SCOTT LAW FIRM

1388 Sutter Street, Suite 715 San Francisco, California 94109 John Houston Scott john@scottlawfirrn.net Lizabeth N. de Vries liza@scottlawfirrn.net www.scottlawfirrn.net Telephone (415) 561-9600 Facsimile (415) 561-9609

February 9, 2012 Chief Justice Tani Cantil-Sakauye and Associate Justices The California Supreme Court 350 McAllister St. San Francisco, CA 94102 Re: Statement in Support of Grant of Review: Vargas v. City of Salinas, Case No. S198996 Dear Chief Justice and Associate Justices of the Supreme Court: I am submitting this letter in support of a grant of review in this matter.

STATEMENT OF INTEREST
My interest in this case stems from my personal experience. I was counsel for the plaintiff and appellant in Schaffer v. City and County of San Francisco 168 Cal. App. 4th 992 (2008). My client in that case brought suit against police officers concerning false statements made in a police report that resulted in her being falsely arrested. A motion to dismiss was filed pursuant to Code of Civil Procedure § 425.16. The basis for application of the anti-SLAPP statute was that the government entity's conduct at issue involved a statement made in an official proceeding - the police investigation. My client, who was exercising her right to petition the government for redress of grievances, was devastated with a judgment awarding attorney's fees of over $70,000. The fact that she was falsely arrested was of no consequence. As a civil rights attorney I see the anti-SLAPP statute as fundamentally grounded in the First Amendment and the right of citizens to petition the government and have access to the courts. The Bill of Rights to the Constitution is intended to protect the people from the government, not the government from the people. When litigation involves the government the First Amendment should protect the people from penalties for accessing the courts to petition the government for grievances. However, this has somehow gotten lost in the court's interpretation of the anti-SLAPP statute. The courts have lost sight of the forest for the trees.

Chief Justice Tani Canril-Sakauye and Associate Justices The California Supreme Court February 9,2012

We now live in an Orwellian age where corporations are considered to be people. It is but a short leap to declare that the government is also a person intended to be protected by the Constitution's Bill of Rights. In fact, the court in Vargas implicitly made that leap. A citizen's right under the First Amendment to petition for grievances against the government is trumped by a statute that is interpreted to give government actors the "right" to use public funds to interfere with the electoral process. THE IMPACT OF THE COURT OF APPEAL'S DECISION Because of the breadth of the Sixth District's application of subsection (e) of §425.l6, virtually any written or oral statement by a government entity or employee acting in an official capacity could be construed to fall within the anti-SLAPP statute. I write to point out why this approach is ill-considered and deserves review by this Court. It is important to recognize that almost any government agent's written or oral statement could be construed as having been "made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law"; "made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law"; or "made in a place open to the public or a public forum in connection with an issue of public interest." Further, almost any such written or oral statement would qualify as "in connection with a public issue." See §425.16(e). When a government employee does something in an official capacity in dealing with a private citizen - i.e., does something in carrying out the government employee's official duties - it is almost by definition a public issue. E.g., Cal. Const. Art. I, § 3, (b)(I)-(b)(3) (stating public policy of open access); Gov't Code §§ 9027,9070,54950 (all legislative proceedings open to the public); see also Briggs v. Eden Council for Hope & Opportunity, 19 Cal. 4th 1106, 1119 (1999) (construing § 425.16 "to protect not just statements or writings on public issues, but all statements or writings made before, or in connection with issues under consideration by, official bodies and proceedings"). The operation of government is inherently a matter of public concern. It is the public's interest in seeking to remedy potential government wrongdoing that properly deserves protection. Yet this is precisely what the Sixth District's application of the antiSLAPP statute would prevent. PRE-VARGAS DECISIONS DEALING WITH THE QUESTION Prior to Vargas v. City of Salinas, 46 Cal.4th 1 (2009), a number of cases applied the anti-SLAPP statute to governmental conduct to expand the scope of protection far beyond the activities sought to be protected by the California State Legislature. These cases began moving away from situations peripherally implicating speech activity by government agents to encompass even routine government records such as police reports. See Bradbury v. Superior Court, 49 Cal. App. 4th 1108 (1996), Nizam-Aldine v. City of Oakland, 47 Cal. App. 4th 364 (1996); Mission Oaks Ranch v. County of Santa Barbara, 65 Cal. App. 4th 713 (1998) - improperly prepared environmental impact reports with

Chief Justice Tani Canril-Sakauye and Associate Justices The California Supreme Court February 9,2012

respect to projects for which citizens applied for permits; Schroeder v. Irvine City Council, 97 Cal. App. 4th 174 (2002) - applying 425.16 to allegedly improperly spent money on &overnment voter registration program; Gallanis-Politis v. Medina, 152 Cal.App.4 600 (2007) - retaliation claim against county employer based on content of report and memorandum; Maranatha Corrections, LLC v. Department of Corrections, 158 Cal. App. 4th 1075 (2008) - involving alleged defamation by government agents; Santa Barbara County Coalition, supra. - improperly prepared traffic plans that the Legislature required; Holbrook v. City of Santa Monica, 144 Cal. App. 4th 1242 (2006) applying the anti-SLAPP statute to a claim that a public entity improperly scheduled city council meetings and improperly allowed public comment only at the end of such meetings; Vergos v. McNeal, 146 Cal. App. 4th 1387 (2007) - improperly conducted employee grievance proceedings. THIS COURT'S RULING REGARDING §425.16 IN VARGAS The Court in Vargas focused upon the wording of subsection (e) to recognize that the statute's terms did not specifically exclude governmental activity. It concluded the anti-SLAPP statute's language "extends to statements and writings of governmental entities and public officials on matters of public concern that would fall within the scope ofthe statute if such statements were made by a private individual or entity." Vargas at 17. (emphasis added) However, the facts of Vargas illustrate why subsection (e) should not be applied to government actors. The claim there arose from government use of public funds to influence the electoral process. Public funds were used to pay for political statements published in a newsletter and mailer. This doesn't pass the smell test based on what I learned in law school. A lawsuit challenging this conduct could not possibly be viewed as frivolous or brought in bad faith. POST -VARGAS CONFLICT OVER WHEN GOVERNMENT CAN USE §425.16 The decisions of the courts of appeal after Vargas have evidenced confusion over when government activity should be treated like a private exercise of rights. Some courts have simply treated government actors performing governmental functions no differently than such conduct if it were performed by a private person. This literalist treatment of subsection (e) was evident in the unpublished decisions in Ruttlen v. County of Los Angeles (2d Dist. 2011) No. B223345 and Petersen Law Firm v. City of Los Angeles (2d Dist. 2011) No. B220030. Other cases have recognized that government activity, including speech, is fundamentally different than the same activity when performed by a private actor. Graffiti Protective Coatings v. City of Pico Rivera, 181 Cal.App.4th 1207 (2010) and USA Waste of California, Inc. v. City of Irwindale, 184 Cal.App.s'" 53 (2010); Mandurrago v. City of Carmel (6th Dist. 2010) No. H034439 (unpublished). Those cases refused to extend anti-SLAPP protection to governmental activities within the scope of subsection (e), recognizing that "To extend the anti-SLAPP statute to litigation merely challenging

Chief Justice Tani Canril-Sakauye and Associate Justices The California Supreme Court February 9,2012

the application, interpretation, or validity of a statute or ordinance would expand the reach of the statute way beyond any reasonable parameters." USA Waste at 66. Their reasoning reflects the understanding that citizens exercise rights while government actors perform a government function by innumerable activities involving speech. In addition, those decisions recognize the adverse impact such an interpretation would have on the rights the anti-SLAPP statute was intended to protect! '''It would chill the resort to legitimate judicial oversight'" and '''would also ironically impose an undue burden upon the very right of petition for those seeking mandamus review in a manner squarely contrary to the underlying legislative intent behind [the anti-SLAPP statute].'" Graffiti Protective Coating at 1224-1225. THE COURT OF APPEAL'S INTERPRETATION OF §425.16 IS NOT SUPPORTED BY THE LANGUAGE OR INTENT OF THE STATUTE AND IS AT ODDS WITH CONSTITUTIONAL IMPERATIVES AND PUBLIC POLICY That the Sixth District's approach is not consistent with California public policy is apparent from the policy reflected in the California Constitution and statutes and recognized by this Court. As this Court held in City of Long Beach v. Bozek, 31 Cal. 3d 527 (1982), "[i]t is essential to protect the ability of those who perceive themselves to be aggrieved by the activities of governmental authorities to seek redress through all the channels of government." Further, public policy favors access to courts, with each side, as a general principle, responsible for their own attorneys' fees. A benefit of this system is that it enables all citizens, regardless of economic status, to have access to the judicial system. The prospect of a significant adverse fee award will, however, significantly deter suits against the government. If the approach accepted by the Sixth District had previously been in effect, important cases overturning established doctrine and setting new precedents might never have been brought. Compare Endler v. Schutzbank, 68 Cal. 2d 162 (1968) (holding that the Commissioner of Corporation's calling a person a criminal on the basis of unproven allegations violated the person's due process rights), with Maranatha, supra (holding that claim based on alleged defamation by the Department of Corrections was subject to the anti-SLAPP statute); Stanson v. Matt, 17 Cal. 3d 206 (1976) (holding that a government official's expenditure of funds for partisan campaigning was unlawful), with Vargas, supra (holding that an analogous claim was subject to an anti-SLAPP fee award); Gunn v. Employment Development Dep 't, 94 Cal. App. 3d 658 (1995) (holding that the Employment Development Department's asking questions of applicants regarding their pregnancy status was discriminatory and unconstitutional), with Vergas, supra (holding that a claim that a hearing officer discriminated against applicant in grievance proceeding was subject to the anti-SLAPP statute). Further, the Legislature made clear that the purpose of the anti-SLAPP statute was to protect the public's valid exercise of constitutional rights. Code Civ. Proc. §425.16(a). Here lies the fundamental problem: since § 425.16's protection of petitioning activity

Chief Justice Tani Canril-Sakauye and Associate Justices The California Supreme Court February 9, 2012

extends to a citizen's right to sue a government agent for alleged wrongdoing, it would be entirely hypocritical to interpret the anti-SLAPP statute to impair that ability. In keeping with its objective of protecting the exercise of constitutionally protected speech and petition rights, the Legislature provided that persons sued in the exercise of valid constitutional rights would have the right to bring anti-SLAPP motions. §425.16(b)(1). At the time the statute was originally enacted it was established that government agents acting in their official capacities did not validly exercise speech or petition rights. See Star-Kist Foods v. County of Los Angeles, 42 Cal. 3d 1 (1986) (recognizing that the state's "legislative control over cities and counties is reflected in the well-established rule that subordinate political entities, as 'creatures' of the state, may not challenge state action as violating the entities' rights under the due process or equal protection clauses of the Fourteenth Amendment"); see also Native American Heritage Commission v. Board of Trustees, 51 Cal. App. 4th 675 (1996) (citing Star-Kist and holding that this rule barred a state university's First Amendment challenge to state regulation). It was only after the anti-SLAPP statute was enacted that an appellate court, in Nadel v. Regents of University of California, 28 Cal. App. 4th 1251 (1994), reached the questionable conclusion that government entities and employees acting in official capacities might enjoy First Amendment-type protection. (See criticism of application, R. Treiman, "Anti-SLAPPED, "Daily Journal, December 9,2008). Section 425.16(e) started from the premise that a person to whom the antiSLAPP statute applied was validly exercising First Amendment speech or petition rights, and then specified as to such persons, additional conduct that would be deemed in furtherance of such exercise and would give rise to an anti-SLAPP motion. Subsection (e) of the anti-SLAPP statute should not be read to remove the premise, required in subsections (a) and (b), that persons bringing anti-SLAPP motions actually be protected by and be exercising such rights. Where a government entity or employee is engaging in a discretionary action, it is hard to imagine that the Legislature was concerned that the government entity or employee's participation would be chilled. The Legislature has provided immunity to protect the government entities and employees engaged in discretionary actions (e.g., Gov't Code § 820.2 (public entity employee not liable for exercise of discretion; id., § 815.2(b) (public entity not liable where employee not liable», which immunity could be raised on demurrer.

Chief Justice Tani Canril-Sakauye and Associate Justices The California Supreme Court

February 9,2012

CONCLUSION - WHY REVIEW SHOULD BE GRANTED Private citizens need to know if their only recourse for perceived violations of their constitutional rights is in the federal courts. Currently the California courts are sending mixed messages. Was the anti-SLAPP status intended to punish those who dare fight City Hall? Respectfully submitted,

Chief Justice Tani Canril-Sakauye and Associate Justices The California Supreme Court

February 9,2012

PROOF OF SERVICE
STATE OF CALIFORNIA, COUNTY OF SAN FRANCISCO I am employed in the county aforesaid, I am over the age of 18 years and not a party to the within action. My business address is The papers listed below were served this date by mailing them as follows: Vanessa Vallarta, Esq. City Attorney City of Salinas 200 Lincoln Ave. Salinas, CA 93901 Joel Franklin, Esq. Attorney at Law 2100 Garden Rd., Suite G Monterey, CA 93940 Robert N. Treiman, Esq. BRYAN CAVE LLP 3161 Michelson Drive, Suite 1500 Irvine, California 92612-4414 Anthony T. Caso, Esq. John Eastman, Esq. Karen J. Lugo, Esq. Center for Constitutional Jurisprudence c/o Chapman Univ. Sch. Of Law One University Drive Orange, CA 92886 Steven J. Andre, Esq. 26415 Carmel Rancho Blvd. Carmel, CA 93921

Clerk of the Supreme Court of California (13 copies) 350 McAllister St. San Francisco, CA 94102

Manuel S. Klausner, Esq. Law Offices of Manuel S. Klausner, P.C. One Bunker Hill Building 601 W. Fifth St., Suite 800 Los Angeles, CA 90071

LETTER IN SUPPORT OF REVIEW I declare under penalty of perjury under the laws of the United States and the State of California that the foregoing is true and correct. Dated: February9,2012

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Chris P. Christensen

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