Bureaucrats can't invoke free speech rights to shut down farmer's lawsuit: California Supreme Court

The vast majority of states prohibit bad-faith lawsuits to intimidate or retaliate against people for their free speech, known as "strategic lawsuits against public participation."

This year, for example, anti-SLAPP laws were used to fine celebrity climate scientist Michael Mann for suing National Review over an inflammatory column about his research and to dismiss the Kennedy Center's lawsuit against a musician for pulling out of its Christmas Eve show in protest of President Trump's name being added to the venue.

But what happens when a government tries to use an anti-SLAPP law to shield its own decisions from judicial review?

The California Supreme Court put Golden State jurisdictions on notice last week when it refused to review and "depublish" a state appeals court ruling against the Yolo-Solano Air Quality Management District, which had invoked the state's anti-SLAPP law to stop a farmer's lawsuit in response to the air pollution regulator's own lawsuit against him.

That means the 55-year-old district, overseen by local representatives, will have to pay the legal fees of Diamond D General Engineering and its CEO Spencer Defty, doing business as Defty Farms, which challenged the district for slapping them with civil penalties because they violated an unwritten policy that stripped their agricultural exemptions to a pollution permitting rule.

"By invoking an anti-SLAPP statute, the government is effectively using a law designed to promote public participation as a weapon to silence a citizen who simply wants his day in court," the Pacific Legal Foundation, which supported Diamond and Defty in oral argument as a "friend of the court," summarized the case.

The public interest law firm said the district retaliated against one of the state's most environmentally responsible farmers.

"Defty has spent decades proving that construction and agriculture can coexist with environmental responsibility – planting over 500 trees, upgrading his entire equipment fleet to meet clean-air diesel standards, and installing a solar energy system that prevents 700,000 pounds of CO2 from entering the atmosphere each year," PLF said.

Diamond and Defty,argued the district tried to enforce "an internal district policy that had not gone through proper rulemaking procedures," making it invalid.

Their allegations against the regulator "do not arise from [the] district’s protected activities" – investigating Defty's supposed violations, issuing violation notices, offering a settlement and suing him – "because they challenge the validity of the policy upon which the activities were purportedly based," wrote the California Court of Appeal, Third Appellate District.

The district did not answer queries for its response to the ruling.

It issued three violation notices to Diamond over two years for allegedly "operating an equipment unit without a permit, failing to install proper emission controls, and failing to minimize smoke in an agricultural burn," telling Diamond's lawyer it never had agricultural exemptions as an independent contractor.

The district told one of Diamond's clients the policy for its agricultural exemptions had been "consistent for the last 24 years," that they apply only to work a farmer does on his own farm, hence excluding Defty's business. It refused to let Defty appeal administratively, prompting him to threaten his own lawsuit.

Defty and Diamond countersued after the district sued them, alleging it was trying to enforce "illegal and invalid secret rules or regulations" that weren't posted on its website and were never given to Diamond or Defty, and sought a preliminary injunction to force the district to comply with the "statutorily required procedures for amending or repealing" published rules.

A district employee argued in a declaration accompanying its anti-SLAPP motion against Defty and Diamond that "Policy 24" didn't need to be approved as a regulation because it's a  "summary of applicable law," including from the 9th U.S. Circuit Court of Appeals, which oversees California. Its lawyer recommended creating the policy in 2000.

The regulator struck out with every court it tried, ending with the California Supreme Court.

The appeals court said Diamond and Defty did not "directly challenge the merits of the notices of violation," simply the district's failure to properly adopt a regulation. It noted the district didn't address the violation notices when it met with them, "but merely stated that Diamond was not entitled to agricultural exemptions."

That means the "investigation, the issuance of notices of violation, the settlement attempt, and the filing of the underlying lawsuit" are "mere evidence related to" its allegedly invalid policy, the court said. "They demonstrate the influence policy 24 potentially has on [the] district’s regulatory activities."

The appeals court scoffed at the district's argument that "[m]erely alleging policy 24 is a summary of laws" means it can shut down judicial scrutiny of its regulation through Defty's countersuit.