Monday, January 10, 2005

Harron v. Bonilla (Cal. App. - January 7, 2005)

I care a fair amount about the anti-SLAPP provisions of California law, though am hardly a zealot for either side of the debate that surrounds these provisions. That said, this case seems fairly clearly wrongly decided.

The incoming members of the Otay Water District fire the District's general counsel (Harron) in a closed session. Harron claims that these officials fired him on account of his race, as well as personal animosity towards him, and the Union-Tribune does a story. Two of the members of the District talk to the reporter for the U-T: Bonilla is reported as saying that Harron wasn't necessarily fired for cause, but because the Board didn't trust him; Inocentes allegedly says that he felt that Harron had a conflict of interest. Harron sues both for slander, and they bring motion to strike.

Now, I have no firm idea about who's right on the merits -- it may perhaps be that Harron can demonstrate a probability of prevailing and hence the suit should continue. The only thing about which I'm confident is that the speech at issue was indeed about a matter "in connection with an issue of public interest" and hence properly subject to a motion to strike under Section 425.16(a)(3) and (4).

Judge McConnell disagrees, but her reasoning seems flawed. As to Bonilla, she holds that his speech is not governed by the anti-SLAPP provisions because he violated the Brown Act by disclosing information he obtained in closed session. But that fact (even if true) properly goes to the merits of the suit, not the applicability of the anti-SLAPP provisions. Just because your conduct is potentially illegal doesn't mean it isn't still in connection with an issue of public interest. Weren't Ellsberg and the New York Times engaging in free speech when they published the Pentagon Papers, even if these documents were indeed illegally stolen from the Pentagon? The illegality of the defendant's conduct does not obviate the anti-SLAPP provisions; indeed, if it did, a court would have to hold that even your run-of-the-mill defamation defendant can't file an anti-SLAPP motion if his words were in fact defamatory, since it's equally illegal to defame someone as it is to reveal official confidences. So the basis for Judy's holding as to Bonilla seems to miss the boat and improperly conflate the merits with the appropriate procedure.

Her holding with respect to Inocentes is even more troubling. She says that his speech didn't concern a matter of public interest because Harron had already been fired (i.e., a "fait accompli"), and hence did not concern "an ongoing public debate." What? So if I start complaining that the Bush administration corruptly gave Halliburton contracts in Iraq and Halliburton sues me for defamation, I can't file an anti-SLAPP motion either, since those contracts are already a done deal? Nonsense. Plus, does Judge McConnell really think that it's not a continuing matter of public interest that our elected officials -- who are still in office -- allegedly fired someone on account of their race the previous day? And do we really think that the U-T routinely sends out its reporters to write up stories on matters that aren't part of "an ongoing public debate"?

Whether defamatory or not, the comments at issue clearly concerned a matter of public interest and hence properly subject to a motion to strike. Judge McConnell, and the rest of the panel, gets this one wrong.

Full disclosure (and interesting aside): Two of the three lawyers who represented Bonilla on appeal were University of San Diego law graduates -- Wendy Tucker ('94) and Sahyeh Fattahi ('02) -- as were two of the five attorneys who represented Inocentes (J. Allen Warfield '96 and Kelly Wood '00). As far as I can recall, I did not have any of these individuals as students (though my memory is becoming shoddier and shoddier as I age); regardless, I haven't talked to any of them about the matter, and my reaction to this case is based solely upon the holding. Though I wish them luck!