Club Memebes for Honset Election v. Sierra Club 3/24/06 CA1/1

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State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: A110069

Case Date: 06/21/2006

Preview:Filed 3/24/06

CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION ONE

CLUB MEMBERS FOR AN HONEST ELECTION, Plaintiff and Appellant, v. SIERRA CLUB, a California non-profit public benefit corporation, et al., Defendants and Appellants. A110069 (San Francisco County Super. Ct. No. 429277)

This litigation concerning the conduct of an election to the board of directors of the Sierra Club, a public benefit corporation, was brought by a candidate for membership on the board of directors and an unincorporated association, Club Members for an Honest Election (hereafter CMHE), against the corporation itself and six members of the board of directors (hereafter collectively Sierra Club). CMHE now appeals an order granting in part a special motion to strike under the anti-SLAPP statute. Sierra Club appeals from the partial denial of the motion to strike. We affirm. PROCEDURAL BACKGROUND Sierra Club is the nation's largest environmental organization with approximately 750,000 members and a budget of $95 million. Since its foundation in 1892, the organization has combined educational and recreational activities with political activism in support of conservation.1 In recent decades it has played an important political role in

We note that, heedless of environmental impacts, both parties filed briefs that were printed on only one side on the page. (See Cal. Rules of Court, rule 14(b)(11)(B).)

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promoting policies and programs for the protection of clean air, water, wilderness and parks. The Club is governed by a 15-member board of directors. Only the president of the board is paid for services as a director. All directors serve for three-year terms on a rotating basis so that the Club holds elections for five positions on the board every year. A nominating committee appointed by the board of directors chooses a slate of candidates. Other members may stand for election by submitting a petition with the requisite number of signatures. Member participation in yearly elections is generally low. In the five-year period of 1999 through 2003, the percentage of voting members has ranged from 8.7 percent to 10.1 percent of the total membership. Because of this low participation, a small element of the membership has the potential power of exerting disproportionate influence by actively voting for particular candidates. In 2003, the board of directors was divided between a majority supporting the leadership of the executive director, Carl Pope, and a minority seeking a new direction for club activities. The plaintiffs describe the minority as consisting of political caucuses favoring population stabilization and a more rigorous return to the founding principles of the organization. But other members describe the minority faction as representing an anti-immigration and animal rights agenda that is not shared by the mass of the membership. In January 2004, 13 former presidents of the Sierra Club signed a letter to the Sierra Club president warning of "an organized effort to elect Directors of the Sierra Club from outside the activist ranks of Sierra Club members" in the next annual election. Ballots for the 2004 election were then scheduled to be mailed in February with the requirement that they be returned by April 21st. The board of directors held a special meeting on January 30, 2004, to consider issues related to the next annual election and took two actions that the plaintiffs challenged in these proceedings. First, the board upheld a ruling of an "inspector of election," one of three officials earlier appointed by the board to monitor the upcoming election, that approved the request of a member to circulate an article by Drusha Mayhue 2

to all chapter newsletters. The article cautioned that, because of the low member participation in elections, the club was "vulnerable to take-over efforts by people and parties with narrow, personal, one issue agendas." It proceeded to claim that two directors were engaged in efforts to "hijack the agenda chosen by a majority of Sierra Club members" in favor of an anti-immigration and animal rights agenda. Secondly, the board approved an "urgent election notice" to be attached to the front of election materials, which warned of "an unprecedented level of outside involvement and attention to the Sierra Club's Board of Directors' election" and named a number of outside groups that "may be attempting to intervene" in the election. Though the notice itself did not mentioned specific candidates, the ballot materials included the statements of three candidates who disclaimed a personal interest in being elected and asked that members vote for the nominating committee slate or against candidates supported by extremist groups. For example, a past president, Phillip Berry, referred to "narrow-focused takeover proponents now on the Board" and asked, "The solution? I'm not asking for your vote. Rather, vote for only Nominating Committee candidates, including Aumen, O'Connell and Renstrom. They will safeguard what the Club has stood for and prevent a tyranny by the would-be subverters." Barbara Herz submitted a similar statement. Morris Dees, of the Southern Poverty Law Center, stated that he was "running to urge that you vote against the `greening of hate' " and against three named candidates supported by anti-immigration groups. On March 3, 2004, the CMHE and a petition candidate in the election, Robert "Roy" van de Hoek, filed a complaint for injunctive relief in the San Francisco Superior Court and a first amended complaint within two weeks thereafter. The amended complaint alleged that the Sierra Club had distributed "information opposing candidates and supporting other candidates using Sierra Club's resources" without giving other candidates an opportunity to offer contrasting views. In particular, it complained of the distribution of the Mayhue article, the urgent election notice in ballot materials, and 3

statements of "three fake Board candidates." These actions were alleged to violate the standing rules of the Sierra Club as well as Corporations Code sections 5520, 5523, and 5615. The plaintiffs asked for a preliminary injunction prohibiting the Sierra Club from seating any candidates who are elected as a result of the 2004 election "until this matter is finally decided by the court" and regulating the conduct of the present and future elections so as to prevent the use of any statement in election materials that "disparages or promotes any candidate or candidates without giving all other candidates both an equal opportunity to respond in kind and equal Sierra Club resources to do so." In addition, the complaint asked for an affirmative injunction requiring the Sierra Club "to give all disparaged candidates and all candidates disadvantaged by promotion of other candidates" an equal opportunity to air their views. The Sierra Club responded by filing a motion to strike pursuant to the anti-SLAPP statute. (Code Civ. Proc.,

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