Images-3 OPEN GOVERNMENT/FREE SPEECH — A bill to prevent repetitions of Californians Aware's disastrous attorney fees experience in its unsuccessful Brown Act lawsuit against a school board will get its first hearing this Tuesday afternoon in the Senate Judiciary Committee.

SB 786 by Senator Leland Yee (D-San Francisco) 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. 

We almost never call for grassroots action on legislation, but in this case we urge the constituents of these members of the Judiciary Committee to ask their Senators to vote for SB 786:

            Ellen Corbett, chair (District 10: San Leandro)

Phone: (916) 651-4010   Fax: (916) 327-2433   E-mail: senator.corbett@sen.ca.gov

Tom Harman, vice chair (District 35: Costa Mesa)
Phone: (916) 651-4035   Fax: (916) 445-9263   E-mail: senator.harman@sen.ca.gov

Dean Florez (District 16: Shafter)
Phone: (916) 651-4016   E-mail: senator.florez@sen.ca.gov

Mark Leno (District 3: San Francisco)
Phone: (916) 651-4003   Fax: (916) 445-4722   E-mail: senator.leno@sen.ca.gov

Mimi Walters (District 33: Tustin)
Phone: (916) 651-4033   Fax: (916) 445-9754   E-mail: senator.walters@sen.ca.gov

CalAware's letter of support for the bill outlines the problem.

In 2007 we 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.  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.

But the trial court dismissed our action upon the district’s special motion to strike under Code of Civil Procedure Section 425.16, the anti-SLAPP law, concluding in effect that the board majority’s 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 superintendent’s 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.

The California Court of Appeal agreed and upheld the trial court’s judgment.  As a consequence, we were held liable to pay the district’s attorney’s 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 home.

Had it not been for the automatic attorney fee imposition on a plaintiff whose case is dismissed under Section 425.16—“You lose, you pay”—we 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.

The ironic result is that our attempt to vindicate the speech rights of an elected public official —and the public’s corresponding right to hear his or her criticism of a specific action by his peers—was not only defeated but made fearfully costly for a private citizen, by operation of a law designed to protect speech rights—and primarily those of private citizens.

The bill's sponsor is the California First Amendment Coalition.  Its support letter, by CFAC President James Chadwick, adds:

The perversity of applying the anti-SLAPP statute to claims brought pursuant to California’s
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 California’s 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 California’s 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.

Tom 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:
CNPA 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 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.  The stakes are just too high (See Cal Aware’s 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.