Anti-Slapp Statute Applies To Lawsuit Brought By Two City Council Members Who Sought To Compel City Council To Adjourn Meetings Prior To 11:00 P.M.

In Holbrook v. City of Santa Monica, (— Cal.Rptr. 3d —, 2006 WL 3350715, Cal.App. 2 Dist., Nov. 20, 2006), a California Court of Appeal addressed the issue of whether the anti-SLAPP statute applies to a lawsuit brought by two city council members to compel the city council to end its meetings by 11:00 p.m. The Court of Appeal held that the anti-SLAPP statute applies to the council member’s lawsuit because the causes of actions asserted by the members “arise from protected activity: governmental speech and legislative action at City Council meetings” and the council members were not likely to prevail because they did not have standing to bring the lawsuit.

Facts

Robert Holbrook and Herb Katz, who are both members of the Santa Monica City Council (“Council”), filed a lawsuit against the City of Santa Monica (“City”) claiming that the Council’s meetings violated the Brown Act and both the California and United States Constitutions. Holbrook and Katz alleged that the Council’s meetings frequently run late into the night and the public comment period is reserved for the final order of business. They alleged that “[f]orcing the public to wait so long and stay so late to address the City Council . . . ‘in essence deprives the public of their fundamental right to address their legislative representatives.'” Holbrook and Katz asked the court to grant an injunction to compel the Council to end its meetings by 11:00 p.m. The City filed a special motion to strike the complaint as a strategic lawsuit against public participation (SLAPP). The trial court granted the motion to strike.

Decision

The Court of Appeal affirmed the trial court’s decision. The Court noted that Holbrook and Katz’s causes of action are governed by Code of Civil Procedure section 425.16, the anti-SLAPP statue. Section 425.16 provides, “A cause of action against a person arising from any act of that person in furtherance of the person’s right of petition or free speech under the United States or California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.”

The Court of Appeal determined that Holbrook and Katz’s “causes of action arise from protected activity: governmental speech and legislative action at City Council meetings.” Protected activities under section 425.16 include written or oral statements made before, or in connection with an issue under review or consideration by, a legislative, executive, or judicial body or proceeding, or any other official body or proceeding authorized by law; “any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest”; “or any other conduct in furtherance of the exercise of the constitutional right of petition . . . or free speech in connection with a public issue or an issue of public interest.” The Court concluded that all of the criteria are satisfied here: (1) council members “make oral statements before the other members of their legislative body and in connection with issues under review by the City Council;” (2) counsel members also “make statements in a place open to the public or a public forum in connection with issues of public interest;” and (3) the “public meetings, at which council members discuss matters of public interest and legislate, are conducted in furtherance of the council members’ constitutional right of free speech in connection with public issues and issues of public interest.”

The Court concluded that the safe harbor provision of Code of Civil Procedure section 425.17 subdivision (b) does not remove the lawsuit from the reach of the anti-SLAPP statute. Section 425.17 subdivision (b) provides, in part, that the anti-SLAPP statute does not apply to any action (1) brought solely in the public interest or on behalf of the general public if the plaintiff does not seek relief that is greater than the relief sought for the general public; (2) which if successful, would enforce an important public right affecting the public interest and benefit the general public; (3) and private enforcement is necessary and places a disproportionate financial burden on the plaintiff.

The Court found that Holbrook and Katz did not bring the action solely in the public interest as evidenced by the fact that they complained extensively about the burden the late meetings impose upon them as public officials. The Court further concluded that, if the lawsuit was successful, the public would not significantly benefit because the whole purpose of the lawsuit is to cut meetings off at 11:00 p.m. which would actually limit the opportunity for the public to address the Council. The Court opined that, even if private enforcement is necessary, there is nothing disproportionate about placing the financial burden on Holbrook and Katz because they “stand chiefly to benefit from the cap on meeting times that they seek.”

The Court also concluded that Holbrook and Katz failed to demonstrate a probability that they would prevail on their claim because they do not have standing to sue. It is well-established that members of governmental boards and agencies lack standing to challenge in court the legality of actions taken by the governmental entity of which they are members.” A public official who seeks “a writ of mandate must have either a beneficial interest or some other source of standing beyond that of being a citizen-taxpayer.” When an individual becomes “a member of a public entity, the official forfeits the citizen-taxpayer standing right.”

The Court concluded that Holbrook and Katz do not have a beneficial interest because they “have not demonstrated that they have a ‘special interest to be served or some particular right to be preserved or protected over and above the interest held in common with the public at large.'” Furthermore, they have no beneficial interest in the workings of the Council conferred on them just because they serve on the Council.

The Court further concluded that the Brown Act does not confer standing on Holbrook and Katz. Under the Brown Act, a district attorney or other interested person may bring a lawsuit to stop or prevent violation of the Act by the members of a legislative body of a local agency. The Court concluded that “standing conferred by the Brown Act is standing based on citizenship—precisely the kind of standing that a citizen forfeits when he or she becomes a public official.” The Court noted that Holbrook and Katz are “suing themselves despite the fact that their suit is denominated as against the City of Santa Monica—they are seeking to compel themselves, and other members of the board, to run City Council meetings differently.” The Court concluded that, when they accepted their seats on the Council, they forfeited their standing under the Brown Act that “they would otherwise have had as citizens of California to sue the City Council.”

Accordingly, the Court of Appeal held that the trial court properly granted the motion to strike Holbrook and Katz’s lawsuit.

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