California Supreme Court: "Public Interest" Exemption to Anti-SLAPP Is Narrow
The California Supreme Court issued its opinion in Club Members for an Honest Election v. Sierra Club, No. S143087, on Dec. 15, 2008, narrowly construing the “public interest” exemption to the anti-SLAPP statute, California's powerful law that provides substantive and procedural protections for individuals sued for engaging in free speech and petitioning activities protected by the First Amendment.
In a unanimous opinion authored by Justice Carol A. Corrigan, the Court ruled that the “public interest” exemption to the anti-SLAPP statute—Code of Civil Procedure Section 425.17(b)—is only available to a plaintiff invoking that exemption (and thereby seeking to avoid satisfying the rigors of the anti-SLAPP statute) if the plaintiff's “entire action is brought in the public interest.”
The Court's narrow interpretation of the exemption makes public interest claims much more difficult to use in cases that include private relief. The decision strengthens the anti-SLAPP statute, further enhancing its protection of First Amendment rights.
The Supreme Court's opinion arose in the context of events involving the Sierra Club's 2004 national board of directors' election. Plaintiff Robert van de Hoek, a candidate running in the Club's election, and a group of Club members supporting his candidacy sued the Sierra Club, objecting to its distribution of certain election materials. The operative complaint analyzed by the Court was filed after the Club's election was complete and plaintiff van de Hoek had lost the election.
Among other relief, the plaintiffs' complaint sought the removal of five elected or appointed board members, an order barring certain candidates in the Sierra Club's election from ever running for the board in their lifetimes, and the installation of van de Hoek and four other unsuccessful candidates to the Sierra Club's board. The plaintiffs also asked the court to require the Sierra Club to publish future election materials written exclusively by the plaintiffs at the Club's expense.
Sierra Club's anti-SLAPP motion and plaintiffs' request for exemption
The Sierra Club brought an anti-SLAPP motion under Code of Civil Procedure Section 425.16, which provides that causes of action based on a defendant's free speech and petitioning activities protected by the U.S. Constitution may be dismissed as a strategic lawsuit against public participation (SLAPP) unless the plaintiffs establish that there is a probability that they will prevail on the claim.
In response, the plaintiffs invoked Section 425.17(b), which exempts from the anti-SLAPP statute “any action brought solely in the public interest or on behalf of the general public” if, among other things, the plaintiff does “not seek any relief greater than or different from the relief sought for the general public or a class of which plaintiff is a member.” Section 425.17(b) was enacted by the California Legislature in 2003 and the Supreme Court's decision was its first interpretation of this exemption.
Anti-SLAPP granted in Superior Court, exempted in Court of Appeals
Upholding the legitimacy of the Sierra Club's 2004 election activities, the San Francisco Superior Court twice granted anti-SLAPP motions filed by the Club and ultimately also granted summary judgment for the Sierra Club on the merits of the plaintiffs' claims. On appeal, the plaintiffs did not challenge the Club's success on the merits, but sought to avoid application of the anti-SLAPP statute to their complaint.
Notwithstanding the Court of Appeal's observation that there was “no doubt” that portions of the plaintiffs' prayer in the complaint “were calculated to give plaintiffs and their allies an advantage in intra-club politics,” and overlooking the express language of Section 425.17(b), the Court of Appeal ruled that some of the plaintiffs' claims were exempt from the anti-SLAPP statute under Section 425.17(b) because the “principal thrust or gravamen” of the plaintiffs' election claims were brought in the “public interest.”
Supreme Court finds for Sierra Club in narrow interpretation of exemption
Concerned with the appellate court's expansive interpretation of the “public interest” exemption (and notwithstanding its win on the merits) the Sierra Club petitioned the Supreme Court for review to ensure that California's anti-SLAPP statute would be available to defendants faced with future meritless election challenges seeking to chill speech—and potentially in every other situation in which a plaintiff might unfairly claim their lawsuit was filed “in the public interest” yet still seek private relief for themselves. California Attorney General Bill Lockyer joined the Sierra Club to urge the Supreme Court to grant review, which it did in the summer of 2006.
On review, the California Supreme Court strictly interpreted the language of Section 425.17(b), squarely rejecting the expansive interpretation of the “public interest” exemption that had been adopted by the Court of Appeal, which construed the exemption as being nearly as broad as the anti-SLAPP statute itself.
Under the Supreme Court's interpretation of Section 425.17(b), if “any part of [the plaintiff's] complaint seeks relief to directly benefit the plaintiff,” the lawsuit is not exempt as a lawsuit filed in the “public interest” and must instead satisfy the rigorous protections provided by the anti-SLAPP statute. In its analysis of the exemption, the Court also rejected the plaintiffs' and Court of Appeal's reliance on case law interpreting California's private attorney general statute, finding that the two statutes are functionally different.
Sierra Club's representation and support
The Sierra Club and its individual directors were represented throughout this five-year litigation by Thomas R. Burke, a partner in the firm’s San Francisco office. Rochelle L. Wilcox, a partner in the firm’s Los Angeles office assisted with the briefings in the California Supreme Court. The Sierra Club’s interpretation of Section 425.17(b) was supported in the Supreme Court by an amici brief filed by California State Senator Sheila Kuehl (who authored the legislation that became Section 425.17(b)) and Oakland attorney James Wheaton (who was involved in the drafting of the legislation).