This action might not be possible to undo. Are you sure you want to continue?
11-1459 ====================== In the
Supreme Court of the United States
Angelina Morfin Vargas and Mark Dierolf Petitioners v. The City of Salinas, David Mora Respondents.
======================= On Petition for Writ of Certiorari To The Sixth District Court of Appeal of the State of California REPLY TO OPPOSITION TO WRIT OF CERTIORARI
Steven J. André Attorney at Law 26080 Carmel Rancho Blvd. Carmel, CA 93923 (831)624-5786 Attorney for Petitioners, Angelina Morfin Vargas, Mark Dierolf
TABLE OF CONTENTS Page Table of Authorities ……………………… ii
I. THE IMPORTANT QUESTION OF HOW GOVERNMENT SPEECH FITS INTO ANTI -SLAPP BALANCING OF INDIVIDUAL RIGHTS. . . 1
II. THE ISSUE IS IMPORTANT AND RIPE FOR REVIEW ………………..5 A. THE BURDEN ON PETITIONING IS REAL ..….6
B. NEW CASES REVEALING DIVISION
TABLE OF AUTHORITIES Cases: Page 7
BE&K Construction v. NLRB, 536 U.S. 516 (2002) Burrough of Duryea v. Guarnieri, 564 U.S. ___, (2011) Brandenburg v. Ohio, 395 U.S. 444 (1969) Califano v. Jobst, 434 U.S. 47 (1977) Equilon Enterprises v. Consumer Cause, Inc., 52 P.3d 685 (Cal.2002) Frisby v. Schultz, 487 U.S. 474,484-486 (1988) Garrison v. Louisiana, 379 U. S. 64 (1964)
11 2 12
9,10 3 3
Gonzales v. Carhart, 550 U.S. 124, 157-158 (2007) 10 Professional Real Estate Investors, Inc. v. Columbia Pictures, 508 U.S. 49 (1993) Rowan v. Post Office Dept., 397 U. S. 728 (1970) Stanson v. Mott, 551 P.2d 1 (Cal.1976) Snyder v. Phelps, 562 U.S. ____ (2011) Vargas v. City of Salinas, 205 P.3d 207 (Cal.2009)(Vargas I) Zablocki v. Redhail, 434 U.S. 374, (1978)
9 3 6,8 3-4
Zaldivar v. City of Los Angeles, 780 F.2d 823 (9th Cir.1986).
Statutory and Constitutional Authority Cal.Code Civ.Proc. §425.16 Federal Rules of Civil Procedure, Rule 11 Haw.Rev.Stat.§634 F-2(8) U.S. Const. Amend. 1 Wash.Rev.Code §4.24.525(6)(a))
Keeling, Byron, Toward a Balanced Approach to “Frivolous” Litigation: A Critical Review of Federal Rule 11 and State Sanctions Provisions, 21 Pepp.L.Rev. 1067 (1994) 6-7 Pring, George and Canan, Penelope, SLAPPs: Getting Sued for Speaking Out, (Temple U.Press 1996)
I. THE IMPORTANT QUESTION OF HOW GOVERNMENT SPEECH FITS INTO ANTI-SLAPP BALANCING OF INDIVIDUAL RIGHTS A critical, fatally flawed premise supports Respondents’ assertions relating to government use of anti-SLAPP statutes to obtain fee awards against unsuccessful citizens who genuinely challenge perceived wrongdoing. The premise is that the government speech involved, unlike other acts potentially challenged by concerned, civic-minded individuals and public interest organizations, is of the nature of a constitutional right. Respondents correctly observe the purpose of anti-SLAPP statutes is to protect First Amendment rights. (Opp. p.5,9)1 The published appellate court decision upholding the fee award of $226,928.00 against the two public interest litigants here did not rely upon that purpose. This is because it does not apply - government is not a person engaging in the exercise of rights such as free speech. The premises relied upon by the court of appeal were the governmental interest in recouping fees for meritless litigation and the interest in promoting government speech. (App.B, 17,23) Respondents
Respondents conspicuously omit “person” from reference to §425.16’s objective in protecting speech and petition rights activity. The statute actually allows a motion to strike in a suit involving “[a] cause of action against a person arising from any act of that person in furtherance of the person's right of petition or free speech under the United States or California Constitution in connection with a public issue”. (Cal.Code Civ.Proc. §425.16 (b)(1).)
abandon those reasons. This is unsurprising in view of the serious problems identified with whether these bases mesh with the constitutional requirements recognized by this Court, let alone make any sense. (Pet. pp.31-38) In any event, applying the First Amendment protective purpose of anti-SLAPP laws begs an important question. In both theory and practical judicial application, anti-SLAPP statutes involve a careful balancing recognizing the tension between the First Amendment rights of litigants to have their day in court and the rights of citizens to be free from retaliatory lawsuits targeting exercise of speech or petitioning rights. (Pring, George and Canan, Penelope, SLAPPs: Getting Sued for Speaking Out, 12,17-19 (Temple U.Press 1996); Brief of Amicus Curiae, Californians Aware, et al., pp.8-11 ) How does government speech fit into this equation? Sometimes certain government conduct – specifically, government speech – can be very important. Respondents observe, “providing information to the voters and other citizens is a mite more important than . . . ‘watering the grass at city hall.’” (Opp. p.14) However, not all government speech is so important. Even speech that is so important may not warrant suppression of petition rights. Identifying the constitutionally required manner in which individual First Amendment rights are to be balanced against government interests has been an evolutionary process. From the days of the “bad tendency” test to Brandenburg v. Ohio, 395 U.S. 444 (1969), this Court moved away from allowing
generalized governmental interests to trump First Amendment rights. Judicial willingness to countenance suppression of speech countering generalized governmental interests dwindled with ascending appreciation of the importance of protecting individual rights - accepting the logic that "speech concerning public affairs is more than self-expression; it is the essence of self-government." Garrison v. Louisiana, 379 U. S. 64,74-75 (1964). This is glossed over by Respondents’ pat assertion that government speech deserves vicarious First Amendment protection at the expense of individual rights by virtue of its potential to perform the function of informing the citizenry. (Opp. p.13-14) Respondents’ approach to the place of government speech in the delicate anti-SLAPP balance is at odds with the approach developed by this Court. Government may act to protect individual rights against encroachments by others who are exercising their rights. For example, this Court recognized that an ordinance may properly restrict picketing from interfering with persons’ privacy interests in their homes. Frisby v. Schultz, 487 U.S. 474,484-486 (1988). Government may act to protect individual privacy interest in being free from offensive mail. Rowan v. Post Office Dept., 397 U. S. 728,738 (1970). Content neutral regulation of picketing intruding upon family memorial services may be proper. Snyder v. Phelps, 562 U.S. ____, n.5 (and preceding text) (2011). Government’s judgments relating to the balance struck in protecting some individual rights vis á vis others’ rights have not been acceded broad deference. Snyder emphasized that this scope is limited:
Our holding today is narrow. . . As we have noted, "the sensitivity and significance of the interests presented in clashes between First Amendment and [state law] rights counsel relying on limited principles that sweep no more broadly than the appropriate context of the instant case."[Citation]. Id. The anti-SLAPP application pressed by Respondents – to not only protect government from the exercise of First Amendment rights, but to impose government’s fees upon unsuccessful petitioners, vastly departs from the trepidatious balancing of rights considered in the foregoing cases. It does not involve balancing respective individual rights at all. Where protections of statutory rights go beyond reasonable time, place and manner considerations and serve instead to prevent or inhibit citizen expression and interaction with elected officials and the marketplace of ideas, or to insulate government agents from citizen input and accountability, the legislative balancing of rights against government interests is suspect. The sweeping government interest in protecting its speech is not exceptional in this regard.
II. THE ISSUE IS IMPORTANT AND RIPE FOR REVIEW Respondents assert that the issue presented is not ripe because anti-SLAPP statutes vary. They assert ad hoc review of the burden involved for each
statute is necessary. (Opp. pp.29-30) True, the 29 statutes differ in wording and penalties.2 However, their shared objective is protecting persons’ First Amendment rights. The common result of burdening general petition rights with fee awards is a chill upon prospective challenges to perceived government wrongdoing. Where the Petition Clause precludes burdening genuine litigants with government’s fees, statute-by-statute analysis is unnecessary. A. THE BURDEN ON PETITIONING IS REAL This is not a situation involving a nominal fee to cover expenses for exercise of a statutory right. Certainly, anti-SLAPP fees might often be less than a quarter of a million dollars. (Opp. p.25) The burden might also be greater. As amicus curiae, Pacific Legal Foundation points out, critical public interest success is generally only achieved after arduous appellate litigation. Whether the potential burden is $30,000 or $1,000,000, the effect upon a private citizen with average income or a struggling grassroots organization is identical – the prospect dampens, if not drowns, civic spirit and deters socially beneficial litigation.
Some statutes impose additional penalties upon parties and parties’ attorneys. (See, e.g., Haw.Rev.Stat.§634 F-2(8) – also requiring minimum sanction of $5,000 and allowing additional sanctions against the litigant and litigant’s attorney; Wash.Rev.Code §4.24.525(6)(a) – requiring additional $10,000 award plus sanctions on the litigant and counsel). Suffice it to say, if saddling a public interest litigant bringing a good faith challenge to government action with the government agency’s fees fails under Noerr-Pennington, heightened scrutiny and the incidental effect standard, these other burdens also will fail.
Respondents attempt additional forays to discount this impact upon good faith litigants. None withstand scrutiny. First, is insinuating the lawsuit here was not brought in good faith. This involves mischaracterizing Respondents’ significant loss before the California supreme court as an unqualified victory.3 It also involves misplaced and misleading reliance upon Rule 11’s “probable cause” standard. Commonly referred to as the “frivolousness” clause4 of Federal Rules of Civil Procedure, Rule 11, it deems that an attorney represents there is probable cause for a pleading upon penalty of sanction. Probable cause – the term invoked by Respondents – refers to the attorney’s duty to evaluate the pleading and have a reasonable belief there is a factual and legal basis. A question dividing federal circuits is whether both objective and subjective components are required for an award of sanctions under the “frivolousness” clause. Keeling, Byron, Toward a Balanced Approach to “Frivolous” Litigation: A Critical Review of Federal Rule 11 and State Sanctions Provisions, 21 Pepp.L.Rev. 1067,1080 (1994). Consequently, the
The record is otherwise. The decision, Vargas v. City of Salinas, 205 P.3d 207 (Cal.2009)(Vargas I), reveals Petitioners sued challenging Respondents’ policy relating to election expenditures. The court granted review primarily to consider the lawfulness of that policy’s departure from constitutional guidelines it recognized in Stanson v. Mott, 551 P.2d 1 (Cal.1976) to ensure the electoral process remains free from government interference. Vargas I at 209. Rejecting the city’s “express advocacy” policy, the court reversed the lower courts, upholding a standard lending greater protection against governmental manipulation of the process of self-governance. Id. 223-228.
Zaldivar v. City of Los Angeles, 780 F.2d 823,830 (9th Cir.1986). The other is the “improper purpose” requirement
unqualified reference to “probable cause” readily conjures the impression the subject pleading was objectively baseless and filed in subjective bad faith. §425.16 does not require bad faith. Respondents conceded and the court of appeal recognized below, Petitioners’ lawsuit was “not necessarily objectively baseless or frivolous.” (App.B, p.14). Rule 11 terminology confabulates the federal probable cause requirement with §425.16(b)(1)’s required showing “that there is a probability that the plaintiff will prevail on the claim.” This is very different than the requirement that no reasonable litigant would believe there was a factual basis for the complaint.5 It disregards any objective or good faith belief in the basis for the lawsuit and requires the plaintiff to come forward with evidence to establish a prima facie case.6 Second, is suggesting any truly good faith litigant should be able to forecast whether a lawsuit will fail anti-SLAPP challenge. Respondents allude
It eradicates the “breathing space” allowed even baseless litigation in BE&K Construction v. NLRB, 536 U.S. 516 (2002). This Court, addressing a statute targeting suits brought in bad faith, recognized the difference between suits that are not reasonably based and failure to muster adequate proof. Id.532-533. The difference is critical for advocates handling matters in the public interest where advocacy involves venturing outside cutand-dry legal doctrine. It is one thing to fail to recognize when a party’s position ranges so far beyond the scope of existing law and is so devoid of factual support that it is completely unreasonable to advance. It is another matter to find one has inadequate facts to support one’s position under a reasonably contested standard of law applied by the court.
that had Petitioners’ suit been meritorious, this would have been apparent from Rule 11 evaluation: “If a plaintiff contemplating a public interest suit assesses it prior to filing for the existence of probable cause . . . such a public interest plaintiff will prevail on the second prong of California’s anti-SLAPP test . . . ” (Opp. pp.34-35) This assertion is lacking for obvious reasons, chief among them are that Rule 11 does not even apply to this state lawsuit, the standards are different for the Rule 11 evaluation than for antiSLAPP considerations, as detailed supra, and the fact that Petitioners’ lawsuit survives probable cause evaluation. In any event, the suggestion that public interest litigants should be able to evaluate in advance judicial acceptance of the legal merits of a cutting-edge lawsuit rapidly unravels. Challenges to established legal doctrine often find the body of law into which litigants venture rests on shifting sands. This case is illustrative. When Petitioners sought review in the state supreme court, the law limiting government election advocacy was uncertain. Both the trial court and court of appeal erroneously accepted Respondents’ argument that Stanson’s constitutional test had been statutorily modified allowing government greater leeway to spend public funds to influence election outcomes. The supreme court redefined at length the law under Stanson applicable to the materials challenged by Petitioners. Vargas I, pp.218-223,228232. Respondents’ probability of prevailing was hardly susceptible to the predictability glibly posited by Respondents.
Third, Respondents assert there are “safeguards” protecting the right to petition built into anti-SLAPP statutes. The “safeguards” identified are: “that the suit must be one challenging protected speech or petitioning activity” and “the relatively low burden of showing prima facie factual and legal foundation for their complaint.” (Opp. p.16) But for government speech, the activity is not protected by the First Amendment. And the burden is not the level of protection recognized by this Court as required to overcome petitioning immunity – involving both subjective and objective components, each of which are more protective than the anti-SLAPP requirements. Professional Real Estate Investors, Inc. v. Columbia Pictures, 508 U.S. 49 (1993). Fourth, is repeated, misplaced reliance upon a case dealing with fee-shifting in the context of private litigation (Equilon Enterprises v. Consumer Cause, Inc., 52 P.3d 685 (Cal.2002)). Based upon that holding, Respondents chant the mantra that imposing fees upon a losing litigant who sues government imposes no “liability” (Opp. pp.5,16,19,21), hence ipso facto there is no substantial burden on petition rights. This superficial treatment gives no mention of the significant difference detailed in the Petition (Pet. pp.5-9) and acknowledged by the court below (App. B., p.14) between private litigation and a lawsuit challenging government conduct. The dual petition – combining the judicial petition and the general petition (seeking redress of a grievance with government) merits paramount constitutional protection. (Pet. p.7-8)
Fifth, involves modifying the standards applicable to the burden on petition rights. Reasoning from Equilon’s treatment of private litigants, Respondents assert there is no burden requiring a shield of NoerrPennington immunity here and no requirement that they demonstrate the lawsuit was a “sham” to impose government’s fees upon an unsuccessful public interest litigant. Once again, this fails because Equilon’s holding does not reach a citizen petitioning government for redress by means of a lawsuit. The analogy to fees awarded in private lawsuits obscures the reality that imposition of fees upon unsuccessful litigants who challenges government action chills that activity and burdens the exercise of the right to petition government for redress of grievances. That the burden can be denominated “costs” does not change the fact that it imposes a burden. The NoerrPennington doctrine sets a protective standard allowing citizens to make incorrect and even misguided attempts to effect social change from government without suffering such a burden, unless a lawsuit is a “sham.” Respondents also argue that heightened scrutiny should not apply to the burden imposed upon public interest litigants because it is insubstantial and incidental. Respondents seek to cast $226,928.00 as akin to the imposition of nominal costs by government. Certainly, a law does not substantially burden a constitutional right simply because it incidentally makes the right more expensive or more difficult to exercise. Gonzales v. Carhart, 550 U.S. 124, 157-158 (2007). Application fees to obtain a marriage license are not subject to challenge. But the imposition upon
petition rights here is not comparable – it involves a crushing burden. Nor is it easily dismissed as incidental. AntiSLAPP statutes do strike directly at the petition right itself – terminating judicial access. Burrough of Duryea v. Guarnieri, 564 U.S. ___, ___(2011) (“”[T]he right of access to courts for redress of wrongs is an aspect of the First Amendment right to petition the government.””) In the case of a suit seeking redress from government, the general petition right is directly implicated as well. As for treating the burden as incidental, Respondents blithely assert §425.16 is narrowly tailored to serving its purpose. (Opp. p.23) But its purpose in protecting First Amendment activity is not served by allowing government agents to punish and chill First Amendment activity of good faith litigants. There is no substantial relationship between the end and a means that is counter to that end. Nor is it the least restrictive means to achieve that objective. For that failure, this Court in Zablocki v. Redhail, 434 U.S. 374, (1978), invalidated a law prohibiting an individual behind in support payments from obtaining a marriage license. The appellant county clerk was unable to “make clear the connection between the State's interest and the statute's requirements.” Id.389. The Court recognized: When a statutory classification significantly interferes with the exercise of a fundamental right, it cannot be upheld unless it is supported by sufficiently important state interests and is closely tailored to effectuate only those interests. [Citations] Appellant asserts that two
interests are served by the challenged statute: the permission-to-marry proceeding furnishes an opportunity to counsel the applicant as to the necessity of fulfilling his prior support obligations; and the welfare of the out-ofcustody children is protected. . . . [S]ince the means selected by the State for achieving these interests unnecessarily impinge on the right to marry, the statute cannot be sustained. Id.388. The Court distinguished the direct and substantial interference with Redhail’s right to marry from the loss of a $20 monthly benefit as a result of marriage in Califano v. Jobst, 434 U.S. 47 (1977). Zablocki at n.12. Burdening petition rights of citizens unsuccessfully but genuinely challenging government action is not narrowly tailored to protecting persons from lawsuits retaliating against the exercise of their First Amendment rights. B. NEW CASES REVEALING DIVISION Respondents point to three more states where cases have emerged grappling with government use of anti-SLAPP statutes. (Opp. n.8,n.9,p.25) The divided state results illustrate the need for this Court’s guidance in regard to government’s place in the delicate balance drawn by anti-SLAPP statutes between the First Amendment rights of litigants and statutory protection of persons against retaliation for exercise of First Amendment rights.
The cases reveal courts are having serious difficulty dealing with government speech – whether it (unlike other government conduct) is protected by the First Amendment and whether government’s interest in protecting it prevails over petition rights such that litigants should pay government’s fees incurred defending it against genuine petitioning activity. Waiting for additional cases to further illuminate the existence of this confusion makes no sense. Of greater concern should be the prospect of finding another appropriate case for review. The $226,928.00 in fees does not include fees Respondents will undoubtedly claim for subsequent work. In view of this strong deterrent, the real question is whether any citizen litigating in the public interest is hereafter likely to challenge government action involving speech, let alone take the financial risk in bringing a case to the point of seeking certiorari on the question raised here. CONCLUSION Certiorari should be granted. Dated: September , 2012. Respectfully submitted, Steven J. Andre Attorney for Petitioners, ANGELINA MORFIN VARGAS, MARK DIEROLF
PROOF OF SERVICE
At all time of service I was over 18 years of age, a member of the U.S. Supreme Court Bar, and not a party to this action. My business address is 26080 Carmel Rancho Blvd., Suite 200B, Carmel, California 93923. On the date set forth below all parties required to be served were served when I served the following document on the following persons: REPLY TO OPPOSITION TO PETITION FOR WRIT OF CERTIORARI Joel Franklin, Esq (3 copies) 2100 Garden Road, Suite G Monterey, CA 93940 Ph # (831) 649-2545 Vanessa W. Vallarta 200 Lincoln Avenue Salinas, CA 93901 Ph # (831) 758-7256 (3 copies) Party Represented: City of Salinas; Dave Mora
Party Represented: City of Salinas, Dave Mora
Kamala D. Harris California State Attorney General P.O. Box 944255 Sacramento, CA 94244-2550 The documents were served by the following means:
XX By United States Mail: I deposited the sealed envelope with the United States Postal Service, with the postage fully prepaid. Dated this _____day of September, 2012 at Carmel, California.
-------------------------------Steven J. Andre
CERTIFICATE OF COMPLIANCE
Angelina Morfin Vargas and Mark Dierolf Petitioners v. The City of Salinas, David Mora Respondents.
As required by Supreme Court Rule 33.1(h), I certify that the Reply to the Opposition to the Petition for a writ of certiorari contains 2,999 words, excluding the parts of the petition that are exempted by Supreme Court Rule 33.1(d). I declare under penalty of perjury that the foregoing is true and correct. Executed on September , 2012.
__________________________ Steven J. Andre, Attorney for Petitioners, Angelina Morfin Vargas and Mark Dierolf
This action might not be possible to undo. Are you sure you want to continue?
We've moved you to where you read on your other device.
Get the full title to continue listening from where you left off, or restart the preview.