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Superior Court of Guam 
Decision granting motion for summary judgment
July 18, 2007

[dorothy/_private/sidebar.htm] IN THE SUPERIOR COURT OF GUAM

CIVIL CASE NO. CV0960-06

GUAM GREYHOUND, INC., and JOHN BALDWIN, Plaintiffs, 
vs. 
DOROTHY BRIZILL, Defendant

DECISION
Motion for Summary Judgment

This matter came on for hearing on March 22, 2007 before the HONORABLE JUDGE ELIZABETH BARRETT-ANDERSON, on Defendant's Motion for Summary Judgment. Plaintiff was represented by Attorney Richard A. Pipes, Esq., and Attorney Deborah Deitsch-Perez, Esq., pro hac vice. Defendant was represented by Attorney Jeffrey A. Cook, Esq. After reviewing all the arguments herein, this Court herewith GRANTS Defendant's Motion to Dismiss.

BACKGROUND

In 2006, Plaintiff sought to bring slot machine gambling to Guam via a voter initiative on the ballot of the General Election of 2006. It is alleged that in the course of this electoral process, Defendant and other persons in opposition to the slot machine initiative, made statements to the news media concerning Plaintiff's actions in the District of Columbia relative to an alleged "signature buying scheme" on a gambling issue in the District, as well as unfavorable statements about Plaintiff's professional reputation and law abiding character in several other states involving the business of gambling. Prior to the General Election, this suit was filed claiming defamation, tortious interference with prospective business advantage, and false light invasion of privacy based on the alleged statements of Brizill. 

DISCUSSION

Title 7 GUAM CODE ANN. 17101 is entitled the Citizen Participation in Government Act of 1998. The following is I Liheslaturan Guahan findings and declaration of purposes of the Act:

"(a) Findings_ I Liheslaturan Guahan finds and declares that:

(1) the framers of the United States Constitution, recognizing citizen participation in government as an inalienable right essential to the survival of democracy, secured its protection through the right to petition the government for redress of grievances in the First Amendment to the U.S. Constitution;

(2) the communications, information, opinions, reports, testimony, claims and arguments provided by citizens to their governments are essential to the making of wise government decisions and public policy; the public health, safety and welfare; effective law enforcement; the efficient operation of government programs; the credibility and trust afforded government; and the continuation of America's republican form of government through representative democracy in America;

(3) civil lawsuits and counterclaims, often claiming millions of dollars, have been, and arc being, filed against thousands of citizens, businesses and organizations based on their valid exercise of their right to petition, including seeking relief, influencing action, informing, communicating, and otherwise participating with government bodies, officials, or employees or the electorate;

(4) such lawsuits, called "Strategic Lawsuits Against Public Participation" or "SLAPPs," are typically dismissed as unconstitutional, but often not before the defendants are put to great expense, harassment and interruption of their productive activities;

(5) the number of SLAPPs has increased significantly over the past thirty (30) years;

(6) SLAPPs are an abuse of the judicial process; they are used to censor, chill, intimidate, or punish citizens, businesses and organizations for involving themselves in public affairs, and controlling SLAPPs will make a major contribution to lawsuit reform;

(7) the threat of financial liability, litigation costs, destruction of one's business, loss of one's home and other personal losses from groundless lawsuits seriously affects government, public welfare and individual rights by significantly diminishing public participation in government, in public issues and in voluntary service:

(8) while courts have recognized and discouraged SLAPPS, judicial protection of these important rights has not been uniform or comprehensive; and

(9) while some citizen communications to government inevitably will be incorrect, unsound, self-interested or not in good faith, it is essential in our democracy that the constitutional rights of citizens to participate fully in the process of government be uniformly, consistently, and comprehensively protected and encouraged.

(b) Purposes. The purposes of this Act are:

(1) to protect and encourage citizen participation in government to the maximum extent permitted by law;

(2) to create a more equitable balance between the rights of persons to file lawsuits and to trial by jury, and the rights of other persons to petition, speak out, associate and otherwise participate in their governments;

(3) to support the operation of and assure the continuation of representative government in America, including the protection and regulation of public health, safety and welfare by protecting public participation in government programs, public policy decisions and other actions;

(4) to establish a balanced, uniform, comprehensive process for speedy adjudication of SLAPPs, as a major contribution to lawsuit reform; and

(5) to provide for attorneys fees, costs, sanctions and damages for persons whose citizen participation rights have been violated by the filing of a SLAPP against them."

The Citizen Participation in Government Act immunizes from liability all acts of "participatipon] in the processes of government," regardless of intent or purpose, including specifically those "aimed at procuring an ... electoral action, result or outcome." 7 GUAM CODE ANN. 17104 (2005), The statute presumes immunity in circumstances of political processes, and the burden of showing that the Act does not apply is on the plaintiff by "clear and convincing evidence that the acts of the moving party are not immunized from liability."

The Act states:

"Acts in furtherance of the Constitutional rights of petition, including seeking relief, influencing action, informing, communicating and otherwise participating in the processes of government, shall be immune front liability, regardless of intent or purpose, except where not aimed at procuring any government or electoral action. result or outcome."

7 GUAM CODE ANN. 17104 (.2005).

This is a case of first impression before the Superior Court of Guam. The Citizens Participation in Government Act was enacted into law on December 3, 1998, as Public Law 24297. It was enacted as an override of the Governor's veto, and reflects the model statute published by George W. Pring and Penelope Canan, SLAPPs: Getting Sued for Speaking Out (1996). The phrase SLAPP stands for "Strategic Lawsuits Against Public Participation" and was coined by these two authors to describe the burden and intimidation of such litigation on political processes of the electorate. The drafters of the model statute concluded that prompt dismissal of lawsuits filed in retaliation for citizen participation in government is absolutely necessary to protect every individual's right to be involved in "influencing [government] action, informing, communicating and otherwise participating in the processes of government." 7 GUAM CODE ANN. 17104.

Plaintiff contends that Defendant Brizill made knowingly false statements about John Baldwin which are not protected under Guam's SLAPP statute because such speech is not protected by the First Amendment of the United States Constitution. Plaintiff further argues that if the Guam statute protects speech that is otherwise not protected by the First Amendment, then such statute is unconstitutional.

The Complaint states at #12 that Defendant provided Marati and LSC with some of the defamatory material and then appeared on a Guam radio program on August 2, 2006, and repeated many of the same false and defamatory statement; as follows:

  1. John Baldwin was "involved in a signature buying scheme to get a Video Lottery Terminal Initiative in Washington D.C."
  2. John Baldwin was "part of group fined $622,820. In DC signature buying scheme for slot legalization."
  3. John Baldwin "was denied or failed to obtain gambling licenses in five states due to financial irregularities."
  4. John Baldwin was a "partner in a company that in the late 1990's owned gambling halls in South Carolina that failed to pay taxes and broke state gaming rules."

Plaintiff's Complaint #13. Plaintiff also alleges in his Complaint at paragraph #14 that:

"...these allegations seem geared to bring people to the conclusion that they should vote against the slots initiative because Guam Greyhound's owner is untrustworthy. This is a calculated strategy by gambling opponents to avoid a discussion of the benefit of slots at the track by poisoning people's opinion of a relative newcomer to Guam, John Baldwin."

Further, at paragraphs #18 and #21 respectively Plaintiff asserts that:

"Brizill apparently believes the people of Guam are just too uneducated and uncivilized to make these important decisions for themselves, and that she instead should force the correct decision, as she sees it, upon them."

"In short, Brizill has chosen to smear and defame in the hopes of shifting attention from the real issue: letting voters decide whether to approve a limited expansion of gambling in Guam..."

Plaintiff presented to this Court a well briefed and thorough oral argument of the rich history and plethora of case law relative to the tort of defamation. The Court appreciates Counsel's efforts and presentment at hearing. The Court, however, finds such arguments more distractive than pertinent to the issue at bar. The issue before the Court is plain, simple, and clear. Whether Defendant's statements, irregardless of intent or bad faith, are immune from suit under Guam's anti-SLAPP Act? Based on Plaintiff's own admissions in his Complaint, there can be no other conclusion than that reached by Plaintiff himself: Ms Brizill's statement were made in an effort of "letting the voters decide whether to approve a limited expansion of gambling on Guam." Nothing was presented to this Court to controvert this conclusion. It is not uncommon in pubic debate and initiative that the moral character and personal or professional background of proponents, and opponent's, becomes the focus of discussion. Sometimes it becomes the distraction in the electoral process. The Guam Act is intended to allow for such discussion, distraction, and debate no matter how painful or potentially harmful. The Court agrees with the Supreme Court of West Virginia in Webb v. Fury, 167 W.Va 434, 282 S.1 .2d 28 (1981), in its statement concerning a SLAPP lawsuit, "we shudder to think of the chill-were we to allows this lawsuit to proceed. The cost to society in terms of the threat to our liberty and freedom is beyond calculation.. .To prohibit robust debate on these questions would deprive society of the benefit of collective thinking and ... destroy the free exchange of ideas which is the adhesion of our democracy." Id. at 461.

Finally, the Court finds that the Guam Act is constitutional, because like the instant case, in certain political arenas where robust debate is needed, such as during the course of legislative proceedings, absolute privilege attaches to statements for defamation purposes. See Kennedy v. Sheriff of East Baton Rouge, 935 So.2d 669 (La. 2006), Hillman v. Yarbrough, 936 So.2d 1056 (Ala. 2006), Riddle v. Perry, 40 P.3d 1128 (Utah 2002), Harris v. Riggenbach, 633 N.W.2d 199 (S.D. 2001), Kefgen v. Davidson, 617 N.W.2d 351 (Mich. App. 2000), Gaylord Entertainment Co. v. Thompson, 958 P.2d 128 (Okla. 1998), Sacco v. High Country Independent Press, Inc., 896 P.2d 411 (Mont. 1995), Sanchez v. Coxon, 854 P.2d 126 (Ariz. 1993), Hurlburt v. Gulf Atlantic Life Ins. Co., 749 S. W 2d 762 (Tex. 1987), Dairy Stores, Inc. v. Sentinel Pub. Co., Inc., 516 A 2d 220 (N.J. 1986), and Lebbos v. State Bar, 211 Cal.Rptr. 847 (Cal.App.1.Dist. 19$5).

The Court finds that Defendant is immune from suit under the Guam Participation in Government Act. Plaintiff herein has failed to show by clear and convincing evidence that the alleged statements of Defendant, Dorothy Brizill, were not aimed at procuring any government or electoral action, result or outcome.

Finally, this Court incorporates Defendant's full brief and arguments pertinent to the constitutionality of Guam's anti-SLAPP statute, as if more fully set forth herein. Accordingly, Defendant's Motion to Dismiss is GRANTED.

SO ORDERED this 18th day of July, 2007.

HON. ELIZABETH BARRETT-ANDERSON 
Judge, Superior Court of Guam

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