Governor Celebrates Victory of Proposition 11

This article, from today's San Francisco Chronicle, reports that the battle for Proposition 11 is finally over, with the redistricting reform initiative passing. The Governor is happy and the Democrats are unhappy.

The First Amendment and the Anti-SLAPP Statute

In Schaffer v. City and County of San Francisco (here), the court clarified the scope of speech protected by the anti-SLAPP statute. The plaintiff contended that certain statements made by the defendant police officers were not protected by the anti-SLAPP statute because, as speech made by police officers in the course of their employment, the statements were not protected by the First Amendment under Garcetti v. Ceballos, 547 U.S. 410 (2006), which had held that a district attorney had no First Amendment protection against disciplinary action based on statements made in the course of his employment, even though the statements involved a matter of public concern.)

Code of Civil Procedure Section 425.16(b)(1), the anti-SLAPP statute, provides in relevant part that "[a] cause of action against a person arising from any act of that person in furtherance of the person’s right of petition or free speech under the United States or California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim. " Section 425.16(e) in turn defines "any act . . . in furtherance of the person's right of petition or free speech under the United States or the California Constitution in connection with a public issue’" as including "(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; (4) or 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." Consequently, as the Schaffer court held, whether speech is protected for purposes of the anti-SLAPP statute turns on this definitional statute, not on whether the speech is protected in the abstract under the federal or state constitutions. In this case, the speech was protected despite Garcetti, because it was "made in connection with an issue under consideration or review by a legislative, executive, or judicial body," and thus satisfied Section 425.16(e)(2).

Proposition 13 and the Budget Crisis

Daniel Weintraub of the Sacramento Bee has an interesting article, available here, on the impact of property tax reassessments on local finance. If you bought at the height of the housing bubble and the value of your house is now less than what you paid, you can get your property reassessed for property tax purposes. Similarly, foreclosure on a house will usually result in a sale price that is below the last purchase price, thus triggering reassessment at a lower value. All this translates into less money for local governments. And since the state is already in a giant financial hole itself, it won't come to the aid of cash-strapped local governments. It's hard to be a government that doesn't have a printing press.

Petition For Review Filed In Judicial Salary Case

Here is the petition for review filed by Los Angeles County in Sturgeon v. County of Los Angeles, the judicial salary case. Many amicus letters have been filed in support of the petition, but none that I have seen adds much to the legal arguments made by the petition.

Besides contending that the decision below will lead to calamitous results for the administration of justice, the petition makes two legal arguments about how the decision below erred. First, as discussed in previous posts (here and here), the petition contends that the Court of Appeal wrongly held that the doctrine requiring deference to legislative interpretations of the Constitution applies only when the constitutional provision and the relevant legislation were contemporaneous. There are numerous counter-examples, including the decision in Pacific Legal Foundation v. Brown, 29 Cal. 3d 168 (1981), in which I represented the State Personnel Board. Second, the petition argues that the Court of Appeal misconstrued the nondelegation doctrine in disallowing the Legislature's attempt to give the counties total discretion to supplement the "base" judicial salary.

The plaintiffs did not file an answer to the County's petition for rehearing in the Court of Appeal, because the court did not request one. It will be interesting to see what they say in response to the petition. At that point, we'll evaluate the arguments and make a prediction about the grant of review.

Answer and Reply Filed In Judicial Reference Case

Here is the Answer to the Petition for Review and here is the reply to the answer filed in Treo@Kettner Homeowners Ass'n v. Superior Court, the judicial reference case. And here is a link to my earlier post about the petition for review.

The strength of the petition turns on whether the decision below conflicts with Villa Milano v. Il Davorge, 84 Cal. App. 4th 819 (2004). The decision below refused to apply a clause in CC&Rs authorizing judicial reference in a construction defect case between a developer and a homeowners association. Villa Milano held that an arbitration clause in CC&Rs created a written agreement to arbitrate, but held the provision procedurally and substantive unconscionable as applied to construction defect claims against the developer that devised the CC&Rs in the first instance.

The petitioner, of course, relies on the portion of Villa Milano holding that the arbitration clause in the CC&Rs constituted a written agreement to arbitrate. The respondent relies on the Villa Milano court's ultimate refusal to enforce the arbitration clause.

Although non-signatories are bound by arbitration clauses in a variety of contexts--for example, an employee signing a health insurance contract can agree to arbitrate medical malpractice disputes on hehalf of non-signatory family members--the situation here is different. Here, the CC&Rs are not the result of any sort of adversarial bargaining--instead, they are promulgated by a developer and signed by a homeowners association that the developer has created and before the association has any members. So I think the result reached by the Court of Appeal is right--though the Supreme Court may be persuaded by the importance of the issue or the conflict claim to grant review.

Los Angeles Times Ponders Justice Kennard's Vote

Here is an article from yesterday's Los Angeles Times about the potential significance of Justice Kennard's vote to deny the petitions without prejudice to the filing of an appropriate action to determine the retroactivity issue.

Vik Amar And Claire Cooper On The Proposition 8 Cases

Here is the first installment of a series of articles by Vik Amar on the Proposition 8 cases. In this introductory column he sets the stage and does a little prognosticating, based on the Supreme Court's orders from last week. More to come, apparently. And here is an article on the cases by the Sacramento Bee's veteran legal affairs reporter Claire Cooper.