▪ SLAPP Suits, Ballot Measures, and Curbing Eminent Domain Abuse

A "SLAPP suit" is a "strategic lawsuit against public participation," and many states have statutes designed to thwart retaliatory lawsuits to protect the public's willingness to exercise First Amendment rights.  For example, California's statute defines SLAPP suits as:

lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances.

Cal. Code. Civ. Proc. § 425.16 (emphasis added).  Hawaii's anti-SLAPP statute is codified at Haw. Rev. Stat. ch. 634F, and defines a SLAPP suit somewhat differently than California:

"SLAPP" means a strategic lawsuit against public participation and refers to a lawsuit that lacks substantial justification or is interposed for delay or harassment and that is solely based on the party's public participation before a governmental body.

Haw. Rev. Stat. § 634F-1 (emphasis added).

In City of Riverside v. Stansbury, Nos. E040125 & E040973 (Cal. Ct. App. Oct. 12, 2007), the California Fourth District Court of Appeals held that a lawsuit by a local government against the proponents of an initiative was not an anti-SLAPP suit.  The court held that the lawsuit, which sought a declaratory judgment that an initiative designed to curb eminent domain abuse was not a proper subject for voters.  The lawsuit was not a SLAPP because it was "directed not at protected conduct, as required under the anti-SLAPP statute, but rather, at the validity of the proposed initiative." 

After citizens placed an initiative on the local ballot that would have curtailed the city's eminent domain power, the city sued the proponents of the measure.  The initiative was apparently in reaction to the US Supreme Court's decision in Kelo v. City of New London, 545 U.S. 469 (2005), which held that the use of eminent domain for "economic development" did not always violate the Fifth Amendment's Public Use Clause. The measure mandated that "neither this City nor any of its subdivisions shall use eminent domain to take private property without the consent of the owners to be used for economic development."  It also limited how the City could dispose of property taken by eminent domain, and prohibited the City from undertaking "a contractual obligation to use its powers of eminent domain."  More on the case and some interesting background from Eminent Domain Watch here.

The City sued the person who submitted the measure as well as the group that backed it, claiming that the initiative was beyond the power of the city's voters, since in California initiatives are limited to matters of local concern, and eminent domain is a matter of statewide concern.  In response, the defendant filed an anti-SLAPP motion, which the trial court granted. 

The court of appeals reversed, holding that the lawsuit went to the validity of the initiative, and did not arise out of protected first amendment activity:

By its declaratory relief action, the City was simply asking for guidance as to the constitutionality of the proposed initiative. Indeed, the City did nothing to limit respondents’ activities in connection with the initiative, nor did the City, by its action, otherwise impact respondents’ First Amendment rights.  Moreover, it was proper for the City to initiate its declaratory relief action as a means of
disputing, in a preelection challenge, the validity of the initiative.

Slip op. at 11.  Anti-SLAPP statutes are designed to prevent lawsuits against citizens that are meant to chill expression of first amendment rights, and it certainly seems like the City's lawsuit would have that effect -- it would take a very committed citizen to propose an initiative if she knew that by doing so, she would be subject to being named as a defendant.  The court held that the lawsuit did not implicate Stansbury's petition rights because "there is no constitutional right to place an invalid initiative on the ballot.  Slip op. at 13 (emphasis original).  This seems like circular logic because it assumes the initiative is invalid, the very cause of action that forms the basis for the City's complaint. 

What appears to have driven the court's result is its belief that if the lawsuit were to be barred by the anti-SLAPP statute, local governments would not be able to bring pre-election lawsuits challenging the constitutionality of initiatives.  Slip op. at 2 ("if the trial court’s ruling is allowed to stand, no one could ever challenge an initiative’s constitutionality prior to the election").  Why this is a bad thing is not explained.      

Maybe they should just move to Hawaii: the Stansbury case is reminiscent of the recent "Ohana Kauai" property tax charter amendment case, County of Kauai ex rel. Nakazawa v. Baptiste, 115 Haw. 15, 165 P.3d 916 (2007).  In that case, when county officials claimed to doubt the constitutionality of a voter-approved charter amendment capping property taxes, they didn't sue the proponents of the measure as in Stansbury.  Instead, they sued themselves.  When government officials sue each other to strike down a law they disagree with, of course no one is going to raise an anti-SLAPP defense.  The County Attorney (Nakazawa) sued the Mayor (Baptiste), the County Council and the County Finance Director, seeking a declaratory judgment that the charter amendment was beyond the power of county voters.  The Hawaii Constitution delegates property tax power to "the counties," and the county officials argued that term meant "county councils."  The Hawaii Supreme Court agreed after first holding that the "county vs. county" lawsuit was procedurally proper. 

Hat tip to the California Public Law Blog for bringing the Stansbury case to our attention.  Tom Caso adds his thoughts about the decision in his blog post "City’s pre-election challenge to initiative not a SLAPP."

Comments

[Charley Foster]

Stop reminding me of the Ohana Kauai case! It never fails to piss me off.

A Hawaii anti-SLAPP defense just made the news here on Kauai. You might recall the Ka Loko Reservoir dam break that killed seven people in March of last year. The owner of the property on which the dam is located is suing a woman in defamation who, in essence, called him a mass murderer in impasssioned testimony before the County Council.

Because of the language of the Hawaii statute that you quote above, I'm not sure the defense ought to fly because if someone erroneously asserts as a matter of fact in a public forum that you have committed murder, you do not lack substantial justification to bring a defamation suit.

Nevertheless, I think the defamation suit will fail here because of the well developed 'hyperbolic language' defense in which the courts tend to protect the free speech rights of those who make wild-eyed accusations as as a matter of rhetorical technique, when the words used are easily recognized as not *really* making a literal claim despite their literal meaning.

(I'm trying to explain this in as few words as possible. I hope I'm making sense of it).

[rht]

You are. I saw your post on the Hawaii anti-SLAPP case on your blog.

http://planetkauai.blogspot.com/2007/10/slapp-happy.html

One also has to wonder whether New York Times v. Sullivan plays any role here.

With all the sturm und drang over Superferry and questions regarding the appropriate role of judges, legislators, and voters spawned by that situation, I have to wonder why the Ohana decision passed with nary a peep from the people of Kauai. It certainly represents the larger usurpation of democratic government and our system of checks and balances than the HSF possibly could.

Maybe the question of property taxes and who gets to determine how much is paid has less inherent drama than a whale-striking, invasive-species-and-ice-dealer-carrying boat, but I seem to recall a certain Tea Party that was held over the question of an unfair system of taxation...

[Charley Foster]

The anti-Superferry movement here is a project of the progressive community. They are not likely to mobilize over a government crackdown against an anti-tax movement. In fact, I think there was mistrust among progs of the Ohana tax movement who perceived the similar California movement as essentially "right wing."

Also, the Superferry issue comes freighted with an environmental component automatically endowing it with a certain sex appeal among progs. The government in its fumbling fed the sexiness of the anti-Superferry movement with a series of tactical PR bungles that fed a prog narrative that describes the Superferry issue as a story of government and corporate intrigue against environmental and "grassroots community" values.

Local activist and newspaper columnist Juan Wilson made a telling comment in his Garden Island column a couple of weeks ago when he pointed out that the people on Kauai who had demonstrated against the war in Iraq and against George Bush are the same people who are now demonstrating against the Superferry. I think he's right. The anti-Superferry movement is an expressin of the more general "demonstratin community."

In short, I'd put it this way: The Superferry movement, with its environmental and anti-corporate overtones, is a product of progressive sentiment. The Ohana movement was not, philosophically speaking, a progressive issue, so they mistrusted and ignored it.

[rht]

Interesting; thanks for the insight. Wonder if most people know that the early 20th Century tax limitation measures that are the philosophical antecedents of modern property tax revolts such as Ohana Kauai and California's Proposition 13 were products of the Progressive Movement?