Metropolitan News-Enterprise

Monday, March 27, 2006


Page 1


Appeals Court Allows Dissidents to Go Forward With Suit Against Sierra Club Over Disputed Board Election


By KENNETH OFGANG, Staff Writer/Appellate Courts


A group of Sierra Club members who are opposed to the conservation organization’s leadership and want a change in its policies may sue for alleged unfair treatment during the organization’s 2004 board election, the First District Court of Appeal ruled Friday.

Div. One affirmed a ruling by San Francisco Superior Court Judge James Warren that the bulk of a suit by a group calling itself Club Members for an Honest Election falls under the “public interest” exemption from the anti-SLAPP statute.

The dispute has its roots in efforts to change the leadership and focus of the club, whose 750,000 members and $95 million budget make it the largest environmental group in the country.

The dissidents, whose leadership includes former Colorado Gov. Dick Lamm, say they want to restore the group to its original principles. They favor ousting the current chief executive, Carl Pope; claim that a small number of wealthy donors have an inordinate impact on club policy; and want to move the group from its current neutrality on the issue to a position of support for stricter immigration controls.

Supporters of the current leadership have accused the dissidents of promoting racism and a radical animal rights agenda, and claim to represent the views of the majority of members. They say the dissidents are seeking to take advantage of the fact that 90 percent or so of the members do not vote in the annual board elections.

The board consists of 15 members, five of whom are elected each year. The board elects the president, who is the only board member to draw a salary.

Board candidates are nominated by a committee appointed by the board, or by petition. Dissidents won one seat in the 2002 election and two in 2003.

Prior to the 2004 election, the board circulated to its chapters an article concerning what the author called the “narrow, personal, one issue agendas” that were being pursued by unnamed “people and parties” as a result of the low participation numbers in the club’s elections.

The board also voted to approve an “urgent election notice” informing members of “an unprecedented level of outside involvement” in the election and the fact that certain outside groups “may be attempting to intervene” in the election. Among the groups named were the

Federation for American Immigration Reform, the white supremacist National Alliance, People for the Ethical Treatment of Animals, and White Politics Inc./

Following the board meeting, the dissident Club Members group and one of the candidates nominated by petition filed suit in San Francisco Superior Court.

They claimed that the actions taken by the board, including allowing three “fake candidates” to circulate ballot statements in which they disclaimed any desire to be elected and asked members to vote for other candidates aligned with the incumbent leadership, violated fairness requirements in the California Corporations Code and the club by-laws.

The plaintiffs asked for a preliminary injunction barring the winners of the 2004 election—which resulted in a sharp increase in turnout and victory for candidates backed by the nominating committee—from taking office and changes in procedures for future elections.

With regard to the board seats that would otherwise be filled by the winning candidates, the plaintiffs, in an amended complaint filed after the election, proposed three alternatives—seat the next highest votegetters, who included plaintiff Robert van de Hoek and “fake candidate” Phillip Berry; leave the seats vacant, temporarily reducing the board to 10 members, or holding a new election.

The new pleading also included a cause of action charging two directors who were re-elected as nominating committee candidates with a breach of fiduciary duty for voting in favor of the allegedly unfair measures approved by the court and urging that they be unseated and barred from future elections.

The Sierra Club and the individual defendants filed an anti-SLAPP motion. Warren granted the motion as to the individuals, holding that they had a constitutional right to vote as they saw fit on issues before the board, but held that to the extent the suit sought to correct allegedly unfair procedures, it was in the public interest and fell under Code of Civil Procedure Sec. 425.17(b)’s exception to the anti-SLAPP law.

Justice Donald Swager—who pointed out in a footnote that both parties, “heedless of environmental impacts,” had filed briefs printed on only one side of the page—said the trial judge was correct.

Swager analogized to the private attorney general statute, which allows a prevailing party to recover attorney fees if the party litigated the action primarily to benefit the public rather than the litigant’s purely private interests, .

“[A]n action to determine the legality of election procedures transcends any personal stake that the plaintiffs may have had in the election and benefits the broader membership of the club and other nonprofit organizations,” the justice wrote.

He cited Hammond v. Agran (2002) 99 Cal.App.4th 115, in which the court held that a candidate who defeated a substantive challenge to a portion of his official campaign statement was entitled to recover attorney fees under the private attorney general statute.

The justice acknowledged that van de Hoek sought a personal benefit in the sense that under one of the alternative proposals for relief, he would have been seated as a director. But that interest was not so great, in the context of the action as a whose, to defeat the contention that the action was brought in the public interest, Swager concluded.

The case is Club Members for an Honest Election v. Sierra Club, 06 S.O.S. 2996.


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