Friday, August 9, 2013

An Interesting Upshot on Perry v. Brown

Mission Springs Water District v. Verjil, E055176 (D4d2 Aug. 7, 2013)

Reversing a prior precedent, the court held that a pre-election challenge to a proposed initiative arises from the initiative’s sponsor’s petitioning activity, and thus is protected activity under the first prong of the anti-SLAPP analysis. Because, however, the government entity making the challenge had a likelihood of success, the motion was properly denied.

After a local water district raised its rates, some citizens sponsored an initiative to roll them back. After the initiative qualified for the ballot, the water district filed a declaratory relief case against the proponents, seeking to invalidate the initiative before the vote occurred. The proponents filed a SLAPP* motion, which was denied by the trial court because existing court of appeal precedentCity of Riverside v. Stansbury, 155 Cal. App. 4th 1582 (2007)—held that a pre-election challenge to an initiative does not implicate the personal rights of the proponents and thus does not arise from their petitioning. But relying on dicta in the Supreme Court’s 2011 standing decision in the Proposition 8 casePerry v. Brown, 52 Cal. 4th 1116 (2011)—the court of appeal held that Stansbury was no longer good law because in Perry, the Supreme Court was clear that initiative proponents have important interests in petitioning that are implicated by pre-election challenges. (I suppose it must be satisfying to the Cal. Supremes that someone other than Justice Kennedy felt bound by their unanimous opinion in Perry.) Thus, the declaratory relief case “arises from” the proponents’ petitioning and the first prong of the SLAPP analysis was satisfied.

Moving on to the “probability of prevailing” prong, the court engaged in a detailed analysis of tax and water law that is outside the scope of coverage of this publication. Ultimately, the court found that the initiative—a local law—was likely invalid because it imposed conditions that would likely run afoul of provisions in the California Water Code’s requiring that rates be high enough to cover a district’s expenses. (Yes, we have a Water Code. It has 85,350 sections!) Because the initiative was likely preempted by state law, the declaratory relief case had a probability of prevailing, and thus the SLAPP motion was properly denied, albeit for a different reason than that addressed by the trial court.


*The majority practice amongst the courts is to refer to Code of Civil Procedure § 425.16 as the “anti-SLAPP statute” and a motion under it as an “anti-SLAPP motion.” But the court here generally dispenses with the “antis- which seems to me to be a laudatory culling of unnecessary verbiage.  While the “anti- might be literally true, the bar has by now become quite  familiar over the twenty-plus year history of the statute. So the extra two syllables do not convey much. Interestingly, the “anti” moniker did not really catch on with much uniformity until it was employed by the Supreme Court in its 2002 “trilogy” of cases—Navellier, Equilon Enterprises and City of Cotati—addressing various aspects of § 425.16.

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