C.A Rules Suit Challenging Public Funding of Voter Drive a SLAPP

Friday, March 29, 2002

Page 3

C.A Rules Suit Challenging Public Funding of Voter Drive a SLAPP

Justices Say Complaint Attacking Free Speech Is Subject to Act Even if Not Frivolous

By a MetNews Staff Writer

A taxpayer’s suit seeking to end a city-sponsored voter registration drive in Irvine and to force council members to reimburse the city for the costs was a strategic lawsuit against public participation, the Fourth District Court of Appeal has ruled.

In a March 6 decision, certified yesterday for publication, the justices affirmed an order striking Michael J. Schroeder’s suit against the city and four council members and requiring Schroeder—an attorney and former chairman of the California Republican Party—to pay $45,000 in defendants’ attorney fees.

The city defended the registration drive as a non-partisan response to a decline in both voter registration and turnout in the city. Guidelines for the program prohibited any effort to persuade voters to register a certain way or to vote for or against any candidate or ballot measure.

The drive was attacked, however, by Schroeder and other supporters of the proposal to place a commercial airport at the site of the former El Toro Marine Air Base. The supporters claim that the registration drive in Irvine, which contains part of the site and is a hotbed of opposition to the airport, was a veiled effort to help pass Measure F, a 2000 ballot measure making it more difficult to complete the project.

In opposition to the defendants’ motion to strike, Schroeder argued that he would probably prevail if given the opportunity to prove that the underlying purpose of Vote 2000 was to help pass Measure F. He asked Orange Superior Court Judge David R. Chaffee to deny the motion or at least to allow him to take discovery prior to a ruling.

Chaffee denied discovery and granted the motion to strike.

Justice Alex McDonald, writing for the Fourth District’s Div. One, said the trial judge was correct in striking the suit under Code of Civil Procedure Sec. 425.16, the anti-SLAPP law.

The law requires the moving defendant to show that the suit impinges on First Amendment rights of free speech and petition, exercised in relation to a public controversy, and—if the required showing is made—shifts the burden to the plaintiff to show a probability of prevailing on the merits in order to avoid having the suit stricken.

The court has discretion to delay a ruling on the motion pending discovery if the moving defendant shows good cause.

Schroeder’s suit is a SLAPP, McDonald wrote for the court, because Vote 2000 was legal.

The only mention of Measure F in the materials mailed to voters and potential voters, McDonald said, was in a list of candidates and measures that would appear on the ballot.

“Although this brochure unambiguously urges that the reader should cast a vote, it does not unambiguously urge the reader how to cast his vote,” the justice said.

Nothing in state law, the jurist went on to say, prohibits local governments from spending money on nonpartisan voter registration drives. Nor did the judge abuse his discretion in denying discovery, because the proposed discovery consisted entirely of evidence that was already publicly available or irrelevant.

Proof that the backers of Vote 2000 harbored a hidden agenda of passing Measure F, the justice elaborated, would have been irrelevant. “It is well established that a court determines the validity of legislative enactments based on the facial content or effect of the enactment, not by examining the subjective motivations or purposes of the legislators,” McDonald said.

The case is Schroeder v. City Council of the City of Irvine, D038976.