their meetings, prepare agendas, accept public
testimony and conduct their meetings in public unless
specifically authorized by the Act to meet in closed session.
Essentially, Bagley-Keene, in recognition of the fact that
"[t]he people of this state do not yield their sovereignty to
the agencies which serve them," (Gov. Code Sec. 11120) provides
the public with the ability to monitor and participate in
decision-making processes. Bagley-Keene provides for remedies
and penalties in situations where violations have allegedly
occurred. Depending on the particular circumstances, the
decision of the body may be overturned (Gov. Code Sec. 11130.3),
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violations may be stopped or prevented (Gov. Code Sec. 11130),
and costs and fees may be awarded (Gov. Code Sec. 11130.5).
The Ralph M. Brown Act (Gov. Code Sec. 54950 et seq.) also
requires all meetings of a local agency's legislative body to be
open and public, all persons to be permitted to attend, and any
closed session to be held only if the subject matter to be
discussed is authorized, previously announced, and the results
of any action taken during the closed session announced to the
public. The Brown Act, like Bagley-Keene, is based on the
underlying public policy that "public agencies in this State
exist to aid in the conduct of the people's business" and their
actions and deliberations should be taken and conducted openly."
(Gov. Code Sec. 54950.) Individuals may file civil lawsuits
for injunctive, mandatory, or declaratory relief, or to void
action taken in violation of the Brown Act. (Gov. Code Secs.
54960-54960.1.) A court may award attorney's fees and costs to
a prevailing plaintiff if it finds that the legislative body of
a local agency violated provisions of the Brown Act. (Gov. Code
Sec. 54960.5.)
This bill would provide that attorney's fees and costs would not
be available to a prevailing defendant under the anti-SLAPP law
in actions brought to compel disclosure of public records that
are improperly being withheld from a member of the public;
actions brought to stop or prevent violations of the
Bagley-Keene Act or to void actions taken by a state body in
violation of Bagley-Keene's open meeting requirements; and
actions to stop or prevent violations of the Brown Act by a
legislative body of a local agency, and in actions to obtain a
judicial determination that an action taken in violation of the
Brown Act is null and void.
The Limited Focus Of This Bill Appears To Be Consistent With
Original Purpose Of The Anti-SLAPP Law And Subsequent Reforms
Targeted At Demonstrated Misuse Of The Law. Although the
anti-SLAPP law was designed to protect a citizen's rights of
petition and free speech from the chilling effect of retaliatory
litigation, there have been instances where the law has been
abused and also used as a litigation weapon. For example, after
the statute was enacted, corporations began to use the special
motion to strike to challenge actions brought against them
pursuant to California's unfair competition laws (Bus. & Prof.
Code Secs. 17200-17210.) In order to correct this abuse, the
Legislature enacted Code of Civil Procedure Section 425.17 (SB
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515, Kuehl, Chapter 338, Statutes of 2003) which prohibits
anti-SLAPP motions in response to (1) public interest and class
actions when certain conditions are met, and (2) actions against
a business that arise from commercial statements or conduct of
the business.
Notably, this bill would not prevent government entities or
bodies from using the anti-SLAPP law to challenge these cases
with a special motion to strike; rather they would not be
entitled to an automatic award of attorney's fees and costs.
As evident in the Legislature's findings and declarations for
the Public Records Act, Bagley-Keene Open Meetings Act, and the
Brown Act, the public has an interest in maintaining access to
information regarding the public's business and the opportunity
to participate in matters regarding the public's business. The
overarching question for this committee is whether it is
consistent with the purpose of the anti-SLAPP law for government
entities and bodies to collect attorney's fees upon prevailing
on a special motion to strike against members of the public
seeking to enforce laws promoting transparency and integrity in
the democratic process. In light of the fact that government
entities often have more resources at their disposal than the
average citizen or non-profit organization, allowing them to
recover attorney's fees and costs on an anti-SLAPP special
motion to strike could arguably serve to subvert the original
intent of the anti-SLAPP law - to avoid chilling participation
on matters of important public interest.
The Bill Would Not Prohibit Use Of The Anti-SLAPP Motion Or
Recovery Of Attorney's fees Where Suits Are Frivolous Or Lacking
In Merit. This bill affects only the ability of a government
entity to impose attorney's fees liability when it succeeds on
an anti-SLAPP motion; it does not prevent governmental
defendants from appropriate use of the anti-SLAPP motion
generally, or even with respect to the good-government statutes
at issue. This may be seen as appropriate because recovery of
attorney's fees is generally permitted only where there is a
special need to encourage prosecution of particular claims or to
validate an overriding public interest, which may be less
weighty concerns where governmental entities defend themselves
against actions seeking to vindicate the important public
openness obligations.
It should be noted too that the California Public Records Act,
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the Bagley-Keene Open Meetings Act, and the Brown Act each
contain provisions allowing the court to award a prevailing
public agency reasonable attorney's fees and costs if the court
finds the plaintiff's action is clearly frivolous or lacking in
merit. (Gov. Code Secs. 6259, 11130.5, 54960.5.) Thus, a
public agency would still be able to recover attorney's fees and
costs when it prevails in a final determination of the action,
and the court finds the action was frivolous or lacking in
merit. This higher standard for the recovery of attorney's
fees and costs is arguably more appropriate for open government
laws in order to protect the public's ability to enforce these
laws through civil actions.
ARGUMENTS IN OPPOSITION : California School Boards Association
and the Community College League of California both oppose the
bill, generally contending that public agencies should be
entitled to recover attorney's fees when they assert the
anti-SLAPP motion because it saves public funds
REGISTERED SUPPORT / OPPOSITION :
Support
California First Amendment Coalition (sponsor)
American Civil Liberties Union
Californians Aware
California Newspaper Publishers Association
Opposition
California School Boards Association
Community College League of California
Analysis Prepared by : Kevin G. Baker / JUD. / (916) 319-2334