Government Liability Update

City Councilmembers' Vote on a City Contract Is Not Protected Activity under the Anti-SLAPP Statute

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.

School Administrators May Ask Students to Remove Clothing Bearing American Flag to Avoid Threat of Violence or Disruption

In Dariano v. Morgan Hill Unified School Dist. , published February 27, 2014, the Ninth Circuit Court of Appeals affirmed summary judgment in favor of an assistant principal in a lawsuit under 42 U.S.C. section 1983 alleging that he had violated the plaintiff high school students' First Amendment, Equal Protection, and Due Process rights.  On the day of a Cinco de Mayo celebration at the school, a group of students wore American flag shirts to the school. There was a history of violence at the school, some gang-related and some along racial lines. At the previous year's Cinco de Mayo celebration, there had been confrontations between students flying a makeshift American flag and students celebrating the holiday.  School officials were concerned about the safety of the flag-wearing students.  The principal asked them to turn their shirts inside-out or take them off.  Some of the students declined.  The vice-principal told the students of his safety concerns.  School officials offered to allow the students who declined to change their shirts to go home, without the absence counting against their attendance records.  None of the students were disciplined.

The Ninth Circuit rejected the students' argument that the school officials had violated the students' First Amendment right of free expression.  To justify prohibition of a certain kind of expression, school officials must be able to show that their action was caused by something more than avoiding an unpopular viewpoint.  Officials may prohibit forms of expression that they reasonably forecast would cause disruption of school activities or collide with the rights of other students.  Here, the officials acted reasonably in response to their concerns that the shirts might trigger violence or disruption of school activities, based on past experiences.  The officials did not punish the students for wearing the shirts.  The officials did not violate the students' equal protection rights, because there was no showing that students wearing other types of flags on their shirts were at risk for violence.  The court also rejected the students' argument that the school district's dress code, which prohibits clothing that creates a safety hazard or disrupts school activities, violated due process by lacking objective standards.

Public Entity May Not Contract to Indemnify Employee against Suit Brought on Entity's Behalf against Employee for Alleged Criminal Conduct Committed in Bad Faith and with Malice

In City of Bell v. Superior Court (Rizzo), published October 4, 2013, the Second District Court of Appeal, Division Three, addressed whether Government Code section 996.6 permits public entities to enter into defense and indemnity contracts with its employees that would provide a defense against the city's own lawsuit (or a lawsuit brought by the Attorney General on the city's behalf) against the employee for alleged corruption.  The court answered the question in the negative.  Government Code section 995.8 prevents a public entity from providing its employee a defense to a criminal action unless the public entity determines that the defense would be in the best interests of the public entity and that the public employee had acted in good faith and without malice.  Section 996.6 provides that an employee's or former employee's rights under the Government Code are in addition to, and not in lieu of, any rights he may have under a contract or other enactment providing for his defense.  The court concluded that under this statute, if an employee has a contractual right to defense (such as his own insurance policy), the entity cannot escape a statutory duty to defend him on the ground that the employee has another source of defense.  The statute does not permit the public entity to enter into a defense or indemnity contract that would exceed the entity's statutory powers.  Since under section 995.8 the entity has no power to contract to defend or indemnify an employee it is suing (or is sued on the entity's behalf) for corruption, section 996.6 does not permit it to do so.

First Amendment Does Not Bar Schools from Disciplining Student for Off-Campus Speech That Threatens On-Campus Violence

In Wynar v. Douglas County School Dist., published August 29, 2013, the Ninth Circuit affirmed summary judgment granted to a defendant school district that suspended a student for sending friends instant messages on MySpace bragging about the student's gun collection and ammunition, discussing shooting specific students at school, setting a specific date for the shooting and the types of students he would shoot, and comparing the proposed rampage to the Virginia Tech shootings.  His friends, alarmed, reported him to school authorities.  The student claimed the instant messages were a joke.  The school initially suspended him for 10 days.  After giving him written notice and a hearing where he was permitted to call and cross-examine witnesses, it suspended him for 90 days.  The student sued the school district, administrators, and officials under 42 U.S.C. section 1983.  

After reviewing various circuits' analysis of whether school districts could constitutionally discipline students for off-campus speech, the Ninth Circuit determined that when faced with an identifiable threat of school violence, schools may take disciplinary action in response to off-campus speech that meets the requirements of the U.S. Supreme Court's Tinker v. Des Moines Indep. Cmty. Sch. Dist. decision.  Under Tinker, schools may prohibit speech that might reasonably lead school authorities to forecast substantial disruption of or material interference with school activities, or that collides with other students' rights to be secure and to be left alone.  The messages here met those standards, whether or not they were protected by the 1st Amendment. Further, the procedural due process the school provided the student satisfied Constitutional requirements.  Although the student complained that the initial 10-day suspension did not satisfy all of the school district's procedural requirements for such suspensions, those requirements did not state constitutional minimums for procedure.

California Laws Governing Medicinal Marijuana Use Do Not Bar Cities and Counties from Barring Marijuana Dispensaries

In City of Riverside v. Inland Empire Patients Health and Wellness Center, Inc., published May 6, 2013, the California Supreme Court held that California's medical marijuana statutes -- the Compassionate Use Act of 1996 and the Medical Marijuana Program -- do not preempt the police power of cities and counties to ban facilities that distribute medical marijuana.  The statutes provide only limited exemptions from state law for medicinal marijuana users, caregivers, and cooperatives.  They do not provide exemption from local law.  Further, there is no indication that the state statutes were intended to occupy the area of medicinal marijuana regulation, or preempt local regulation.

Ninth Circuit Rules Privately-Led Prayers Opening City Government Meetings That Mention Jesus Do Not Violate First Amendment

In Rubin v. City of Lancaster, published March 26, 2013, the Ninth Circuit Court of Appeals rejected a First Amendment challenge to a city's practice of inviting clergy from the community to lead prayers at the opening of city council meetings.  The plaintiffs argued that a majority of the prayer leaders were Christian, as were the council members, and that a prayer had mentioned Jesus.  After reviewing the history of case law on the subject, the court concluded that in light of the safeguards the city took (inviting prayer leaders without regard to their religion, and asking that they not attempt to proselytize or criticize other religions), neither the invocation of Jesus nor the fact that most of the speakers were Christian (a consequence of the city's demographics) amounted to unconstitutional establishment of religion.  In so ruling, it joined a divide between federal circuits on the subject.  It also ruled that the prayers did not violate the California Constitution.

Attorney General May Bring Action on Behalf of City Against Allegedly Corrupt City Officials; No Claim to City Necessary

In People ex rel. Harris v. Rizzo, published March 20, 2013, the Second District Court of Appeal, Division Three, held that when it appears that a charter city (the City of Bell) is under the control of officials who are allegedly "looting the city's coffers for their own benefit," the state Attorney General may sue the officials on behalf of the city, to remove the city from their control and require them to pay restitution to the city.  The court further held that the Government Claims Act does not require the Attorney General to present a claim to the city before suing the officials; the AG is acting on behalf of the city, and the city need not file a claim with itself before suing its employees for acting outside of their employment.

Ordinance Requiring Spaying or Neutering of Pets Is Constitutionally Valid Exercise of Police Power

In Concerned Dog Owners of California v. City of Los Angeles, published April 29, 2011, the Second District Court of Appeal, Division One upheld a trial court decision rejecting a constitutional challenge to a city ordinance requiring pet owners to spay or neuter dogs and cats with limited exceptions.  The city's legislative solution to the problems of pet overpopulation was a legitimate exercise of the city's police powers, the appellate court ruled.  The court rejected the plaintiff group's arguments that the ordinance violated constitutionally-protected rights of free speech, free association, equal protection, due process, and individual liberties.  It also rejected contentions that the ordinance was overbroad and vague, constituted a taking of property without compensation, and granted city officials unfettered discretion concerning exceptions to the spaying/neutering requirements.

Illegal-Immigrant-Reporting Statutes Do Not Impose Mandatory Duty to Prevent Murders by Illegal Aliens

In Bologna v. City and County of San Francisco, published January 31, 2011, the First District Court of Appeal, Division 3 rejected an argument that the city could be held liable for the decedents' murders by an illegal alien (who was also a member of a gang) because the City had enacted "sanctuary policies" against reporting arrested illegal aliens to federal authorities.  The plaintiffs contended that under Evidence Code section 669 (negligence per se) and Government Code section 815.6 (mandatory duty liability), Health & Safety Code section 11369 and 8 U.S.C. 1373 imposed a duty on the city to report arrested illegal aliens to federal immigration authorities.  The court concluded that neither statute was intended to prevent illegal aliens from committing murder.  Section 11369, which requires arresting agencies to report drug offenders whom they believe to be illegal aliens, was intended to combat the drug trade, not murders.  Section 1373, which bars local governments from restricting public entities or employees from reporting to federal immigration officials, was intended to combat illegal immigration, not murder.  That both statutes might have an incidental benefit in preventing violent crime was not enough.

California Supreme Court Upholds Proposition 8

In its May 26, 2009 decision in Strauss v. Horton, the California Supreme Court ruled that California voters had the power to amend the state constitution to provide that marriage is only between a man and a woman.  Opponents of Proposition 8 had argued that the measure was not just an amendment to the constitution (which can be accomplished by initiative), but a revision of the constitution (which cannot).  The Supreme Court rejected this argument.  It did, however, uphold the same-sex marriages carried out in California under Proposition 8.