Supreme Court of California Justia
Citation 46 Cal. 4th 1, 205 P.3d 207, 92 Cal. Rptr. 3d 286

Vargas v. City of Salinas

Filed 4/20/09 (appx. follows counsel listing at end of document)



IN THE SUPREME COURT OF CALIFORNIA



ANGELINA MORFIN VARGAS et al.,

Plaintiffs

and

Appellants,

S140911

v.

) Ct.App.

6

H027693

CITY OF SALINAS et al.,

Monterey

County

Defendants and Respondents. )

Super. Ct. No. M61489



Plaintiffs — proponents and supporters of a local ballot measure that

proposed the repeal of a utility users tax imposed by the City of Salinas — filed

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 (Stanson), we explained that because of potential

constitutional questions that may be presented by a public entity’s 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) “campaign”

materials and activities that presumptively may not be paid for by public funds,

and (2) “informational” 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 “style, tenor, and timing” of a

1


communication (id. at p. 222 & fn. 8) in order to determine whether it should be

characterized as permissible or impermissible.

In the present case, the Court of Appeal concluded that in light of a

statutory provision enacted subsequent to Stanson, supra, 17 Cal.3d 206, a

municipality’s expenditure of public funds on a communication relating to a ballot

measure is permissible whenever the communication does not “expressly

advocate” a position with regard to the ballot measure. The appellate court held

that so long as a communication avoids this prohibition on “express advocacy” —

a term of art originating in the context of regulations relating to private campaign

contributions and expenditures, and referring to a limited and narrowly defined

category of statements — there is no need to consider the communication’s “style,

tenor, and timing” in determining the validity of the use of public funds on the

communication. Because plaintiffs conceded that the materials challenged in the

present case did not (within the meaning of the express advocacy standard)

expressly advocate a position regarding the ballot measure, the Court of Appeal on

that basis alone concluded that plaintiffs’ legal challenge lacked merit and

consequently upheld the trial court’s order striking plaintiffs’ action under Code of

Civil Procedure section 425.16, California’s anti-SLAPP statute.1


1

SLAPP is an acronym for “strategic lawsuit against public participation.”

(Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 57 (Equilon).)
In 1992, the Legislature, finding there had been “a 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 grievances” (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.)

2

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, plaintiffs’ legal challenge to the City’s 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 municipality’s expenditure of public funds for

materials or activities that reasonably are characterized as campaign materials or

activities — including, for example, bumper stickers, mass media advertisement

spots, billboards, door-to-door canvassing, or the like — is 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, here at issue, as a matter of law do not constitute

improper campaign materials or activities under the standard set forth in Stanson.

Accordingly, although we disagree with the legal standard applied by the Court of

Appeal, we conclude that it correctly upheld the trial court’s ruling in favor of

defendants and thus that the judgment of the Court of Appeal should be affirmed.

I





A

The controversy that gave rise to this litigation relates to a local initiative

measure — ultimately designated Measure O — that 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 City’s

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

3

presented to the voters, generated approximately $8 million in annual revenue for

the City, a figure that represented 13 percent of the City’s general fund budget.2

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 municipality’s staff to prepare a report — as authorized

by Elections Code section 9212 — on 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 measure’s potential impact on the

respective department, and on November 6, 2001, the city manager submitted the

requested report to the city council. The report stated in part that “the initial

analysis leads to the conclusion that the repeal of the Utility Users Tax will require

substantial service level reductions to City residents.” At its November 6, 2001

meeting, the city council, declining to adopt the proposed ordinance itself, voted to

submit it to the voters at the next regularly scheduled municipal election, to be

held the following year on November 5, 2002. At the same time, the council


2

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.

4

directed city staff to conduct further study of the proposed cuts that would be

required were Measure O to be adopted by the voters.

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 City’s 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 budget — setting forth program and service reductions that

could be implemented should the UUT repeal be adopted — soon 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.

5

The report formally was presented to the city council at its July 16, 2002

meeting, at which numerous city residents — some supporters of Measure O, and

some opponents — expressed 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 staff’s recommendations

with regard to the city services and programs that would be reduced or eliminated

should Measure O be approved at the November 2002 election. The council’s

resolution listed numerous city facilities that would be closed and specific

programs and services that would be eliminated or reduced if Measure O were

adopted.

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 City’s 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.

6

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 City’s normal practice, detailed minutes of each city council

meeting — summarizing the statements of each speaker — were 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 department’s 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 staff’s August 27 report responding to the alternative implementation

plans advanced by the proponents of Measure O.

After the city council formally voted on July 16, 2002, to specify the

particular city facilities, services, and programs that the council would eliminate or

reduce if the UUT were repealed, the City produced a one-page document —

characterized by the proponents of Measure O as a “flyer” or “leaflet” — that

briefly described the initiative measure and the background of the utility users tax

and that then stated, “On July 16, 2002, the Salinas City Council unanimously

identified the services that would be eliminated or reduced if the Utility Users Tax

is repealed.” The document then listed, in separate categories, the “Facilities To

Be Closed,” “Programs/Services To Be Eliminated,” “Community Funding To Be

Eliminated,” and “Programs/Services To Be Reduced.” Finally, the document

advised that detailed information concerning the potential elimination or reduction

of programs and services was contained in the June 24, 2002 report of the city

7

manager, and that the report was available to the public at city hall as well as in all

city libraries and on the City’s Web site. Copies of the one-page document (in

English and Spanish) were made available to the public in the city clerk’s office at

city hall and in all city libraries.3

In addition to producing and making available to the public this one-page

document, the City also informed the public of the city council’s 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 City’s regular quarterly “City Round-up” newsletter, a publication

that was mailed to all city residents prior to October 1, 2002.4 An article on the

first page of the eight-page newsletter, entitled “Community to Decide Fate of

Utility Users Tax,” contained the same text as the one-page document described

above. Another item, on page 3 of the newsletter, contained answers to frequently

asked questions concerning the UUT, and additional articles on pages 4 and 5 of

the newsletter described the proposed cuts to police, fire, and recreation/park

services that would be implemented should the UUT be repealed. Other articles


3

A copy of the English version of the one-page document is set forth in

appendix A.

4

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 “[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 corner of the regular
quarterly newsletter is absent,” the city manager immediately filed a responsive
declaration stating explicitly that “[c]ontrary to the allegations by the Plaintiffs,
the City Round-Up Newsletter was not a special issue.” 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 “[t]he City of Salinas’ Fall
2002 edition of the ‘Round-Up’ Newsletter, Volume 3.” In their opposition to the
motion to strike, plaintiffs did not contest the city manager’s description of the
newsletter as a regular quarterly issue of the City’s newsletter.

8

appearing in the fall 2002 newsletter concerned a variety of subjects of local

interest unrelated to either the UUT or Measure O, including articles on local

highway improvements (p. 2), a new “Neighborhood Problem Solver” guide

developed by the City (p. 7), and a “Salinas Quiz” posing questions about local

birds (p. 6).5

B

On October 7, 2002, shortly after the city newsletter was mailed to and

received by city residents, plaintiffs — a number of Salinas residents who

supported Measure O — filed 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 “to prepare and

distribute pamphlets, newsletters and Web site materials.” The complaint

maintained that the materials in question — characterized by the complaint as

“campaign materials” — “do not provide a balanced analysis of the arguments in

favor of and against Measure O” 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 plaintiffs’ request for a preliminary injunction for

November 8, 2002, three days after the scheduled election. Measure O was


5

A copy of the newsletter is set forth in appendix B.

9

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 defendants’ motion for

judgment on the pleadings as to several counts of the original complaint and

thereafter had permitted plaintiffs to file a supplemental complaint,6 defendants

filed a special motion to strike plaintiffs’ supplemental complaint pursuant to

section 425.16. In support of the motion to strike, defendants submitted

declarations of numerous city officials and voluminous documentary materials,

including the materials challenged by plaintiffs as improper campaign material.

Plaintiffs filed an opposition to the motion to strike, including a “statement

of undisputed facts” and three supporting declarations by proponents of

Measure O and their attorney. The opposition asserted, among other matters, that


6

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, the
trial court permitted plaintiffs to supplement their complaint, and in early March
2004 plaintiffs filed a supplemental complaint that reiterated plaintiffs’ challenge
to the City’s actions with regard to Measure O, and additionally alleged, on
information and belief, that the City was “preparing campaign material to
disseminate to Salinas voters at taxpayers expense” with respect to Measure P.
The supplemental complaint sought damages and declaratory, injunctive, and
equitable relief with regard to both measures.


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. Plaintiffs’ 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.

10

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 proponents’ viewpoint, and finally that the

proponents of Measure O would have utilized the City’s Web site and the City’s

other publications, had they been offered access to those media.

In May 2004, the trial court held a hearing on defendants’ motion to strike

and thereafter granted the motion. After the trial court denied plaintiffs’ motion

for reconsideration, plaintiffs appealed from the trial court’s order granting

defendants’ 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

“protected activity,” 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.)

With respect to the first step, the Court of Appeal rejected plaintiffs’ 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, (2) the statements

and communications of defendants challenged in this case clearly concern a matter

of public interest, (3) the alleged illegality of defendants’ conduct does not render

11

the anti-SLAPP statute inapplicable but rather presents an issue to be addressed in

the second step of the legal analysis, and (4) newly enacted Code of Civil

Procedure section 425.17 does not exempt plaintiffs’ action from the anti-SLAPP

statute.

Having found that the communications of the City that gave rise to

plaintiffs’ 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: “Defendants argue for an express advocacy

standard. Plaintiffs urge us to examine the materials’ style, tenor, and timing,

asserting that such a standard is compelled by Stanson[, supra, 17 Cal.3d 206].”

Relying upon the language of a statutory provision enacted subsequent to the

Stanson decision that explicitly prohibits a local agency’s expenditure of funds

with regard to “communications that expressly advocate the approval or rejection

of a clearly identified ballot measure” (Gov. Code, § 54964, subd. (b)) and upon a

state regulation that defines when a communication “expressly advocates” 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)),7 the Court of Appeal agreed with defendants’ position, concluding


7

The regulation in question provides in relevant part: “A communication

‘expressly advocates’ the nomination, election or defeat of a candidate or the
qualification, passage, or defeat of a measure if it contains express words of


(footnote continued on next page)

12

that “[t]o be considered unlawful promotional materials, the challenged statements

must expressly advocate the election outcome.” Because it found that the

statements challenged by plaintiffs did not meet the express-advocacy standard,

the Court of Appeal concluded that the City’s statements were informational rather

than campaign materials, and thus that plaintiffs failed to demonstrate a prima

facie case of likely prevailing on the merits.8

We granted review primarily to determine (1) whether the Court of Appeal

correctly determined that the “express advocacy” standard, rather than the

standard set forth in Stanson, supra, 17 Cal.3d 206, is the applicable standard, and

(2) whether, under the appropriate standard, the trial court properly granted

defendants’ motion to strike.

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


(footnote continued from previous page)

advocacy such as ‘vote for,’ ‘elect,’ ‘support,’ ‘cast your ballot,’ ‘vote against,’
‘defeat,’ ‘reject,’ ‘sign petitions for’ or otherwise refers to a clearly identified
candidate or measure so that the communication, taken as whole, unambiguously
urges a particular result in an election.” (Cal. Code Regs., tit. 2, § 18225, subd.
(b)(2); see also Federal Election Comm’n v. Furgatch (9th Cir. 1987) 807 F.2d
857, 860-864.)

8

The Court of Appeal also rejected plaintiffs’ related argument that the

City’s official Web site and newsletter constituted “public forums” 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 publish articles in its
newsletter, those modes of communication did not constitute public forums for
First Amendment purposes.

13

and its officials are entitled to invoke the protections of the motion-to-strike

procedure in California’s anti-SLAPP statute.

Section 425.16, subdivision (b)(1) provides: “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.” As already noted, past cases analyzing the

proper application of this statute have explained that “in ruling on a section 425.16

motion to strike, a court generally should engage in a two-step process: ‘First, 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.’ ” (Taus v. Loftus (2007) 40

Cal.4th 683, 703, 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 case — the materials on the City’s Web site, the one-page

document, and the City’s newsletter — do not constitute “protected activity”

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 “acts . . . in furtherance of the person’s right of petition or

free speech under the United States or California Constitution” because, plaintiffs

assert, government speech, unlike that of a private individual or organization, is

not protected by the First Amendment of the federal Constitution or article I,

section 2 of the California Constitution. Although plaintiffs acknowledge that a

14

long and uniform line of California Court of Appeal decisions explicitly holds that

governmental entities are entitled to invoke the protections of section 425.16 when

such entities are sued on the basis of statements or activities engaged in by the

public entity or its public officials in their official capacity (see, e.g., Bradbury v.

Superior Court (1996) 49 Cal.App.4th 1108, 1113-1116; Shroeder v. Irvine City

Council (2002) 97 Cal.App.4th 174, 183-184; San Ramon Valley Fire Protection

Dist. v. Contra Costa County Employees’ Retirement Assn. (2004) 125

Cal.App.4th 343, 353; Tutor-Saliba Corp. v. Herrera (2006) 136 Cal.App.4th 604,

609; Santa Barbara County Coalition Against Automobile Subsidies v. Santa

Barbara County Assn. of Governments (2008) 167 Cal.App.4th 1229, 1237-1238;

Schaffer v. City and County of San Francisco (2008) 168 Cal.App.4th 992, 1001-

1004 (Schaffer)), plaintiffs essentially contend that all of these decisions were

wrongly decided and should be disapproved.

We reject plaintiffs’ 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 here — significant constitutional questions that

we need not and do not decide — we believe it is clear, in light of both the

language and purpose of California’s 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, plaintiffs’ 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 “[a] cause of action . . . arising from any act . . . in

furtherance of the person’s right of petition or free speech under the United States

15

or California Constitution in connection with a public issue . . . .” (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: “As used in this section, ‘act in furtherance of a person’s

right of petition or free speech under the United States or California Constitution

in connection with a public issue’ 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 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.” Section 425.16, subdivision (e) does not purport to draw any

distinction between (1) statements by private individuals or entities that are made

in the designated contexts or with respect to the specified subjects, and

(2) statements by governmental entities or public officials acting in their official

capacity that are made in these same contexts or with respect to these same

subjects. Although there may be some ambiguity in the statutory language,

section 425.16, subdivision (e) is most reasonably understood as providing that the

statutory phrase in question includes all such statements, without regard to

whether the statements are made by private individuals or by governmental

entities or officials. (See, e.g., Schaffer, supra, 168 Cal.App.4th 992, 1003-1004.)

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 Legislature’s enactment of Code of Civil

16

Procedure section 425.18, subdivision (i), in 2005 — well after many of the Court

of Appeal decisions noted above (ante, at p. 15) had expressly recognized the

ability of public entities to bring a motion to strike under the anti-SLAPP statute.

Section 425.18, subdivision (i) — a provision of the 2005 legislation dealing with

so-called SLAPPback actions — expressly recognizes that a “SLAPPback” action

may be “filed by a public entity,” 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 “SLAPPback” as “any 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 425.16”].)

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 Legislature’s

intent guiding its interpretation, section 425.16, subdivision (a) states in relevant

part: “The 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.” (Italics added.) Moreover, the

legislative history indicates that the Legislature’s concern regarding the potential

chilling effect that abusive lawsuits may have on statements relating to a public

issue or a matter of public interest extended to statements by public officials or

employees acting in their official capacity as well as to statements by private

17

individuals or organizations.9 In view of this legislative purpose and history, as

well as the language of section 425.16, subdivision (e) and section 425.18,

subdivision (i), discussed above, we conclude that section 425.16 may not be

interpreted to exclude governmental entities and public officials from its potential

protection. Accordingly, we agree with the numerous Court of Appeal decisions

cited above (ante, at p. 15) that have reached this same conclusion.

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 “protected activity” 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 council’s

potential reduction or elimination of public services and programs — statements

that unquestionably concern public issues and issues of public interest.


9

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 “a typical SLAPP
suit scenario” 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, 547 (Sills article); see also Sills article, supra, 25
Conn. L.Rev. 547, 550 [“Just as SLAPPs filed against individuals have a ‘chilling’
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 ‘chilling’ effect on their willingness to participate in governmental
processes”].)

18

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: “In order to establish a probability of prevailing on the claim (§ 415.16,

subd. (b)(1)), a plaintiff responding to an anti-SLAPP motion must ‘ “state[] and

substantiate[] a legally sufficient claim.” ’ [Citation.] Put another way, the

plaintiff ‘must demonstrate that the complaint is both legally sufficient and

supported by a sufficient prima facie showing of facts to sustain a favorable

judgment if the evidence submitted by the plaintiff is credited.’ [Citations.] In

deciding the question of potential merit, the trial court considers the pleadings and

evidentiary submissions of both the plaintiff and the defendant (§ 415.16,

subd. (b)(2)); though the court does not weigh the credibility or comparative

probative strength of competing evidence, it should grant the motion if, as a matter

of law, the defendant’s evidence supporting the motion defeats the plaintiff’s

attempt to establish evidentiary support for the claim. [Citation.]” As we further

elaborated on this point in Taus v. Loftus, supra, 40 Cal.4th 683, 714: “[W]hen a

defendant makes the threshold showing that a cause of action that has been filed

against him or her arises out of the defendant’s speech-related conduct, the

[anti-SLAPP] provision affords the defendant the opportunity, at the earliest stages

of litigation, to have the claim stricken if the plaintiff is unable to demonstrate

both that the claim is legally sufficient and that there is sufficient evidence to

establish a prima facie case with respect to the claim.”

19

In the present case, plaintiffs’ 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 City’s 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 plaintiffs’ 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,

“the 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 alteration, to the voters [at

the next regularly scheduled election or at a special election]. [¶] (c) Order a

report pursuant to Section 9212 at the regular meeting at which the certification of

the petition is presented. When the report is presented to the legislative body, the

legislative body shall either adopt the ordinance within 10 days or order an

election pursuant to subdivision (b).”

Elections Code section 9212, subdivision (a), in turn, provides that before

taking action under section 9215, “the legislative body may refer the proposed

initiative measure to any city agency or agencies for a report on any or all of the

following: [¶] (1) Its fiscal impact. . . . [¶] (4) Its impact on funding for

infrastructure of all types, including, but not limited to, transportation, schools,

20

parks, and open space. . . . . [¶] (5) Its impact on the community’s ability to

attract and retain business and employment. . . . . [¶] (8) Any other matters the

legislative body requests to be in the report.” (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 City’s 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 council — maintaining 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 defeated —

plaintiffs’ 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

21

the city council, pursuant to its general legislative power, possessed the authority

to identify, with specificity and in advance of the November 2002 election, the

particular services and programs that the council would reduce or eliminate should

Measure O be adopted at the upcoming election. Plaintiffs and other supporters of

Measure O were free, of course, to challenge the necessity or wisdom of the

proposed service and program reductions approved by the city council,10 and to

urge voters to replace the current city council members with officeholders who

would take different action should the voters approve the repeal of the UUT at the


10

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 “Rebuttal to Argument Against
Measure O” contained in the ballot pamphlet (which was signed by a number of
the named plaintiffs in this action, among others) stated in part: “The pro-tax
advocates have threatened to cut services – but there are other choices. [¶] The
problem is, the mayor and city council have refused to consider options like
:
[¶] Reducing undisciplined spending, ending ineffective programs, and audits to
expose waste [¶] Cutting top-heavy administration. Top 40 bureaucrats average
cost is $148,466 each. [¶] Other areas that should be trimmed: [¶] 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. [¶] Health club/cash benefits
for most city employees. [¶] Several generous retirement plans, and up to 10
weeks of paid time-off for city bureaucrats. [¶] Millions can be saved with these
cost saving ideas, and more at:
[¶] www.cityofsalinas.com.” (County of
Monterey, Sample Ballot & Voter Information Pamp., Gen. Elec. (Nov. 5, 2002)
rebuttal to argument against Measure O, p. 27-529 [underlining and bold lettering
in original].)


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.

22

November 2002 election.11 But it is clear that the city council had the authority to

inform city residents, prior to the election, of the specific actions the current city

council would take if the UUT were repealed.

Although plaintiffs do not directly challenge the City’s 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 “pamphlets, newsletters and Web site

materials” — denominated “campaign materials” in the complaint — informing

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 “did not provide a balanced analysis of the arguments in favor of and

against Measure O.” In advancing their claim, plaintiffs relied upon Stanson,

supra, 17 Cal.3d 206, arguing that the City’s communications, taking into account

their “style, tenor, and timing,” properly should be characterized as campaign,

rather than informational, materials or activities.

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 City’s challenged communications — regardless of their “style, tenor, and

timing” — would be impermissible only if those communications “expressly

advocate[d]” the approval or rejection of Measure O. Because it found that the


11

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.)

23

challenged communications did not meet the express-advocacy standard, the Court

of Appeal held that plaintiffs’ claim lacked merit. In light of the appellate court’s

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.

A

In Stanson, supra, 17 Cal.3d 206, this court addressed a lawsuit alleging

that the Director of the California 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 court — Mines v. Del Valle (1927) 201 Cal. 273 — that

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 “had an equal right to and interest in the [public] funds . . . as those

who favored said bonds,” went on to hold that the action of the utility’s board of

commissioners in authorizing those expenditures “cannot be sustained unless the

power to do so is given to said board in clear and unmistakable language.” (201

Cal. at p. 287, italics added.) Because the board’s 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

24

that, as a constitutional matter, “the use of the public treasury to mount an election

campaign which attempts to influence the resolution of issues which our

Constitution leave[s] to the ‘free election’ of the people (see Cal. Const., art. II,

§ 2) . . . present[s] a serious threat to the integrity of the electoral process” (17

Cal.3d at p. 218), we ultimately concluded that we “need not resolve the serious

constitutional question that would be posed by an explicit legislative authorization

of the use of public funds for partisan campaigning, because the legislative

provisions relied upon by defendant Mott certainly do not authorize such

expenditures in the ‘clear and unmistakable language’ required by Mines.” (17

Cal.3d at pp. 219-220.) Our decision in Stanson thereby reaffirmed the holding in

Mines that in the absence of clear and unmistakable language specifically

authorizing a public entity to expend public funds for campaign activities or

materials, the entity lacks authority to make such expenditures.

After determining that the defendant state official in that case “could not

properly authorize the department to spend public funds to campaign for the

passage of the bond issue” (Stanson, supra, 17 Cal.3d 206, 220, italics added), we

went on to explain that “[i]t does not necessarily follow . . . that the department

was without power to incur any expense at all in connection with the bond

election. In Citizens to Protect Pub. Funds v. Board of Education [(N.J. 1953)] 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

board’s use of public funds to advocate only one side of an election issue, at the

same time emphatically affirmed the school board’s implicit power to make

‘reasonable expenditures for the purpose of giving voters relevant facts to aid them

in reaching an informed judgment when voting upon the proposal.’ [Citation.]”

(Ibid.) Agreeing with this analysis, the court in Stanson concluded that although

the applicable statutory provision did not authorize the department “to spend funds

25

for campaign purposes” (id. at pp. 220-221, italics added), the statute did afford

the department authority “to spend funds, budgeted for informational purposes, to

provide the public with a ‘fair presentation’ of relevant information relating to a

park bond issue on which the agency has labored.” (Id. at p. 221, italics added.)

Acknowledging in Stanson that in some circumstances “[p]roblems may

arise . . . in attempting to distinguish improper ‘campaign’ expenditures from

proper ‘informational’ activities” (Stanson, supra, 17 Cal.3d 206, 221), we

explained that “[w]ith respect to some activities the distinction is rather clear; thus,

the use of public funds to purchase such items as bumper stickers, posters,

advertising ‘floats,’ or television and radio ‘spots’ unquestionably constitutes

improper campaign activity [citations], as does the dissemination, at public

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 ‘informational’ role when it simply gives a ‘fair

presentation of the facts’ in response to a citizen’s request for information

[citations] or, when requested by a private or public organization, it authorizes an

agency employee to present the department’s view of a ballot proposal at a

meeting of such organization. [Citations.]” (Ibid.)

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 “the 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 ‘fair presentation

of facts’ 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

‘Vote Yes,’ have nonetheless been found to constitute improper campaign

26

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;[12]

no hard and fast rule governs every case.” (Stanson, supra, 17 Cal.3d 206, 222,

italics added.)

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, “we have no occasion to

determine whether the department’s actual expenditures constituted improper

‘campaign’ expenditures or authorized ‘informational’ expenses. The complaint

alleges, inter alia, that defendant Mott authorized the dissemination of agency

publications ‘which were [not] merely . . . informative but . . . promotional’ 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 . . . .” (Stanson,

supra, 17 Cal.3d 206, 222-223.)


12

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 “Vote Yes” on the bond issue, but stated in large
letters, “A CLASSROOM EMERGENCY EXISTS NOW AT MADERA UNION
HIGH SCHOOL,” and listed a number of reasons why additional funds were
needed by the school district. The Attorney General’s opinion concluded that, in
light of the “style, tenor and timing” of the advertisement, it was impermissible to
expend public funds for the advertisement. (Id. at p. 114.)

27

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) 47

Cal.3d 1152, 1170-1172 (Keller), reversed on other grounds (1990) 496 U.S. 1. In

the portion of the Keller decision that is relevant to the issue now before us, we

addressed a challenge to actions taken by the State Bar of California prior to the

November 1982 judicial retention election, in which the voters were to decide

whether to confirm the continued service in office of six justices of the California

Supreme Court. During an inaugural speech delivered three months prior to the

election, the incoming State Bar president had referred to the upcoming judicial

retention election, criticizing the “ ‘idiotic cries of . . . self-appointed vigilantes . . .

[and] unscrupulous politicians ’ ” (id. at p. 1171), describing “the history of the

concept of judicial independence . . . and the role and philosophy of the bar”

(ibid.), and presenting statistics concerning the Supreme Court’s review of

criminal cases. Although the court in Keller noted that the State Bar president’s

speech “did not mention any justice by name, or urge the retention of any or all of

the justices” (ibid.), we explicitly pointed out that the Stanson decision had

explained that “it is not essential that [a] publication expressly exhort the voters to

vote one way or another” in order for the publication to constitute improper

campaign activity. (Keller, supra, 47 Cal.3d at p. 1171, fn. 22.)

While observing that the State Bar president’s speech itself “cost the State

Bar nothing” (Keller, supra, 47 Cal.3d 1152, 1171), the court in Keller went on to

explain that the legal challenge before it concerned the State Bar’s expenditure of

public funds in subsequently distributing an “educational packet” that included the

speech along with other items. The court in Keller described the distributed

material as follows: “The educational packet, sent to local bar associations and

other interested groups, contained [the State Bar president’s] speech, a sample

speech entitled ‘The Case for an Independent Judiciary’ (a quite restrained and

28

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.” (Id. at pp. 1171-1172.)

In analyzing the validity of the State Bar’s use of public funds to prepare

and distribute this educational packet, the court in Keller explained: “The 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 committees to aid them in the

campaign. Its style and tenor is appropriate to that end; it is basically informative

and factual, but without claim of impartiality, and includes such practical tools as

a form letter to groups which might host a speaker. While intended to educate the

reader because its authors believed an informed campaigner would be a more

effective campaigner, its primary purpose, we believe, was to assist in the election

campaign on behalf of the justices. We conclude that in preparing and distributing

this material, the State Bar exceeded its statutory authority.” (Keller, supra, 47

Cal.3d 1152, 1172.)

Accordingly, the decision in Keller, supra, 47 Cal.3d 1152, explicitly

confirmed and reiterated this court’s 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

29

measure, the expenditure of public funds to prepare or distribute the

communication is improper when the “style, tenor, and timing” (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 City’s expenditures turned on the question whether the

challenged materials “expressly advocated” 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

Appeal’s 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 “[a]n officer, employee, or

consultant of a local agency [13] may not expend or authorize the expenditure of

any of the funds of the local agency to support or oppose the approval or rejection


13

“Local agency” 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.

30

of a ballot measure, or the election or defeat of a candidate, by the voters.”

Section 54964, subdivision (b)(3), in turn, defines “expenditure,” as used in this

statute, to mean “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.”

(Italics added.) At the same time, section 54964, subdivision (c), sets forth an

exception to the prohibition contained in subdivision (a), providing that “[t]his

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: [¶] (1) The informational activities are not otherwise

prohibited by the Constitution or laws of this state. [¶] (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.”

Accordingly, under section 54964, subdivision (c), the expenditure of public funds

for a communication that otherwise would violate section 54964, subdivision (a),

does not violate subdivision (a) if both of the conditions set forth in subdivision (c)

are met.14


14

Section 54964 reads in full: “(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.


“(b) As used in this section the following terms have the following

meanings:


“(1) ‘Ballot measure’ 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.


“(2) ‘Candidate’ means an individual who has qualified to have his or her



(footnote continued on next page)

31

Relying upon the circumstance that subdivision (b)(3) of section 54964

defines the term “expenditure” as used in subdivision (a) to refer to the payment of

funds for communications that “expressly advocate” the approval or rejection of a

ballot measure, the Court of Appeal reasoned that “section 54964 permits the

expenditure of public funds by local agencies for communications, so long as they

do not ‘expressly advocate the approval or rejection of a clearly identified ballot

measure . . . by the voters.’ ” (First italics added.)


(footnote continued from previous page)

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.


“(3) ‘Expenditure’ 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. ‘Expenditure’ shall not include membership dues paid by the local
agency to a professional association.


“(4) ‘Local agency’ 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.


“(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:


“(1) The informational activities are not otherwise prohibited by the

Constitution or laws of this state.


“(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.


“(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 community college district that are regulated by
Article 2 (commencing with Section 7050) of Chapter 1 of Part 5 of the Education
Code.”

32

In our view, the Court of Appeal’s 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 municipality’s 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 “[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.” 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 “expressly

advocate” 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 “serious constitutional question . . . would be posed by an explicit

legislative authorization of the use of public funds for partisan campaigning” (id.

at p. 219, italics added), reaffirmed our earlier holding in Mines, supra, 201 Cal.

273, that the use of public funds for campaign activities or materials

unquestionably is impermissible in the absence of “ ‘clear and unmistakable

language’ ” 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

33

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 section 54964)

does not purport affirmatively to grant authority to local entities to expend funds

for communications that fall within its purview.

Furthermore, the legislative history of section 54964 does not support the

Court of Appeal’s 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 report — analyzing a version of the bill that included

the relevant provisions that ultimately were enacted into law — states in relevant

part: “The 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). 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). [¶] 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 ‘fair representation of facts’ 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)). [¶] . . . [¶] 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

34

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.”

(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 Appeal’s conclusion that section 54964

should be interpreted to substitute the “express advocacy” standard for the

standard set forth in Stanson, supra, 17 Cal.3d 206, the City notes that at one point

in the bill’s progression through the Legislature the definition of “expenditure” in

subdivision (b)(3) was revised to refer to a payment of funds for “communications

that, either expressly or by implication, advocate the approval or rejection” of a

ballot measure (Sen. Amend. to Assem. Bill No. 2078 (1999-2000 Reg. Sess.)

June 12, 2000, italics added), but that thereafter the “or by implication” language

was removed from the bill (Sen. Amend. to Assem. Bill No. 2078 (1999-2000

Reg. Sess.) Aug. 25, 2000), and the legislation (as ultimately enacted) refers only

to communications that “expressly advocate” the approval or rejection of a ballot

measure. This legislative history does indicate that the Legislature was persuaded

by numerous objections it received criticizing the “or by implication” language as

too broad and vague and arguing such language was inconsistent with the

legislation’s stated intent not to preclude an agency from providing information to

the public about the possible effects of a ballot measure because any such

information plausibly might be viewed as advocating a measure’s rejection or

35

approval “by implication.”15 But this legislative history does not indicate the

Legislature intended to repudiate or depart from the Stanson decision, or to

approve the use of public funds for activities that would constitute campaign

activities under Stanson so long as those activities avoid expressly advocating the

approval or rejection of a ballot measure.

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 Appeal’s interpretation of the statute. In

Stanson, we noted that one of the principal dangers identified by our nation’s

founders was that “the holders of governmental authority would use official power

improperly to perpetuate themselves, or their allies, in office” (id. at p. 217), and

we observed that “the selective use of public funds in election campaigns . . .

raises the specter of just such an improper distortion of the democratic electoral

process.” (Ibid.) Whatever virtue the “express advocacy” standard might have in

the context of the regulation of campaign contributions to and expenditures by

candidates for public office,16 this standard does not meaningfully address the


15

For example, a “floor alert” letter to legislators from the Planning and

Conservation League — sent just prior to the vote that removed the “by
implication” language from the pending legislation — stated in this regard: “While
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 “expressly or by implication” 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 ‘information’ dissemination,
but it will be impossible for an agency to avoid the ‘or by implication’ 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.”

16

The United States Supreme Court first articulated the “express advocacy”

standard in Buckley v. Valeo (1976) 424 U.S. 1, 41-44 and footnote 52, as an


(footnote continued on next page)

36

potential constitutional problems arising from the use of public funds for

campaign activities that we identified in Stanson. If a public entity could expend

public funds for any type of election-related communication so long as the

communication avoided “express words of advocacy” and did not “unambiguously

urge[] a particular result” (Cal. Code Regs., tit. 2, § 18225, subd. (b)(2)), the

public entity easily could overwhelm the voters by using the public treasury to

finance bumper stickers, posters, television and radio advertisements, and other

campaign material containing messages that, while eschewing the use of express

advocacy, nonetheless as a realistic matter effectively promote one side of an

election. Thus, for example, if the City of Salinas, instead of taking the actions

that are at issue in this case, had posted large billboards throughout the City prior

to the election stating, “IF MEASURE O IS APPROVED, SIX RECREATION

CENTERS, THE MUNICIPAL POOL, AND TWO LIBRARIES WILL CLOSE,”

(footnote continued from previous page)

ostensible means of distinguishing advertisements that are aimed at promoting the
election or defeat of a candidate, on the one hand, from “issue” advertisements
that simply express a speaker’s views on an issue, on the other. More recently,
however, in McConnell v. Federal Election Comm’n (2003) 540 U.S. 93, the high
court recognized that political experience since Buckley has demonstrated the
ineffectiveness and artificial nature of the “express advocacy” standard. As the
court in McConnell explained: “While the distinction between ‘issue’ and express
advocacy seemed neat in theory, the two categories of advertisements proved
functionally identical in important respects. Both were used to advocate the
election or defeat of clearly identified federal candidates, even though so-called
issue ads eschewed the use of magic words [such as ‘Elect John Smith’ or ‘Vote
Against Jane Doe’]. Little difference existed, for example, between an ad that
urged voters to ‘vote against Jane Doe’ and one that condemned Jane Doe’s record
on a particular issue and exhorted viewers to ‘call Jane Doe and tell her what you
think.’ Indeed, campaign professionals testified that the most effective campaign
ads, like the most effective commercials for products such as Coca Cola, should,
and did, avoid the use of the magic words.” (McConnell, supra, 540 U.S. at
pp. 126-127, fns. omitted.)

37

it would defy common sense to suggest that the City had not engaged in campaign

activity, even though such advertisements would not have violated the express

advocacy standard.17


17

The hypothetical message just discussed neither contains “express words of

advocacy” nor “unambiguously urges a particular result,” 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 municipality’s improper
use of public funds for campaign activities.
In

Dollar v. Town of Cary (N.C.Ct.App. 2002) 569 S.E.2d 731, the plaintiff

challenged the defendant town council’s appropriation of $200,000 in public funds
for a proposed campaign “to better inform citizens about growth management
issues” by promoting the merits of “smart growth” or “managed growth” policies.
The appropriated funds were to be spent for “direct mail, media buys, and
contracted services” as part of “a coordinated print, radio and television
campaign” 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
pp. 732-733.) Although no incumbents were running to retain their seats in the
upcoming election, undisputed evidence established that the current town
council’s “slow growth” or “managed growth” policies were an important issue in
the campaign, with several candidates aligning themselves with the current
council’s policies and others opposing those policies. Taking into account the
nature and timing of the proposed expenditures, the court in Dollar concluded that
“[t]he advertisements, in the context of the Council elections, appear to be more
than informational in nature and instead implicitly promote the candidacy of those
Council candidates in sympathy with the Council’s position on the Town’s
growth.” (569 S.E.2d at p. 734.) Accordingly, the court in Dollar affirmed the
trial court’s ruling enjoining the council from using public funds in that manner.


If a municipality’s election-related expenditures were constrained only by

an express advocacy standard, as urged here by the City and held by the Court of
Appeal, there would be no restriction upon a public entity’s 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.

38

Thus, when viewed from a realistic perspective, the “express advocacy”

standard does not provide a suitable means for distinguishing the type of campaign

activities that (as Stanson explains) presumptively may not be paid for with public

funds, from the type of informational material that presumptively may be

compiled and made available to the public through the expenditure of such funds.

And, as we have seen, there is no indication that, in enacting section 54964, the

Legislature intended to modify or displace the principles and analysis set forth in

the Stanson decision.

The City, and amici curiae supporting the City, contend nonetheless that the

“express advocacy” standard is preferable to the standard adopted in Stanson,

supra, 17 Cal.3d 206, asserting that because our opinion states that in some

circumstances “the style, tenor and timing” 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 entity’s

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

measure — an issue that is a prerequisite to the City’s unconstitutional-chilling-

effect argument but one that we need not and do not decide — we 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 “style, tenor and

timing”) — for example, the use of public funds to purchase bumper stickers,

posters, advertising “floats,” or television and radio “spots” — and also identified

39

a number of activities that are clearly informational — for example, providing a

fair presentation of facts in response to a citizen’s request for information. (Id. 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 campaign activity rather than informational material, does not render

the distinction between campaign and informational activities impermissibly

vague. Since our decision in Stanson, numerous out-of-state decisions have cited

that opinion and utilized a comparable analysis in evaluating the propriety of

public expenditures for a variety of election-related material and activities (see,

e.g., Anderson v. City of Boston (Mass. 1978) 380 N.E.2d 628, appeal dismissed

for want of substantial federal question (1979) 439 U.S. 1060; Smith v. Dorsey

(Miss. 1991) 599 So.2d 529, 540-544; Burt v. Blumenauer (Or. 1985) 699 P.2d

168, 171-181; Dollar v. Town of Cary, supra, 569 S.E.2d 731, 733-734), and the

City has failed to cite any authority that has concluded the Stanson standard is

unconstitutionally vague. (See Sweetman v. State Elections Enforcement Comm.

(Conn. 1999) 732 A.2d 144, 160-162 [explicitly rejecting similar constitutional

vagueness challenge].)

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

City’s activities under the Stanson standard.

40



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 City’s

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 City’s regular annual budget

pertaining to the maintenance of the City’s Web site, the publication of the City’s

regular quarterly newsletter, and the ordinary provision of information to the

public regarding the City’s 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 City’s expenditures that are challenged in

this case were or were not validly incurred turns upon whether the activities fall

within the category of informational activities that may be funded through such

general appropriations or, instead, constitute campaign activities that may not be

paid for by public funds in the absence of such explicit authorization.

As discussed above, plaintiffs challenge three groups of communications by

the City that relate to Measure O: (1) the material posted on the City’s official

Web site, (2) the one-page document made available to the public at the city

clerk’s 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

41

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 (“bumper stickers, posters,

advertising ‘floats,’ or television and radio ‘spots’ . . . [or] the dissemination, at

public expense, of campaign literature prepared by private proponents or

opponents of a ballot measure”), but the items listed in Stanson do not exhaust the

category of potential campaign materials or activities. Plaintiffs contend that

when the “style, tenor, and timing” of the challenged communications are taken

into account, the communications should be viewed as improper campaign

materials rather than as permissible informational materials. Plaintiffs’ 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 council — views 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 “took sides”

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 government’s

“taking sides” in an election contest. The opinion in Stanson stated in this regard:

“A fundamental precept of this nation’s democratic electoral process is that the

government may not ‘take sides’ in election contests or bestow an unfair

advantage on one of several competing factions. A principal danger feared by our

country’s founders lay in the possibility that the holders of governmental authority

would use official powers 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.” (17 Cal.3d at p. 217.)

42

A full reading of the Stanson decision reveals, however, that our opinion’s

statement that the government “may not ‘take sides’ in election contests” (Stanson,

supra, 17 Cal.3d 206, 217) properly must be understood as singling out a public

entity’s “use of the public treasury to mount an election campaign” (id. at p. 218,

italics added) as the potentially constitutionally suspect conduct, rather than as

precluding a public entity from analytically evaluating a proposed ballot measure

and publicly expressing an opinion as to its merits. As we have seen, in Stanson

we explicitly recognized that a governmental agency “pursues a proper

informational role when it . . . authorizes an agency employee to present the

department’s view of a ballot proposal at a meeting of [a private or public]

organization” (Stanson, supra, 17 Cal.3d at p. 221), thus making it clear that it is

permissible for a public entity to evaluate the merits of a proposed ballot measure

and to make its views known to the public. Accordingly, we agree with those

Court of Appeal decisions rendered after Stanson that explicitly have held that

Stanson does not preclude a governmental entity from publicly expressing an

opinion with regard to the merits of a proposed ballot measure, so long as it does

not expend public funds to mount a campaign on the measure. (See, e.g., Choice-

in-Education League v. Los Angeles Unified School Dist. (1993) 17 Cal.App.4th

415, 429; League of Women Voters v. Countywide Crim. Justice Coordination

Com. (1988) 203 Cal.App.3d 529, 560.)

Indeed, upon reflection, it is apparent that in many circumstances a public

entity inevitably will “take sides” on a ballot measure and not be “neutral” 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

43

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 public official is able to devote

funds from the public treasury, or the publicly financed services of public

employees, to campaign activities favoring or opposing such a measure.

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 City’s residents of the council’s

decision. In posting on the City’s Web site the detailed minutes of all the city

council meetings relating to the council’s 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 City’s Web site. Because the

proponents of Measure O spoke and made presentations at a number of city

44

council meetings, summaries of the proponents’ 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 City’s 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.18

We conclude that the City engaged in informational rather than campaign activity,

within the meaning of Stanson, supra, 17 Cal.3d 206, in posting the material in

question on its 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 clerk’s office and

at public libraries. Not only does the document in question not advocate or

recommend how the electorate should vote on the ballot measure, but its style and

tenor is not at all comparable to traditional campaign material. Viewed from the

perspective of an objective observer, the document clearly is an informational


18

Although plaintiffs contend the City’s 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. Am. Library Ass’n, Inc. (2003) 539 U.S.
194, 204-206; Arkansas Educ. TV v. Forbes (1998) 523 U.S. 666, 673-677;
Cornelius v. NAACP Legal Defense & Ed. Fund (1985) 473 U.S. 788, 803-806;
Perry Ed. Assn. v. Perry Local Educators’ Assn. (1983) 460 U.S. 37, 46; Clark v.
Burleigh
(1992) 4 Cal.4th 474, 482-491.)

45

statement that merely advises the public of the specific plans that the city council

voted to implement, should Measure O be adopted. Furthermore, the

informational nature of the document is reinforced by the circumstance that the

City simply made it available at the city clerk’s office and in public libraries to

members of the public who sought out the document.

Finally, we also conclude the City did not engage in impermissible

campaign activity by mailing to city residents the fall 2002 “City Round-Up”

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 City’s mailing of the newsletter here at issue constituted

informational rather than campaign activity.

First, it is significant that this particular newsletter was a regular edition of

the City’s 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 Federal

Election Com. v. Massachusetts Citizens for Life, Inc. (1986) 479 U.S. 238, 250-

251 (Massachusetts Citizens for Life).19


19

In Massachusetts Citizens for Life, supra, 479 U.S. 238, the high court

explained that the special edition of the organization’s newsletter at issue in that
case “cannot be considered comparable to any single issue of the newsletter. It


(footnote continued on next page)

46

Second, the city council’s July 16, 2002, resolution — identifying a

significant number of current city services and programs that would be reduced or

eliminated, should Measure O be adopted — quite clearly was an obvious and

natural subject to be reported upon in a city’s regular quarterly newsletter, and the

style and tenor of the publication in question was entirely consistent with an

ordinary municipal newsletter and readily distinguishable from traditional

campaign material. Like the one-page document discussed above, the front-page

article of the newsletter relating to Measure O simply identified the specific city

services and programs that the city council had voted to reduce or eliminate,

should Measure O be adopted. The additional articles that described in more

detail the potential cuts in services affecting the police, fire, and park and

recreation departments, although at times conveying the departments’ views of the

importance of such programs, were moderate in tone and did not exhort voters

with regard to how they should vote.

Further, the article setting forth answers to frequently asked questions about

the utility users tax provided city residents with important information about the

tax — including the annual cost of the tax to the average resident — in 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 Shulz v. State of


(footnote continued from previous page)

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 newsletter’s 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.” (Id. at p. 250.)

47

New York (N.Y. 1995) 654 N.E.2d 1226 (Schulz),20 or from the type of

promotional campaign brochure that, on at least one occasion, has been mailed to

voters by a California public entity in the past.21 Under these circumstances, we

conclude that the City engaged in permissible informational activity, rather than

impermissible campaign activity, in publishing and mailing the newsletter in

question.22


20

In Schulz, the court considered a newsletter that had been published and

mailed by the New York Governor’s 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: “Although 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 [i]ndisputably ‘ “convey[ed] . . . partisanship, partiality . . . [and]
disapproval by a State agency of [an] issue” ’ [citation.]. Thus, the newsletter
states: [¶] ‘Led by the Bush Administration, Republicans in New York and across
the nation are seeking to slash assistance to the needy. . . . The 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.’ ” (Schulz, supra, 654 N.E.2d
at p. 1231.) The court in Schulz held: “The conclusion is unavoidable that the
latter portion of the newsletter is ‘patently designed to exhort the electorate to
[make an avowed, public commitment] in support of a particular position
advocated by [one political faction].’ ” (Ibid.)

21

At the request of amicus 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.

22

In addition to maintaining that the distribution of the fall 2002 “City

Round-Up” newsletter constituted campaign activity, plaintiffs also argue, as they
have with regard to the City’s 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
council’s action. As with the City’s official Web site, however, the City did not
permit private persons or organizations to publish material in the city newsletter,
and thus the newsletter did not constitute a public forum to which the proponents


(footnote continued on next page)

48

In sum, a variety of factors contributes to our conclusion that the actions of

the City that are challenged in this case are more properly characterized as

providing information than as campaigning: (1) the information conveyed

generally involved past and present facts, such as how the original UUT was

enacted, what proportion of the budget was produced by the tax, and how the city

council had voted to modify the budget in the event Measure O were to pass;

(2) the communications avoided argumentative or inflammatory rhetoric and did

not urge voters to vote in a particular manner or to take other actions in support of

or in opposition to the measure; and (3) the information provided and the manner in

which it was disseminated were consistent with established practice regarding use

of the Web site and regular circulation of the city’s official newsletter.

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 voters — whether it be a tax-cutting proposal such as

that involved in this case, a “slow-growth” 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 & 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


(footnote continued from previous page)

of Measure O had a right of access. (See, e.g., Arkansas Educ. TV v. Forbes,
supra, 523 U.S. 666, 672-675; Clark v. Burleigh, supra, 4 Cal.4th 474, 482-491.)

49

contexts, a municipality’s 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 activities — and 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 plaintiffs’ 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 defendants’ actions

were unlawful. Thus, the trial court properly granted defendants’ motion to strike

plaintiffs’ action under the anti-SLAPP statute.

IV

As explained above, although we conclude that the Court of Appeal applied

an incorrect standard in evaluating the validity of the City’s conduct, we

nonetheless conclude that the appellate court reached the correct result in

upholding the trial court’s order granting defendants’ motion to strike the

supplemental complaint. Accordingly, the judgment of the Court of Appeal is

affirmed.

GEORGE, C. J.

WE CONCUR:
KENNARD, J.
BAXTER, J.
WERDEGAR, J.
CHIN, J.
MORENO, J.
CORRIGAN, J.

50





CONCURRING OPINION BY MORENO, J.




I agree with the majority that the “express advocacy” standard does not

fully capture the limitations on the public funding of communication in connection

with political campaigns. I also agree with the majority that the City of Salinas’s

expenditures in the present case were lawful. I write to further analyze the

relationship between the relevant statute and case law. I also write to explain why

the majority’s holding, based on Stanson v. Mott (1976) 17 Cal.3d 206 (Stanson),

a case that preceded dramatic changes in the structure of government financing

that have occurred over the last 30 years, may not be the final word on the issue.

As suggested by the majority, and by the court in Stanson, there are broadly

speaking two types of limitations on public funding of government

communications in connection with ballot initiative campaigns: (1) limitations on

the content of communications that government agencies may fund; and (2)

limitations on the means used by local governments to disseminate their

communications.

Government Code section 54964 (section 54964) is concerned with the first

type of limitation — the contents of the communication. Section 54964,

subdivisions (a) and (b) prohibit the “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.” (Italics added.) Section 54964, subdivision (c), provides that

“[t]his 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

1

activities, operations, or policies of the local agency, if both of the following

conditions are met: [¶] (1) The informational activities are not otherwise

prohibited by the Constitution or laws of this state. [¶] (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.”

Therefore, read together, section 54964 permits expenditures for communications

that do not expressly advocate passage of a ballot measure and are informational

in nature. As the majority correctly notes, the Legislature considered and rejected

a prohibition on advocacy “by implication.” (Maj. opn., ante, at pp. 35-36.)

As an initial matter, I note that plaintiffs would interpret section 54964 to

require that the government limit itself to “undisputed factual information” and not

weigh in on “debatable questions.” But section 54964, subdivision (c) does not

say that the government is obliged to inform the public regarding all sides of the

debate about a given ballot measure, or that it must view all sides with equal favor.

Rather, it is authorized to inform the public about the “possible effects of the

ballot measure on the activities, operations or policies of the local agency.” A

government agency’s analysis and discussion of that topic may be controversial or

not universally agreed upon, and it cannot be the case that section 54964,

subdivision (c) would for that reason prohibit it. “[A]ccurate, fair and impartial”

implies a certain kind of objective and factual approach, not necessarily a

noncontroversial outcome, rather like a judicial opinion that is firmly grounded in

the facts and the law and established methods of legal reasoning, but which may

be contested by a dissent similarly grounded. On the other hand, the “undisputed

factual information” standard would mean that the government could not

communicate any information unless there was complete agreement about its

truth, no matter how unreasonable the contrary position is — a virtually

2

impossible standard and doubtless not what the Legislature intended. I therefore

agree with the majority’s implicit rejection of plaintiffs’ interpretation of section

54964, subdivision (c).

Although section 54964 regulates the contents of the communications a

government agency may fund in the course of a political campaign, it does not

address the second prong discussed above, the means by which such

communication can be disseminated. This topic is covered substantially in

Stanson. Indeed, in its pivotal distinction between “improper ‘campaign’

expenditures” and “proper ‘informational’ activities” (Stanson, supra, 17 Cal.3d at

p. 221), Stanson focused in large part on the methods by which the government’s

messages are communicated: “With respect to some activities the distinction is

rather clear; thus, the use of public funds to purchase such items as bumper

stickers, posters, advertising ‘floats,’ or television and radio ‘spots’

unquestionably constitutes improper campaign activity [citations], as does the

dissemination, at public 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 ‘informational’ role when

it simply gives a ‘fair presentation of the facts’ in response to a citizen’s request

for information [citations] or, when requested by a private or public organization,

it authorizes an agency employee to present the department’s view of a ballot

proposal at a meeting of such organization. [Citations.]” (Ibid., fn. omitted.)

Stanson also critically refers to the “style, tenor and timing” of communications to

determine whether they constitute improper campaign activity. (Id. at p. 222.)

I agree with the majority that the fact that section 54964 only addressed the

permissible content of government-funded communications about ballot measures

does not mean that it was intended to supersede Stanson’s statements

3

circumscribing the means of disseminating the communications. Such a

repudiation or modification of Stanson is neither evident in the language of the

statute nor, as the majority points out, in the legislative history. (Maj. opn., ante,

at p. 34.) Thus, in addition to the legislative command pursuant to section 54964

that local government agencies not engage in “express advocacy” and that they

fund only those communications about ballot measures that are informational in

nature, such communications must also pass the Stanson test of not using methods

that constitute campaign activity.

With respect to those methods, it is noteworthy that today’s decision makes

clear, in a way that Stanson did not, that a government agency’s informational

activities with respect to ballot measures are not limited to responses to citizen

requests, but can also entail proactive measures to inform citizenry about the

probable effects of a ballot measure. Municipalities are statutorily authorized to

gather information about the impacts of proposed ballot measures (Elec. Code,

§ 9212) and are often uniquely well positioned to disseminate such information.

Nor do I understand the various methods used by the city in the present case,

which the majority correctly concludes are lawful, to necessarily represent the

outer limits of permissible publicly funded communications. Precisely where such

outer limits are to be drawn awaits other cases.

It also remains to be seen whether the concept of prohibited “campaign

activity” set forth in Stanson, and reaffirmed by the majority meets the current

needs of governance. Since Stanson was decided over 30 years ago, local

government finance in California has undergone a sea change. One aspect of that

transformation is that after the passage of Proposition 13 in 1978 and subsequent

measures, the power to raise local revenues has shifted from the local legislatures

— the city councils, boards of supervisors, school boards and boards of directors

4

of special agencies — to the electorate, which now must approve all revenue

increases and increases in bonded indebtedness at the ballot box, usually by a

supermajority vote. (See Cal. Const., arts. XIIIA, XIIIC.) In other words, the

local government legislative power to finance government projects and services no

longer resides with the local legislative body as it did when Stanson was written,

but with the local electorate. Thus, for example, whereas in the 1978 general

election, one ballot initiative relating to local taxes and none to local bond issues

were reported in Los Angeles County, in the 2008 general election 11 local tax

initiatives and 21 bond initiatives were reported. (County of Los Angeles, Off. of

Registrar-Recorder, Official Election Returns, Gen. Elec. (Nov. 7, 1978); County

of Los Angeles, Dept. of Registrar-Recorder/County Clerk, Final Official Election

Returns, Gen. Elec. (Nov. 4, 2008).)

In this context, local and regional agencies sometimes have been specially

charged with the task of sponsoring ballot propositions to raise revenue to fund

various infrastructure improvements and services that are deemed necessary. The

critical role of local governments in such sponsorship is illustrated by the recent

case of Santa Barbara County Coalition Against Automobile Subsidies v. Santa

Barbara County Assn. of Governments (2008) 167 Cal.App.4th 1229 (Santa

Barbara County). By statute, the county transportation authority (SBCAG), was

“specifically empowered to impose a retail transaction and use tax of up to 1

percent to fund transportation improvements and services in its county. (Pub. Util.

Code, § 180202.) Before a sales tax may be imposed, however, the authority must

adopt a ‘transportation expenditure plan’ for revenues ‘expected to be derived

from’ the tax, approve an ordinance imposing the tax, and obtain approval of the

ordinance by ‘a majority of the electors voting on the measure . . . at a special

election called for that purpose by the board of supervisors, at the request of the

5

authority . . . .’ (Pub. Util. Code, §§ 180201, 180206.)” (Santa Barbara County,

supra, 167 Cal.App.4th at pp. 1239-1240.)

SBCAG proposed a ballot proposition, Measure A, for the November 2008

ballot seeking to extend the .5 percent countywide sales tax to fund various

transportation projects and services. (Santa Barbara County, supra, 167

Cal.App.4th at p. 1234.) It was opposed by the Santa Barbara County Coalition

Against Automobile Subsidies, a nonprofit corporation. Plaintiff corporation filed

a complaint against SBCAG, claiming it was engaging in illegal campaign

activity. As the court explained: “SBCAG retained a private consultant to survey

voter support for an extension of the sales tax. The consultant determined the

arguments in favor of extension that were received most favorably by the voters

polled, potential arguments in opposition, and the best strategy to maximize voter

support. In addition, SBCAG staff and committee members attended public

meetings with civic groups during which staff presented information regarding the

transportation expenditure plan, and the importance of extending the 1989 sales

tax to satisfying the county’s transportation needs.” (Ibid.)

The Court of Appeal upheld the trial court’s grant of SBCAG’s motion to

strike pursuant to the anti-SLAPP statute, Code of Civil Procedure section 425.16,

holding there was no probability of plaintiff prevailing on the merits. The Court

of Appeal’s conclusion that SBCAG’s actions did not constitute unlawful

campaign activity largely turned on the fact that all the activity at issue had

occurred before the measure was placed on the ballot. As the court explained:

“SBCAG was performing its legislative duty to obtain financing for county

transportation needs. [¶] Governments must provide facilities and services that

require funding through taxation. The SBCAG is permitted and even required to

expend public funds to determine the cost of the county’s transportation needs and

6

propose ordinances calling for elections to obtain the necessary revenue. When a

government agency’s activity represents its ‘ “. . . judgment of what is required in

the effective discharge of its responsibility, it is not only the right but perhaps the

duty of the body to endeavor to secure the assent of the voters thereto.” ’ ” (Santa

Barbara County, supra, 167 Cal.App.4th at pp. 1240-1241.)

Although the court’s decision rested on the fact that SBCAG’s activity

preceded placement on the ballot, the case highlights the tension between on the

one hand statutorily authorizing government agencies to propose revenue raising

ballot initiatives (see also Elec. Code, §§ 9140, 9222 [authorizing boards of

supervisors and city councils to submit ballot questions to voters]), and on the

other hand forbidding them from campaigning for those initiatives. Under these

circumstances, it would seem a government agency has a special role to play in

informing the electorate about the reasons for enacting the measure it has

proposed. That information must be, to be sure, “an accurate, fair, and impartial

presentation of relevant facts” (§ 54964, subd. (c)(2)), but it necessarily will

involve some degree of advocacy, since the agency is itself sponsoring the ballot

measure based on its assessment of local needs.

The extent to which the funding of an active informational campaign to

promote or defend a lawfully government-sponsored ballot measure would fit

within Stanson’s and the majority’s informational/campaign activity dichotomy is

not entirely clear. Yet as the majority reaffirms, courts are not necessarily the

final word on the matter. Stanson’s and the majority’s holdings are limited to

situations in which there is no “clear and unmistakable [legislative] language

specifically authorizing a public entity to expend public funds for campaign

activities or materials.” (Maj. opn., ante, at p. 25; see also Stanson, supra, 17

Cal.3d at pp. 219-220.) Indeed, one of the strengths of the majority opinion, and

7

of Stanson, is that they leave room for the possibility of legislative innovation in

this area to respond to new or unique circumstances.

Of course, any such legislation would have to conform to constitutional

constraints so as to preserve “the integrity of the electoral process.” (Stanson,

supra, 17 Cal.3d at p. 218.) At the very least, such legislation must follow

Professor Tribe’s dictum that “government may add its own voice to many it must

tolerate, provided it does not drown out private communication.” (Tribe,

American Constitutional Law (2d ed. 1988) § 12-4, p. 807.) But at a time when

government sponsorship of revenue raising ballot measures has become an integral

part of local government finance, the blanket prohibition on government-funded

“campaign activity” may be neither constitutionally required nor socially optimal.

The Legislature may wish to clarify the extent to which an agency can engage in

an active informational campaign decidedly in favor of or in defense of a measure

it has been charged with sponsoring.

With these provisos in mind, I concur in the majority opinion.

MORENO, J.

I CONCUR:

WERDEGAR, J.

8

See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion Vargas v. City of Salinas
__________________________________________________________________________________

Unpublished Opinion

Original Appeal
Original Proceeding
Review Granted
XXX 135 Cal.App.4th 361
Rehearing Granted
_________________________________________________________________________________

Opinion No.
S140911
Date Filed: April 20, 2009
__________________________________________________________________________________

Court:
Superior
County: Monterey
Judge: Robert A. O’Farrell
__________________________________________________________________________________

Attorneys for Appellant:

Steven J. André for Plaintiffs and Appellants.

Joseph T. Francke for California Aware as Amicus Curiae on behalf of Plaintiffs and Appellants.

Nick Bulaich as Amicus Curiae on behalf of Plaintiffs and Appellants.

Trevor A. Grimm, Jonathan M. Coupal and Timothy A. Bittle for Howard Jarvis Taxpayers Association as
Amicus Curiae.

Nielsen, Merksamer, Parrinello, Mueller & Naylor, Steven A. Merksamer, James R. Parrinello and
Christopher E. Skinnell for California Chamber of Commerce, California Taxpayers’ Association,
California Business Roundtable and California Business Properties Association as Amici Curiae on behalf
of Plaintiffs and Appellants.

Anthony T. Caso and Deborah J. La Fetra for Pacific Legal Foundation as Amicus Curiae on behalf of
Plaintiffs and Appellants.
__________________________________________________________________________________

Attorneys for Respondent:

Vanessa W. Vallarta, City Attorney, M. Christine Davi and Jessica K. Steinberg, Deputy City Attorneys;
Law Offices of Joel Franklin and Joel Franklin for Defendants and Respondents.

Nossaman, Guthner, Knox & Elliott, Stephen N. Roberts, Stanley S. Taylor and Ciarán O’Sullivan for Self-
Help Counties Coalition as Amicus Curiae on behalf of Defendants and Respondents.

Stephen P. Traylor for League of California Cities as Amicus Curiae on behalf of Defendants and
Respondents.

Remcho, Johansen & Purcell, Robin B. Johansen, Karen Getman and Margaret R. Prinzing for League of
California Cities, California State Association of Counties and League of Women Voters of Salinas Valley
as Amicus Curiae on behalf of Defendants and Respondents.





Counsel who argued in Supreme Court (not intended for publication with opinion):

Steven J. André
26540 Carmel Rancho Boulevard
Carmel, CA 93923
(831) 624-5786

James R. Parrinello
Nielsen, Merksamer, Parrinello, Mueller & Naylor
591 Redwood Highway, #4000
Mill Valley, CA 94941
(415) 389-6800

Joel Franklin
Law Offices of Joel Franklin
2100 Garden Road, Suite G
Monterey, CA 93940-5316
(831) 649-2545




















Petition for review after the Court of Appeal affirmed an order granting a special motion to strike in a civil action. This case includes the following issue: What is the proper standard for determining when a city has unlawfully expended public funds on improper partisan election campaigning? (See Stanson v. Mott (1976) 17 Cal.3d 206.)

Opinion Information
Date:Citation:Docket Number:Category:Status:Cross Referenced Cases:
Mon, 04/20/200946 Cal. 4th 1, 205 P.3d 207, 92 Cal. Rptr. 3d 286S140911Review - Civil Appealclosed; remittitur issued

VARGAS v. S.C. (CITY OF SALINAS) (S118298)


Parties
1Vargas, Angelina Morfin (Plaintiff and Appellant)
Represented by Steven J. Andre
Attorney at Law
26540 Carmel Rancho Boulevard
Carmel, CA

2Dierolf, Mark (Plaintiff and Appellant)
Represented by Steven J. Andre
Attorney at Law
26540 Carmel Rancho Boulevard
Carmel, CA

3City Of Salinas (Defendant and Respondent)
Represented by Joel Franklin
Law Offices of Joel Franklin
2100 Garden Road, Suite G
Monterey, CA

4City Of Salinas (Defendant and Respondent)
Represented by Vanessa W. Vallarta
City Attorney/City of Salinas
200 Lincoln Avenue
Salinas, CA

5Mora, Dave (Defendant and Respondent)
Represented by Joel Franklin
Law Offices of Joel Franklin
2100 Garden Road, Suite G
Monterey, CA

6Mora, Dave (Defendant and Respondent)
Represented by Vanessa W. Vallarta
City Attorney/City of Salinas
200 Lincoln Avenue
Salinas, CA

7Self Help Counties Coalition (Amicus curiae)
Represented by Stephen N. Roberts
Nossaman Guthner Knox et al.
50 California Street, 34th Floor
San Francisco, CA

8Pacific Legal Foundation (Amicus curiae)
Represented by Anthony T. Caso
Pacific Legal Foundation
3900 Lennane Drive, Suite 200
Sacramento, CA

9League Of California Cities (Amicus curiae)
Represented by Karen A. Getman
Attorney at Law
201 Delores Avenue
San Leandro, CA

10Howard Jarvis Taxpayers Association (Amicus curiae)
Represented by Timothy A. Bittle
Howard Jarvis Taxpayers Association
921 11th Street, Suite 1201
Sacramento, CA

11California Chamber Of Commerce (Amicus curiae)
Represented by Steven Merksamer
Nielsen Merksamer et al.
2350 Kerner Boulevard, Suite 250
San Rafael, CA

12California Chamber Of Commerce (Amicus curiae)
Represented by Christopher Elliott Skinnell
Nielsen Merksamer et al.
2350 Kerner Boulevard, Suite 250
San Rafael, CA

13California Chamber Of Commerce (Amicus curiae)
Represented by James R. Parrinello
Nielsen Merksamer et al.
2350 Kerner Boulevard, Suite 250
San Rafael, CA

14Bulaich, Nick (Amicus curiae)
305 Second Street
Watsonville, CA 95076

15California Taxpayers Association (Amicus curiae)
Represented by James R. Parrinello
Nielsen Merksamer et al.
2350 Kerner Boulevard, Suite 250
San Rafael, CA

16California Business Roundtable (Amicus curiae)
Represented by James R. Parrinello
Nielsen Merksamer et al.
2350 Kerner Boulevard, Suite 250
San Rafael, CA

17California Business Properties Association (Amicus curiae)
Represented by James R. Parrinello
Nielsen Merksamer et al.
2350 Kerner Boulevard, Suite 250
San Rafael, CA

18California State Association Of Counties (Amicus curiae)
Represented by Karen A. Getman
Attorney at Law
201 Delores Avenue
San Leandro, CA

19League Of Women Voters Of Salinas Valley (Amicus curiae)
Represented by Karen A. Getman
Attorney at Law
201 Delores Avenue
San Leandro, CA


Opinion Authors
OpinionChief Justice Ronald M. George
ConcurJustice Carlos R. Moreno

Disposition
Apr 20 2009Opinion: Affirmed

Dockets
Feb 6 2006Petition for review filed
  Angelina Morfin Vargas and Mark Dierolf, appellants. Steven J. Andre, retained counsel.
Feb 6 2006Record requested
 
Feb 8 2006Received Court of Appeal record
  one file jacket/ briefs
Feb 9 2006Request for depublication (petition for review pending)
  Howard Jarvis Taxpayers Association (non-party)
Feb 9 2006Note:
  Left message for Aty Andre re filing fee check received for $420; filing fee is $590. Counsel can either replace this check or send in another check for $170.
Feb 14 2006Received:
  Check # 2266 for the amount of $170.00 from Steven J. Andre.
Feb 16 2006Request for extension of time filed
  counsel for respondent requests extension of time to 3-20-2006 to file the answer to petition for review.
Feb 16 20062nd record request
  additional records.
Feb 17 2006Received additional record
  one box
Feb 22 2006Extension of time granted
  Respondent's time to serve and file the answer to petition for review is extended to and including March 6, 2006.
Mar 7 2006Answer to petition for review filed
  counsel for City of Salinas and Dave Mora (40.1 (b))
Mar 17 2006Reply to answer to petition filed
  counsel for Angelina Morfin Varga, et al.,
Mar 17 2006Order filed
  The order filed on February 22, 2006, extending the time to March 6, 2006, to serve and file the answer to the petition for review is amended as to the title reflected above.
Mar 22 2006Received:
  counsel for resp. (City of Salinas) Request leave to file Supplement to Answer to Petition for Review to respond to support letters.
Mar 24 2006Filed:
  w/permission by counsel for resp. supplement to answer to petition for review
Mar 28 2006Received:
  from counsel for aplt. Angelina M. Vargas, Request to file Reply to Supplement to Answer
Mar 28 2006Filed:
  w/permission by counsel for aplt. Reply to Supplement to answer to petition for review
Mar 29 2006Time extended to grant or deny review
  to and including May 5, 2006, or the date upon which review is either granted or denied.
Apr 14 2006Received:
  Amicus Curiaes' Supplemental Request for Judicial Notice in Support of Supplemental Letter Urging Grant of Appellant's Petition for Review. (Calif. Chamber of Commerce, Calif. Taxpayers' Association, Calif. Business Roundtable and Calif. Business Properties Association.)
Apr 26 2006Petition for review granted (civil case)
  The request for judicial notice granted. Votes: George, C.J., Kennard, Baxter, Werdegar, Chin, Moreno, and Corrigan, JJ.
May 3 2006Certification of interested entities or persons filed
  counsel for aplts.
May 5 2006Received:
  letter dated May 4, 2006, from Joel Franklin, co-counsel for respondent.
May 11 2006Certification of interested entities or persons filed
  by counsel for City of Salinas
May 15 2006Filed:
  by counsel for City of Salinas, Supplemental Proof of Service
May 26 2006Opening brief on the merits filed
  counsel for aplts. (Vargas and Dierolf)
Jun 7 2006Request for extension of time filed
  counsel for respondents City of Salinas, et al., requests extension of time to August 24, 2006, to file the answer brief on the merits.
Jun 13 2006Extension of time granted
  To August 24, 2006 to file Respondents' answer brief on the merits.
Aug 25 2006Answer brief on the merits filed
  counsel for City of Salinas, et al. (40.1(b))
Sep 6 2006Request for extension of time filed
  Counsel for aplts. requests extension of time to October 30, 2006, to file the reply brief on the merits.
Sep 12 2006Application filed to:
  Stipulated Application to Consolidate and Coordinate time to file answers to briefs of Amici Curiae
Sep 13 2006Extension of time granted
  to October 30, 2006 for appellant to file the reply brief on the merits.
Sep 15 2006Extension of time granted
  Appellants and respondent time to serve and file the answers to briefs of amici curiae is extended. Any party may file a single consolidated answer to all amicus curiae briefs within 20 days after the last date that an application to file an amicus curiae brief may be filed under rule 29.1 (f)(2).
Oct 12 2006Received application to file Amicus Curiae Brief
  Self-Help Counties Coalition in support of respondent
Oct 30 2006Received:
  from counsel for aplts. Vargas and Dierolf Reply Brief on the Merits
Oct 30 2006Application to file over-length brief filed
  counsel for aplt. (Vargas and Dierolf) Reply Brief
Nov 2 2006Reply brief filed (case fully briefed)
  counsel for aplt. w/permission
Nov 2 2006Received application to file Amicus Curiae Brief
  Nick Bulaich, in support of plfs. and aplt. (non-party)
Nov 8 2006Permission to file amicus curiae brief granted
  Nick Bulaich in support of Plaintiffs and Appellants (non-party)
Nov 8 2006Amicus curiae brief filed
  The application of Nick Bulaich for permission to file an amicus curiae brief in support of appellant is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Nov 8 2006Permission to file amicus curiae brief granted
  Self-Help Counties Coalition in support of respondents.
Nov 8 2006Amicus curiae brief filed
  The application of Self-Help Counties Coalition for permission to file an amicus curiae brief in support of respondents is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Nov 28 2006Received application to file Amicus Curiae Brief
  Pacific Legal Foundation in support of plfs. and aplts. (non-party)
Nov 29 2006Received application to file Amicus Curiae Brief
  Howard Jarvis Taxpayers Association
Nov 29 2006Received application to file Amicus Curiae Brief
  Counsel for League of California Cities, et al. w/Request for Judicial Notice. (non-party)
Dec 4 2006Received application to file Amicus Curiae Brief
  California Chamber of Commerce, et al., in support of appellants
Dec 11 2006Permission to file amicus curiae brief granted
  Californina Chamber of Commerce et al.,in support of appellants.
Dec 11 2006Amicus curiae brief filed
  California Chamber of Commerce et al., for permission to file an amicus curiae brief in support of appellants is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Dec 11 2006Permission to file amicus curiae brief granted
  Pacific Legal Foundation in support of appellants.
Dec 11 2006Amicus curiae brief filed
  Pacific Legal Foundation for permission to file an amicus curiae brief in support of appellants is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Dec 11 2006Amicus curiae brief filed
  League of California Cities, et al., in support of respondents.
Dec 11 2006Permission to file amicus curiae brief granted
  League of California Cities, et al., for permission to file an amicus curiae brief in support of respondents is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Dec 11 2006Permission to file amicus curiae brief granted
  Howard Jarvis Taxpayers Association in support of appellants.
Dec 11 2006Amicus curiae brief filed
  Howard Jarvis Taxpayers for permission to file an amicus curiae brief in support of appellants is granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Dec 12 2006Request for extension of time filed
  Counsel for respondent requests extension of time to January 25, 2007, to file a single consolidated answer brief to all amici curiae briefs.
Dec 14 2006Extension of time granted
  On application of respondent and good cause appearing, it is ordered that the time to serve and file the consolidated answer brief to all amici briefs is extended to and including January 25, 2007.
Jan 26 2007Response to amicus curiae brief filed
  counsel for defts.and resps. City of Salinas and Dave Mora *** consolidated answer *** CRC (8.25 b))
Jan 26 2007Response to amicus curiae brief filed
  counsel for plf. and aplts. (A. Vargas and M. Dierolf) *** consolidated answer *** w/permission
Oct 29 2007Filed:
  counsel for respondents, Notice of Unavailability, Counsel unavailable to attend court appearances on the following dates, Dec. 15, 2007 through January 15, 2008.
May 27 2008Change of contact information filed for:
  Law firm of Nielsen, Merksamer, Parrinello, Mueller & Naylor, LLP, counsel for amicus curiae., Chamber of Commerce, et al.,
Dec 31 2008Filed:
  counsel for resps. (City of Salinas and Dave Mora) Notice of Unavailability, Counsel unavailable to attend coourt appearances on the following dates January 19, 2009, through February 9, 2009.
Jan 6 2009Request for judicial notice granted
  The request for Judicial Notice, filed by amici curiae League of California Cities et al., on November 29, 2006, is granted.
Jan 6 2009Order filed
  Pursuant to Evidence code Section 459, subdivision (c), and 455, subdivision (a), the court notifies the parties that it is considering taking judicial notice of the Sample Ballot and Voter Information Pamphlet of the County of Monterey for the November 5, 2002 Consolidated General Election. A copy of the Sample Ballot and Voter Information Pamphlet will be mailed to the parties with this order. Any party that objects to the court's taking judicial notice of this document must file an objection in the San Francisco Office of the Supreme Court on or before January 16, 2009.
Jan 6 2009Case ordered on calendar
  to be argued on Tuesday, February 3, 2009, at 9:00 a.m., in Sacramento
Jan 6 2009Filed:
  "Amended Notice of Unavailability of Respondents' Counsel", filed by counsel Joel Franklin
Jan 16 2009Application filed
  Request to share oral argument, filed by Steven Andre, counsel for appellants Vargas et al. Asking to share 10 minutes of time with amici curiae California Chamber of Commerce et al.
Jan 20 2009Order filed
  The request of counsel for appellants in the above-referenced cause to allow two counsel to argue on behalf of appellants at oral argument is hereby granted. The request of appellants to allocate to amici curiae California Chamber of Commerce et al. 10 minutes of appellants' 30-minute allotted time for oral argument is granted.
Jan 21 2009Filed:
  counsel for aplts. List of Additional Authorities
Jan 23 2009Supplemental brief filed
  counsel for resps. (City of Salinas and D. Mora)
Feb 3 2009Cause argued and submitted
 
Apr 17 2009Notice of forthcoming opinion posted
 
Apr 20 2009Opinion filed: Judgment affirmed in full
  Although we conclude,that the Court of Appeal applied an incorrect standard in evaluating the validity of the City's conduct, we nonetheless conclude that the appellate court reached the correct result in upholding the trial court's order granting defendants' motion to strike the supplemental complaint. Accordingly, the judgment of the Court of Appeal is affirmed. OPINION BY: George, C.J. --- joined by: Kennard, Baxter, Werdegar, Chin, Moreno, and Corrigan, JJ. CONCURRING OPINION BY: MORENO, J. --- joined by: Werdegar, J.
May 5 2009Request for judicial notice filed (Grant or AA case)
  counsel for aplt. (Andre)
May 5 2009Rehearing petition filed
Plaintiff and Appellant: Vargas, Angelina MorfinAttorney: Steven J. Andre  
May 8 2009Time extended to consider modification or rehearing
  The time for granting or denying rehearing in the above-entitled case is hereby extended to and including July 17, 2009, or the date upon which rehearing is either granted or denied, whichever occurs first.
May 14 2009Opposition filed
Defendant and Respondent: Mora, DaveAttorney: Joel Franklin   counsel for petnrs. to Req. for Judicial Ntc. in support of Petn. for Rehearing.
May 14 2009Answer to rehearing petition filed
Defendant and Respondent: Mora, DaveAttorney: Joel Franklin   (8.25(b))
Jun 17 2009Rehearing denied
  The request for judicial notice is denied. The petition for rehearing is denied.
Jun 17 2009Remittitur issued
 
Jun 25 2009Received:
  receipt for remittitur from CA 6

Briefs
May 26 2006Opening brief on the merits filed
 
Aug 25 2006Answer brief on the merits filed
 
Nov 2 2006Reply brief filed (case fully briefed)
 
Nov 8 2006Amicus curiae brief filed
 
Nov 8 2006Amicus curiae brief filed
 
Dec 11 2006Amicus curiae brief filed
 
Dec 11 2006Amicus curiae brief filed
 
Dec 11 2006Amicus curiae brief filed
 
Dec 11 2006Amicus curiae brief filed
 
Jan 26 2007Response to amicus curiae brief filed
 
Jan 26 2007Response to amicus curiae brief filed
 
Brief Downloads
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Vargas v Salinas Appendix A - One Page Document.pdf (366841 bytes) - Appendix A - One Page Document
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Vargas v Salinas Appendix B - City Round-Up.pdf (3871751 bytes) - Appendix B - Salinas City Round-Up Newsletter
If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website
May 4, 2010
Annotated by wackos

Issue:
What is the standard for determining whether a public entity has expended public funds improperly to produce “campaign” materials or properly to produce “informational” materials regarding a ballot issue?

Holding:
The Court reaffirmed that the appropriate legal standard was set out in Stanson v. Mott, 17 Cal.3d 206 (1976). When the nature of the materials is not immediately apparent, a court should examine the “style, tenor, and timing” of the communication. A subsequently enacted statute barring the use of public funds for “communications that expressly advocate the approval or rejection of a clearly identified ballot measure,” Cal. Gov. Code § 54964, did not modify the Stanson standard or replace it with a “express advocacy” standard.

Procedural History:
• Plaintiffs originally filed in October 2002 in Monterey County Superior Court, challenging the City’s actions in connection with Measure O. The trial court dismissed these claims. Plaintiffs amended their complaint in 2004 to additionally challenge the City’s actions with regard to Measure P. In May 2004, the trial court granted defendants’ motion to strike under Cal. Code of Civil Proc § 425.16, California’s Anti-SLAPP statute.
• The California Court of Appeal for the Sixth District affirmed in December 2005.
• The Supreme Court of California granted review and affirmed, although it held that the Court of Appeal had applied an incorrect standard.

Facts:
For over 30 years, the City of Salinas has imposed a Utility User Tax (“UUT”) to generate revenue. By 2001, the UUT annually produced $8 million in revenue, or 13% of the City’s general fund budget. In 2001, the plaintiffs-appellants submitted a local initiative, Measure O, that would immediately cut the UUT in half, and eventually repeal it entirely. Pursuant to California Elections Code §§ 9215 and 9212, the Salinas City Council requested that the city staff prepare a report on the impact of Measure O. This initial report concluded that Measure O would result in “substantial service level reductions to City residents.”

After Measure O was placed on the November 2002 ballot, the City Manager produced a more in depth analysis of the services that would have to be cut as a result of Measure O. In July 2002, the City Council passed a resolution adopting the City Manager’s findings, and reciting the specific departments and services impacts. Throughout August 2002, various City Departments made presentations at the Council’s meetings describing the impacts of Measure O. At each of these meetings, plaintiffs-appellants disputed the City’s characterization of Measure O’s impacts, arguing that services could be retained by increasing efficiency, cutting salaries, and reducing the number of management positions. At the August 27, 2002 meeting of the City Council, plaintiffs-appellants formally presented their alternative analysis of Measure O’s impacts, and city staff presented a report critiquing the alternative analysis.

Plaintiffs-appellants brought this litigation to challenge several actions undertaken by the City in this process. First, in July 2002, the City produced a one page document summarizing the City Manager’s analysis of service cuts and directing readers to the full analysis, which was available in city libraries and on the City’s website. The one page document was made available to the public in both English and Spanish at city hall and at all city libraries. Second, the City published several articles relating the City’s analysis of Measure O in its quarterly “City Round-Up” newsletter. Finally, in addition to posting regular meeting minutes for the August 27, 2002 City Council meeting, the City posted on its website the City Managers detailed report, the presentations made by various city departments, and the city staff’s critical analysis from the August 27 meeting.

Plaintiff-appellants filed suit claiming that the City had engaged in unlawful campaign activities by using public funds “to prepare and distribute pamphlets, newsletters and Web site materials.” They argue that the documents prepared and distributed by the City constituted “campaign materials” because failed to provide a fair analysis of the arguments for and against Measure O, and were intended to influence voters against Measure O. The City moved to strike the plaintiffs’ complaint under California’ anti-SLAPP statute, Cal. Code of Civ. Proc. § 425.16 (barring Strategic Litigation Against Public Participation). In other words, the City argued that plaintiffs’ filed their suit for the purpose of chilling the City’s legitimate speech.

Court of Appeal Decision:
Analysis under the anti-SLAPP statute proceeds in two steps. First, the court asks whether the plaintiffs’ complaint being challenged as SLAPP arose out of the defendant’s protected activity. If so, the court continues to ask whether the plaintiffs’ have alleged facts that would support a judgment in their favor if proved at trial.

Under the step one, the California Court of Appeal found that the communications of the defendant City concerned matters of public interest and was therefore protected activity. The California Court of Appeal also decided in favor the City in step two, finding that the plaintiffs had not alleged facts that would support a judgment that the City had produced illegal “campaign materials.” The Court of Appeal reasoned that Cal. Gov. Code § 54964, which prohibits public funding for materials that expressly advocate for the passage or defeat of a ballot measure, set an “express advocacy” standard for determining whether documents constitute campaign materials.

Supreme Court of California Opinion:
Unanimous Court – Opinion by C.J. George; Concur by Moreno (Joined by Werdegar)

The Supreme Court upheld the Court of Appeals’ reasoning under step one of the anti-SLAPP analysis, holding that the anti-SLAPP statute extends to protect speech by government entities. The Court relied on the purpose of the anti-SLAPP statute, the very broad language of Cal. Code of Civ. Proc § 425.16(e) and the legislative authorization of “SLAPPback” suits by government entities in § 425.18(i).

The Supreme Court rejected, however, the Court of Appeals’ reasoning under step two, holding that the Stanson standard governs, and that Cal. Gov. Code § 54964 did not supersede or modify Stanson. The Court held that the lower court’s reasoning was fundamentally flawed because § 54964 does not authorize the use of public funds for the production of materials that fall short of express advocacy. Rather, the statute simply prohibits action that would clearly constitute political campaigning by a government entity. The Court reiterated its doctrine that the “use of public funds for campaign activities or materials unquestionably is impermissible in the absence of ‘clear and unmistakable language’ authorizing such expenditures.” See Mines v. Del Valle, 201 Cal. 273 (1927). The Court also found that the legislative history of § 54964 indicates that the statute was intended to be “similar to decisions of the California courts that limit the expenditures of public agency funds for political purposes.” Finally the Court noted that a broader reading of § 54964 would raise constitutional concerns about the ability of the legislature to authorize expenditures for materials that would arguably advocate for a position, but fall short of express advocacy.

Applying Stanson, the Court upheld the City’s actions. Finding that it would be impossible to expect the City to be wholly neutral with regard to ballot measures impacting its budget, the Court held that the analysis should be directed at whether the City’s actions were meant to campaign against the initiative or to provide information on its impacts. The Court found that the style and tenor of the City’s materials did not resemble traditional campaign material. The closest call was the quarterly “City Round-Up” that was mailed to city residents. The Court found, however, that the newsletter was not improper, since it was a regular publication that was reporting on the major issue affecting the City.

Justice Moreno filed a concurring opinion discussing the ways in which “dramatic changes in the structure of government financing” in the past 30 years might impact the Stanson analysis.

Analysis/Impact:
This case is unlikely to have a major impact. It seems to be mostly a situation in which the Supreme Court was correcting an erroneous decision in the Court of Appeal and clarifying the relevant standard for identifying impermissible “campaign materials.” The opinion will likely be most valuable as an application of Stanson to guide government entities in producing appropriate materials on future ballot initiatives.

Annotation by Albert S Yang
Tags: Anti-SLAPP, Ballot Initiatives, Campaign Materials, Government Speech