The California First Amendment Coalition is sponsoring legislation to limit the risk assumed by those who resort to court to force local and state agencies to comply with the open records and open meetings laws. The bill, SB 786, has been introduced by State Senator Leland Yee.
SB 786 is directed to lawsuits in which a government agency, defending itself from a claim of violation of the Public Records Act, the Brown Act or the Bagley-Keene Act, invokes the state anti-SLAPP law in order to both dismiss the suit and to seek an award of attorney’s fees against the plaintiff. SB 786 would maintain agencies’ option to invoke the anti-SLAPP law, but it would bar award of attorney’s fees to the government unless the plaintiff’s lawsuit is frivolous.
The suit is prompted by a 2008 Court of Appeal decision in a lawsuit brought by two individuals and Calaware, a Sacramento-based nonprofit organization, against the Orange Unified School Board, alleging violations of (among other things) the Brown Act and Public Records Act. In addition to affirming the school district’s defense on the merits, the appeals court sustained under the anti-SLAPP Act an award of attorney’s fees–over $80,000–in favor of Orange Unified.
Unless reversed through legislation, the Court of Appeal decision could expose plaintiffs in open-government lawsuits to crippling penalties–in the form of attorney’s fee awards–even through the suits are legally and factually plausible and filed in good faith. CFAC President James Chadwick, in a May 7, 2009 letter to Senator Yee, said:
“The perversity of applying the anti-SLAPP statute to claims brought pursuant to California’s open government law is that it turns those laws on their head, discouraging rather than encouraging enforcement, and hence discouraging rather than encouraging compliance. . .
If the problem created by the application of the anti-SLAPP statute to these claims is not addressed, few will have the courage to pursue claims under California’s open government laws, and noncompliance will become even more ubiquitous. Indeed, it puts a punitive weapon in the hands of public agency members using public taxes for which they are not truly held accountable to pursue their vengeance. ” -PS