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BILL LOCKYER
Attorney General of the State of California
RICHARD M. FRANK
Chief Assistant Attorney General
THEODORA BERGER
Senior Assistant Attorney General
MATTHEW RODRIGUEZ
Senior Assistant Attorney General
MATTHEW F. LINTNER (S.B. # 150926)
Deputy Attorney General
1515 Clay Street, Suite 2000
Oakland, CA 94612
Telephone: (510) 622-2100
Fax: (510) 622-2270
Attorneys for Amicus Curiae
PEOPLE OF THE STATE OF CALIFORNIA
SUPERIOR COURT OF THE STATE OF
CALIFORNIA FOR THE COUNTY OF MONTEREY
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CITY OF MARINA,
Plaintiff,
vs.
ARMSTRONG RANCH PROPERTY OWNERS; GIBSON
SPENO LLC- MARINA; RMC LONESTAR; LANDWATCH
MONTEREY COUNTY; and DOES 1 through 20,
inclusive,
Defendants.
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Case No. M 52386
MEMORANDUM OF POINTS AND AUTHORITIES OF
AMICUS CURIAE THE PEOPLE OF THE STATE OF
CALIFORNIA IN SUPPORT OF DEFENDANT
LANDWATCH MONTEREY COUNTY
Date: May 18, 2001
Time: 9:00 a.m.
Dept.: 17
Honorable Michael S. Fields
Action Filed: February 1, 2001
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AND RELATED CROSS-CLAIMS AND
CROSS-PETITIONS.
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INTRODUCTION
The People of the State of California, by and
through Bill Lockyer, Attorney General, submit this
brief as amicus curiae because this case raises
issues of great concern to the People. At the heart
of this lawsuit lie questions about how a local
government is to give effect to an initiative after
that initiative measure is duly adopted. The
resolution of such questions will affect whether
citizens can meaningfully use their reserved power
of initiative, one of the rights central to the
constitutional scheme of this State.
Once an initiative is adopted by a vote of the
citizenry, it is the law of that jurisdiction, and
a failure to give effect to that law is a failure
to give effect to the power of initiative. Thus,
once Measure E was enacted into law, it was not the
role of the City to challenge that measure in
court. The City's proper role would be to defend
the measure in court against any challenge filed,
as would be the case with any other city ordinance.
Here, however, the City, asserting it was unsure of
the validity of the measure, filed a declaratory
relief action against LandWatch Monterey County
("LandWatch") simply because LandWatch was involved
in a successful campaign for passage of Measure E.
Other entities were sued because they opposed the
initiative measure. Regardless of the motives of
the City of Marina in bringing such an action, the
filing of the action itself threatens the People's
power of initiative. Allowing this suit to proceed
will give pause to other citizens, both in the City
of Marina and elsewhere in the State, as they
contemplate whether they wish to get involved in
the initiative process.
Accordingly, this brief is submitted in support
of LandWatch's motion to strike the declaratory
relief action against it, and in support of the
petition for writ of mandate filed by LandWatch,
Kenneth L. Gray, and Marina 2020 Vision. Because
the points and authorities submitted by LandWatch
in support of the motion to strike and in support
of the writ both provide comprehensive factual
background, this submission does not repeat that
background material.
ARGUMENT
I. THE CITY OF MARINA'S LAWSUIT THREATENS TO
CHILL CITIZEN'S ACCESS TO THE INITIATIVE PROCESS
AND SHOULD BE DISMISSED.
A. The City's Suit Constitutes a
SLAPP for Purposes of Code of Civil Procedure
section 425.16.
LandWatch has moved to dismiss the declaratory
relief action against it on the ground that it
constitutes a strategic lawsuit against public
participation ("SLAPP"). The "Anti-SLAPP"
statute, authored by then-Senator Bill Lockyer,
protects the right of citizens to participate in
the political process by providing for a motion
to strike, at the outset of the litigation,
meritless claims arising from such activity.
Code Civ. Proc., § 425.16. Because the
action against LandWatch unquestionably arises
from the type of political activity protected
under the Anti-SLAPP statute, and because there
is no probability that the City will prevail in
its claim, LandWatch's motion is well-founded.
Indeed, the City's lawsuit represents precisely
the sort of problem the Anti-SLAPP statute seeks
to ameliorate: improper lawsuits which threaten
to chill citizens' rights to speak out and
petition their government.
Code of Civil Procedure section 425.16
provides for a special motion to strike
frivolous suits against a person arising from
"any act of that person in furtherance of the
person's right of petition or free speech ... in
connection with a public issue ...." When such a
suit is filed, it "shall be subject to a special
motion to strike ...." Code Civ. Proc., §
425.16(b)(1). Upon a prima facie showing that
the suit arises from any act in furtherance of
the defendant's rights of petition or free
speech, the burden then shifts to the SLAPP
plaintiff to establish by a "reasonable
probability" that the SLAPP plaintiff will
prevail. Wilcox v. Superior Court (1994) 27
Cal.App.4th 809, 824-25.
Here, LandWatch is expressly being sued
because of its successful efforts to have
Measure E enacted into law. Complaint for
Declaratory Relief at ¶ 6. That being the
case, the burden shifts to the City to
demonstrate a "reasonable probability" that it
will prevail in its action. If it cannot do so,
the Anti-SLAPP statute requires dismissal.
Yet here the City cannot demonstrate a
"reasonable probability" of prevailing in its
declaratory relief action against LandWatch,
because the action itself is fundamentally
misguided and LandWatch is a fundamentally
improper defendant. A plaintiff cannot "prevail"
in an action that should never have been filed
in the first place.
Any claim for declaratory relief must present
a justiciable controversy between the parties,
with the end result being a decree establishing
what the involved parties may or may not do.
Courts do not properly entertain requests for
declaratory relief involving a mere difference
of opinion. Wilson v. Transit Authority (1962)
199 Cal.App.2d 716, 723; BKHN, Inc. v. Dept. of
Health Services (1992) 3 Cal.App.4th 301, 308;
Code Civ. Proc., § 1060 (relief may be
granted "in cases of actual controversy relating
to the legal rights and duties of the respective
parties"). The "controversy" between the City
and LandWatch appears to be that LandWatch
supported passage of Measure E and "may" have
participated in the drafting of the measure,
whereas the City "has been advised that all or
portions of the UGBI [Urban Growth Boundary
Initiative] may be invalid." Complaint for
Declaratory Relief at ¶ 1, 6. There is no
explicit allegation by the City that LandWatch
intended to sue the City, or that LandWatch was
going to otherwise interfere with the City's
implementation of the measure.
Mere suspicion on the part of the City that
LandWatch, (or for that matter any other entity
or citizen) might not share the same legal
interpretation of a newly-enacted ordinance as
does the City (or whatever unnamed entity "has
been advis[ing]" the City) in no way
justifies imposing the burden of defending
litigation upon private parties. Local
governments should not be allowed to bring a
citizen into court simply because they suspect
the citizen may disagree with the government's
interpretation of the law. City of Santa Rosa v.
Press Democrat (1986) 187 Cal.App.3d 1315,
1324.
Furthermore, courts have discretion to refuse
a declaratory judgment where the "declaration or
determination is not necessary or proper at the
time under all the circumstances." Code Civ.
Proc., § 1061. Under these circumstances, a
declaration as to the validity of Measure E, in
an action against an entity which simply lobbied
for its enactment, is neither "necessary" nor
"proper." This claim is not "necessary," as it
presents no justiciable controversy. It is not
"proper" because, as is discussed below, the
City should be defending the measure against any
challenge to its validity, not filing an action
contesting its validity against an improper
defendant. The effect of this suit is to saddle
upon one of several supporters of a measure the
burden of defending the validity of the measure
after its enactment. This is an unacceptable
abdication of the City's own obligations.
Because the request for declaratory relief
presents no justiciable controversy, and because
it is fundamentally unnecessary and improper,
there is no probability the City will prevail.
Indeed, because of the unusual manner in which
the City has pled its action, attempting to
adopt the stance of a neutral arbiter between
supporters and opponents of the measure, there
really is no sense in which the City can
prevail. As the matter is pled, under what
outcome would the City "prevail?" Would
vindication of the measure represent victory for
the City? Would an order overturning the measure
be a victory? The fact that the City can in no
sense "prevail" is just one more reason why the
action should not have been filed in the first
place. The action should be dismissed as a
SLAPP.
B. This Court Need Not Find that the City
Intended to Chill Speech to Dismiss the Action
as a SLAPP.
One of the most troubling issues for courts
facing Anti-SLAPP motions is whether some
"intent" to chill speech or petitioning activity
needs to be established by the party seeking
dismissal. The City of Marina may argue that it
did not intend to chill speech or restrict any
citizen's access to the initiative process, but
rather that it is seeking to bring all
interested parties before the Court in an effort
to most efficiently test the validity of the
measure. In this context, as in many other SLAPP
cases, an evaluation of the true intent of the
SLAPP-filer would not be an easy inquiry.
Yet there is no justification for requiring
any showing of an intent on the part of the
SLAPP plaintiff to chill speech. What matters is
not the intent of the filer, but whether the
effect of the action is to chill speech and
petitioning activity. Any requirement of
"intent" is contrary to the plain language of
the statute, would hinder the accomplishment of
the legislative objective, and impede effective
implementation by courts and litigants.
A recent Court of Appeals decision rightly
rejects any requirement of a showing of intent
to chill. Damon v. Ocean Hills Journalism Club
(2000) 85 Cal.App.4th 468, 480 ("We find nothing
in the statute requiring the court to engage in
an inquiry as to the plaintiff's subjective
motivations before it may determine the
anti-SLAPP statute is applicable.") In
considering the matter, the Damon court appears
to have followed the logic of the Supreme Court
in Briggs v. Eden Council for Hope and
Opportunity (1999) 19 Cal.4th 1106. In that
case, the Court broadly construed the statute in
the context of what constitutes a "public
issue." More importantly, the Court noted that
the statute should be construed in accordance
with its plain language, and then set forth its
general analysis of the legislative intent and
public policy issues relevant to the matter.
Application of the method of analysis used in
Briggs leads to the conclusion that intent is
not a requisite element of the statute.
1. The Plain Language of the
Statute Omits Any "Intent"
Requirement.
In pertinent part, the statute provides:
(b)(1) A cause of action
against a person arising from any act of
that person in furtherance of that
person's right of petition or free speech
under the United States or California
Constitution in connection with a public
issue shall be subject to a special motion
to strike, unless the court determines
that the plaintiff has established that
there is a probability that the plaintiff
will prevail on the claim.
Thus, any "intent" requirement is
conspicuously absent from the operative
provision of the statute. As the Briggs Court
noted, "[w]e have no reason to
suppose the Legislature failed to consider
the need for reasonable limitations on the
use of special motions to strike." Id. at
1123.
2. An "Intent" Requirement Would Be
Inconsistent with the Purpose of the
Statute.
The Legislature did find that "there has been
a disturbing increase in lawsuits brought
primarily to chill the valid exercise of
constitutional rights[.]" Code Civ.
Proc., § 425.16(a). Indeed, this phrase
is the only support anywhere in the statutory
language for any "intent" test. But the
Legislature also specifically stated:
The Legislature finds and
declares that it is in the public interest
to encourage continued participation in
matters of public significance, and that
this participation should not be chilled
through abuse of the judicial process. To
this end, this section shall be construed
broadly.
Thus, the Legislature specifically
intended to encourage public participation in
certain matters, and it executed this intent
by precluding suits that "chill" such
participation. This concern exists
independently of the motive of a party filing
a SLAPP suit: a lawsuit is no less "chilling"
merely because a plaintiff did not file it
for that specific purpose. In fact, the
plaintiff's subjective reason for filing the
suit is completely irrelevant to the effect
of the suit, or to the deterrent effect such
suits could have on others considering
engaging in the protected petition acts.
The City of Marina's lawsuit presents a
significant risk of chilling the exercise of
First Amendment petitioning rights and the
reserved power of initiative, a power courts
are directed to "jealously guard." Rossi v.
Brown (1995) 9 Cal.4th 688, 695. Proponents
of initiative measures take on certain risks
in their endeavor, including the risk of
defending a pre-election writ petition
challenging the validity of their measure.
See, e.g. City of San Diego v. Dunkl (2001)
86 Cal.App.4th 384, 394. One risk that
initiative proponents should not have to
undertake, and which mere initiative
supporters (such as LandWatch) certainly
should not have to undertake, is defense of a
post-enactment lawsuit relating to the
validity or the enforcement of the measure.
If this lawsuit imposes, for the first time,
such a burden upon initiative proponents, the
risk of chilling future initiative proponents
and their supporters is unquestionable.
3. An "Intent" Test Would Impede
Effective Implementation of the
Statute.
In Briggs, the Court specifically considered
the effect potential interpretations of the
statute would have on its effective
implementation. The factors that motivated
the Supreme Court to adopt a bright-line test
in that case also exist here. As the Court
stated:
The plain language construction we adopt,
on the other hand, retains for California
courts, advocates and disputants a relatively
clear standard for resolving a large class of
section 425.16 disputes quickly, at minimal
expense to taxpayers and themselves.
Briggs, supra, at 1122. Asking only
whether the acts in question are "petition
acts" and whether the action "arises from"
those acts keeps the issues relatively
straightforward, and suitable for
determination at the outset of the case.
In contrast, application of an "intent"
standard would result in a requirement to
resolve issues that are largely unsuitable
for a Motion to Strike at the outset of a
case. Absent a plaintiff foolish enough to
publicly state a malicious intent, it is
questionable whether a defendant ever would
be able to prove the existence of a chilling
intent for purposes of a SLAPP motion. The
special motion to strike must be filed at the
outset of the case, with virtually no
opportunity for discovery. Issues concerning
the mental state of the parties can be among
the most difficult factual issues to
determine, often requiring substantial
discovery and submission to the trier of
fact, whether judge or jury.
Accordingly, the Damon court's conclusion
that no proof of intent to chill need be
demonstrated is consistent with both the
language and purpose of the statute. Damon,
85 Cal.App.4th at 480. Likewise, this Court
should not impose upon LandWatch any
requirement to demonstrate that the City
specifically intended to chill LandWatch's
protected petitioning activity. Regardless of
the motive of the City's action, the outcome
is clear. Citizens both in Marina and
throughout the State will think twice before
participating in the initiative process.
II. THE CITY OF MARINA MUST DEFEND THE
INITIATIVE AGAINST THE CROSS-COMPLAINT AND
CROSS-PETITION.
In addition to a motion to strike filed by
LandWatch, before this Court is a writ petition
brought by LandWatch, Kenneth L. Gray, and Marina
2020 Vision seeking to compel the City to dismiss
the various actions filed by the City (one
declaratory relief action against LandWatch and
various opponents of the initiative, and,
remarkably, yet a second declaratory relief
cross-complaint against LandWatch in response to a
counter-claim brought by various opponents of the
initiative). The petition also seeks to have the
City comply with its mandatory duty to defend the
initiative against the cross-complaint brought by
various individuals and developers opposed to
Measure E. The People of the State of California
support issuance of the writ requested by
petitioners.
The pending Anti-SLAPP motion, if granted, would
leave standing the affirmative claims by the City
against the opponents of the measure, and the
cross-complaint of the City against LandWatch. For
the reasons discussed above, all of the City's
affirmative declaratory relief claims, against all
parties, should be dismissed. The City has no
legitimate basis to pursue such claims against any
party, regardless of whatever position that party
took in the campaign leading up to enactment. The
City's imposition of such a burden upon private
citizens is equally inappropriate for both
initiative supporters and initiative opponents.
The second request in the petition is for an
order requiring that the City undertake the defense
of Measure E in the cross-complaint and
cross-petition brought by certain opponents of the
measure. Such an order appears to be necessitated
by the representations of the retained counsel for
the City, indicating that she does not believe she
can undertake a defense of the measure. See
Declaration of Robert S. Perlmutter in Support of
Cross-petitioners LandWatch Monterey County,
Kenneth L. Gray and Marina 2020 Vision's
Cross-petition for Writ of Mandate at ¶¶
25-27.
It also appears to be necessitated by the City's
overall confusion as to its proper role. Normally,
of course, an initiative, subsequent to passage, is
tested by an action against the responsible
governmental official(s) or governmental entity.
Code Civ. Proc., § 1085; Legislature v. Eu
(1991) 54 Cal.3d 492 (suit against elections
official responsible for enforcement of challenged
initiative); Building Industry Assn. v. City of
Camarillo (1986) 41 Cal.3d 810 (suit against city
over validity of ordinance); City of Long Beach v.
Mansell (1970) 3 Cal.3d 462 (suit against city
officials). The responsible governmental officer or
entity is expected, as a matter of official duty,
to defend the law and uphold its legality. See
Elections Code, § 9217 (once passed,
initiatives "shall become a valid and binding
ordinance of the city" and can be repealed or
amended only through subsequent vote of the
people). Under California's constitutional scheme,
this is the case even if the governmental official
charged with enforcement might have some question
about the constitutional validity of the enactment,
or about whether the enactment is preempted by
federal law. Cal. Const., art. III, § 3.5.
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As indicated in Petitioners' Opening Memorandum
of Points and Authorities in Support of Petition
for Writ of Mandate, there is utterly no support
for an attempt by a local government to avoid its
duty to defend an initiative, or otherwise shift
the burden of defense onto a private party. The few
decisions touching upon the issue seem to simply
operate under the assumption that a local
government has the obligation to defend an
initiative. BIA, supra, 41 Cal.3d at 822; Arnel
Dev. Co. v. City of Costa Mesa (1980) 28 Cal.3d
511, 514 n.3. The obligation to defend an
initiative is all the more incumbent upon the City
of Marina in this instance, since it appears that
if there is in fact some inconsistency between
Measure E and the General Plan for the City of
Marina, the City itself generated that
inconsistency by its last-minute amendment to the
General Plan on the eve of the election. Given that
the City's own actions appear to have generated
whatever consistency issue may exist, it is all the
more unacceptable for the City to refuse its legal
obligation to defend the will of its citizens by
defending Measure E.
CONCLUSION
Cities should not be allowed to sidestep their
obligation to implement an initiative after
enactment, nor should they be able to avoid their
related obligation to defend that measure against
any challenge. It frequently will be the case that
elected officials substantively disagree with an
initiative measure -- indeed, if there was
agreement, there typically would be no need for an
initiative. Yet even if local governments do not
like the policy reflected in a successful
initiative, they must defend that policy against
legal attack. Any other outcome would eviscerate
the initiative power. To that end, this Court
should dismiss the City of Marina's action against
citizens involved in the initiative process, and
ensure that the City instead defend the
measure.
DATED: April 26, 2001
BILL LOCKYER, Attorney General
RICHARD M. FRANK
Chief Assistant Attorney General
THEODORA BERGER
Senior Assistant Attorney General
MATTHEW RODRIGUEZ
Senior Assistant Attorney General
MATTHEW F. LINTNER
Deputy Attorney General
Attorneys for Amicus Curiae
PEOPLE OF THE STATE OF CALIFORNIA
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