Pre-election challenges to ballot initiatives arise from protected activity

by Evan Mascagni and Mark Goldowitz

The Court of Appeal, Fourth Appellate District, Division 2, issued a published opinion last week in Mission Springs Water District v. Verjil reversing its earlier rule denying the applicability of the anti-SLAPP law to pre-election challenges to ballot initiatives in California.  The Court held that pre-election challenges to an initiative implicate the personal constitutional rights of the initiative’s proponents, and thus arises from activity protected under CCP 425.16.

This case began after Mission Springs Water District (the District) increased its water and sewer rates. Opponents of the rise in rates gathered enough signatures to get initiatives on the ballot to roll back the rate increases. The District then filed a lawsuit against the proponents of the initiatives seeking a declaration that the initiatives were invalid because they would set rates too low to cover costs in violation of Water Code Sec. 31007 (and for other reasons). The proponents of the initiatives filed an anti-SLAPP motion, arguing that the District’s lawsuit arose out of activity protected under the constitutional right of petition or free speech.

The trial court denied the anti-SLAPP motion, relying upon an earlier decision by the same Court of Appeal, City of Riverside v. Stansbury (2007) 155 Cal.App.4th 1582, which held that a declaratory relief action concerning the validity of an initiative did not arise out of protected activity by the initiative’s proponents. The proponents appealed, and asked the court to reconsider Stansbury, asserting that it was poorly reasoned. The Court of Appeal in Mission Springs Water District held that while Stansbury was sound when decided, it is no longer good law based on a later decision by the California Supreme Court in Perry v. Brown (2011) 52 Cal.4th 1116, which held that a pre-election challenge to an initiative does implicate the personal constitutional rights of the initiative’s proponents. Therefore, the Court of Appeal concluded that the initiative’s proponents satisfied the first prong of the anti-SLAPP law (that the relevant speech is protected / in public interest).

On the second prong of the anti-SLAPP law (whether the plaintiff is likely to prevail), the Court of Appeal held that the District had shown a probability of prevailing, as it introduced uncontradicted evidence that the initiatives, if enacted, would set water rates so low that they would be inadequate to pay its costs, making the initiatives invalid under Water Code section 31007. Therefore, the court affirmed the denial of the anti-SLAPP motion.

Peter Eliasberg, Legal Director at ACLU of Southern California, said of the decision: “It is great that the California Court of Appeal has finally held what it should have recognized years ago in Stansbury — that filing a lawsuit against someone who seeks to gather signatures for an initiative, or place it on the ballot, arises from expressive activity under the California Constitution and the anti-SLAPP statute.”

Note: The California Anti-SLAPP Project supported the ACLU of Southern California in Stansbury by participating in an amici curiae letter with the First Amendment Project and the Foundation for Taxpayers and Consumer Rights.