Rex Heinke Featured in Daily Journal Podcast on Anti-SLAPP Statute and City Council Voting

Akin Gump Supreme Court and appellate practice co-head Rex Heinke was a featured guest on The Weekly Appellate Report, a podcast produced by California legal publication Daily Journal.

Heinke discussed arguments before the California Supreme Court in a case (City of Montebello v. Vasquez, et al.) that looks at whether anti-SLAPP (Strategic Lawsuit Against Public Participation) protection extends to the activity of voting by city council members or other government officials.

In the matter, the city of Montebello sued three city councilmembers and a city official “seeking declaratory relief for violations of Government Code section 1090, which prohibits city officers and employees from having a financial interest in any contract made by them in their official capacity.” In 2014, a California appellate court had affirmed a lower court decision in favor of the city.

Heinke provided background on the origin of the anti-SLAPP statute as a response to attempted suppression, via litigation, by large commercial companies of citizen-led dissent against, for example, certain types of development. He also described the statute as having two prongs: (1) does the statute apply to a particular speech or conduct? and, (2) if so, he noted, “the plaintiff has to show a probability of success on the merits to be able to go forward with the case.”

Heinke said that the case before the court is a prong 1 case, but, in outlining the written scope of the statute, noted that “the statute is certainly broader than simply the scope of the First Amendment in the federal Constitution or the equivalent in the state Constitution.” He outlined the case as the city of Montebello contending that the defendants had a conflict of interest and violated government code when they approved a trash-hauling contract while taking political contributions from the waste hauler with the expectation that they would vote in a way that favored the waste hauler. The defendants then filed an anti-SLAPP motion to dismiss the case.

He said, “The issue that the Supreme Court granted review on is: do votes by city officials to approve a contract constitute conduct protected under…the anti-SLAPP statute despite the allegation that they had a financial interest in the contract?”

More generally, however, Heinke characterized the question as “whether or not voting by somebody in a legislative body—and I assume this would apply to administrative bodies and so on—is protected under the SLAPP statute.” He concluded, “I think, in the end, the California Supreme Court is going to hold that voting, by itself, is not protected by the anti-SLAPP statute.”