OPEN GOVERNMENT -- Governor Arnold Schwarzenegger will soon get the chance to signor vetoa bill to bar government agencies from demanding attorney fees from those who unsuccessfuly sue to enforce the Brown Act or other open government laws.
Your message to the Governor urging his signature is needednowto assure that result. Address a letter or postcard to:
Governor Arnold Schwarzenegger
State Capitol Building
Sacramento, CA 95814
and/or send an e-mail using the form at http://gov.ca.gov/interact#email. Select the "Other" subject heading, and on the next page (after submitting the first) enter in the subject line, "Please sign SB 786 (Yee)." In the body, state your reasons (see what others have said below).
SB 786 by Senator Leland Yee (D-San Francisco/San Mateo) would provide that
those suing local or state agencies to enforce the open meetings laws
or obtain information under the California Public Records Act cannot be
forced to pay the defendant agencies' attorneys fees in the event that
their case is dismissed on an anti-SLAPP motion. The measure is meant to prevent
repetitions of Californians Aware's disastrous attorney fees experience
in its unsuccessful Brown Act lawsuit against a school board.
CalAware's letter of support for the bill outlines the problem.
2007 we filed an action for declaratory reliefnot damagesagainst a
school district, alleging violations of the Brown Act, the CPRA and the
First Amendment. We challenged the board of trustee majoritys censure
of one of its members for his open session criticism of board action
and staff performance, and the superintendents editing of those
remarks out of the video recording distributed for cable TV replay.
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 issueeven a
personnel matteron which it has acted.
the trial court dismissed our action upon the districts special motion
to strike under Code of Civil Procedure Section 425.16, the anti-SLAPP
law, concluding in effect that the board majoritys right to express
its opinion through a resolution of censure (contrary to its own
policy) was superior to that of the trustee it censured, and that the
superintendents editing of the video recording violated neither public
records nor free speech law since the original recording was available
intact at the district office for whoever wished to view it.
California Court of Appeal agreed and upheld the trial courts
judgment. As a consequence, we were held liable to pay the districts
attorneys fees and costs for trial and appeal totaling more than
$80,000. As a very small nonprofit organization with slim resources,
we were unable to bear more than a small share of this obligation. If
Californians Aware had been forced to satisfy the judgment alone it
would have almost certainly sent us into bankruptcy. Fortunately for us
but disastrously for him, almost all of the liability became the burden
of our co-plaintiff (and president when we filed the action), Richard
McKee. As a chemistry teacher at Pasadena City College, Mr. McKee
eventually had to deplete his life savings to accumulate this amount,
in the meantime having had his wages garnished and a lien placed on his
it not been for the automatic attorney fee imposition on a plaintiff
whose case is dismissed under Section 425.16You lose, you paywe and
Mr. McKee would have been exposed to this fee-shifting burden only if
the court had made a finding that our actions under the Brown Act and
CPRA were clearly frivolous (Government Code Sections 54960.5 and
6259), a finding we are confident could not have been made.
ironic result is that our attempt to vindicate the speech rights of an
elected public official and the publics corresponding right to hear
his or her criticism of a specific action by his peerswas not only
defeated but made fearfully costly for a private citizen, by operation
of a law designed to protect speech rightsand primarily those of
The bill's sponsor is the California First Amendment Coalition. Its support letter, by CFAC President James Chadwick, adds:
open government law is that it turns those laws on their head, discouraging rather than
encouraging enforcement, and hence discouraging rather than encouraging compliance. I can assure that it is already extremely difficult for the public and press to get state and local
government agencies to comply with Californias open government laws. If the problem created by the application of the anti-SLAPP statute to these claims is not addressed, few will have the courage to pursue claims under Californias open government laws, and noncompliance will become even more ubiquitous. Indeed, it puts a punitive weapon in the hands of public agency members using public taxes for which they are not truly held accountable to pursue their vengeance.
Newton, general counsel of the California Newspaper Publishers
Association and the open government cause's most experienced defender
under the Capitol dome, wrote in his support letter:
helped enact the California anti-SLAPP law, has sponsored successful
legislation to improve it, and has filed many amicus briefs urging
judicial interpretations of the law that further its goal to protect
the speech and petition rights of all Californians from meritless
lawsuits. CNPA also fundamentally supports the open meeting laws and
CPRA, which also protect the speech and petition rights of the public.
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. The threat that a Brown Act plaintiff could become saddled
with the public agencys 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. The stakes are just too
high (See Cal Awares May 7 SB 786 support letter). In addition, for
practical purposes, the award of fees under the Anti-SLAPP law
nullifies the much higher clearly frivolous standard the legislature
set for its public access laws so many years ago.