This Just Seems Wrong

Doe v. California, No. D069411 (D4d1 Feb. 15, 2017)

I had thought that recent Wayans anti-SLAPP decision was pretty bad, but this one is awful. 

P was charged with a sex offense way back in 1985 but the charges were ultimately dropped. P, however, wasn’t aware of the dismissal, so he started registering as a sex offender. When he moved, the AG sent a letter to the local cops informing them that P had moved into their jurisdiction and that they should take necessary action to ensure P registered. P continued to register for twenty-nine years, during which time the state repeatedly threatened him with prosecution or arrest, forced him to register, and publicly disseminated his ID as a sex offender. In 2014, P got arrested for failing to renew. Which led to P learning that his 1985 charge was dismissed, and thus that he was never required to register in the first place. 

P and his wife sued the state, the county, and the city under various civil rights theories based on the fact that the government had erroneously forced him to register as a sex offender for three decades. Defendants filed an anti-SLAPP motion, which was granted, and P appeals.

P did himself no favors with his trial court arguments. On the first—“arising from protected activity”—prong, instead of arguing that it was crazy that the state’s threats to prosecute him for failing to register when he wasn’t required to arise from protected speech or petitioning, he instead focused his argument on claiming that the government’s action was illegal as a matter of law under Flatley v. Mauro, 39 Cal. 4th 299, 305 (2006). But the Flatley standard is ridiculously high. Like strict scrutiny—strict in theory but fatal in fact. Either the defendant needs to admit the conduct was illegal or the evidence needs to be so overwhelming that the proof counts as a matter of law. A Flatley argument is going to lose 99 percent of the time. Indeed, other than Flatley itself—which arose from unusual facts—one would be hard pressed to find a case that denies a motion on Flatley grounds. And during argument in the trial court, P’s lawyer agreed he was “essentially conceding Prong [One],” save for the Flatley issue.

But that makes no sense. This suit was against only government entities—no individual officials involved. Do those entities really have some kind of speech or petitioning interest in falsely forcing an innocent person to register as a sex offender for thirty years? To ask the question is to answer it. 

For the first time on appeal, P argues that a government entity isn’t a “person” as used in “a cause of action against a person” in Code of Civil Procedure § 425.16(b)(1). Good try, but unfortunately, that argument has been expressly rejected a couple of times. See, e.g., Santa Barbara Cty. Coal. Against Auto. Subsidies v. Santa Barbara Cty. Ass’n of Governments, 167 Cal. App. 4th 1229, 1237 (2008). The court here makes that point.

But what the court misses is the importance of discussion in the Supreme Court’s recent decision in City of Montebello v. Vasquez, 1 Cal. 5th 409 (2016). In Vasquez, the Court held that individual legislators sued for speech in their official capacities could bring an anti-SLAPP motion. Responding to concerns from the dissent, the court, however, suggested that the anti-SLAPP statute maybe shouldn’t apply actions “challenging government decisions, not the acts of individual officials.” Id. at 426 (discussing Schwarzburd v. Kensington Police Protection & Community Services Dist. Bd., 225 Cal. App. 4th 1345 and San Ramon Valley Fire Protection Dist. v. Contra Costa County Employees’ Retirement Assn., 125 Cal. App. 4th 343 (2004)). Citing its prior decision in Vargas v. City of Salinas, 46 Cal. 4th 1, 19 (2009), the court noted that “[w]e have observed that the Legislature was specifically concerned with actions against public officials as individuals when it reconsidered the scope of section 425.16 in 1997.” Vasquez, 1 Cal. 4th at 426. To apply the anti-SLAPP statute to civil rights lawsuits challenging official acts of government entities could potentially chill the exact types of petitioning that the anti-SLAPP statute was created to protect.

(Interestingly, the court here cites Vasquez, but only for a boilerplate point about parties’ respective burdens under the anti-SLAPP statute.)

The anti-SLAPP statute can be tricky—its coverage often veers broader that what’s actually protected under the First Amendment. If this were merely a case where the defendant was relying on § 425.16(e)(4)—the catchall that applies to “any other conduct in furtherance”—the question could be resolved textually under the framework I have proposed and which was suggested by Justice Liu’s dissent in Vasquez. I.e., that to be “other conduct in furtherance” the conduct has to be plausibly in furtherance of some legitimate First Amendment right. Since government has no plausible First Amendment right to force innocent people to register as sex offenders, (e)(4) wouldn’t apply under that test. (Although the court here finds it does, without much analysis.)

But this case also entails stuff like sending various and sundry communications to P in connection with the effort to make him register. That sounds arguably like communications that could be protected under §425.16(e)(2) as written or oral statements in connection with an issue under review by a judicial, legislative, or executive body, or any other official proceeding. (Which the court also rests its decision on.) That’s a harder to get around textually. 

It just seems crazy, however, that a government actor could invoke the anti-SLAPP statute for something like the facts here or a lawsuit based on lying in a search warrant application. I can’t think of a great solution off the top of my head, but I’m certainly going to think on it. (Maybe the lack of any pending proceeding against an innocent person takes you out of (e)(2)?) Regardless, given Vasquez, it seems like the kind of thing the Supremes would take up. Petitions for review are due next week.

Affirmed.