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LAW OFFICES CUNLIFFE & COOK Suite 200 210 Archbishop F.C. Flores Street Hagatna, GU 96910 Telephone: (671) 472-1824 Telecopier: (671) 472-2422 ARTHUR B. SPITZER Attorneys for: Defendant Dorothy Brizill CIVIL CASE NO. CV 0960-06 IN THE SUPERIOR COURT OF GUAM GUAM GREYHOUND, INC. and JOHN BALDWIN, Plaintiffs, DEFENDANT BRIZILL’S RESPONSE TO PLAINTIFFS’ SURREPLYPursuant to this Court’s order of February 9, 2007, defendant Dorothy Brizill hereby responds to plaintiffs’ surreply, which addressed the interpretation of the statutory standard applicable to her motion to dismiss under the Citizen Participation in Government Act of 1998. 7 G.C.A. §§ 17101-17109. ARGUMENTThe single question before the Court on defendant’s motion to dismiss is whether plaintiffs have shown, by clear and convincing evidence, that defendant’s speech was “not aimed at procuring any government or electoral action, result or outcome.” 7 G.C.A. § 17104. Plaintiffs’ surreply shows that they miss the point of the Citizen Participation in Government Act. According to their surreply, the issue before this Court is the same as it would be if that statute did not exist: namely, are there disputed issues of fact about the merits of their claims? But the Citizen Participation in Government Act does exist, and its stated purpose is to protect individuals who participate in public debate about public policy from the “expense, harassment and interruption,” 7 G.C.A. § 17102(a.)(4), that would be imposed upon them by the very litigation that plaintiffs wish to pursue. The statute effectuates its protective purpose by granting immunity to speech that involves “participating in the processes of government.” 7 G.C.A. § 17104, and by imposing a threshold burden on a plaintiff to show that a defendant is not entitled to that immunity before the plaintiff’s lawsuit can proceed. Because the purpose of the statute is to provide immunity from the burdens of litigation as well as from liability, the “burden of going forward with the evidence” on this threshold issue is placed upon the plaintiff, 7 G.C.A. § 17106(c), and the plaintiff must carry this burden by “clear and convincing evidence,” 7 G.C.A. § 17106(e), and without the benefit of discovery. 7 G.C.A. §17106(b). Thus, the issue before this Court is not whether there are disputed facts relevant to the merits of plaintiffs’ claims, but whether the plaintiffs have shown, by clear and convincing evidence, that defendant Brizill is not entitled to immunity because her actions were “not aimed at procuring any government or electoral action, result or outcome.” 7 G.C.A. § 17104. Plaintiffs have not made that threshold showing. To the contrary, the facts relevant to that issue are entirely undisputed, and show that defendant Brizill’s actions were “aimed at procuring any government or electoral action, result or outcome.” She is therefore entitled to the statutory immunity, and her motion to dismiss should therefore be granted. 1. Plaintiffs’ interpretation of the Citizen Participation in Government Act would make that Act meaningless.The opening statement of plaintiffs’ surreply sets out their view of what they must show to avoid dismissal at this stage: “Plaintiffs need only produce evidence that would allow a reasonable jury to find ... that Defendant made defamatory statements about Baldwin.” Surreply at 2a Plaintiffs argue that “[t]o hold otherwise would be fatal to defamation plaintiffs, who would be faced with a high burden of proof before any discovery ” Id. (emphasis in original).1 Plaintiffs’ submission treats this case as if it were a garden-variety defamation case, not subject to any special statutory standard. Plaintiffs have alleged that the defendant made certain statements, that she knew those statements were untrue, and that those statements defamed them. Unless the alleged statements were non-defamatory as a matter of law, plaintiffs ordinarily would be entitled to proceed to discovery. And unless discovery showed beyond dispute that the statements had not been made, or that the defendant had not acted with reckless disregard for their truth, plaintiffs would ordinarily be entitled to proceed to trial. That is precisely the standard that plaintiffs assert should be applied here: “on this motion, as in any motion for summary judgment, the judge is ... merely to determine whether a reasonable jury could find for the nonmoving party.” Surreply at 4. The ordinary standards of civil procedure are aimed at resolving lawsuits on their merits after full and liberal discovery. But the legislature recognized that lawsuits filed against individuals because of their activity in “seeking relief, influencing action, informing, communicating and otherwise participating in the processes of government,” 7 G.C.A. § 17104, are “an abuse of the judicial process.” 7 G.C.A. § 17102(a)(6). Thus, such SLAPP suits should not be litigated on their merits, for it is the litigation itself that is “used to censor, chill, intimidate, or punish citizens, businesses and organizations for involving themselves in public affairs.” Id. The Citizen Participation in Government Act therefore mandates an expeditious and inexpensive resolution of the immunity issue by the Court, at the threshold, so that citizen participation in public affairs will not be inhibited by burdensome and costly litigations. Contrary to plaintiffs’ position, determining whether or not the speaker’s statements are immunized does not require adjudication of the merits of the plaintiff’s tort claims under ordinary civil procedure standards. If it didn't, the statute would be entirely circular and meaningless, for it would require a court to rule on the merits in order to decide whether a defendant was entitled to immunity. If a plaintiff’s claims were meritorious — a matter that could only be determined after trial — then there would be no immunity. If a plaintiff’s claims were not meritorious then the defendant would have immunity, but that immunity would be worthless because the plaintiff’s claims would already have been rejected on the merits, after full discovery and probably after trial. That would be no immunity at all. The “basic axiom” of statutory construction is that “courts should construe all legislative enactments to give them some meaning.” Rosado v. Wyman, 397 U.S. 397, 415 (1970). “A statute should not be construed as to be rendered meaningless.” Wilshire Oil Co. of California v. Costello, 348 F.2d 241, 243 (9th Cir. 1965); Fallini v. Hodel, 783 F.2d 1343, 1347 (9th Cir. 1986) (same). It is likewise a fundamental canon that “‘[a] statute should be construed so that effect is given to all its provisions, so that no part will be inoperative or superfluous, void or insignificant.” Hibbs v. Winn, 542 U.S. 88, 101 (2004) (quoting 2A N. Singer, STATUTES AND STATUTORY CONSTRUCTION § 46.06 (rev. 6th ed. 2000) (footnotes omitted)). Yet plaintiffs’ construction of the Citizen Participation in Government Act would make the statute a nullity, contrary to these basic axioms as well as to the plain language of the statute. Plaintiffs protest that a faithful application of the statutory standard “would be manifestly unfair.” Surreply at 3. But the legislature has determined that the greater unfairness lies in the well-documented threat to vigorous public debate and informed government decision-making that results from the actions of deep-pocketed bullies who take advantage of the usual liberal standards of civil procedure to “censor, chill, intimidate, or punish citizens ... for involving themselves in public affairs,” 7 G.C.A. § 1710.2(a)(5), by imposing upon them “the threat of financial liability, litigation costs, destruction of one’s business, loss of one’s home and other personal losses.” Id. § 17102(a)(7)2 The legislature’s judgment about this matter of public policy must be respected unless it is unconstitutional, and we have already shown that the statute’s limitations on common law tort claims are entirely constitutional. See Reply Memorandum in Support of Defendant Dorothy Brizill’s Motion to Dismiss, at 14-19. Like all immunities, the immunity established by the Citizen Participation in Government Act is independent of the merits of plaintiffs’ claims, and must be adjudicated prior to reaching the merits. The immunity may indeed be “fatal to defamation plaintiffs.” Surreply at 2. That is the exact purpose of the immunity — to nip SLAPP suits in the bud, before they impose heavy litigation burdens on public-spirited individuals like Dorothy Brizill who involve themselves in public affairs. 2. To survive a “motion to dispose of a claim” under the Citizen Participation in Government Act, a plaintiff must show by clear and convincing evidence that the defendant’s action was “not aimed at procuring any government or electoral action, result or outcome.”In enacting the Citizen Participation in Government Act, the legislature intended to create a “process for speedy adjudication of SLAPPs, as a major contribution to lawsuit reform.” 7 G.C.A. § 17102(b)(4). The statute is specific about what a plaintiff must show in order to survive a “motion to dispose of a claim,” id. § 17105, filed pursuant to the Act: “the court shall grant the motion and dismiss the judicial claim, unless the responding party has produced clear and convincing evidence that the acts of the moving party are not immunized from liability by § 17104.” 7 G.C.A. § 17106(e) (emphasis altered). We have already shown that the Citizen Participation in Government Act is nearly identical to the model anti-SLAPP statute proposed by professors George W. Pring and Penelope Canan in their seminal book, SLAPPS: GETTING SUED FOR SPEAKING OUT (1996), and that the drafters’ explanation of the model statute’s meaning and purpose therefore provides a reliable guide to the meaning of the Guam Act. See Reply Memorandum in Support of Defendant Dorothy Brizill’s Motion to Dismiss, at 6. The drafters of the model statute were clear about how it should be applied. As they explained:
PRING & CANAN at 27 (quoting City of Columbia v. Omni Outdoor Advertising, Inc., 499 U.S. 365u 380 (1991)). On the same page at which they set out the model law, the drafters are even more explicit about their intent:
Id. at 201 (emphasis added).3 That succinctly states the statutory standard that is applicable here. And both the model statute and the Guam Act provide that the statute’s provisions “shall be construed liberally to effectuate its purposes and intent fully.” 7 G.C.A. § 17108. Applying the terms of the Act either literally or liberally leads to the same result — a result that is inconsistent with plaintiffs’ insistence that their allegations of defamation and malice entitle them to disscovery and trial.4 3. Plaintiffs have not identified any material dispute about the fact that defendant Brizill’s statements were “aimed at procuring any government or electoral action, result or outcome.” Her statements are therefore “immune from liability, regardless of intent or purpose.”While plaintiffs have attempted to show that defendant Brizill made the statements alleged in their Complaint and had reason to know that they were false,5 they have made no attempt to show the one thing that could save their lawsuit from dismissal: that her statements were not immune because they were “not aimed at procuring any government or electoral action, result or outcome.” 7 G.C.A. § 17104. They have made no attempt to make that showing because any such attempt would be futile. It is obvious — and undisputed — that Ms. Brizill’s statements were addressed to the voters of Guam regarding their “electoral action” on plaintiffs’ 2006 slot machines initiative, as plaintiffs admitted in Paragraph 14 of their complaint (alleging that her statements were “geared to bring people to the conclusion that they should vote against the slots initiative because Guam Greyhound’s owner is untrustworthy.”). Because there is no dispute of fact about that issue — which is the only issue before the Court on defendant Brizill’s motion — her statements are immune, even if they might have been actionable prior to the enactment of the Citizen Participation in Government Act. They are, as the Act declares, immune “regardless of [their] intent or purpose,” 7 G.C.A. § 17104, and they are immune even if they were “incorrect, unsound, self-interested or not in good faiths” 7 G.C.A. § 17102(a)(9).6 This result is indeed “fatal to .., plaintiffs,” Surreply at 2, but it is exactly the same result that would obtain if plaintiffs’ proposed law legalizing slot machine gambling at the Guam Greyhound racetrack had been introduced as a bill in the Guam legislature and Dorothy Brizill had made the same statements while testifying at a legislative hearing on that bill. The immunity provided by the Citizen Participation in Government Act is no more unfair — and no more unconstitutional — than the well-established immunity for legislative testimony. See Restatement (Second) of Torts § 590.A.7 Because plaintiffs have presented no evidence on which a reasonable factfinder could find for them on the issue of immunity, their opposition to defendant Brizill’s motion to dispose of their claims must fail. CONCLUSIONDefendant Brizill showed in her earlier papers that this
lawsuit is an archetypical SLAPP suit. The purpose of the Citizen
Participation in Government Act is to have SLAPP suits dismissed at the
threshold. For the reasons stated above and in defendant Brizill’s earlier papers, her motion to dismiss should be Respectfully submitted this 5th day of March, 2007. 1. Plaintiffs appear to have forgotten that they also asserted claims of tortious interference with prospective business advantage of Guam Greyhound, Complaint ¶¶29-34, and false light invasion of privacy, id. ¶¶35-39. The same statutory standards apply to those claims. 2. In the analogous context of a citizen’s immunity for participation in the legislative process, the Supreme Court of Utah recently explained that
Riddle v. Perry, 40 P.3d 1128, 1132 (Utah 2002) (quoting Webster v. Sun Co., Inc., 731 F.2d 1, 4-5 (D.C. Cir. 1984) (in turn quoting Sherrard v. Hull, 456 A.2d 59, 62 (Md. App. 1983), aff’d, 460 A.2d 601 (Md. 1983))). 3. In the quoted statement, the authors are referring specifically to the operation of a Minnesota anti-SLAPP statute that they commend in this regard. It is clear that they intend their model statute to operate in the same manner. See id. Plaintiffs’ surreply relies heavily on cases construing the California anti-SLAPP statute. See Surreply at 4 & nn. 8 & 10. But those California cases are of no value here, because California Code of Civil Procedure § 425.16 is not remotely similar to the Citizen Participation in Government Act. To the contrary, the authors of the model statute condemn the California law as “impoten[t]” and in some respects a “SLAPP-promoting law.” PRING & CANAN at 191. They explain that under one provision of the California law, a speaker loses her immunity if a plaintiff alleges that the speech was knowingly false or malicious “—easy facts for [plaintiffs] to allege but hard facts for citizens to rebut without a full-scale trial.” Id. It may be that the complaint in this case could survive a motion to dismiss under the “impotent” California statute. But plaintiffs’ effort to render the entirely different Guam statute similarly impotent should be rejected. 4. Plaintiffs again argue that applying the statutory procedure will deprive them of a right to a jury trial. Surreply at 4-5. This is not true. Under the statutory procedure, the Court is not required to make any findings on disputed facts. If there is a material dispute of fact relevant to defendant’s entitlement to immunity then the motion to dismiss should be denied. But the only facts relevant to defendant’s entitlement to immunity are whether her statements were “aimed at procuring any government or electoral action, result or outcome.” 7 G.C.A. § 17104. There may be factual disputes about exactly what she said, and whether it was true or false, and if false whether she had reason to know it was false, and whether it was defamatory, but those disputes are irrelevant at this stage because they involve the merits, not the immunity, and the Court need not resolve them. Nor is there any denial of a right to jury trial in requiring plaintiffs to carry their threshold burden by clear and convincing evidence. The Supreme Court has specifically approved this procedure: “Our holding that the clear-and-convincing standard of proof should be taken into account in ruling on summary judgment motions does not denigrate the role of the jury.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). A judicial gatekeeping function separate from the merits is essential in any immunity case, and is entirely ordinary. In the analogous context of a citizen’s immunity for testimony before a legislative committee, see, e.g., Riddle v. Perry, 40 P.3d 1128 (Utah 2002), where the court held, as a matter of law, that because the defendant’s statement “had some relation to the committee hearing,” it was therefore immune. Id. at 1134. 5. They have not, however, made such a showing by clear and convincing evidence. See Reply Memorandum in Support of Defendant Dorothy Brizill’s Motion to Dismiss, at 26-38. 6. Ms. Brizill’s statements were not made with malice, and were not “incorrect, unsound, self-interested or not in good faith.” See Declaration of Dorothy Brizill (December 15, 2006) ¶¶ 11-15. But the Court is not called upon to make any determinations about those facts at this stage. 7. The plaintiffs had as much opportunity to rebut Ms. Brizill’s statements in the public debate on the proposed ballot measure as they would have had if she had testified at a legislative hearing. Rather than engage in public debate, however, they chose to serve her, 8,000 miles away, with this SLAPP suit. |
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