6753527391_18659ea573_o  In a 5-2 decision, the California Supreme Court reversed the appellate court and held that the votes of city officials in favor of a public contract were a protected activity under an anti-SLAPP motion, despite allegations that they each had an improper conflict of interest.  City of Montebello v. Vasquez, S219052.  Through outside counsel, the City sued three former council members, and a former administrator, for the violation of Government Code § 1090 by voting on a waste hauling contract in which they each had a financial interest.  The City sought to void the contract and disgorge campaign contributions from the company which was awarded the contract.  After the contract was voided in a separate action, these defendants brought an anti-SLAPP motion under C.C.P. § 425.16, arguing that the remainder of the lawsuit was merely political retribution for exercising their constitutional right of free speech by participating in a public hearing.

First, a unanimous Supreme Court resolved a conflict in the appellate courts and rejecting the City’s attempt to invoke the public enforcement exemption to an anti-SLAPP motion. C.C.P. § 425.16(d).  The Court confirmed that this exemption only applies to a suit brought in the name of the people by a public official acting as a public prosecutor, not an outside law firm in the name of the city.  The Court also held that the illegality exemption only applied when the actions were illegal as a matter of law, and here there were unresolved factual disputes over the alleged actions. C.C.P. § 425.16(h).  When no exemption applies, the defendant must show that the subject actions were made in furtherance of the defendant’s constitutional right of petition or free speech in connection with a public issue.  Once that showing is made, the plaintiff must substantiate a legally sufficient claim.

The Court split 5-2 over the issue of protected conduct, with the majority finding that votes by city officials in favor of the contract were protected activity under the anti-SLAPP law.  The majority found that the councilmembers’ votes, as well as statements made in the course of their hearing deliberations, qualify as “any written or oral statement or writing made before a legislative . . . proceeding…” C.C.P. § 425.16(e)(1).   In this regard, the Supreme Court reversed the Court of Appeal, which followed federal precedent that such a vote was not an individual expression of the official, and therefore not protected.  However, the majority rejected applying a constitutional analysis to each anti-SLAPP motion and instead focused on the broad statutory language.  Thus, the anti-SLAPP protections were not limited to actual First Amendment expressions, but also extended to acts “in furtherance of the person’s right of petition or free speech,” and this was a broader protection than constitutionally provided. C.C.P. § 425.16(b)(1) and (e)(1).  The dissenters (Justices Liu and Kruger) would have affirmed the Court of Appeal’s conclusion that this was not protected conduct.  The Court remanded for further proceedings, including plaintiff’s showing of a legally sufficient claim.

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