Anti-SLAPP Law Grows: ‘Issue of Public Significance' Receives Broad Reading
In a split decision, the California Supreme Court has once again expanded the scope of the anti-SLAPP law. This time, the court concluded that an allegation of racism in small-claims court and a complaint to the federal government does constitute the type of "issue of public significance" described in the law.
In overturning a ruling by the First District Court of Appeal, the five-member Supreme Court majority rejected the argument that a nonprofit organization's tenant counseling activities were private in nature and neither promoted free speech nor informed the public about possible wrongdoing. The court also found that a defendant using the anti-SLAPP law need not make a separate showing that an issue of public significance was involved.
In a separate opinion that concurred with part of the opinion, Justice Marvin Baxter -— joined by Justice Janice Brown — warned that the majority is "holding that EVERY lawsuit based on ANY actionable word uttered or written in connection with ANY legislative, executive, judicial, or other "official" proceeding in the state of California will henceforth, as a matter of law, be deemed a retaliatory SLAPP suit."
The term "SLAPP" suit - the acronym stands for "strategic lawsuits against public participation" - is often used by citizen activists to refer to punitive lawsuits filed by developers and others to discourage citizen activism. (For background, see CP&DR, November 1990.) The law permits a special motion to strike a cause of action that is found by the court to be a SLAPP suit.
Appellate courts have issued a dozen or so rulings on the SLAPP law, most of which have emerged from land-use disputes. However, the Briggs v. Eden case is the Supreme Court's first ruling on the issue. The Briggs case lingered on the Supreme Court's docket for several years, and the Legislature changed the law in 1997, partly in response to the Court of Appeal's ruling in the Briggs case. The majority relied heavily on the 1997 legislative changes in reaching its ruling. The Supreme Court's ruling clarifies an issue that has been the subject of disagreement even among different panels within the First District Court of Appeal.
The case began when the Eden Council for Hope and Opportunity, a nonprofit organization in Hayward, began counseling several tenants who rent residential property from the plaintiffs in the case, Dan and Judy Briggs. In 1990, tenant Pamela Ford, an African-American, complained to ECHO that the Briggses were treating her differently than a white tenant. With ECHO's assistance, she filed a complaint with the federal Department of Housing and Community Development and filed a small-claims action in court. The Briggses were exonerated by HUD but Ford prevailed in the small claims court.
Meanwhile, in an unrelated action, the Briggses sued ECHO and obtained a court order for the organization to produce its files. The Briggses alleged that ECHO employees had called them racists and specifically said Dan Briggs is "a redneck and doesn't like women." In 1991, Briggs called ECHO, seeking the names and addresses of ECHO board members so he could complain to them about the fact that ECHO had not produced the documents he had requested.
Subsequently, Briggs had a telephone conversation with Caroline Peattie, ECHO's assistant executive director. According to the files, while talking with Briggs, Peattie wrote "KKK" on her message pad. In later meetings, ECHO staff members discussed whether Briggs was mentally unbalanced and made notes suggesting that the Briggses were on a "witchhunt."
The Briggses later filed a lawsuit seeking damages for defamation and intentional and negligent infliction of emotional distress. In response, ECHO filed a motion to strike the complaint under the anti-SLAPP statute.
The law requires that the anti-SLAPP law be applied only in cases where the statements in question are made in connection with issues "pending before or under consideration by executive and judicial bodies." Otherwise, the law can be applied only if the matter at hand involves an "issue of public significance." The Briggses argued that ECHO's alleged activities did not involve matters of "public significance," meaning they were not covered by the law.
Alameda County Superior Court Judge Bonnie Lewman ruled in favor of ECHO's motion to strike the complaint and awarded ECHO attorney fees. The Briggses appealed both. The First District Court of Appeal, Division One, consolidated the two appeals and reversed Judge Lewman on both counts. The court held that ECHO had not made a prima facie argument that the lawsuit arose from an act by ECHO in furtherance of its constitutional petition or speech rights in connection with a public issue. Therefore, the appellate court concluded, it would not be covered by the anti-SLAPP law unless it dealt with an issue of public significance. "We remain committed to our earlier position that a lawsuit qualifies as a SLAPP suit only if it challenges a statement on a PUBLIC issue made in an official proceeding or a statement made in connection with a PUBLIC issue under review in an official proceeding."
Division One's presiding justice, Gary Strankman, dissented from part of the ruling, concluding that the HUD and small-claims proceedings did not involve a public issue. He did, however, agree with the conclusion that a public issue showing is separately required.
In 1997, after the California Supreme Court had agreed to hear the case, the Legislature amended the anti-SLAPP law and directed the courts to construe it as broadly as possible.
In her opinion for the Supreme Court majority, Justice Kathryn Werdegar stated that the Supreme Court would have reversed the Court of Appeal ruling in any event but that the 1997 legislative amendments buttressed the argument to do so. The legislative amendments were but one of four arguments she used in reversing the appellate court.
First, Justice Werdegar argued that the "plain language" of the anti-SLAPP statute argued in favor of ECHO's position that no separate finding of a "public issue" was required. All of ECHO's actions, she stated, were in connection with official proceedings. But, she added: "Even assuming, for the purposes of argument, that plaintiffs accurately have characterized ECHO's activities as constituting neither self-interested nor general political speech, we cannot conclude such activities thereby necessarily fall outside the protection of the anti-SLAPP statute." Indeed, she added, "the statute does not require that a defendant … demonstrate that its protected statements or writings were made ON ITS OWN BEHALF (rather than, for example, on behalf of its clients or the general public)."
Werdegar also concluded that ECHO's arguments were valid under legal "principles of statutory construction," where different words or phrases are used in the same connection in different parts of the statute. In this case, she was referring to the various ways in which the statute deals with the question of "public interest" or "public issues." Under principles of statutory construction, she concluded, the law imposes no requirement to make a separate finding that the statements were made in connection with a public issue.
Finally, Werdegar concluded that broad construction of the anti-SLAPP statute makes sense "from the standpoint of judicial efficiency."
"In effectively deeming statements and writings made before and connected with issues being considered by any official proceeding to have public significance PER SE, the Legislature afforded trial courts a reasonable, bright line test applicable to a large class of potential section 425.16 motions."
This last line of reasoning was a direct counter-argument to Justice Baxter's concurring and dissenting opinion, which argued that a broad construction would open the floodgates to anti-SLAPP motions to strike. In his lengthy separate opinion, Baxter agreed that ECHO had been acting in connection with a public issue. However, he disagreed with the majority's conclusion that a separate showing regarding a public issue was not necessary. Acknowledging that the anti-SLAPP law is a "powerful tool," he noted that it is not "generally available to the parties to any civil action." "The majority's holding in this case belies that carefully delineated legislative purpose and will authorize use of the extraordinary anti-SLAPP remedy in a great number of cases to which it was never intended to apply," he wrote.
Briggs v. Eden Council for Hope and Opportunity, No. S062156, 99 Daily Journal D.A.R. 687, 99 C.D.O.S. 554 (filed January 21, 1999).
For Briggs: Kevin Anderson, Anderson & Blake, (408) 993-8493.
For ECHO: Mark Goldowitz, Brancart & Brancart, (510) 835-0850.