In City of Montebello v. Vasquez, published August 8, 2016, the California Supreme Court reversed the denial of a special motion to strike under the anti-SLAPP statute. The city sued three former council members and a former city administrator, alleging that their vote to approve a waste hauling contract violated Government Code section 1090 due to a conflict in interest. The council members asserted that their vote was protected conduct under Government Code section 425.16. The lower appellate court ruled that the conduct was not protected. It also ruled that the exemption from anti-SLAPP motions for public enforcement actions did not apply to the city's suit.
The Supreme Court agreed that the prosecutorial exemption did not apply. By statute, it applies only to actions brought in the name of the people of the state by the attorney general, a district attorney, or a city attorney, acting as a public prosecutor. A suit brought by a city, in its own name and through private counsel, does not meet that criteria. But the Supreme Court reversed the ruling that the vote was not protected conduct. The statute protects acts in furtherance of the defendant's rights of petition or free speech under the federal or state constitution. Although the U.S. Supreme Court has held that a legislator's vote is not protected free speech, the anti-SLAPP statute does not only apply to activity protected by the constitutional right of free speech, but also acts in furtherance of those rights. Since the statute expressly protects communications before legislative bodies and in legislative proceedings, the statute protected the defendants votes, their statements in connection with their votes, and their statements when negotiating the contract. Although anti-SLAPP does not protect illegal conduct, the question of whether the conduct was illegal was premature. The court remanded the case for a determination of the other issues under anti-SLAPP analysis.