Vargas v. City of Salinas

• Citation: 205 P.3d 207,92 Cal.Rptr.3d 286,46 Cal. 4th 1
• Decision Date: 20 April 2009
• Docket Number: No. S140911.,S140911.
• Parties: Angelina Morfin VARGAS et al., Plaintiffs and Appellants, v. CITY OF SALINAS et al., Defendants and Respondents.
• Court: United States State Supreme Court (California)

205 P.3d 207

92 Cal.Rptr.3d 286

46 Cal. 4th 1

Angelina Morfin VARGAS et al., Plaintiffs and Appellants, v. CITY OF SALINAS et al., Defendants and Respondents.

No. S140911.

Supreme Court of California.

April 20, 2009.

Steven J. André, Carmel, for Plaintiffs and Appellants.

Joseph T. Francke, Carmichael, for California Aware as Amicus Curiae on behalf of Plaintiffs and Appellants.

Nick Bulaich, as Amicus Curiae on behalf of Plaintiffs and Appellants.

Trevor A. Grimm, Los Angeles, Jonathan M. Coupal and Timothy A. Bittle, Sacramento, for Howard Jarvis Taxpayers Association as Amicus Curiae.

Nielsen, Merksamer, Parrinello, Mueller & Naylor, Steven A. Merksamer, James R. Parrinello and Christopher E. Skinnell, Sacramento, for California Chamber of Commerce, California Taxpayers' Association, California Business Roundtable and California Business Properties Association as Amici Curiae on behalf of Plaintiffs and Appellants.

Anthony T. Caso and Deborah J. La Fetra, Sacramento, for Pacific Legal Foundation as Amicus Curiae on behalf of Plaintiffs and Appellants.

Vanessa W. Vallarta, City Attorney, M. Christine Davi and Jessica K. Steinberg, Deputy City Attorneys; Law Offices of Joel Franklin and Joel Franklin, Monterey, for Defendants and Respondents.

Nossaman, Guthner, Knox & Elliott, Stephen N. Roberts, Stanley S. Taylor and Ciarán O'Sullivan, San Francisco, for Self-Help Counties Coalition as Amicus Curiae on behalf of Defendants and Respondents.

Stephen P. Traylor, for League of California Cities as Amicus Curiae on behalf of Defendants and Respondents.

Remcho, Johansen & Purcell, Robin B. Johansen, Karen Getman, San Leandro, and Margaret R. Prinzing, for League of California Cities, California State Association of Counties and League of Women Voters of Salinas Valley as Amicus Curiae on behalf of Defendants and Respondents.

GEORGE, C.J.

Plaintiffs—proponents and supporters of a local ballot measure that proposed the repeal of a utility users tax imposed by the City of Salinas—filed this lawsuit against the City of Salinas (the City) challenging the validity of a number of actions taken by the City relating to the ballot measure. In Stanson v. Mott (1976) 17 Cal.3d 206, 130 Cal.Rptr. 697, 551 P.2d 1 (Stanson), we explained that because of potential constitutional questions that may be presented by a public entity's expenditure of public funds in connection with a ballot measure that is to be voted upon in an upcoming election, there is a need to distinguish between (1) "campaign" materials and activities that presumptively may not be paid for by public funds, and (2) "informational" material that ordinarily may be financed by public expenditures. We noted in Stanson that although there are some communications or activities that clearly fall within one of these categories or the other, under some circumstances it may be necessary to examine the "style, tenor, and timing" of a communication (id. at p. 222 & fn. 8, 130 Cal.Rptr. 697, 551 P.2d 1) in order to determine whether it should be characterized as permissible or impermissible.

In the present case, the Court of Appeal concluded that in light of a statutory provision enacted subsequent to Stanson, supra, 17 Cal.3d 206, 130 Cal.Rptr. 697, 551 P.2d 1, a municipality's expenditure of public funds on a communication relating to a ballot measure is permissible whenever the communication does not "expressly advocate" a position with regard to the ballot measure. The appellate court held that so long as a communication avoids this prohibition on "express advocacy"—a term of art originating in the context of regulations relating to private campaign contributions and expenditures, and referring to a limited and narrowly defined category of statements—there is no need to consider the communication's "style, tenor, and timing" in determining the validity of the use of public funds on the communication. Because plaintiffs conceded that the materials challenged in the present case did not (within the meaning of the express advocacy standard) expressly advocate a position regarding the ballot measure, the Court of Appeal on that basis alone concluded that plaintiffs' legal challenge lacked merit and consequently upheld the trial court's order striking plaintiffs' action under Code of Civil Procedure section 425.16, California's anti-SLAPP statute.¹

We granted review primarily to consider whether the Court of Appeal correctly identified the legal standard applicable to publicly funded, election-related communications made by a municipality, and further to determine whether, under the appropriate standard, plaintiffs' legal challenge to the City's expenditure of public funds in this case should have been permitted to go forward.

For the reasons discussed below, we conclude that the statute relied upon by the Court of Appeal was not intended, and should not be interpreted, to displace the analysis and standard set forth in our decision in Stanson, supra, 17 Cal.3d 206, 130 Cal.Rptr. 697, 551 P.2d 1. We further conclude that a municipality's expenditure of public funds for materials or activities that reasonably are characterized as campaign materials or activities—including, for example, bumper stickers, mass media advertisement spots, billboards, door-to-door canvassing, or the like—is not authorized by the statute in question, even when the message delivered through such means does not meet the express-advocacy standard. At the same time, we also conclude that the challenged actions of the City, here at issue, as a matter of law do not constitute improper campaign materials or activities under the standard set forth in Stanson. Accordingly, although we disagree with the legal standard applied by the Court of Appeal, we conclude that it correctly upheld the trial court's ruling in favor of defendants and thus that the judgment of the Court of Appeal should be affirmed.

I

A

The controversy that gave rise to this litigation relates to a local initiative measure—ultimately designated Measure O—that was drafted and circulated in 2001 by residents of the City. Measure O proposed the adoption of an ordinance that immediately would cut in half, and over a few years totally repeal, the City's Utility Users Tax (sometimes referred to as UUT). The UUT was a local tax that had been in place for more than 30 years and that, at the time the measure was presented to the voters, generated approximately $8 million in annual revenue for the City, a figure that represented 13 percent of the City's general fund budget.²

After gathering signatures, the proponents submitted the initiative petition to the county registrar of voters on September 24, 2001, and on October 3, 2001, that official certified it had been signed by the number of voters required to qualify the initiative for the ballot. Under the provisions of Elections Code section 9215, when a local initiative petition obtains the requisite number of signatures, the local legislative body must take one of three actions: (1) adopt the proposed ordinance itself without alteration, (2) submit the proposed ordinance without alteration to the voters, at either the next regularly scheduled municipal election or at a special election, or (3) direct the municipality's staff to prepare a report—as authorized by Elections Code section 9212—on the impact that the proposed ordinance likely would have on the municipality.

On October 9, 2001, the Salinas City Council adopted the third of these alternatives. Under the direction of the city manager, each of the municipal departments conducted an initial study of the measure's potential impact on the respective department, and on November 6, 2001, the city manager submitted the requested report to the city council. The report stated in part that "the initial analysis leads to the conclusion that the repeal of the Utility Users Tax will require substantial service level reductions to City residents." At its November 6, 2001 meeting, the city council, declining to adopt the proposed ordinance itself, voted to submit it to the voters at the next regularly scheduled municipal election, to be held the following year on November 5, 2002. At the same time, the council directed city staff to conduct further study of the proposed cuts that would be required were Measure O to be adopted by the voters.

In the following months, each of the municipal departments reviewed its operations and prepared detailed reports and financial analyses discussing the reduction or elimination of specific services or programs that could be implemented in the event Measure O were adopted.

Pursuant to its usual schedule, the city council considered the proposed annual city budget for the 2002-2003 fiscal year at its June 11, 2002 meeting. Because it was not known at that time whether Measure O would be adopted at the upcoming November 2002 election, the city manager submitted a proposed budget that was based on the assumption that the City would continue to obtain revenue from the UUT at its current rate throughout the 2002-2003 fiscal year. At that meeting, the city council voted to approve and adopt the proposed budget for the 2002-2003 fiscal year. Although the budget adopted by the city council assumed the City's retention of the UUT, the material accompanying the proposed budget briefly noted program and service reductions that could be required were the UUT to be repealed. The city manager stated at the June 11 meeting that he anticipated a detailed alternative budget—setting forth program and service reductions that could be implemented should the UUT repeal be adopted— soon would be presented to the city council so that this body could consider such an eventuality at its July 16, 2002 meeting.

Two weeks later, in a lengthy report dated June 24, 2002, the city manager specifically identified the individual program and service reductions recommended by the city staff should Measure O be adopted. The...