With encouragement from the California First Amendment Coalition, Governor Arnold Schwarzenegger signed SB 786 that limits the ability of state and local governmental agencies to win fee awards from citizens bringing lawsuits under the state’s open government laws -DB
Governor Arnold Schwarzenegger signed into law SB 768 on August 6 a measure vital to maintaining the ability of citizens to seek redress of open government violations by local and state agencies.
The law provides that attorney’s fees generally available to defendants in cases dismissed under the anti-SLAPP law will not be available in lawsuits filed to enforce the public’s right of access to government meetings under the Brown Act and to government information under the California Public Records Act.
In a letter urging Governor Schwarzenegger to sign SB 786, California First Amendment Coalition Executive Director Peter Scheer wrote,
The (anti-SLAPP) Legislature never meant to expose plaintiffs in litigation under these open- government laws to the risk of liability for a government agency’s attorney’s fees merely because they end up on the losing side. That risk is so great it will deter virtually all plaintiffs, no matter how well-intended and no matter how meritorious their claims.
Since private lawsuits are, practically speaking, the only means of enforcing citizens’ open-government rights in California, SB 786 is crucial. Without it, the Brown Act and the CPRA will become dead letters.
Why is a new law needed to preserve what the legislature always intended?
The answer is an anomalous 2009 court decision, Californians Aware v. Orange Unified School District, which affirmed an award of attorney’s fees to a public school district that had been sued by a nonprofit organization and two individuals for alleged violations of the Brown Act and the CPRA. Although reasonable people may disagree about who should have won the underlying lawsuit, the Court’s decision awarding attorney’s fees under the anti-SLAPP law to the government — and against a small nonprofit organization — was unprecedented and bizarre.
SB 786 simply restores the law to where it stood prior to the Californians Aware v. Orange Unified School District decision. That means that government agencies that are the victims of suits filed frivolously or in bad faith will still be entitled to an award of attorney’s fees, as the law has always provided. But they will not–and should not– receive attorney’s fees merely because they are the “prevailing party” in a suit under the Brown Act or the CPRA.
Senator Leland Yee (D) San Francisco and San Mateo wrote the bill. It was also supported by the California Newspaper Publishers Association, Californians Aware and the American Civil Liberties Union.