OPEN GOVERNMENT -- Governor Arnold Schwarzenegger today signed into law
legislation to prohibit public entities from recovering attorney’s fees
from individuals who sue to enforce the state’s open government laws,
unless the court expressly finds the suit frivolous—ensuring that what happened to Californians Aware will not happen to others.

“SB
786 will ensure that laws designed to ensure free speech are not used
to silence those who seek access to government proceedings and
documents,” said Senator Leland Yee (D-San Francisco/San Mateo), the
bill’s author. “SB 786 will not only protect the right of individuals
to enforce open government laws without fear of a significant financial
burden, but will also ensure that government entities act with greater
transparency.”

In 1992, the California Legislature enacted the
original anti-SLAPP (Strategic Lawsuits Against Public Participation)
law for individuals to obtain an early judicial ruling and termination
of a SLAPP suit arising out of one’s exercising of speech and petition
rights in connection with a public issue.  Prior to the law, big
corporations and developers – in attempt to silence an individual who
was exercising their free speech or petition rights – would often
masquerade false defamation cases as ordinary lawsuits.  Such cases
resulted in severe economic hardships against innocent individuals.

In
2007, Californians Aware (CalAware) – a nonprofit organization dedicated to public
forum rights – filed an action for declaratory relief (not damages)
against a school district, alleging violations of the Brown Act, the
CPRA and the First Amendment.

“We challenged the board of trustee
majority’s censure of one of its members for his open session criticism
of board action and staff performance, and the superintendent’s editing
of those remarks out of the video recording distributed for cable TV
replay,” wrote CalAware General Counsel Terry Francke, in a letter
supporting the bill.  “Our belief at the time was (and still is) that
the public has a right to hear even the harshest criticism by an
elected member of a government body as to how the body has dealt with
any issue—even a personnel matter—on which it has acted.”

The
trial court dismissed CalAware’s action upon the district’s anti-SLAPP
motion (Californians Aware et al. v. Orange Unified School District,
No. G038499).  As a consequence, the nonprofit organization was held
liable to pay the district's attorney’s fees and costs for trial totaling
more than $80,000.

“The anti-SLAPP law was designed to protect
freedom of speech and petition; not to chill an individual’s right to
participation and ability to access public documents,” said Yee, who
has authored several bills calling for greater public access and
government transparency.

“The use of the anti-SLAPP law by
government agencies, though, has subverted the very speech and petition
rights the law is intended to protect,” said Tom Newton, General
Counsel for the California Newspaper Publishers Association (CNPA). 
“The threat that a Brown Act plaintiff could become saddled with the
public agency’s attorney fees whenever the court determines the
plaintiff is unable to establish a probability of prevailing on the
claim has created a profound chilling impact on the willingness of
citizens to pursue their rights under the law.”

SB 786 will officially become law on January 1, 2010.

CalAware thanks Senator Yee for carrying SB 786, Governor Schwarzenegger for signing it into law, the California First Amendment Coalition for sponsoring it, CNPA's Tom Newton for leading the effort to see it passed, and all those who wrote the Governor urging his signature.