Posted on 06/07/2002 4:37:15 PM PDT by laureldrive
June 5, 2002
Getting Sued For Speaking Out
Does objecting to a government enactment now mean you’ve painted a bull’s eye on your back?
Harold Johnson
Harold Johnson, a member of California Political Review’s editorial board, is an attorney with Pacific Legal Foundation (www.pacificlegal.org).
Can a city sue a private citizen for speaking out against a city law? California’s Supreme Court will consider this question at a hearing on Thursday, June 6. The three appellants in the case of Cotati v. Cashman were sued in 1999 by the city of Cotati, in Sonoma County, for the sole reason that they brought a constitutional challenge in federal court to the city’s mobilehome rent control law.
Cotati’s payback lawsuit could have an impact far beyond the small town’s borders. If the suit is upheld, don’t be surprised to see governments up and down California start using the threat of litigation to intimidate private citizens out of protesting dubious public policies.
The three people sued by Cotati happened to own mobilehome parks in the city. But none of the them had violated the rent-control law. What they had done, with representation from Pacific Legal Foundation, was challenge the law in federal court as an unconstitutional taking of private property. For their effrontery in bringing this action — which happened to be an exercise of their First Amendment right of petition — the city hauled them into Sonoma County Superior Court to be defendants in a “declaratory relief” lawsuit designed to get the rent ordinance declared legal by a state judge.
Was the city seeking revenge on three property owners who had refused to let a questionable law go unchallenged? Was it sending a thuggish warning to other residents that if they speak out against city enactments they, too, could be buying a lawsuit? Or was it merely making a legally hopeless attempt to yank the parkowners’ federal case into state court, in the belief that the rent law might win a more sympathetic hearing in a local forum?
Whatever Cotati’s motives, its lawsuit sets an ominous precedent. The Sonoma County Superior Court indicated as much by throwing the case out as a frivolous “SLAPP” suit (“strategic lawsuits against public participation”). The judge found that the suit retaliated against protected freedoms because it was filed in response to the parkowners’ use of the petition right. Moreover, no formal “controversy,” or dispute between the city and the defendants, could be shown. The parkowners were complying with the law, after all. Although they had challenged it in federal court, California’s “litigation privilege,” Civil Code Section 47(c), protects an individual from being sued merely because he has brought his own legal action.
Nevertheless, the California First District Court of Appeal reinstated the city’s lawsuit, without bothering to explain where a government gets authority to sue citizens whose only offense is to exercise their right of petition, i.e. their freedom to ask a federal court to uphold constitutional principles such as the Fifth Amendment property protections.
The appeal court said the parkowners didn’t show that the city intended to chill anybody’s rights, or that anyone’s rights had in fact been chilled. This was a curious objection. The anti-SLAPP law doesn’t require such a showing. The appellate justices essentially were adding clauses to the statute that would limit its reach — something only legislators can do.
Cotati’s idea of its “right” to sue its critics is alarmingly expansive. A city lawyer said private citizens can be sued for declaratory relief not just if they’ve challenged a law in court, but also if they’ve made an “oral statement or a written statement” against a law’s validity.
So if you question the constitutionality of an ordinance in a letter to the editor or in remarks before the City Council, government could slap you with a declaratory relief lawsuit. You’d have to have to get out your checkbook to pay for attorneys and other costs of mounting a defense.
The Supreme Court must take a searching, skeptical look not just as the appeal court’s unilateral amending of the anti-SLAPP law, but at Cotati’s scary contention that if you openly object to a government enactment, you’ve painted a bull’s eye on your back and government can take you to court.
So if you question the constitutionality of an ordinance in a letter to the editor or in remarks before the City Council, government could slap you with a declaratory relief lawsuit. You’d have to have to get out your checkbook to pay for attorneys and other costs of mounting a defense.
This lawsuit is a disgrace. But if you look at the sorts of totalitarian, hypocritical lefties that get elected and hired in that city, it doesn't suprise me in the least...
No doubt this appeals court was made up of appointee's of Jerry Brown or Gray Davis.
If any Californian doubts the seriousness of the political situation in CA, look at the "Government" pages in the front of your phone book. Mine as 2 Republicans out of 16 offices. One of these is G.W. Bush. (sigh)
A sisal necktie for the socialist ring leader is an inexpensive parting gift.
A sisal necktie for the socialist ring leader is an inexpensive parting gift.
Or, alternatively, some paving materials, pillow-stuffing and a decorative rail from a split-rail fence.
Those of us who live here know that the Legislature, the courts, Gray Davis, and millions of illegal immigrants aren't waiting around for an earthquake to destroy California---by the time the Big One comes, there won't be anything left to destroy.
I'm not just throwing stuff out, we're really in big trouble.
American Attorneys: What do you have against England? I challenge your cowering masses, oh brilliant ones.
Nevertheless, the California First District Court of Appeal reinstated the city's lawsuit, without bothering to explain where a government gets authority to sue citizens whose only offense is to exercise their right of petition, i.e. their freedom to ask a federal court to uphold constitutional principles such as the Fifth Amendment property protections.The appeal court said the parkowners didn't show that the city intended to chill anybody's rights, or that anyone's rights had in fact been chilled. This was a curious objection. The anti-SLAPP law doesn't require such a showing. The appellate justices essentially were adding clauses to the statute that would limit its reach &emdash; something only legislators can do.
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