OPEN GOVERNMENT — If you have not done so already, it's time to send Governor Schwarzenegger your message urging him to sign SB 786 (Yee), which would keep those who must sue to get public records or enforce the open meeting laws from being forced to pay the government's attorney fees if the court rules against them.

The bill has just been sent to the Governor, who may view the status quo as a welcome cost protection threatened by SB 786, which would bar state as well as local agencies from demanding that unsuccessful plaintiffs pay their attorney fees.

The need for the bill is spelled out in letters sent to the Governor this week, asking his signature, by Californians Aware and the California Newspaper Publishers Association. CalAware's letter states:

July 27, 2009

Honorable Arnold Schwarzenegger
State Capitol
Sacramento, CA 95814

RE: SB 786 – Signature Urged

Dear Governor Schwarzenegger,

Californians Aware urges your signature approval of SB 786 (Yee), which provides that the attorney fee award against plaintiffs that is generally available to prevailing defendants in a case dismissed on a motion to strike under the anti-SLAPP law would not be available for causes of action filed to enforce the state’s open meeting laws or the public’s right to government information under the California Public Records Act (CPRA).

Californians Aware was founded five years ago to help ordinary citizens, public officials and journalists keep Californians aware of what they need to know to hold government and other powerful institutions accountable for their actions. Our mission is to support and defend open government, an enquiring press and a citizenry free to exchange facts and opinions on public issues.  Our board of directors comprises an equal number of seats for those serving in government, journalists, and citizens interested in civic participation. Our services include publications, training seminars and other resouces to help whoever needs help in understanding and using laws like the Brown Act and the California Public Records Act. We were not established to litigate, and our first experience in doing so led us into the calamity that this bill seeks to preclude for others. 

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.

No one needs to agree with our position in bringing the lawsuit, or to sympathize with the public official whose right to speak without censure we sought to vindicate, in order to see the need for what SB 786 offers: a clear reassurance that citizens’ recourse to the courts to get the government to comply with California’s longstanding transparency laws does not become deterred by the dauntingly high costs of a potential SLAPP dismissal. 

If you approve SB 786, government agencies will still have the right to use anti-SLAPP motions to deflect at the earliest opportunity lawsuits that cannot win.  But in SLAPP-stopping litigation to enforce the open meetings or public records laws, they will not be able to recoup their attorney fees from the plaintiff unless they can show that the action was frivolous and utterly without merit.   Until now this has been the standard, and that standard needs to be restored, or no citizen will dare challenge government secrecy in court.

Please give SB 786 your signature approval.

Your message to the Governor urging his signature is needed—now—to assure that result. Address a letter or postcard to:

Governor Arnold Schwarzenegger
State Capitol Building
Sacramento, CA 95814

send an e-mail using the form at 
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 as briefly as you prefer.