Tuesday, March 26, 2013

Anti-SLAPP Appeal by BCS

2012-13 Facilities Litigation: anti-SLAPP Motion

Late last week, the District received notice that BCS has decided to appeal the anti-SLAPP ruling.  You'll recall that BCS filed the anti-SLAPP motion back in early December 2012.  (my blog post describing the motion, and all of the SLAPP-related posts).  There was a flurry of filings back and forth, and the courts ruled on this motion in January 2013, declaring that the District was not engaging in an effort to stifle debate, but that we were seeking guidance from the court on an issue of public importance.  At the time of that ruling, BCS elected not to present oral arguments, instead letting the ruling stand.

On Thursday, March 21st, the District received a formal notification of appeal from BCS.  This is all very curious because the legislature specifically prohibits appealing a ruling such as the one we have received.  In an email to BCS counsel, LASD counsel has pointed out that this appeal is unlawful, and has asked BCS to withdraw their appeal.  If BCS does not do so, the District will once again ask the court to impose sanctions against BCS.

There are those who oppose the District's cross-complaint, and I've heard a number of their concerns.  However, the courts have ruled three times now that LASD should be permitted to move forward with the action. 

I'd like to point out that LASD is not required to give this sort of notice to BCS.  We've done it out of a sincere effort to see if BCS is interested in dialing down the rhetoric.  In the bigger debate, there are significant legal issues that we see differently:
  • the depth and breath of the discretion afforded to elected officials as they balance the needs of multiple constituencies
  • the rights of the public to understand financing behind lawsuits which claim a public benefit
  • the responsibility of a public entity to take action based the concerns of citizens who come forward with complaints
Any one of these is an interesting constitutional issue, and will certainly be discussed widely in legal community.  We have enough on our plates without having to deal with this sort of impermissible use of the courts.  The legislature has said this specific type of appeal is not permitted.  It would be good for both sides to simply move forward with the trial.  If BCS is so anxious for everyone to "know the truth", as their attorney pointed out this week, then let's move forward.  Let's not waste money on the appeal of a motion that shouldn't be and can't be appealed.  LASD has taken the high road by informing BCS up front of their error.  Hopefully their legal team will acknowledge this and gracefully step away.  It would be a simple step that places the needs of students ahead of the litigation.  It would be good for all sides.

The lawyers in the crowd will want to read the email, linked here
Email to BCS Counsel