OPEN GOVERNMENT/FREE SPEECH — The bill intended to correct the problem that cost California's most active open government watchdog more than $80,000 in attorney's fees in an unsuccessful Brown Act/free speech lawsuit got a solid launch today in its first hearing in Sacramento.
The Senate Judiciary Committee, in a unanimous bipartisan vote, passed SB 786 by Senator Leland Yee (D-San Francisco) and sent it for action on the Senate floor.
The bill provides that if a state or local government agency successfully uses an anti-SLAPP motion to get dismissal of a lawsuit brought against it under the Brown Act, the Bagley-Keene Act or the California Public Records Act, the court may not order the losing plaintiff to pay the agency's attorney fees.
That fee provision is now an automatic element of the anti-SLAPP law, which the Orange Unified School District used to get dismissal of the case last year brought against it by Californians Aware and Richard McKee, its then president. CalAware's slim resources meant that McKee was forced to pay the district's attorney's fees at trial and on appeal, which eventually totaled more than $80,000.
The case was brought under the Brown Act and the Public Records Act, seeking a court declaration that a district trustee's speech rights, and the right of the public to hear him, were violated when he was censured by colleagues for his public meeting criticism of their personnel decision, and when his comments were edited out of a video of the meeting sent for community cable TV airing.
At today's hearing James Chadwick, president of the California First Amendment Coalition, told the committee that in his work as a media lawyer he had learned that lawsuits to enforce open government laws were rare and difficult to bring, and that exposure to the government attorney fee liability that McKee had suffered would threaten the end of citizen enforcement of these laws.
Also testifying in support of the bill were Tom Newton for the California Newspaper Publishers Association and Terry Francke for Californians Aware, both of whom emphasized that the bill would allow a court to order the fee payments if the losing plaintiff's case were determined to be frivolous.
The bill was opposed by organizations representing county governments.