couthouse-flag.JPGPublic employers in California have a powerful tool available to them in California’s anti-SLAPP statute, California Civil Procedure Code section 425.16.  This availability was confirmed in a recent case named Vargas v. City of Salinas.  Not much fanfare accompanied the Vargas decision, which issued last November.  But the Court of Appeal’s decision, on constitutional grounds, not to deny public employers access to this statute is significant. 

To understand why, let’s review what an anti-SLAPP motion is.  “SLAPP” stands for “strategic lawsuit against public participation.”  In general, SLAPP suits are understood to be lawsuits filed by a plaintiff to stifle a defendant’s exercise of free speech rights.  The term “strategic” more or less serves as a euphemism for “meritless.” SLAPP’s are considered bogus lawsuits designed only for the purpose of bludgeoning the defendant, and threatening those who wish to avoid being sued, into refraining from criticizing the plaintiff, or from making public statements contrary to the plaintiff’s interests.  Further, the common understanding is that a plaintiff who files a SLAPP knows that, even though it is meritless, it will take months if not years for a court or jury to make that determination.  By then, the defendant will have already been stigmatized by having a lawsuit pending for a considerable time, and been required to spend substantial attorney’s fees to dispose of it. 

California’s anti-SLAPP statute serves as a remedy by targeting these two harms caused by SLAPPS at an early time.  First, it remedies the lingering effect of the lawsuit by allowing the defendant at the very outset of the case to demand that the plaintiff present evidence showing that plaintiff has a “probability” of prevailing.  The court will dismiss the case if plaintiff cannot make this early showing.  Second, the statute alleviates the financial harm to the defendant by requiring plaintiff to pay the defendant’s attorneys’ fees if the case is in fact dismissed pursuant to the statute.  

If your agency is sued, how can you determine if the lawsuit can be disposed of early under the anti-SLAPP statute?  This will depend initially on whether the lawsuit arises from what the statute defines as protected activity (i.e., the first step of the anti-SLAPP statute’s test).  The fairly broad definition is as follows – a lawsuit will be covered if it arises from any of the following by the defendant: “(1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law, (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law, (3) 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 (4) any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.”  

Items (1) and (2) of this definition are of particular importance to public agencies.  They encompass within the scope of the anti-SLAPP statute statements before or in connection with any “official proceeding authorized by law,” regardless of whether the statements relate to a matter of public interest.  An “official proceeding” can include an administrative proceeding, and also an investigation by a public agency in preparation for initiating such a proceeding.  For example, in Vanginderen v. Cornell University, a federal court in California found that anti-SLAPP protection applied to the Cornell University Department of Public Safety’s investigation into the plaintiff’s involvement in alleged thefts, because the investigation was preparatory to the potential initiation of official proceedings against the plaintiff. 

In the area of employment in particular, the anti-SLAPP statute has applied in the context of proceedings required by law and subject to review by writ of mandate.  In Kibler v. Northern Inyo County Local Hospital District, the California Supreme Court held that a private hospital’s employment determination regarding a doctor made pursuant to statutorily mandated peer review proceedings constituted a protected act because it was made in the course of an “official proceeding” for purposes of section 425.16.  Accordingly, the hospital could invoke the anti-SLAPP statute when the doctor sued under tort law to challenge the determination. 

Application of these principles reveals a large variety of situations in which public agencies can use the anti-SLAPP statute in the employment litigation context.  For example, in Hansen v. California Dept. of Corrections and Rehabilitation, the Court found that a public employer’s internal affairs investigation constituted an “official proceeding” for purposes of the anti-SLAPP statute.  In Hansen, a retired vocational instructor sued his former employer, the state Department of Corrections and Rehabilitation, arguing that the Department had retaliated against him and violated his constitutional rights by investigating him for alleged wrongful conduct in his job, and continuing the investigation after his retirement.  The Court held that “the internal investigation itself was an official proceeding authorized by law.”  The Court also described: “[a]lthough Hansen was never formally charged with misconduct or a crime, communications preparatory to or in anticipation of the bringing of an official proceeding are within the protection of section 425.16.” 

Finally, in another case in the public employment context, Vergos v. McNeal the Court determined that, when a UC Davis employee who claimed sexual harassment sued the manager who had heard and denied his harassment grievance, that manager could invoke the anti-SLAPP statute’s protection.  The Court confirmed that the allegations challenging the manager’s “hearing, processing, and deciding” of the employee’s grievances constituted allegations that qualified under the “official proceeding” language of the statute.  

These cases show that public employers sued in connection with their conduct in internal affairs investigations, in the course of adjudicating particular claims, and in a broad variety of other contexts, could invoke anti-SLAPP statute protection.  Indeed, in all of the cases described above, the fact that the allegations in question were covered by the anti-SLAPP statute meant that the defendant’s motion went to phase two – in which the plaintiff is required to prove, in response to the anti-SLAPP motion, a “probability” of prevailing on the underlying claim.  Cal. Civ. Proc. Code § 425.16(b)(1).  This early determination, plus the availability of mandatory attorneys’ fees, presents an obvious advantage to the defendant. 

The Vargas v. City of Salinas decision mentioned above in the introduction, is significant because the Court considered a constitutional challenge that, if successful, could have deprived public agencies of many of these anti-SLAPP statute protections.  In Vargas, plaintiffs sued a city for alleged misuse of public funds in connection with publications on a ballot measure, but plaintiffs’ claims were dismissed pursuant to an anti-SLAPP motion, leaving them liable for the city’s attorneys’ fees.  Plaintiffs argued that this effectively penalized them for suing the government, in violation of the constitutional right to petition the government set forth in the U.S. Constitution’s First Amendment.  They argued that, when government can invoke the anti-SLAPP statute to protect itself from a lawsuit, a would-be plaintiff is threatened with the potential of substantial liability for attorneys’ fees.  This, plaintiff argued, in turn supposedly improperly deters lawsuits against (i.e., “petitions” to) the government.  In a carefully reasoned opinion, the Court of Appeal rejected the arguments.  It reasoned that the anti-SLAPP statute comports with the First Amendment’s right to petition among other reasons because the statute advances substantial government interests, including (1) “the government’s right to be reimbursed for the cost of defending meritless suits,” and (2) “the government’s right to express itself on issues important to the public.” 

The plaintiffs in Vargas have asked the California Supreme Court to review the Court of Appeal’s decision, and the Supreme Court should decide by the end of this March whether it will hear the case.  The Court of Appeal’s decision, however, is a strong signal that the anti-SLAPP statute remains a vital tool for public agencies to use in achieving an early victory, along with an award of attorneys’ fees, when faced with certain categories of unmeritorious lawsuits.