Vargas v. City of Salinas
Full Opinion (html_with_citations)
Opinion
Plaintiffsâproponents and supporters of a local ballot measure that proposed the repeal of a utility users tax imposed by the City of Salinasâfiled this lawsuit against the City of Salinas (the City) challenging the validity of a number of actions taken by the City relating to the ballot measure. In Stanson v. Mott (1976) 17 Cal.3d 206 [130 Cal.Rptr. 697, 551 P.2d 1] (Stanson), we explained that because of potential constitutional questions that may be presented by a public entityâs expenditure of public funds in connection with a ballot measure that is to be voted upon in an upcoming election, there is a need to distinguish between (1) âcampaignâ materials and activities that presumptively may not be paid for by public funds, and (2) âinformationalâ material that ordinarily may be financed by public expenditures. We noted in Stanson that although there are some communications or activities that clearly fall within one of these categories or the other, under some circumstances it may be necessary to examine the âstyle, tenor and timingâ of a communication (id. at p. 222 & fn. 8) in order to determine whether it should be characterized as permissible or impermissible.
We granted review primarily to consider whether the Court of Appeal correctly identified the legal standard applicable to publicly funded, election-related communications made by a municipality, and further to determine whether, under the appropriate standard, plaintiffsâ legal challenge to the Cityâs expenditure of public funds in this case should have been permitted to go forward.
For the reasons discussed below, we conclude that the statute relied upon by the Court of Appeal was not intended, and should not be interpreted, to displace the analysis and standard set forth in our decision in Stanson, supra, 17 Cal.3d 206. We further conclude that a municipalityâs expenditure of public funds for materials or activities that reasonably are characterized as campaign materials or activitiesâincluding, for example, bumper stickers, mass media advertisement spots, billboards, door-to-door canvassing, or the likeâis not authorized by the statute in question, even when the message delivered through such means does not meet the express-advocacy standard. At the same time, we also conclude that the challenged actions of the City,
I
A
The controversy that gave rise to this litigation relates to a local initiative measureâultimately designated Measure Oâthat was drafted and circulated in 2001 by residents of the City. Measure O proposed the adoption of an ordinance that immediately would cut in half, and over a few years totally repeal, the Cityâs Utility Users Tax (sometimes referred to as UUT). The UUT was a local tax that had been in place for more than 30 years and that, at the time the measure was presented to the voters, generated approximately $8 million in annual revenue for the City, a figure that represented 13 percent of the Cityâs general fund budget.
After gathering signatures, the proponents submitted the initiative petition to the county registrar of voters on September 24, 2001, and on October 3, 2001, that official certified it had been signed by the number of voters required to qualify the initiative for the ballot. Under the provisions of Elections Code section 9215, when a local initiative petition obtains the requisite number of signatures, the local legislative body must take one of three actions: (1) adopt the proposed ordinance itself without alteration, (2) submit the proposed ordinance without alteration to the voters, at either the next regularly scheduled municipal election or at a special election, or (3) direct the municipalityâs staff to prepare a reportâas authorized by Elections Code section 9212âon the impact that the proposed ordinance likely would have on the municipality.
On October 9, 2001, the Salinas City Council adopted the third of these alternatives. Under the direction of the city manager, each of the municipal departments conducted an initial study of the measureâs potential impact on the respective department, and on November 6, 2001, the city manager
In the following months, each of the municipal departments reviewed its operations and prepared detailed reports and financial analyses discussing the reduction or elimination of specific services or programs that could be implemented in the event Measure O were adopted.
Pursuant to its usual schedule, the city council considered the proposed annual city budget for the 2002-2003 fiscal year at its June 11, 2002 meeting. Because it was not known at that time whether Measure O would be adopted at the upcoming November 2002 election, the city manager submitted a proposed budget that was based on the assumption that the City would continue to obtain revenue from the UUT at its current rate throughout the 2002-2003 fiscal year. At that meeting, the city council voted to approve and adopt the proposed budget for the 2002-2003 fiscal year. Although the budget adopted by the city council assumed the Cityâs retention of the UUT, the material accompanying the proposed budget briefly noted program and service reductions that could be required were the UUT to be repealed. The city manager stated at the June 11 meeting that he anticipated a detailed alternative budgetâsetting forth program and service reductions that could be implemented should the UUT repeal be adoptedâsoon would be presented to the city council so that this body could consider such an eventuality at its July 16, 2002 meeting.
Two weeks later, in a lengthy report dated June 24, 2002, the city manager specifically identified the individual program and service reductions recommended by the city staff should Measure O be adopted. The report discussed in detail the financial implications of the passage of that measure, including recommended program and service reductions in each city department.
The report formally was presented to the city council at its July 16, 2002 meeting, at which numerous city residentsâsome supporters of Measure O, and some opponentsâexpressed their opinions regarding the staff recommendations and the overall impact of Measure O. After an extensive discussion at the July 16 meeting, the city council voted formally to accept the city staffâs recommendations with regard to the city services and programs that would be
Thereafter, at four weekly meetings of the city council held throughout the month of August 2002, each of the city departments made an extensive slide presentation to the public describing the reductions in services and programs that would be implemented in the event UUT revenues were reduced and ultimately eliminated through the passage of Measure O.
At numerous city council meetings as well as at other venues, the proponents of Measure O sharply criticized the service and program reductions that had been recommended by city staff and adopted by the city council, contending that the anticipated reduction in city revenue could and should be dealt with through more efficient municipal operations and reductions in management positions and in employee salaries and benefits. At the August 20, 2002 city council meeting, the proponents of Measure O distributed a document that set forth their own analysis of the Cityâs financial condition and of the financial implications were Measure O to pass, and that described a number of alternative courses of action that the proponents suggested would be preferable to the service and program reductions approved by the city council in the event Measure O were to be adopted.
At the August 27, 2002 city council meeting, the proponents of that measure formally presented their alternative proposals to the city council and to the public. At that same meeting, the city staff presented a report critically analyzing the financial assumptions underlying the position and alternatives submitted by the proponents.
Pursuant to the Cityâs normal practice, detailed minutes of each city council meetingâsummarizing the statements of each speakerâwere posted on the official Web site maintained by the City. In addition to these minutes, the City posted on its official Web site (1) the lengthy June 24, 2002 report of the city manager setting forth the city finance departmentâs analysis of the financial impact of Measure O and describing in detail the service and program reductions recommended for each department, (2) the slide presentations that had been made by each of the city departments at the August 2002 city council meetings, and (3) the city staffâs August 27 report responding to the alternative implementation plans advanced by the proponents of Measure O.
In addition to producing and making available to the public this one-page document, the City also informed the public of the city councilâs July 16, 2002 action (identifying the services and programs that would be eliminated or reduced if the UUT were repealed) through a number of articles published in the fall 2002 edition of the Cityâs regular quarterly âCity Round-upâ newsletter, a publication that was mailed to all city residents prior to October 1, 2002.
B
On October 7, 2002, shortly after the city newsletter was mailed to and received by city residents, plaintiffsâa number of Salinas residents who supported Measure Oâfiled the underlying lawsuit against the City and various city officials, contending that the City and its officials had engaged in unlawful campaign activities in utilizing public resources and funds âto prepare and distribute pamphlets, newsletters and Web site materials.â The complaint maintained that the materials in questionâcharacterized by the complaint as âcampaign materialsâââdo not provide a balanced analysis of the arguments in favor of and against Measure Oâ and improperly were intended to influence voters against Measure O. The complaint sought declaratory, injunctive, and equitable relief, as well as the recovery of the public funds alleged to have been unlawfully expended in the production and distribution of the challenged materials (which the complaint asserted to be in excess of $250,000).
Concurrently with the filing of the complaint, plaintiffs filed an ex parte application for a temporary restraining order. Defendants filed an opposition to the application. The trial court denied the requested temporary restraining order and set a hearing on plaintiffsâ request for a preliminary injunction for November 8, 2002, three days after the scheduled election. Measure O was defeated at the November 5, 2002 election. The hearing on the preliminary injunction request went forward on November 8, 2002, and at the conclusion of that hearing the trial court denied the request.
In April 2004, after the trial court had granted defendantsâ motion for judgment on the pleadings as to several counts of the original complaint and thereafter had permitted plaintiffs to file a supplemental complaint,
Plaintiffs filed an opposition to the motion to strike, including a âstatement of undisputed factsâ and three supporting declarations by proponents of Measure O and their attorney. The opposition asserted, among other matters, that the materials relating to Measure O that the City made available to the public failed to include the viewpoint and positions advanced by the proponents of Measure O, that the City had ignored offers by the proponents of Measure O to provide material supporting the proponentsâ viewpoint, and finally that the proponents of Measure O would have utilized the Cityâs Web site and the Cityâs other publications, had they been offered access to those media.
In May 2004, the trial court held a hearing on defendantsâ motion to strike and thereafter granted the motion. After the trial court denied plaintiffsâ motion for reconsideration, plaintiffs appealed from the trial courtâs order granting defendantsâ motion to strike.
C
On appeal, the Court of Appeal affirmed the judgment entered by the trial court.
Because the appeal arose from an order granting a motion to strike under section 425.16, the appellate court undertook the two-step analysis called for by prior decisions of this court, considering first whether defendants had made a threshold showing that the challenged cause of action was one arising from âprotected activity,â and second, if so, whether plaintiffs had made a prima facie showing of facts that would support a judgment in their favor if proved at trial. (See, e.g., Equilon, supra, 29 Cal.4th 53, 67; City of Cotati v. Cashman (2002) 29 Cal.4th 69, 76 [124 Cal.Rptr.2d 519, 52 P.3d 695].)
With respect to the first step, the Court of Appeal rejected plaintiffsâ claim that defendants failed to make the required threshold showing, explaining that (1) past California decisions uniformly hold that government entities and public employees may invoke the protection of the anti-SLAPP statute,
Having found that the communications of the City that gave rise to plaintiffsâ action fall within the potential protection of the anti-SLAPP statute,, the Court of Appeal went on to consider whether plaintiffs had met their burden of making a prima facie showing that they were likely to succeed on the merits. In evaluating this point, the court determined that the first matter to be addressed was the proper legal standard for evaluating whether the statements and other communications of the City challenged by plaintiffs constituted campaign materials or whether they constituted informational materials. With respect to this issue, the Court of Appeal observed: âDefendants argue for an express advocacy standard. Plaintiffs urge us to examine the materialsâ style, tenor, and timing, asserting that such a standard is compelled by Stanson[, supra, 17 Cal.3d 206].â Relying upon the language of a statutory provision enacted subsequent to the Stanson decision that explicitly prohibits a local agencyâs expenditure of funds with regard to âcommunications that expressly advocate the approval or rejection of a clearly identified ballot measureâ (Gov. Code, § 54964, subd. (b)) and upon a state regulation that defines when a communication âexpressly advocatesâ the election or defeat of a candidate or the passage or defeat of a ballot measure for purposes of campaign finance laws (Cal. Code Regs., tit. 2, § 18225, subd. (b)(2)),
II
Before reaching the question of the proper standard under which publicly funded communications relating to a pending ballot measure should be evaluated, we briefly address the threshold question whether, as a general matter, the City and its officials are entitled to invoke the protections of the motion-to-strike procedure in Californiaâs anti-SLAPP statute.
Section 425.16, subdivision (b)(1) provides: âA cause of action against a person arising from any act of that person in furtherance of the personâs 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.â As already noted, past cases analyzing the proper application of this statute have explained that âin ruling on a section 425.16 motion to strike, a court generally should engage in a two-step process: âFirst, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity. ... If the court finds such a showing has been made, it then determines whether the plaintiff has demonstrated a probability of prevailing on the claim.â â (Taus v. Loftus (2007) 40 Cal.4th 683, 703 [54 Cal.Rptr.3d 775, 151 P.3d 1185], quoting Equilon, supra, 29 Cal.4th 53, 67.)
Plaintiffs initially contend that both the Court of Appeal and the trial court erred in the first step of the required analysis, asserting that the communications challenged in this caseâthe materials on the Cityâs Web site, the one-page document, and the Cityâs newsletterâdo not constitute âprotected activityâ within the meaning of the anti-SLAPP statute. Plaintiffs contend that in view of the circumstance that the communications in question are those of a governmental entity rather than a private individual or organization, the communications cannot properly be viewed as âact[s] ... in furtherance of the personâs right of petition or free speech under the United States or
We reject plaintiffsâ contention. Whether or not the First Amendment of the federal Constitution or article I, section 2 of the California Constitution directly protects government speech in general or the types of communications of a municipality that are challenged hereâsignificant constitutional questions that we need not and do not decideâwe believe it is clear, in light of both the language and purpose of Californiaâs anti-SLAPP statute, that the statutory remedy afforded by section 425.16 extends to statements and writings of governmental entities and public officials on matters of public interest and concern that would fall within the scope of the statute if such statements were made by a private individual or entity.
As noted, plaintiffsâ argument to the contrary rests on the language of section 425.16, subdivision (b), which describes the type of cause of action that is subject to a motion to strike as â[a] cause of action . . . arising from any act . . . in furtherance of the personâs right of petition or free speech under the United States or California Constitution in connection with a public issue . . . .â (Italics added.) Plaintiffs fail to take into account, however, that section 425.16, subdivision (e) goes on to define this statutory phrase in very broad terms. Subdivision (e) provides in this regard: âAs used in this section, âact in furtherance of a personâs right of petition or free speech under the United States or California Constitution in connection with a public issueâ includes: (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
Furthermore, to the extent there may ever have been a question whether the anti-SLAPP protections of section 425.16 may be invoked by a public entity, that question clearly was laid to rest by the Legislatureâs enactment of Code of Civil Procedure section 425.18, subdivision (i), in 2005âwell after many of the Court of Appeal decisions noted above (see, ante, at p. 17) had expressly recognized the ability of public entities to bring a motion to strike under the anti-SLAPP statute. Section 425.18, subdivision (i)âa provision of the 2005 legislation dealing with so-called SLAPPback actionsâ expressly recognizes that a âSLAPPbackâ action may be âfiled by a public entity,â thereby necessarily confirming that a public entity may prevail on a special motion to strike under section 425.16. (See Code Civ. Proc., § 425.18, subd. (b)(1) [defining âSLAPPbackâ as âany cause of action for malicious prosecution or abuse of process arising from the filing or maintenance of a prior cause of action that has been dismissed pursuant to a special motion to strike under Section 425.16â].)
In addition to the language of the relevant statutory provisions, the purpose of the anti-SLAPP statute plainly supports an interpretation that protects statements by governmental entities or public officials as well as statements by private individuals. In setting forth the purpose of the statute and the Legislatureâs intent guiding its interpretation, section 425.16, subdivision (a) states in relevant part: âThe Legislature finds and declares that it is in the public interest to encourage continued participation in matters of public significance, and that this participation should not be chilled through abuse of the judicial process. To this end, this section shall be construed broadly.â (Italics added.) Moreover, the legislative history indicates that the Legislatureâs concern regarding the potential chilling effect that abusive
Having determined that a lawsuit against a public entity that arises from its statements or actions is potentially subject to the anti-SLAPP statute, we conclude there can be no question but that the publications and activities of the City that are at issue in the present case constitute âprotected activityâ within the meaning of the first step of the anti-SLAPP analysis. The published material in question encompasses statements made and actions taken in local legislative proceedings before the city council, and other communications describing the city councilâs potential reduction or elimination of public services and programsâstatements that unquestionably concern public issues and issues of public interest.
Accordingly, we conclude that the lower courts properly found that defendants satisfied their threshold burden of demonstrating that all of the causes of action here at issue arise from activity protected under the anti-SLAPP statute, and that plaintiffs then bore the burden, under the second step of the anti-SLAPP analysis, of establishing a prima facie case on the merits.
III
As we explained in Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 821 [123 Cal.Rptr.2d 19, 50 P.3d 733]: âIn order to establish a
In the present case, plaintiffsâ action is based on the contention that the City acted unlawfully in expending public funds with regard to (1) the materials relating to Measure O posted on the Cityâs official Web site, (2) the one-page summary listing the programs and services that the city council had voted to reduce or eliminate should Measure O be adopted, and (3) the city newsletter mailed to city residents on or before October 1, 2002. The question presented, at this second step of the anti-SLAPP analysis, is whether plaintiffs established a prima facie case that any of the challenged expenditures were unlawful.
In analyzing plaintiffsâ claim, we believe it is useful to begin with several statutory provisions that explicitly delineate a number of actions that a local entity may take in response to the certification and qualification of a local ballot measure.
Elections Code section 9215 provides in relevant part that when a local initiative petition, proposing the adoption of an ordinance, qualifies for the ballot, âthe legislative body shall do one of the following: [][] (a) Adopt the ordinance, without alteration, at the regular meeting at which the certification of the petition is presented ....[][] (b) Submit the ordinance, without
Elections Code section 9212, subdivision (a), in turn, provides that before taking action under section 9215, âthe legislative body may refer the proposed initiative measure to any city agency or agencies for a report on any or all of the following: [f] (1) Its fiscal impact. [][]... (4) Its impact on funding for infrastructure of all types, including, but not limited to, transportation, schools, parks, and open space. . . . [f] (5) Its impact on the communityâs ability to attract and retain business and employment, [f] . . . [][] (8) Any other matters the legislative body requests to be in die report.â (Elec. Code, § 9212, subd. (a).)
Here, the City followed these statutes and obtained an initial report from the city agencies on the potential impact of Measure O. After considering the report, the city council decided not to adopt the proposed ordinance itself but instead to submit the matter for a vote of the electorate at the next regular municipal election. Plaintiffs do not contend that the Cityâs actions in this regard were improper.
After the initiative measure was placed on the November 2002 ballot, city agencies, at the direction of the city council, continued to study the potential impact of the measure on city services. Ultimately, in a lengthy report to the city council, the city manager identified the particular reductions and eliminations of city services that each agency recommended be implemented should Measure O be adopted. The city council, after considering the report and receiving comment from supporters and opponents of Measure O at a public meeting, formally voted to adopt the recommended reductions and eliminations of city services that would take effect should Measure O be adopted.
Although plaintiffs take issue with the scope and nature of the recommended cuts approved by the city councilâmaintaining that efficiencies were available in other areas and that the City chose to single out popular services and programs in order to influence the upcoming vote on the initiative measure and increase the likelihood that the initiative measure would be defeatedâplaintiffsâ complaint does not contend that the city council lacked authority to adopt a legislative resolution that specifically identified the particular services and programs that would be reduced or eliminated if Measure O were approved. In any event, even had plaintiffs advanced such an argument, we have no doubt that the city council, pursuant to its general
Although plaintiffs do not directly challenge the Cityâs adoption of a specific plan of action that would take effect in the event the proposed initiative were to be adopted, they maintain that the City acted improperly in utilizing public resources and funds to prepare and distribute âpamphlets, newsletters and Web site materialsââdenominated âcampaign materialsâ in the complaintâinforming the public of the proposed service cuts that would be implemented if Measure O were approved by the voters. The complaint objected that the materials in question âd[id] not provide a balanced analysis of the arguments in favor of and against Measure O.â In advancing their claim, plaintiffs relied upon Stanson, supra, 17 Cal.3d 206, arguing that the
As noted, the Court of Appeal did not resolve the question whether the communications in question constituted campaign or informational material under the standard set forth in Stanson, supra, 17 Cal.3d 206, because the appellate court determined that the Stanson decision was not controlling. Instead, that court found that the Cityâs challenged communicationsâ regardless of their âstyle, tenor and timingââwould be impermissible only if those communications âexpressly advocate[d]â the approval or rejection of Measure O. Because it found that the challenged communications did not meet the express-advocacy standard, the Court of Appeal held that plaintiffsâ claim lacked merit. In light of the appellate courtâs analysis, we turn first to the question whether the statutory provision relied upon by the Court of Appeal properly should be interpreted as modifying and displacing the standard set forth in Stanson. We begin with a discussion of our decision in Stanson.
In Stanson, supra, 17 Cal.3d 206, this court addressed a lawsuit alleging that the Director of Californiaâs Department of Parks and Recreation acted unlawfully in authorizing the department to expend more than $5,000 of public funds to promote the passage of a park bond measure that was before the voters in the June 1974 election. In analyzing the claim in Stanson, we initially looked to an earlier decision of this courtâMines v. Del Valle (1927) 201 Cal. 273 [257 P. 530]âthat considered whether a municipally owned public utility acted improperly in expending $12,000 on banners, automobile windshield stickers, circulars, newspaper advertisements and the like to promote the passage of a municipal bond measure. The court in Mines, observing that the electors of the city who opposed the bond issue âhad an equal right to and interest in the [public] funds ... as those who favored said bonds,â went on to hold that the action of the utilityâs board of commissioners in authorizing those expenditures âcannot be sustained unless the power to do so is given to said board in clear and unmistakable language.â (201 Cal. at p. 287, italics added.) Because the boardâs general authority to extend utility service did not meet this rigorous standard of specificity, the court in Mines concluded that the challenged expenditures were improper.
In Stanson, after observing that a significant number of out-of-state cases decided in the years since the Mines decision uniformly had confirmed the validity of that decision (Stanson, supra, 17 Cal.3d at pp. 216-217), and further explaining that, as a constitutional matter, âthe use of the public
After determining that the defendant state official in that case âcould not properly authorize the department to spend public funds to campaign for the passage of the bond issueâ (Stanson, supra, 17 Cal.3d 206, 220, italics added), we went on to explain that â[i]t does not necessarily follow . . . that the department was without power to incur any expense at all in connection with tire bond election. In Citizens to Protect Pub. Funds v. Board of Education [(1953) 13 N.J. 172,] 98 A.2d 673 [a decision of the New Jersey Supreme Court, quoted and discussed approvingly in the Stanson decision], the court, while condemning the school boardâs use of public funds to advocate only one side of an election issue, at the same time emphatically affirmed the school boardâs implicit power to make âreasonable expenditures for the purpose of giving voters relevant facts to aid them in reaching an informed judgment when voting upon the proposal.â [Citation.]â (Ibid.) Agreeing with this analysis, the court in Stanson concluded that although the applicable statutory provision did not authorize the department âto spend funds for campaign purposesâ (id. at pp. 220-221, italics added), the statute did afford the department authority âto spend funds, budgeted for informational purposes, to provide the public with a âfair presentationâ of relevant information relating to a park bond issue on which the agency has laboredâ (id. at p. 221, italics added).
Acknowledging in Stanson that in some circumstances â[problems may arise ... in attempting to distinguish improper âcampaignâ expenditures from proper âinformationalâ activitiesâ (Stanson, supra, 17 Cal.3d 206, 221), we explained that â[w]ith respect to some activities, the distinction is rather clear; thus, the use of public fluids to purchase such items as bumper stickers, posters, advertising âfloats,â or television and radio âspotsâ unquestionably constitutes improper campaign activity [citations], as does the dissemination, at pĂźblic expense, of campaign literature prepared by private proponents or opponents of a ballot measure. [Citations.] On the other hand, it is generally accepted that a public agency pursues a proper âinformationalâ role when it
After so explaining that in many instances the distinction between campaign activities and informational activities is quite evident, we also recognized in Stanson that at times âthe line between unauthorized campaign expenditures and authorized informational activities is not so clear. Thus, while past cases indicate that public agencies may generally publish a âfair presentation of factsâ relevant to an election matter, in a number of instances publicly financed brochures or newspaper advertisements which have purported to contain only relevant factual information, and which have refrained from exhorting voters to âVote Yes,â have nevertheless been found to constitute improper campaign literature. (See 35 Ops.Cal.Atty.Gen. 112 (1960); 51 Ops.Cal.Atty.Gen. 190 (1968); cf. 42 Ops.Cal.Atty.Gen. 25, 27 (1964).) In such cases, the determination of the propriety or impropriety of the expenditure depends upon a careful consideration of such factors as the style, tenor and timing of the publication;[
Finally, applying the campaign/informational dichotomy to the facts before it, the court in Stanson held that because the appeal was from a judgment entered after the sustaining of a demurrer to the complaint, âwe have no occasion to determine whether the departmentâs actual expenditures constituted improper âcampaignâ expenditures or authorized âinformationalâ expenses. The complaint alleges, inter alia, that defendant Mott authorized the dissemination of agency publications âwhich were [not] merely . . . informative but . . . promotionalâ and sanctioned the distribution, at public expense, of promotional materials written by a private organization formed to promote the passage of the bond act. If plaintiff can establish these allegations at trial, he will have demonstrated that defendant did indeed authorize the improper expenditure of public funds . . . .â (Stanson, supra, 17 Cal.3d 206, 222-223.)
Our court subsequently had occasion to apply the principles set forth in Stanson, supra, 17 Cal.3d 206, in our decision in Keller v. State Bar (1989)
While observing that the State Bar presidentâs speech itself âcost the State Bar nothingâ (Keller, supra, 47 Cal.3d 1152, 1171), the court in Keller went on to explain that the legal challenge before it concerned the State Barâs expenditure of public funds in subsequently distributing an âeducational packetâ that included the speech along with other items. The court in Keller described the distributed material as follows: âThe educational packet, sent to local bar associations and other interested groups, contained [the State Bar presidentâs] speech, a sample speech entitled âThe Case for an Independent Judiciaryâ (a quite restrained and philosophical exposition), sample letters to organizations which might provide a speech forum, and a sample press release. It also included fact sheets on crime and conviction rates, judicial selection and retention, and judicial performance and removal criteria. It concluded with quotations concerning judicial independence from Hamilton, Madison, Jefferson, and others.â (Id. at pp. 1171-1172.)
In analyzing the validity of the State Barâs use of public funds to prepare and distribute this educational packet, the court in Keller explained: âThe bar may properly act to promote the independence of the judiciary; such conduct falls clearly within its statutory charge to advance the science of jurisprudence and improve the administration of justice. In the present case, however, the nature and timing of the 1982 publication (see Stanson v. Mott, supra, 17 Cal.3d 206, 222), indicate that it is a form of prohibited election campaigning. The material was distributed approximately one month before an election in which six justices of this court came before the voters for confirmation. It is the kind of material which a state election committee distributes to local
Accordingly, the decision in Keller, supra, 47 Cal.3d 1152, explicitly confirmed and reiterated this courtâs conclusion in Stanson, supra, 17 Cal.3d 206, that even when a publication or communication imparts useful information and does not expressly advocate a vote for or against a specific candidate or ballot measure, the expenditure of public funds to prepare or distribute the communication is improper when the âstyle, tenor and timingâ (Stanson, supra, 17 Cal.3d at p. 222) of the publication demonstrates that the communication constitutes traditional campaign activity.
B
As already noted, in the present case the Court of Appeal determined that there was no need to apply the principles set forth in Stanson, supra, 17 Cal.3d 206, and reiterated in Keller, supra, 47 Cal.3d 1152, in deciding whether the communications and activities of the City challenged in this case constituted campaign or informational materials. The appellate court concluded instead that the validity of the Cityâs expenditures turned on the question whether the challenged materials âexpressly advocatedâ the approval or rejection of Measure O. In reaching this conclusion, the Court of Appeal relied primarily upon the provisions of Government Code section 54964 (section 54964), a statutory provision enacted in 2000. As we shall explain, we do not agree with the Court of Appealâs view that section 54964 was intended (or properly may be interpreted) to displace the governing principles and standard set forth in Stanson.
Section 54964, subdivision (a), provides that â[a]n officer, employee, or consultant of a local agency[
In our view, the Court of Appealâs reading of section 54964 is fundamentally flawed, because the statute does not affirmatively authorize (or permit) a municipality or other local agency to expend public funds on a communication that does not expressly advocate the approval or rejection of a ballot measure, but instead simply prohibits a municipalityâs use of public funds for communications that expressly advocate such a position. As indicated by the above quotation of section 54964, subdivision (a), the statute provides that â[a]n officer [or] employee ... of a local agency may not expend or authorize the expenditure of any . . . funds of the local agency to support or oppose the approval or rejection of a ballot measure . . . .â (Italics added.) Nothing in section 54964 purports to grant authority to a local agency or its officers or employees to employ public funds to pay for communications or activities that constitute campaign activities under Stanson, supra, 17 Cal.3d 206, so long as such communications do not âexpressly advocateâ the approval or rejection of a ballot measure or candidate.
As we have seen, in Stanson, supra, 17 Cal.3d 206, this court, after explaining that a âserious constitutional question . . . would be posed by an explicit legislative authorization of the use of public funds for partisan campaigningâ (id. at p. 219, italics added), reaffirmed our earlier holding in Mines v. Del Valle, supra, 201 Cal. 273, that the use of public funds for campaign activities or materials unquestionably is impermissible in the absence of â âclear and unmistakable languageâ â authorizing such expenditures. (Stanson, at pp. 219-220.) Section 54964 does not clearly and unmistakably authorize local agencies to use public funds for campaign materials or activities so long as those materials or activities avoid using language that expressly advocates approval or rejection of a ballot measure. Instead, the provision prohibits the expenditure of public funds for communications that contain such express advocacy, even if such expenditures have been affirmatively authorized, clearly and unmistakably, by a local agency itself. Although section 54964, subdivision (c) creates an exception to the statutory prohibition for communications that satisfy the two conditions set forth in that subdivision, subdivision (c) (like the other provisions of § 54964) does not
Furthermore, the legislative history of section 54964 does not support the Court of Appealâs conclusion that this statutory provision was intended to modify or displace the principles or standard set forth in our decision in Stanson, supra, 17 Cal.3d 206. A committee reportâanalyzing a version of the bill that included the relevant provisions that ultimately were enacted into lawâstates in relevant part: âThe amended bill is similar to decisions of the California courts that limit the expenditures of public agency funds for political purposes. [][] As a general rule, a public agency cannot spend public funds to urge the voters to vote for or against a ballot measure, unless the expenditure is explicitly authorized by law (Stanson v. Mott (1976) 17 C.3d 206 [130 Cal.Rptr. 697, 551 P.2d 1]). In the absence of clear and explicit legislative authorization, a public agency may not expend public funds to promote a partisan position in an election campaign (Stanson v. Mott), [f] A public agency, however, can use public funds to provide educational information to the public about a ballot measure. Frequently, the line between unauthorized campaign expenditures and authorized informational material is not always clear. Public agencies may generally publish a âfair representation of factsâ relevant to an election matter, but the determination of the propriety of the expenditure may turn upon such factors as the style, tenor, and timing of the publication; no hard and fast rule governs every case (73 Ops.[Cal.]Atty.Gen. 255 (1990)). [Âś] . . . [Âś] The committee amendments prohibit an expenditure of local agency funds to advocate support or opposition of a certified ballot measure or a qualified candidate appearing on the local agency ballot. The amendments permit the expenditure of local agency funds to provide fair and impartial information to the public about the possible effects of a ballot measure when the informational activity is authorized under law. This language generally tracks the limitations imposed by state law on the use of state resources by state agencies, and closely parallels similar existing limitations on the use of school district and community college district resources.â (Assem. Com. on Elections, Reapportionment and Const. Amends., 3d reading analysis of Assem. Bill No. 2078 (1999-2000 Reg. Sess.) as amended May 15, 2000, pp. 2-3, italics added.) Nothing in this or any other committee analysis or report related to the legislation indicates that the statute was intended to depart from or modify the Stanson decision.
In arguing in favor of the Court of Appealâs conclusion that section 54964 should be interpreted to substitute the âexpress advocacyâ standard for the standard set forth in Stanson, supra, 17 Cal.3d 206, the City notes that at one point in the billâs progression through the Legislature the definition of âexpenditureâ in subdivision (b)(3) was revised to refer to a payment of funds for âcommunications that, either expressly or by implication, advocate the
In addition to the language and legislative history of section 54964, the constitutional concerns identified by this court in Stanson, supra, 17 Cal.3d 206, also militate against the Court of Appealâs interpretation of the statute. In Stanson, we noted that one of the principal dangers identified by our nationâs founders was that âthe holders of governmental authority would use official power improperly to perpetuate themselves, or their Âżlies, in office . . .â (id. at p. 217), and we observed that âthe selective use of public funds in election campaigns . . . raises the specter of just such an improper distortion of the democratic electoral process.â (Ibid.) Whatever virtue the âexpress advocacyâ standard might have in the context of the regulation of campaign contributions to and expenditures by candidates for public office,
The City, and amici curiae supporting the City, contend nonetheless that the âexpress advocacyâ standard is preferable to the standard adopted in Stanson, supra, 17 Cal.3d 206, asserting that because our opinion states that in some circumstances âthe style, tenor and timingâ of a communication must be considered in determining whether the communication is properly treated as campaign or informational activity (see id. at p. 222), the Stanson standard is unduly vague and imposes an unconstitutional chilling effect on a public entityâs right to provide useful information to the voters. Putting aside the question whether a public entity possesses a constitutional right (under either the federal or the state Constitution) to provide information relating to a pending ballot measureâan issue that is a prerequisite to the Cityâs unconstitutional-chilling-effect argument but one that we need not and do not decideâwe reject the contention that the line drawn in Stanson between the use of public funds for campaign activities and the use of such funds for informational material is unduly or impermissibly vague. As we have seen, the Stanson decision explicitly identified a number of materials and activities that unquestionably constitute campaign activities (without any need to consider their âstyle, tenor and timingâ)âfor example, the use of public funds to purchase bumper stickers, posters, advertising âfloats,â or television and radio âspotsââand also identified a number of activities that are clearly informationalâfor example, providing a fair presentation of facts in response to a citizenâs request for information. (Stanson, at p. 221.) The circumstance that in some instances it may be necessary to consider the style, tenor, and timing of a communication or activity to determine whether, from an objective standpoint, the communication or activity realistically constitutes
Accordingly, we conclude the campaign activity/informational material dichotomy set forth in Stanson, supra, 17 Cal.3d 206, 220-223, remains the appropriate standard for distinguishing the type of activities that presumptively may not be paid for by public funds, from those activities that presumptively may be financed from public funds. The Court of Appeal erred in relying solely upon the circumstance that the challenged communications of the City did not expressly advocate the approval or rejection of Measure O, and in failing to evaluate the Cityâs activities under the Stanson standard.
C
As discussed above, contrary to the conclusion of the Court of Appeal, section 54964 does not affirmatively authorize a local agency to expend funds for communications relating to a ballot measure, but instead simply prohibits the expenditure of public funds under some circumstances. Consequently, the Cityâs expenditure of funds for the communications and activities here at issue must rest upon some other authority.
From the record before us, it appears that the expenditures in question were made pursuant to the general appropriations in the Cityâs regular annual budget pertaining to the maintenance of the Cityâs Web site, the publication of the Cityâs regular quarterly newsletter, and the ordinary provision of information to the public regarding the Cityâs operations. The record does not indicate that the city council approved any special measure that purported, clearly and unmistakably, to grant the City explicit authority to expend public funds for campaign activities relating to Measure O. Accordingly, as was the case in Stanson, supra, 17 Cal.3d 206, 219-223, the question whether the Cityâs expenditures that are challenged in this case were or were not validly
As discussed above, plaintiffs challenge three groups of communications by the City that relate to Measure O: (1) the material posted on the Cityâs official Web site, (2) the one-page document made available to the public at the city clerkâs office and in public libraries, and (3) the municipal newsletter mailed to all city residents on or before October 1, 2002. The content of all of these communications relates to the reduction and elimination of city services, programs, and facilities that the city council voted to implement should Measure O be approved at the November 2002 election. None of these materials or publications constitute the kind of typical campaign materials or activities that we identified in Stanson, supra, 17 Cal.3d 206, 221 (âbumper stickers, posters, advertising âfloats,â or television and radio âspotsâ . . . [or] the dissemination, at public expense, of campaign literature prepared by private proponents or opponents of a ballot measureâ), but the items listed in Stanson do not exhaust the category of potential campaign materials or activities. Plaintiffs contend that when the âstyle, tenor and timingâ of the challenged communications are taken into account, the communications should be viewed as improper campaign materials rather than as permissible informational materials. Plaintiffsâ principal argument in this regard is that the communications in question failed to include the views expressed by the proponents of Measure O in opposition to the action taken by the city councilâviews that challenged the necessity and wisdom of the proposed cutbacks in city services. Plaintiffs contend that by failing to set forth these competing views, the communications in question improperly âtook sidesâ on the ballot measure and should be viewed as improper campaign activity.
In advancing this argument, plaintiffs appear to rely in significant part on a passage in Stanson, supra, 17 Cal.3d 206, that cautioned against the governmentâs âtaking sidesâ in an election contest The opinion in Stanson stated in this regard: âA fundamental precept of this nationâs democratic electoral process is that the government may not âtake sidesâ in election contests or bestow an unfair advantage on one of several competing factions. A principal danger feared by our countryâs founders lay in the possibility that the holders of governmental authority would use official power improperly to perpetuate themselves, or their allies, in office [citations); the selective use of public funds in election campaigns, of course, raises the specter of just such an improper distortion of the democratic electoral process.â (17 Cal.3d at p. 217.)
Indeed, upon reflection, it is apparent that in many circumstances a public entity inevitably will âtake sidesâ on a ballot measure and not be âneutralâ with respect to its adoption. For example, when a city council or county board of supervisors votes to place a bond or tax measure before the voters, it generally is quite apparent that the governmental entity supports the measure and believes it should be adopted by the electorate. Similarly, when a city council is presented with a local initiative petition that has been signed by the requisite number of voters and declines to enact the measure into law itself but instead places the matter on the ballot, in at least most cases a reasonable observer would infer that a majority of the council does not support adoption of the measure. Thus, the mere circumstance that a public entity may be understood to have an opinion or position regarding the merits of a ballot measure is not improper. (See also, e.g., Elec. Code, § 9282 [authorizing local legislative body to author a ballot pamphlet argument for or against any city measure].)
The potential danger to the democratic electoral process to which our court adverted in Stanson, supra, 17 Cal.3d 206, 217, is not presented when a public entity simply informs the public of its opinion on the merits of a pending ballot measure or of the impact on the entity that passage or defeat of the measure is likely to have. Rather, the threat to the fairness of the electoral process to which Stanson referred arises when a public entity or
In the present case, the city council, faced with the possibility of a substantial reduction in revenue in the middle of the 2002-2003 fiscal year should Measure O be approved by the voters at the November 2002 election, had the authority to decide, in advance of the election, which services would be cut should the measure be adopted, and then to inform the Cityâs residents of the councilâs decision. In posting on the Cityâs Web site the detailed minutes of all the city council meetings relating to the councilâs action, along with the detailed and analytical reports prepared by the various municipal departments and presented by department officials at city council meetings, the City engaged in permissible informational rather than campaign activity, simply making this material available to members of the public who chose to visit the Cityâs Web site. Because the proponents of Measure O spoke and made presentations at a number of city council meetings, summaries of the proponentsâ positions were included in the minutes of those meetings, were posted on the Web site, and thus were available to persons who visited the Web site, but the City had no obligation to provide the proponents of Measure O with special access to enable them to post material of their own choosing on the Cityâs official Web site. The declarations submitted in the trial court establish that this Web site is not a public forum on which the City permits members of the public to freely post items or exchange views; the City retains the authority to decide what material is posted on its official Web site.
Similarly, the City did not engage in campaign activity in producing the one-page document listing the service and program reductions that the city council had voted to implement should Measure O be adopted (see appen. A), or in making copies of the document available to the public at the city clerkâs
Finally, we also conclude the City did not engage in impermissible campaign activity by mailing to city residents the fall 2002 âCity Round-upâ newsletter containing a number of articles describing the proposed reductions in city services that the city council had voted to implement, should-Measure O be adopted. (See appen. B.) Although under some circumstances the mailing of material relating to a ballot measure to a large number of potential voters shortly before an upcoming election unquestionably would constitute campaign activity that may not properly be paid for by public funds, a number of factors support the conclusion that the Cityâs mailing of the newsletter here at issue constituted informational rather than campaign activity. . â˘
First, it is significant that this particular newsletter was a regular edition of the Cityâs quarterly newsletter that as a general practice was mailed to all city residents, rather than a special edition created and sent to would-be voters, specifically because of the upcoming election regarding Measure O. In this respect, the newsletter in question is clearly distinguishable , from the special edition newsletter that was before the United States Supreme Court in FEC v. Massachusetts Citizens for Life, Inc. (1986) 479 U.S. 238, 250-251 [93 L.Ed.2d 539, 107 S.Ct. 616] (Massachusetts Citizens for Life).
Second, the city councilâs July 16, 2002 resolutionâidentifying a significant number of current city services and programs that would be reduced or eliminated, should Measure O be adoptedâquite clearly was an obvious and natural subject to be reported upon in a cityâs regular quarterly newsletter, and the style and tenor of the publication in question were entirely consistent
Further, the article setting forth answers to frequently asked questions about the utility users tax provided city residents with important information about the taxâincluding the annual cost of the tax to the average residentâin an objective and nonpartisan manner. The content of this newsletter clearly distinguishes it from the kind of blatantly partisan, publicly financed agency newsletter that the New York Court of Appeals held improper in Schulz v. State of New York (1995) 86 N.Y.2d 225 [630 N.Y.S.2d 978, 654 N.E.2d 1226] (Schulz),
Furthermore, we emphasize that the principles that we have applied in this setting are equally applicable without regard to the content of whatever particular ballot measure may be before the votersâwhether it be a tax-cutting proposal such as that involved in this case, a âslow-growthâ zoning measure restricting the pace of development, a school bond issue providing additional revenue for education, or any other of the diverse local ballot measures that have been considered in California municipalities in recent years. (See, e.g., Cal. Elections Data Archive, Cal. County, City and School District Election Outcomes: 2004 Elections: City Offices and Ballot Measures, City Report, table 1.2, pp. 21-43 <http://www.csus.edu/isr/isr3.html> [as of Apr. 20, 2009].) In any of these contexts, a municipalityâs expenditure of public funds must be consistent with the standard set forth in Stanson, supra, 17 Cal.3d 206.
In the present case, we conclude, on the basis of the facts established by the materials submitted in support of and in opposition to the motion to strike, that all of the activities of the City that are challenged by plaintiffs constitute permissible informational activitiesâand not inappropriate campaign activities.
D
For the reasons discussed above, we conclude that the City and the other defendants established that the communications that gave rise to plaintiffsâ action fall within the scope of the anti-SLAPP statute, and that plaintiffs failed to meet their resultant burden of establishing a prima facie case that defendantsâ actions were unlawful. Thus, the trial court properly granted defendantsâ motion to strike plaintiffsâ action under the anti-SLAPP statute.
As explained above, although we conclude that the Court of Appeal applied an incorrect standard in evaluating the validity of the Cityâs conduct, we nonetheless conclude that the appellate court reached the correct result in upholding the trial courtâs order granting defendantsâ motion to strike the supplemental complaint. Accordingly, the judgment of the Court of Appeal is affirmed.
Kennard, J., Baxter, J., Werdegar, J., Chin, J., Moreno, J., and Corrigan, J., concurred.
SLAPP is an acronym for âstrategic lawsuit against public participation.â (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 57 [124 Cal.Rptr.2d 507, 52 P.3d 685] (Equilon).) In 1992, the Legislature, finding there had been âa disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievancesâ (Code Civ. Proc., §425.16, subd. (a)), enacted the motion-to-strike procedure of Code of Civil Procedure section 425.16 to provide a remedy against such lawsuits. (Hereafter, all references to section 425.16 or its subdivisions are to this section of the Code of Civil Procedure.)
Measure O proposed to reduce the UUT from 6 percent to 3 percent upon passage of the initiative, to further reduce the tax to 1 percent on January 1, 2004, and to repeal it entirely on January 1, 2005.
A copy of the English version of the one-page document is set forth in appendix A.
Although a declaration of one of the plaintiffs filed early in the litigation in support of a request for a temporary restraining order asserted that â[i]t is apparent that [the newsletter in question] is not the usual quarterly issue of the newsletter because the issue and year, which are stamped in the upper comer of the regular quarterly newsletter is absent,â the city manager immediately filed a responsive declaration stating explicitly that â[c]ontrary to the allegations by the Plaintiffs, the City Round-Up Newsletter was not a special issue.â In a declaration filed in support of the motion to strike the complaint under section 425.16, the city manager reiterated that the newsletter in question was â[t]he City of Salinasâ Fall 2002 edition of the âRound-Upâ Newsletter, Volume 3.â In their opposition to the motion to strike, plaintiffs did not contest the city managerâs description of the newsletter as a regular quarterly issue of the Cityâs newsletter.
A copy of the newsletter is set forth in appendix B.
In December 2003, plaintiffs sought permission to amend their complaint, noting that the City recently had proposed the enactment of a new special tax (Measure P) that would be placed before the voters of Salinas in March 2004, and urging the court to presume that the City would engage in improper campaign activities with respect to Measure P. Following a hearing in January 2004, die trial court permitted plaintiffs to supplement their complaint, and in early March 2004 plaintiffs filed a supplemental complaint that reiterated plaintiffsâ challenge to the Cityâs actions with regard to Measure O, and additionally alleged, on information and belief, that the City was âpreparing campaign material to disseminate to
In its subsequent motion to strike the complaint, filed in April 2004, the City noted that, with respect to Measure P, plaintiffs had not identified any conduct or documents supporting the contention that the City illegally spent funds to campaign for Measure P. Plaintiffsâ opposition to the motion to strike failed to challenge any activity taken by the City with regard to Measure P. Accordingly, at this stage of the proceeding, the only actions of the City that are challenged by plaintiffs are those taken by the City with regard to Measure O.
The regulation in question provides in relevant part: âA communication âexpressly advocatesâ the nomination, election or defeat of a candidate or the qualification, passage or defeat of a measure if it contains express words of advocacy such as âvote for,â âelect,â âsupport,â âcast your ballot,â âvote against,â âdefeat,â âreject,â âsign petitions forâ or otherwise refers to a clearly identified candidate or measure so that the communication, taken as a whole, unambiguously urges a particular result in an election.â (Cal. Code Regs., tit. 2, § 18225, subd. (b)(2); see also Federal Election Comân v. Furgatch (9th Cir. 1987) 807 F.2d 857, 860-864.)
The Court of Appeal also rejected plaintiffsâ related argument that the Cityâs official Web site and newsletter constituted âpublic forumsâ from which the proponents of Measure O had been improperly excluded in violation of their free speech rights. The court held that because the City had not permitted private individuals or groups to post material on its Web site or to
Section 425.16 was first enacted in 1992. In 1997, in response to several Court of Appeal decisions that had narrowly construed the scope of the statute, the Legislature amended the measure to clarify its intent that the provisions of the statute are to be interpreted broadly. (Stats. 1997, ch. 271, §1 [amending §425.16, subd. (a)].) A legislative analysis of this amendment approvingly quoted a passage from a then recent law review article that identified as âa typical SLAPP suit scenarioâ a situation in which an abusive lawsuit is brought against both public officials and private individuals. (Assem. Com. on Judiciary, Analysis of Sen. Bill No. 1296 (1997-1998 Reg. Sess.) as amended June 23, 1997, p. 2, quoting Sills, SLAPPS: How Can the Legal System Eliminate Their Appeal? (1993) 25 Conn. L.Rev. 547 (Sills article); see also Sills article, supra, 25 Conn. L.Rev. 547, 550 [âJust as SLAPPs filed against individuals have a âchillingâ effect on their participation in government decision making, SLAPPs filed against public officials, who often serve for little or no compensation, may likely have a similarly âchillingâ effect on their willingness to participate in governmental processes.â].)
Supporters of Measure O in fact advanced this position in an argument published in the county voter information pamphlet that was sent to voters in advance of the November 2002 election. The âRebuttal to Argument Against Measure Oâ contained in the ballot pamphlet (which was signed by a number of the named plaintiffs in this action, among others) stated in part: âThe pro-tax advocates have threatened to cut servicesâbut there are other choices. Q] The problem is, the mayor and city council have refused to consider options like: [ID Reducing undisciplined spending, ending ineffective programs, and audits to expose waste [<f] Cutting top-heavy administration. Top 40 bureaucrats average cost is $148,466 each. [][] Other areas that should be trimmed: [1] Average city employee cost $87,195, over 30% more than an average county worker. Overtime averages four times as much for a city employee as for a county worker. These figures are based on general fund spending, [f] Health club/cash benefits for most city employees. [ID Several generous retirement plans, and up to 10 weeks of paid time-off for city bureaucrats, [f] Millions can be saved with these cost saving ideas, and more at: [f] www.cityofsalinas.com.â (County of Monterey, Sample Ballot & Voter Information Pamp., Gen. Elec. (Nov. 5, 2002) rebuttal to argument against Measure O, p. 27-529, original underscoring & boldface.)
The ballot pamphlet quoted in this footnote is not included in the record on appeal, but, as an official government document, is a proper subject of judicial notice. (Evid. Code, § 452, subd. (c).) Prior to oral argument, we notified the parties that the court was considering taking judicial notice of this document and afforded them an opportunity to object. (See Evid. Code, §§ 459, subd. (c), 455, subd. (a).) No objection has been raised, and we take judicial notice of the ballot pamphlet.
Two seats on the Salinas City Council, including that of the mayor, were to be filled at the November 2002 election. (See County of Monterey, Sample Ballot & Voter Information Pamp., Gen. Elec. (Nov. 5, 2002) sample ballot for City of Salinas offices, p. 27-SB724.)
In a footnote at this point, the court in Stanson reviewed the circumstances involved in one of the cited opinions of the California Attorney General. (35 Ops.Cal.Atty.Gen. 112 (1960).) In that instance, the trustees of the Madera Union High School District had placed a full-page advertisement in a general circulation newspaper, one day before a school board election. The advertisement did not expressly advocate voters to âVote Yesâ on the bond issue, but stated in large letters, âA CLASSROOM EMERGENCY EXISTS NOW AT MADERA UNION HIGH SCHOOL,â and listed a number of reasons why additional funds were needed by the school district. The Attorney Generalâs opinion concluded that, in light of the âstyle, tenor and timingâ of the advertisement, it was impermissible to expend public funds for the advertisement. (Id. at p. 114.)
âLocal agencyâ for purposes of section 54964 is defined to include, among other entities, a county, city (whether general law or chartered), city and county, and town, or any board, commission, or agency of such entities, but to exclude a county superintendent of schools, an elementary, high, or unified school district, or a community college district. (See Gov. Code, §§ 54964, subd. (b)(4), 54951.) The latter educational entities are subject to comparable restrictions under the terms of Education Code section 7054.
Section 54964 reads in full: â(a) An officer, employee, or consultant of a local agency may not expend or authorize the expenditure of any of the funds of the local agency to support or oppose the approval or rejection of a ballot measure, or the election or defeat of a candidate, by the voters.
â(b) As used in this section the following terms have the following meanings:
â(1) âBallot measureâ means an initiative, referendum, or recall measure certified to appear on a regular or special election ballot of the local agency, or other measure submitted to the voters by the governing body at a regular or special election of the local agency.
â(2) âCandidateâ means an individual who has qualified to have his or her name listed on the ballot, or who has qualified to have write-in votes on his or her behalf counted by elections officials, for nomination or election to an elective office at any regular or special primary or general election of the local agency, and includes any officeholder who is the subject of a recall election.
â(3) âExpenditureâ means a payment of local agency funds that is used for communications that expressly advocate the approval or rejection of a clearly identified ballot measure, or the election or defeat of a clearly identified candidate, by the voters. âExpenditureâ shall not include membership dues paid by the local agency to a professional association.
â(4) âLocal agencyâ has the same meaning as defined in Section 54951, but does not include a county superintendent of schools, an elementary, high, or unified school district, or a community college district.
â(c) This section does not prohibit the expenditure of local agency funds to provide information to the public about the possible effects of a ballot measure on the activities, operations, or policies of the local agency, if both of the following conditions are met:
â(1) The informational activities are not otherwise prohibited by the Constitution or laws of this state.
â(2) The information provided constitutes an accurate, fair, and impartial presentation of relevant facts to aid the voters in reaching an informed judgment regarding the ballot measure.
â(d) This section does not apply to the political activities of school officers and employees of a county superintendent of schools, an elementary, high, or unified school district, or a
For example, a âfloor alertâ letter to legislators from the Planning and Conservation Leagueâsent just prior to the vote that removed the âby implicationâ language from the pending legislationâstated in this regard: âWhile agencies are already prohibited from using public funds for campaigning (a goal with which we strongly agree), this bill goes much further. Only a court will be able to determine whether an agency âexpressly or by implicationâ advocated a ballot measure, and agencies will be told by their counsel that they should not even take a position on a ballot measure, let alone inform their voters what the measure actually does. ...[][] Later the bill allows âinformationâ dissemination, but it will be impossible for an agency to avoid the âor by implicationâ prohibition . . ., so they will simply do nothing, and default on their responsibility to inform the voters about the actual impact of the measure on their lives.â
The United States Supreme Court first articulated the âexpress advocacyâ standard in Buckley v. Valeo (1976) 424 U.S. 1, 41-44 and footnote 52 [46 L.Ed.2d 659, 96 S.Ct. 612], as an ostensible means of distinguishing advertisements that are aimed at promoting the election or defeat of a candidate, on the one hand, from âissueâ advertisements that simply express a speakerâs views on an issue, on the other. More recently, however, in McConnell v. Federal Election Commân (2003) 540 U.S. 93 [157 L.Ed.2d 491, 124 S.Ct. 619], the high court
The hypothetical message just discussed neither contains âexpress words of advocacyâ nor âunambiguously urges a particular result,â inasmuch as some voters might believe that the identified public facilities are unnecessary or that public funds would be better spent for other purposes.
In addition to the hypothetical example discussed above, the facts presented in one relatively recent out-of-state decision provide a concrete illustration of why the express-advocacy standard is inadequate to restrain a municipalityâs improper use of public funds for campaign activities.
In Dollar v. Town of Cary (2002) 153 N.C.App. 309 [569 S.E.2d 731], the plaintiff challenged the defendant town councilâs appropriation of $200,000 in public funds for a proposed campaign â âto better inform citizens about growth management issuesâ â by promoting the merits of âsmart growthâ or âmanaged growthâ policies. The appropriated funds were to be spent for â âdirect mail, media buys, and contracted servicesâ â as part of âa coordinated print, radio and television campaignâ to be run from September 6, 2001, through November 19, 2001, a time period coinciding with the upcoming town council elections. (569 S.E.2d at p. 732.) Although no incumbents were running to retain their seats in the upcoming election, undisputed evidence established that the current town councilâs âslow growthâ or âmanaged growthâ policies were an important issue in the campaign, with several candidates aligning themselves with the current councilâs policies and other candidates opposing those policies. Taking into
If a municipalityâs election-related expenditures were constrained only by an express-advocacy standard, as urged here by the City and held by the Court of Appeal, tĂtere would be no restriction upon a public entityâs expenditure of public funds in the manner described in the Dollar decision, even when the disbursements are made during a local election campaign and for such traditional campaign activities as newspaper, radio, and television advertisements.
Although plaintiffs contend the Cityâs official Web site constitutes a public forum for constitutional purposes, to which equal access must be provided to all competing factions, the governing authorities do not support this assertion, because the City has not opened its Web site to permit others to post material of their choice. (See, e.g., United States v. American Library Assn., Inc. (2003) 539 U.S. 194, 204-206 [156 L.Ed.2d 221, 123 S.Ct. 2297]; Arkansas Ed. Television Commân v. Forbes (1998) 523 U.S. 666, 672-677 [140 L.Ed.2d 875, 118 S.Ct. 1633]; Cornelius v. NAACP Legal Defense & Ed. Fund (1985) 473 U.S. 788, 803-806 [87 L.Ed.2d 567, 105 S.Ct. 3439]; Perry Ed. Assn. v. Perry Local Educatorsâ Assn. (1983) 460 U.S. 37, 46 [74 L.Ed.2d 794, 103 S.Ct. 948]; Clark v. Burleigh (1992) 4 Cal.4th 474, 482-491 [14 Cal.Rptr.2d 455, 841 P.2d 975].)
In Massachusetts Citizens for Life, supra, 479 U.S. 238, the high court explained that the special edition of the organizationâs newsletter at issue in that case âcannot be considered comparable to any single issue of the newsletter. It was not published through the facilities of the regular newsletter, but by a staff which prepared no previous or subsequent newsletters. It was not distributed to the newsletterâs regular audience, but to a group 20 times the size of that audience, most of whom were members of the public who had never received the newsletter. No characteristic of the Edition associated it in any way with the normal MCFL publication.â (Id. at p. 250.)
In Schulz, the court considered a newsletter that had been published and mailed by the New York Governorâs Office of Economic Development in advance of the 1992 presidential election and that discussed welfare reform, an issue of primary interest in the presidential campaign. In describing the newsletter, the court in Schulz observed: âAlthough the newsletter contained a substantial amount of factual information which would have been of assistance to the electorate in making an educated decision on whose position to support on that issue, the paper [ijndisputably â âconvey[ed] . . . partisanship, partiality . . . [and] disapproval by a State agency of [an] issueâ â [citation]. Thus, the newsletter states: [ft] âLed by the Bush Administration, Republicans in New York and across the nation are seeking to slash assistance to the needy. [â] âThe Republicans appear to have devised a strategy of using distortions and half-truths about Medicaid and welfare to divide the people in a key election year.â â (Schulz, supra, 654 N.E.2d at p. 1231.) The court in Schulz held: âThe conclusion is unavoidable that the latter portion of the newsletter is âpatently designed to exhort the electorate to [make an avowed, public commitment] in support of a particular position advocated by [one political faction].â â (Ibid.)
At the request of amici curiae California Chamber of Commerce and other organizations, we have taken judicial notice of two brochures that were mailed to voters by the Solano Transportation Improvement Authority in relation to a local transportation measure (Measure M) that was before the voters in the November 2006 election.
In addition to maintaining that the distribution of the fall 2002 âCity Round-upâ newsletter constituted campaign activity, plaintiffs also argue, as they have with regard to the Cityâs official Web site, that the city newsletter constitutes a public forum and that the City had an obligation to offer the proponents of Measure O the opportunity to include in the newsletter their objections to the city councilâs action. As with the Cityâs official Web site, however, the