BILL ANALYSIS
SB 786
Page 1
SENATE THIRD READING
SB 786 (Yee)
As Amended May 20, 2009
Majority vote
SENATE VOTE :34-0
JUDICIARY 9-1
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|Ayes:|Feuer, Tran, Brownley, | | |
| |Evans, Jones, Krekorian, | | |
| |Lieu, Monning, Silva | | |
| | | | |
|-----+--------------------------+-----+--------------------------|
|Nays:|Knight | | |
| | | | |
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SUMMARY : Protects enforcement of government transparency laws.
Specifically, this bill prohibits a prevailing defendant in an
anti-SLAPP (Strategic Lawsuits Against Public Participation) 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.
FISCAL EFFECT : None
COMMENTS : This bill, sponsored by the First Amendment 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
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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 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))."
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.
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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. 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.
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, 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. 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.
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Analysis Prepared by : Kevin G. Baker / JUD. / (916) 319-2334
FN: 0001522