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Opposed to Government Taking Your Property Rights Away? Better Stay Quiet!

November 3, 2022

Don’t want the government to take away your property rights? You’d better keep quiet—in California, anyway. That’s because of a state law that essentially allows city governments to sue people who dare to challenge restrictions on their private property that they think are unconstitutional. The law in question, called the “anti-SLAPP” law, was intended to protect people’s right to free speech, but thanks to California judges’ bizarre interpretations of that law, it’s now been turned into a weapon against citizens who oppose local government policies—such as the unfortunate property owners of Rancho Mirage. That’s why the Goldwater Institute filed this brief today, urging the court to throw out the city’s motion and allow the property owners to defend themselves.

The Rancho Mirage saga began when homeowners sued the city over an ordinance that blocks them from renting out their homes—an unfortunately common occurrence in a state where NIMBYism runs rampant. Amazingly, after they filed their lawsuit, the city turned around and filed an “anti-SLAPP” motion against them—a motion that could result in an order forcing them to pay the city’s attorney fees.

The anti-SLAPP law was designed to address a common form of lawsuit abuse: situations in which people use lawsuits as a way of intimidate others into silence. “SLAPP” stands for “Strategic Lawsuit Against Public Participation,” a term that describes lawsuits intended to scare people into not petitioning the government, or not expressing their opinions. If, for example, Jane writes a blog post expressing opposition to a proposed piece of legislation in her town, and Joe, who supports the bill, sues Jane for—say—libel, or interference with contract, Jane can file a motion under the anti-SLAPP law. If granted, Joe’s case is dismissed and Joe can be required to pay Jane’s attorney fees—often an expensive proposition.

That’s a good idea—and we’ve sometimes used anti-SLAPP laws to protect the rights of our clients—as in our Rhode Island case, where a teachers union sued a parent for having the temerity to ask for information about what was being taught to her daughter. But California courts have taken the bizarre step of deciding that the government itself has free speech rights, and that it can therefore sue people who try to “intimidate” the government. This weird notion has resulted in situations where citizens are afraid to take the government to court, lest they be on the receiving end of a devastating anti-SLAPP ruling.

When Rancho Mirage property owners sued the city, arguing that the anti-property rights ordinance was illegal, the city did just that. It filed an anti-SLAPP motion against them, arguing that they were trying to censor the government, because the ordinance merely “expressed” a “policy” of opposition to renting out homes. The trial judge rightly rejected that idea—but the city has now appealed.

As we point out in our friend of the court brief, California cities frequently abuse the state’s anti-SLAPP law precisely to terrify citizens who dare to stand up for their rights. And even though cities usually lose in the end, it can take so long and cost so much for a citizen to even get past one of these anti-SLAPP motions, that even winning such a case can be basically the same as losing. In a 2016 case called Kracke, for example, property owners in Santa Barbara challenged a restriction on their property rights that they said violated state law. The city targeted them with an anti-SLAPP motion—and they ultimately won. But it took a year of litigation just to get past that step—and cost the property owners $30,000 in attorney fees.

California’s Supreme Court has said that the anti-SLAPP law should not be used to “chill the resort to legitimate judicial oversight over potential abuses of legislative and administrative power.” But that’s just what’s happening—and will continue to happen until California judges make clear that this kind of abuse is no longer tolerable. People have a right to challenge government actions in court. They shouldn’t face the threat of abusive and expensive retaliation when they do so.

You can read our brief here.

Timothy Sandefur is the Vice President for Litigation at the Goldwater Institute.



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