California Supreme Court to Consider Partisan Government Campaigning

The California Supreme Court currently has before it a case involving the question of whether the government may become its own partisan in elections: Vargas v. City of Salinas (S140911). But to understand what is at stake in Vargas, one must first have the backdrop of Stanson v. Mott, 17 Cal.3d 206 (1976) — the opinion referenced in the state supreme court’s own website as concerning the “proper standard for determining when a city has unlawfully expended public funds on improper partisan campaigning.” For the past 30 years, Stanson has governed the degree to which government agencies may involve themselves in election campaigning under California law. Under the Stanson standard, the line between acceptable “informational” material and impermissible “promotional” material is based on a case-by-case analysis, in which the court must give “careful consideration” to “such factors as the style, tenor and timing of the publication,” with no “hard and fast rule” to “govern every case.”¹

In Stanson, the election involved a large statewide bond issue to fund acquisition of park and recreational land. The government’s involvement was the expenditure of $5,000 by the state department of parks and recreation allegedly “to promote” passage of the issue.² The expenditure included money for promotional materials written by both the department and an outside organization favoring the bond issue, as well as money spent funding speaking engagements and travel expenses, and the devotion of a three-person staff working specifically on the issue.³ A taxpayer filed suit one day before the election, seeking to require the director to repay the funds to the state treasury. (The bond issue passed anyway.) The state trial court dismissed the case on demurrer, and the state high court reversed the judgment of dismissal, concluding that the director could be sued for such an expenditure if he failed to exercise due care in permitting the expenditure.

The Stanson decision began with the premise that “a public agency may not expend public funds to promote a partisan position in an election campaign” unless there is “clear and explicit legislative authorization.”⁴ After disposing of a collateral estoppel defense based on a previous opinion of the state intermediate appellate court,⁵ the state supreme court established that there was no legislative authorization “to promote the passage” of the bond issue, and in particular no such authorization to be found in the act authorizing the vote.⁶ Significantly, the Stanson court’s argument was the need for “clear and unmistakable” language supporting promotional expenditures.⁷

But there was another theme sounded by the court: fairness. In a passage citing, inter alia, Federalist No. 52, the court declared that the government should not “‘take sides’ in election contests or bestow an unfair advantage on one of several competing factions.”⁸ That point also surfaced in citation to other cases emphasizing “the importance of governmental impartiality in electoral matters.”⁹

The Stanson opinion was not without its qualifiers, though. First the task of distinguishing between legislatively authorized lobbying efforts and using public funds in election campaigns.¹⁰ The court’s point was that the “legislative process” contemplates that “all interested parties” would be heard from, so public agency lobbying “within the limits authorized by statute” does not undermine or distort the process.¹¹ The second qualification would have its ramifications later, in the now pending Vargas decision: How does a court tell the difference between “unauthorized campaign expenditures and authorized informational activities” — a line that the court acknowledged was “not so clear.”¹² The Stanson court enunciated a nuanced rule to solve that problem: A court must consider the “style, tenor and timing of the publication;” that is, “no hard and fast rule governs every case.”¹³ In the case before it, however, there was no need to explore those nuances because of the case’s procedural posture. Coming to the high court on demurrer, the court was obligated to accept at face value the plaintiff’s allegation that the department had disseminated publications that were “‘promotional.’”¹⁴

The Stanson court’s resolution obviated the need to consider a more extreme hypothetical: Suppose there had been explicit legislative authorization for “promotional” materials to influence an election? While the court noted that it did not need to resolve this question, it did send some rhetorical signals that it was fundamentally mistrustful of the idea.¹⁵ The no-need-to-resolve point was made just after several paragraphs stressing the “uniform judicial reluctance” to allow public funds to be used for the government to essentially “‘take sides,’” a prospect that posed the danger of office holders using official power to “perpetuate themselves or their allies.”¹⁶ Such a prospect raised, at the very least, a “serious constitutional question.”¹⁷

Stanson was a unanimous opinion written by Justice Tobriner. Let us now segue to the Vargas case, 30 years later, as it was written in late 2005 by a panel from the state’s intermediate appellate court from California’s Sixth Appellate District (which generally takes cases from trial courts in the San Jose area).¹⁸ In both rhetoric and substance, the intermediate appellate court took a distinctly different approach than the California Supreme Court had in Stanson.

Vargas involved a city ballot measure that would have repealed the city’s utilities user tax, which represented about 13 percent of the city’s general fund budget. City staffers identified “service cuts, some in dire terms” that would be implemented if the measure passed. Their warnings were posted on the city’s website. Moreover, the “city informed the electorate of its analysis” through a periodic newsletter to residents, and also by means of a leaflet.¹⁹ Proponents of the measure sued the city for using city funds to oppose the measure; funds claimed to be in excess of $250,000. The city responded with what has become known as an “anti-SLAPP” motion (acronym for strategic lawsuit against public participation), which is supposed to allow defendants sued for exercising free speech rights to end a lawsuit early. 

Procedurally, an anti-SLAPP motion is a kind of “quickie” summary judgment motion: It can be brought early in litigation, and can be heard without discovery and without the long response period for summary judgment motions that now is part of California procedural law. However, only certain kinds of lawsuits are susceptible to such an early attack: They must arise from an act in furtherance of free speech or right of petition.²⁰ Hence, California law now treats such motions as a two-prong process, the first of which is whether the motion qualifies for anti-SLAPP treatment. The second is whether it is meritorious (i.e., that the defendant has enough to win using a summary judgment standard).²¹ The trial court granted the motion against the proponents of the tax-relief measure, and the case then went to a panel of the Sixth Appellate District. (In California, parties have an entitlement to appeal from any final judgment against them.²²)

The first prong is particularly interesting as it related to the Sixth District panel’s decision to uphold the dismissal. It was, after all, the city itself, acting largely at the instigation of staff who themselves would certainly be affected by the ballot measure, that was wrapping itself in the mantle of free speech.²³ While the Stanson opinion had approached the idea of government campaigning cautiously, the Vargas intermediate court embraced the notion that the city had a free speech right to campaign — arguing that the right to “speak on political matters’” is the “quintessential subject of our constitutional protections of the right of free speech,’” core values, robust debate, etc.²⁴ The court essentially avoided the problem of whether the city’s “right” to free speech somehow conflicted with the “serious” constitutional issues identified by the Stanson court by not considering the problem in the context of the first prong.²⁵ That gambit allowed the intermediate court to rely on cases that asserted that the “legality” of the speech is irrelevant to the first prong and it was enough that the city had made a “prima facie showing” that the claim against it arose from the “constitutionally protected speech” of the city.²⁶

Avoiding the “serious” constitutional issue of the fairness of the city’s taking sides enabled the court to more easily dispose of the second (merits) prong. Having held that the city was being sued for the exercise of its free speech rights (totally apart from any considerations raised by Stanson), the court then said that the burden had shifted to the plaintiffs to defeat the anti-SLAPP motion.²⁷ In this passage, the Vargas intermediate court did not deal with the rule, which it had cited earlier in explaining the standard of review in anti-SLAPP motions, that the merits prong of an anti-SLAPP motion is akin to a summary judgment motion.²⁸ In California — probably universally — the initial burden on summary judgment motions always rests with the moving party.²⁹

After this shift of burden, it remained for the Vargas intermediate court to distinguish Stanson. The court did address the “take sides” language from Stanson.³⁰ The distinction was found in a post-Stanson addition to the California Government Code that expressly precludes the expenditure of any funds to support or oppose a ballot or measure or candidate, and then defines “expenditure” in terms of communications that “expressly advocate” a ballot position or candidate.³¹ While the Stanson court had recognized that the line between information and promotion could be difficult to draw—hence its emphasis on tone, style and timing — that provision of the Government Code allowed the Vargas intermediate court to draw a bright line: The plaintiffs had to show “express advocacy.”³²

The court, however, still had to wrestle with the following problematic questions: Dire predictions of disaster if a measure passes are not express advocacy against the measure? A summary judgment standard to be applied against the moving party? In order to address these questions, the Vargas intermediate court employed an ipse dixit, acting as its own fact finder about the city’s materials: “[I]n our view, the city’s communications present a balanced picture of the consequences of the measure. To be sure, they contain a heavy emphasis on the conclusions of the city staff. But those conclusions are supported by detailed economic analysis, presented for the most part in a straightforward fashion. Furthermore, the city made the views of the repeal proponents available as well,” noting that the pro-repeal “views were reflected on the city’s website, in the minutes of the city council meeting held in August at which the proponents presented their positions” and their “plans” were also discussed and analyzed” in a city report.³³ With this determination that dire predictions in the wake of the elimination of a city tax constituted a balanced picture of the consequences of the measure, the way was open to affirm the anti-SLAPP dismissal. 

Judging from the California Supreme Court’s press release announcing it would hear the case, the shift from a standard requiring a court to look at “tone, style and timing” in Stanson to the lower court’s “express advocacy” standard in Vargas, based on a negative implication of a definition of expenditure in a statute, is what caught the attention of the high court.

 

Endnotes

1 17 Cal.3d at 222. 

2 Id. at 210-211. 

3 Id. 

4 Id. at 210. 

5 Id. at 211-213. 

6 Id. at 214-215. 

7 Id. at 216. 

8 Id. at 217. 

9 Id. at 219. 

10 See generally Id. at 218-220. 

11 Id. at 218. 

12 Id. at 222. 

13 Id. 

14 Id. 

15 Id. at 219-220. 

16 See Id. at 217-219. 

17 Id. at 219. 

18 38 Cal.Rptr.3d 506. In California, published opinions of the intermediate appellate courts in which review is granted by the California Supreme Court are not included in the hard bound “official reporter” now known as “Cal.App.4th,” but may still be accessed in the unofficial California Reporter 3d. Such decisions lose all precedential value, and may not be cited or relied on by any party or court in litigation. They are, however, fair game for academic analysis. 

19 37 Cal.Rptr.3d at 510-511.

20 Cal. Code Civ. Pro., § 425.16(b)(1). 

21 See, e.g., Varian Medical Systems, Inc. v. Delfino, 35 Cal.4th 180 (2005). 

22 See Cal. Code Civ. Pro., § 904.1(a)(1). 

23 See 37 Cal.Rptr.3d at 510-511 (noting significant staff involvement in city’s involvement in election). 

24 37 Cal.Rptr.3d at 519. 

25 The Vargas intermediate court articulated plaintiffs’ argument that the government “‘does not enjoy the same First Amendment freedom as citizens,’” 37 Cal.Rptr.3d at 517, quickly adding that the case did not “require” the court to “test the validity or boundaries of that argument,” but then spoke about the “duty” of government “to speak on matters that concern the discharge of its responsibilities toward its citizens.” Id. 

26 37 Cal.Rptr.3d at 520. 

27 Id. 

28 Id. at 515. 

29 See Aguilar v. Atlantic Richfield Co., 25 Cal.4th at 845 (“From commencement to conclusion, the moving party bears the burden of persuasion that there is no genuine issue of material fact….”). 

30 37 Cal.Rptr.3d at 523-524. 

31 Cal. Gov. Code, § 54964, enacted in 2000. 

32 37 Cal.Rptr.3d at 522. 

33 Id. at 526.

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