Bills to strengthen state sunshine laws approved by Senate Judiciary Committee

Two pieces of legislation designed to strengthen the
state’s governmental sunshine laws were recently approved by the state
Senate Judiciary Committee and will now go to the full Senate for
consideration.

State Sen. Leland Yee authored both SB 786 and SB 218,
which if ultimately signed into law, would patch an important loophole
in so-called “anti-SLAPP” (strategic lawsuits against public
participation) lawsuits and broaden the California Public Records Act,
respectively.

Lee said SB 786 would prohibit government entities from
recovering attorney’s fees and costs from individuals who sue to
enforce the California Public Records Act, Bagley-Keene Open Meetings
Act, and the Ralph M. Brown Act.

SB 786 corrects an abuse of the anti-SLAPP law by
government bodies,” Yee said in a recent released statement. “The
anti-SLAPP law was designed to protect freedom of speech and petition;
not to chill an individual’s right to participation and ability to
access public documents. SB 786 will not only protect the right of
individuals to enforce open government laws without fear of a
significant financial burden, but will also ensure that government
entities act with greater transparency.

Yee explained that In 1992, the California Legislature
enacted the original anti-SLAPP law for individuals to obtain an early
judicial ruling and termination of a SLAPP suit arising out of one’s
exercising of speech and petition rights in connection with a public
issue. Prior to the law, big corporations and developers – in attempt
to silence an individual who was exercising their free speech or
petition rights – would often masquerade false defamation cases as
ordinary lawsuits. Such cases resulted in severe economic hardships
against innocent individuals.

Terry Francke, executive director of Californians Aware, applauded the bill.

“In 2007, we filed an action for declaratory relief-not
damages-against a school district, alleging violations of the Brown
Act, the CPRA and the First Amendment,” Francke wrote in a letter
supporting the bill. “We challenged the board of trustee majority’s
censure of one of its members for his open session criticism of board
action and staff performance, and the superintendent’s editing of those
remarks out of the video recording distributed for cable TV replay. Our
belief at the time was (and still is) that the public has a right to
hear even the harshest criticism by an elected member of a government
body as to how the body has dealt with any issue-even a personnel
matter-on which it has acted.”

Francke noted that the trial court dismissed CalAware’s action upon the district’s anti-SLAPP motion and, as a consequence, required the nonprofit legal organization to pay $80,000 in attorney’s fees and court costs.

Tom Newton, general counsel of the California Newspaper Publishers Association, said the legislation will fix a critical loophole in existing law.

“The use of the anti-SLAPP law by government agencies, though, has subverted the very speech and petition rights the law is intended to protect,” Newton said in a written statement. “The threat that a Brown Act plaintiff could become saddled with the public agency’s attorney fees whenever the court determines the plaintiff is unable to establish a probability of prevailing on the claim has created a profound chilling impact on the willingness of citizens to pursue their rights under the law.”

Yee, (D-San Francisco), was also able to get the Judiciary
Committee to approve SB 218, which would strengthen the California
Public Records Act by including any auxiliary organizations receiving public funds or perform government functions on state college campuses.

“Taxpayers and students deserve to know how their public
universities are run,” Yee said in a statement. “SB 218 will ensure
that our higher education systems operate in the light of day and are
held accountable.”

Both SB 786 and SB 218 are slated to be taken up by the full Senate later this year.

Follow Jeff Mitchell’s political journalism at BAPolitix.org