Friday, June 7, 2002
Anti-SLAPP Law Requires Showing of Intent to Chill Speech, Lawyers Argue
By ROBERT GREENE, Staff Writer
Defendants who claim lawsuits against them could squelch their exercise of First Amendment rights would have to show that the plaintiffs had just that effect in mind if they want to take advantage of California’s “anti-SLAPP” law, under arguments presented yesterday to the state Supreme Court.
In three different cases heard by the justices in their Los Angeles courtroom, plaintiffs who had their cases thrown out as “strategic lawsuits against public participation” under Code of Civil Procedure Sec. 425.16 argued that defendants should have to prove there was an intent to chill the exercise of free speech or petition rights.
In one case, the owner of several gas stations that may have been seeping pollutants into the groundwater argued that their lawsuit to enjoin an environmental group from filing suit was not a SLAPP.
In another, the owners of three mobile home parks in a small Sonoma County city sued in federal court to block a rent control law, then the city sued in state court for declaratory relief. The park owners responded with a motion seeking to brand the state court action a SLAPP.
The 1992 anti-SLAPP law was meant to allow activists and grassroots organizers who get sued by big businesses to short-circuit a costly trial if they can show the suit was brought in retaliation for exercising their rights to speak or to petition. If the judge finds the suit to be a SLAPP, the burden shifts to the plaintiff to show that there is a likelihood of prevailing at trial, otherwise the suit is dismissed and the defendant is entitled to an award of attorney fees.
The statute does not include any “intent” element on its face, and courts have so far not found any such requirement. But in the face of mounting criticism that the anti-SLAPP procedure is being used against the very people it was meant to protect, courts have increased their scrutiny of the statute.
Plaintiffs’ lawyers said yesterday that intent must be read into the law if it is to be deemed constitutional. Attorney Leslie Landau of San Francisco said the plaintiff’s ability to overcome an anti-SLAPP motion by showing a likelihood of winning on the merits is a poor substitute for an intent finding.
“It is an insufficient protection of protected activity,” Landau said. “It is not sufficiently solicitous of [the plaintiff’s own] First Amendment rights” to petition for a redress of wrongs by filing a lawsuit in the first place.
Landau represents Equilon Enterprises, the owner of 78 Shell and Texaco gas stations in Los Angeles and Ventura counties. Consumer Cause, which has brought numerous private—sometimes called “bounty hunter”—actions seeking to enforce Proposition 65, alleged that Equilon’s stations were seeping pollutants into ground water and served the company with a notice under the toxics initiative.
The notice is intended to allow the alleged polluter to begin clean-up, and to bring the state attorney general into the equation to assure attention to the problem.
But before Consumer Cause could follow up with its suit, Equilon sued first, seeking an injunction and declaratory relief. Consumer Cause filed a special motion to strike under the anti-SLAPP law, and a Los Angeles Superior Court judge granted the motion, dismissed the suit, and awarded Consumer Cause attorney fees. The judge’s ruling was upheld by this district’s Court of Appeal.
Several justices yesterday expressed concern that reading an intent into the anti-SLAPP law would bog down a trial judge who is directed under the statute to rule on pleadings alone.
“How would a movant show an intent to chill?” Justice Kathryn Werdegar asked.
“Isn’t meritlessness a legitimate proxy for lack of intent to sue?” Justice Janice Rogers Brown asked.
Landau replied that the difficulty in determining intent required no mind-reading or improper guessing.
“Courts make determinations of bad faith all the time,” Landau said.
She said her client was faced with potential litigation over activities at each of 78 stations in 56 different cities. It was better, she said, for her client to exercise its own constitutional right to “petition” by filing suit for a declaratory action to determine whether the Proposition 65 notice was legitimate.
Arguing for Consumer Cause, attorney Morse Mehrban of Los Angeles said the problem with Landau’s approach is that it caused his client to have to hire a lawyer to defend against Equilon’s suit.
“We’re talking about mom-and-pop organizations that are created out of the backyard,” Mehrban said. “They can’t afford $300-an-hour to hire an attorney to defend them against a lawsuit.”
The most negative effect of such suits, state Assistant Attorney General Edward G. Weil of Oakland argued as amicus, was not on Consumer Cause but on other groups that might consider activism in the future.
“The big chilling effect is out there in the general population,” Weil said, “in the form of people who hear that if you speak out at the planning commission...you will find yourself a defendant in a lawsuit.”
Weil also challenged Landau’s assertion that imposing a fee requirement on a plaintiff that gets a case dismissed as a SLAPP is an improper penalty, imposed without full scrutiny of the facts at trial.
“There are hundreds of fee-shifting statutes in the state,” Weil said, “and they’re not unconstitutional. The fact is, attorney fees are not punishment.”
Decisions are expected on all the SLAPP cases argued yesterday within 90 days.
Copyright 2002, Metropolitan News Company