Legal Alerts Dec 11, 2017

First Amendment Rights of California Public Agencies Affirmed by Appellate Court

Anti-SLAPP Motion Successful in Dispute

First Amendment Rights of California Public Agencies Affirmed by Appellate Court

A court of appeal dismissed a challenge to a county’s characterization of stored chemicals as hazardous waste, holding that by making that determination and forwarding it to the district attorney, the county had engaged in “speech in connection with a public issue.” That speech is protected under California’s anti-SLAPP (Strategic Lawsuit Against Public Participation) statute.
 
In Santa Clara Waste Water Company v. County of Ventura Environmental Health Division, a county environmental health division assisted the district attorney in investigating an explosion and fire at a private waste water treatment company’s facility. The County discovered 24 totes and drums of a chemical called “Petromax” that the County characterized as “hazardous” because of their high pH levels. The County forwarded its findings and conclusions to the DA for consideration in its pending prosecution of the Company. The Company filed a lawsuit claiming it did not hold hazardous waste and that the County improperly denied it an impartial administrative hearing on the issue. The County fought back with a motion to dismiss the lawsuit as an anti-SLAPP suit.
 
The trial court denied the motion to dismiss, but the 2nd District Court of Appeal reversed that decision last week. The appellate court held that the motion should have been granted because the Company was challenging an act in furtherance of the County’s right to free speech in connection with a public issue. It also found that the Company failed to establish a likelihood of success on its claim.
 
The appellate court found that the Company’s main argument was that the County had no right to declare Petromax a hazardous waste and that the primary purpose of the lawsuit was to silence the County and prevent it from assisting in the DA’s prosecution. Thus, the appellate court concluded that the Company’s lawsuit was an attack on the County’s right to free speech. This satisfied the first prong of the County’s anti-SLAPP burden.
 
The court then turned to the second step of the anti-SLAPP analysis, i.e., the probability that the Company would prevail on the merits. The appellate court also ruled in the County’s favor on this point, finding that the Company had not established a probability of success. The court reasoned that a direct enforcement action by the County might have given rise to the Company’s equal treatment, statutory procedure and due process causes of action. However, because the County was simply issuing a report to the DA and cooperating with the DA in an already open investigation — not regulating or enforcing the law on its own — the true focus of the Company’s lawsuit was to silence the County’s input. This distinction, while subtle, is crucial to the application of the anti-SLAPP statute in suits involving government entities. In reversing the trial court’s decision and granting the County’s anti-SLAPP motion, the appellate court noted: “[e]ven the government has First Amendment rights.”
 
If you have any questions about this opinion or how it may impact your agency, please contact the author of this Legal Alert listed to the right in the firm’s Municipal Law practice group, or your BB&K attorney.
 
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