Graft, Garbage, and Protected Activity

City of Montebello v. Vasquez, No. B245959 (D2d1 May 30, 2014).
 
Yet another (inadvertent) split of authority.

Three former members of the Montebello City Council and city employee get sued by the city for approving a garbage hauling contract in which they allegedly had a financial interest. The city seeks disgorgement of any money they received from the hauler and cancellation of the contract. The defendants respond to the charges with an anti-SLAPP motion, which the trial court denied.

The court here affirms. First—after recognizing a split of authority on the issue—it holds that the public enforcement exception in Code of Civil Procedure § 425.16(d) applies only to enforcement actions brought in the name of the people of California. It does not cover a civil action brought by a city, like this case, even if brought to enforce a statute that protects the public. As to the councilors, however, the court holds that a legislative vote to approve a contract in which they had a financial interest is not protected activity under Code of Civil Procedure § 425.16(b) and (e). According to the court, prior cases have held that legislative voting is not expressive conduct protected by the First Amendment. To hold otherwise would apparently create an obstacle to challenging the legality of local government activity. And as to the employee, all he did was negotiate a contract. That isn’t protected activity.

Affirmed.

I’m not feeling the logic of this one. First, it fails to mention that a case decided just a month ago held that voting by public officers is, in fact, protected activity under § 425.16(b) and (e). So there’s yet another inadvertent split. Plus, there’s two problems with the rationale. 

Generally, the court’s analysis runs afoul of the rule that, in the anti-SLAPP analysis, the court shouldn't look to what is actually protected under the First Amendment. Instead, what matters is what falls within the literal definitions in § 425.16(e)(1)–(4). As the courts have explained, if the anti-SLAPP statute required a defendant to fully establish a First Amendment defense, it would be of little use. Based on that, I just can’t see how a vote in a legislative proceeding is not a “written or oral statement or writing made before a legislative . . . proceeding” or a  “written or oral statement or writing made in connection with an issue under consideration or review by a legislative . . . body[.]” See § 425.16(e)(1)–(2). The fact that the court relies largely on a U.S. Supreme Court opinion—obviously outside of the SLAPP context—is a pretty big tell.

Further, the supposed obstacle to challenging the legality of local government activity is illusory, because citizens could always sue the city directly. See generally Cal. Code. Civ. Proc. § 529a (giving taxpayers standing to sue to enjoin illegal expenditures of public funds). Notably, the only anti-SLAPP case cited in the opinion that declined to find a legislative vote to be protected activity—San Ramon Valley Fire Protection Dist. v. Contra Costa County Employees Ret. Assoc., 125 Cal. App. 4th 343, 354 (2004)—was challenging the the legality of an enactment of a quasi-legislative body as a whole, and not any individual’s vote.  See id. at 353 (noting that “no individual Board member was sued by the district”).

Plus, none of this is really necessary. The city’s claims against the councilors demand disgorgement of any money they received in exchange for their votes. (Since they were never parties to the contract, the cancellation claim under Gov. Code § 1090 really has no impact on them, which is why the garbage company intervened.) Thus, as to the former councilors, the City’s action was not really challenging the councilors’ vote to approve the contract, but their alleged acceptance of money in exchange for that vote. Since the anti-SLAPP analysis is supposed to look to the acts upon which liability is based, it is that corrupt receipt of money that should be the focus of the analysis. While the U.S. Supreme Court’s recent campaign finance jurisprudence is coming pretty close, a politician’s acceptance of bribes is not (quite yet) protected speech under the First Amendment. And graft certainly does not fall into any of the “protected activity” categories defined under § 425.16(e)(1)–(4).

So right result, wrong reason.

**Note: Apparently the Supreme Court also noticed the split with Schwarzburd. Review granted August 13, 2014.