Metropolitan News-Enterprise


Tuesday, April 21, 2009


Page 1


S.C. Rejects Charge of Illegal Campaign Activity by City




A public entity does not engage in illegal campaign activity by disseminating a list of projects and services that will be curtailed or eliminated if a tax-cutting ballot measure is approved, the California Supreme Court ruled yesterday.

In a unanimous decision, the high court agreed with the plaintiffs that a one-sided presentation of issues to be voted on may constitute illegal electioneering, even without an express exhortation to vote a particular way.  But the justices upheld lower court rulings in favor of the City of Salinas, saying it did not cross the line when the council approved the list of cuts and publicized them on the city website and in a newsletter mailed to all citizens a month before the election.

The proposal in question, Measure O, was placed on the November general election ballot in 2002 by petition. It would have phased out a utility users tax that had in been in place for about 30 years and accounted for 13 percent of the city’s budget.

In the spring and summer of 2002, the council adopted a FY 2002-2003 budget, with an assumption that the tax would remain at its existing rate. It also enacted an alternative budget with specific cuts in every city department, in the event that Measure O was approved.

Proponents of the initiative criticized the alternative budget, contending that the tax cuts could be absorbed through more efficiency and reducing the number of management positions and the salaries and benefits going to city employees.

The city placed a substantial amount of information about the cuts on its website, including council minutes, a financial analysis by the city manager, a slide presentation detailing program and service cuts in each city department, and the city staff’s response to the alternative proposals by Measure O backers.

The city also prepared a one-page document summarizing the cuts, which was posted on the website and made available at City Hall and in the public libraries. A copy of that document—which, among other things, named specific libraries and recreation centers that would be closed—was included in the city’s October 2002 newsletter, along with eight pages of details.

Within days of the mailing of the newsletter, Measure O supporters sued the city in Monterey Superior Court, accusing the city of having produced “campaign materials” in opposition to the initiative. The plaintiffs said the website, the one-page summary, and the portion of the newsletter devoted to Measure O did not “provide a balanced analysis of the arguments” for and against the initiative.

The complaint asked for injunctive and declaratory relief and sought to require city officials to reimburse the city for the amounts allegedly expended in opposition to Measure O, which the plaintiffs said were in excess of $250,000. Measure O was defeated at the polls, with 68 percent voting no.

The defendants subsequently filed an anti-SLAPP motion, which was granted by Monterey Superior Court Judge Robert O’Farrell. The judge ruled that a city and its officials have the same protections under the statute as private litigants, that the dissemination of information about a ballot measure is protected activity, and that the plaintiffs were unlikely to prevail as a matter of law.

The Sixth District Court of Appeal affirmed, noting that other courts had uniformly extended the reach of the statute to public officials and entities, and that the defendants had satisfied their burden of showing that the suit arose from protected activity.

In agreeing with the trial judge that the plaintiffs were unlikely to prevail on the merits, the Court of Appeal cited Government Code Sec. 54964(b), which bars expenditure of public funds on “communications that expressly advocate” the approval or rejection of a ballot measure. The court also noted that a Fair Political Practices Commission regulation holds that a communication is subject to regulation under campaign finance laws if it “expressly advocates” the passage or defeat of a measure to be voted on at the polls.

Chief Justice Ronald M. George, however, writing for the Supreme Court yesterday, said the Court of Appeal erred in giving public entities too much leeway. While the cited code section, which was enacted in the past 10 years, explicitly prohibits the expenditure of public funds on “express advocacy” for or against ballot measures, it does not authorize government to spend money on campaign activities proscribed under earlier case law.

“We...conclude that a municipality’s expenditure of public funds for materials or activities that reasonably are characterized as campaign materials or activities — including, for example, bumper stickers, mass media advertisement spots, billboards, door-to-door canvassing, or the like — is not authorized by the statute in question, even when the message delivered through such means does not meet the express-advocacy standard,” the chief justice wrote.

The applicable standard, George said, remains that of Stanson v. Mott (1976) 17 C.3d 206. A government entity may spend public funds to inform the voters of the essential effects of a measure’s passage, but not to engage in what may be reasonable described as “campaign activity.”

The complained-of actions of Salinas, George went on to say, were informational rather than political. The city, he said, did not advocate a vote for or against the measure, but rather advised the electorate “in an objective and nonpartisan manner” as to which programs and services the city had decided to curtail or eliminate if the measure passed.   

Justice Carlos Moreno, while joining the chief justice’s opinion, wrote separately to emphasize that the means used by the city do not “necessarily represent the outer limits of permissible publicly funded communications.”

He added that “[t]he extent to which the funding of an active informational campaign to promote or defend a lawfully government-sponsored ballot measure would fit within Stanson’s and the majority’s informational/campaign activity dichotomy is not entirely clear,” and suggested the Legislature may wish to look at the issue.

Justice Kathryn M. Werdegar joined in both George’s and Moreno’s opinions.

Amici supporting the plaintiffs included the open-government group Californians Aware and the Howard Jarvis Taxpayers Association, California Chamber of Commerce, California Taxpayers’ Association, California Business Roundtable, California Business Properties Association and Pacific Legal Foundation.

The defendants were backed by the Self-Help Counties Coalition, League of California Cities, California State Association of Counties and League of Women Voters of Salinas Valley.

The case is Vargas v. City of Salinas, 09 S.O.S. 2162.


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