In City of Montebello v. Vasquez, published May 30, 2014, the Second District Court of Appeal, Division 1, affirmed denial of a special motion to strike under the Anti-SLAPP statute, Code of Civil Procedure section 425.16, brought by city council members and a city official in response to a lawsuit filed by the city plaintiff seeking declaratory relief for alleged violations of Government Code section 1090 (prohibiting city officers and employees from having a financial interest in contracts they make in their official capacity). The action arose out of the defendants' approval of a city contract granting a company an exclusive right to provide commercial waste hauling services. The city alleged that the defendants voted to approve the contract with the expectation that the company would contribute to their present or future election campaigns. The defendants filed the Anti-SLAPP motion on the grounds that they were being sued for protected activity, and that the city could ot establish a probability of prevailing on the merits.
The appellate court rejected the city's argument that its lawsuit was exempt from Anti-SLAPP because the public enforcement exemption under the statute applied. Acknowledging a split in authority on the issue, the court sided with the authority that the statute applies only to enforcement actions brought in the name of the state. But the court concluded that the challenged activity, committing the defendants' legislative power to the approval of a city contract, was not protected speech within the meaning of the Anti-SLAPP statute. The vote did not implicate the defendants' right to free speech or convey any symbolic message. Holding otherwise would apply the Anti-SLAPP suit to any challenge to any legislative decision. The same applied to the city official defendant who negotiated the contract. The court noted that it did not hold that a governmental act may never constitute protected speech.
Because of the split in authority, the California Supreme Court has granted review of the court's rejection of the effort of government agents to assert the anti-SLAPP statute. It may well be revisiting its holding in Vargas v. City of Salinas, that government actors are protected by the state’s anti-SLAPP statute. The Vasquez court was right in rejecting the government officials‘ use of Sec. 425.16, but the court’s reasoning that voting by government officials should not be protected by the anti-SLAPP statute because it is not First Amendment activity did go far enough. No government conduct is First Amendment activity and no government activity warrants anti-SLAPP protections. Here is a link to a recent law review article detailing the developing split of authority and dissecting the problem with government use of anti-SLAPP statutes, in particular California’s ( Anti-SLAPP Confabulation and the Government Speech Doctrine ) : http://works.bepress.com/stevenjandre/19/
Posted by: M | November 11, 2014 at 09:12 AM