By Derek Green and Duane Bosworth
Before this year, no opinion from the Oregon Supreme Court had addressed in substance the state’s anti-SLAPP law, known as a “Special Motion to Strike.” That changed in 2016. Through two opinions, the state high court confirmed the two-part, burden-shifting process that governs the anti-SLAPP analysis, while also providing some clarity to ambiguity within the statutory language. The court also delivered a word of caution to Oregon practitioners and judges: In interpreting Oregon’s Special Motion to Strike, California anti-SLAPP case law only gets you so far.
Handy v. Lane County. The Oregon Supreme Court issued its most significant anti-SLAPP decision in Handy v. Lane County. The case raised a host of issues, including the intersection of anti-SLAPP procedures with the state’s public meetings law, the use of the anti-SLAPP procedure by public officials, and—most fundamentally—what exactly key portions of the statutory text are supposed to mean.
The plaintiff in Handy alleged that a county and three county commissioners violated Oregon’s public meetings law in multiple ways. The Supreme Court’s review focused on only one “aspect” of one claim, concerning whether seriatim communications could create a quorum for public meetings purposes. Reversing the Court of Appeals, the Supreme Court held that the trial court properly granted the defendants’ anti-SLAPP motion as to that aspect of the claim because the plaintiff failed to meet its statutory burden.
To reach that conclusion, the Handy opinion became the first Oregon Supreme Court decision to undertake a deep-dive examination of the anti-SLAPP law in Oregon. The analysis began by reaffirming the two-step, burden-shifting analysis in ORS 31.150 that governs all anti-SLAPP motions. But it trained its analysis on the second step, answering the question of what a plaintiff must do to meet its statutory burden to defeat such a motion—namely, what does a “probability” of prevailing “by presenting substantial evidence to support a prima facie case” mean?
The high court recognized that the statutory text “does not provide a clear answer” to that question, observing that parts of the statute’s description of plaintiff’s burden quoted above “do not fit neatly together.” So the court turned to legislative history. That history revealed that the plaintiff’s burden was an issue of considerable debate in the legislative proceedings, with legislators and supporters of the bill cognizant of avoiding “constitutional concerns” that could arise if the statute required courts to weigh the evidence. After examining the history in detail, the court concluded that the proper interpretation of law was to require the plaintiff to present “enough evidence to avoid a directed verdict—namely, enough evidence to meet the plaintiff’s burden of production.” In other words, the question for the court became whether there was sufficient evidence for a “reasonable trier of fact to find that the plaintiff met its burden of production.”
In this respect, the framework of the Handy analysis—assessing the text, context and relevant legislative history to interpret an Oregon statute—should be familiar to Oregon practitioners. One notable and unusual aspect of that analysis, however, was the court’s several comments cautioning against overreliance on California law to interpret the Oregon Special Motion to Strike procedure.
Prior Oregon Court of Appeals decisions have repeated that it “was intended that California case law would inform Oregon courts regarding the application” of Oregon’s statutory procedure—also citing to legislative history. But the Supreme Court, while recognizing there is “no dispute that Oregon modeled its anti-SLAPP statute on California’s” law, emphasized that the differences in language between the Oregon and California statutes could not be overlooked. The lack of uniformity within the two state’s statutes, the court held, prevents Oregon courts from “presum[ing]” that California anti-SLAPP opinions decided prior to the enactment of Oregon’s procedure in 2001 “provide context” for interpreting those aspects of the statute that do not follow verbatim the California law. And the opinion did not stop there; it also emphasized that although Oregon Court of Appeals decisions have relied on California opinions decided after enactment of Oregon’s Special Motion to Strike Procedure to interpret Oregon’s anti-SLAPP law, “what [Oregon’s] statute means turns on what the Oregon legislature understood in 2001 when it enacted the [Special Motion to Strike].” Subsequent California cases “are relevant, at most, only for their persuasive value.”
It remains to be seen how much daylight will emerge between the two states’ anti-SLAPP procedures in practice. But there certainly is potential for different application of the state’s laws. Indeed, the Handy context is notable in this regard as well. When the Handy case was before the Court of Appeals, one judge wrote separately about the troublesome aspect of a government body, as well as public officials sued in their official capacity, bringing an anti-SLAPP motion against a plaintiff seeking review of government action. Judge DeVore observed that California’s anti-SLAPP statute, both as amended by statute and as interpreted by California courts, severely limits such a practice in California. It would seem safe to presume that the Oregon legislature’s intent in enacting an anti-SLAPP law was not to protect elected officials from suits by citizens seeking greater access to government meetings. But that is how the special motion to strike procedure was used here—and the Oregon Supreme Court’s decision, while not specifically addressing that issue, could support such a use in the future.
Neumann v. Liles. Although the Handy opinion addressed the anti-SLAPP procedure in more detail, the Oregon Supreme Court’s first written opinion on the anti-SLAPP procedure came earlier in the year, in Neumann v. Liles. Neumann reached the state’s high court as a defamation case brought by the owner of a wedding venue against a patron who posted a negative online review about the business. After the trial court granted the defendant’s special motion to strike the defamation claim, the Oregon Court of Appeals reversed, holding that the plaintiff had presented substantial evidence to support a prima facie case of defamation. The Supreme Court reversed the Court of Appeals on the basis that the challenged review was “entitled to First Amendment protection” and was therefore not actionable.
Most notable about this decision from an anti-SLAPP perspective is that the high court declined to squarely address whether the trial court correctly held that the anti-SLAPP procedure applied to the dismissed claim—in the court’s words, whether the “action was of a type subject to the provisions of the anti-SLAPP statute.” The court squarely held that the defamation claim was not actionable and thus affirmed the trial court’s dismissal of that claim. But whether that dismissal (and the related mandatory award of attorney fees to the defendant) was warranted under the anti-SLAPP procedure was left to the Court of Appeals on remand. In other words, although the Supreme Court clearly held that plaintiff could not substantively prevail on its defamation claim, it did not decide that the manner in which the defendant could defeat that claim was through a special motion to strike or some other mechanism, such as a motion to dismiss for failure to state a claim.
Derek Green is counsel and Duane Bosworth is a partner in Davis Wright Tremaine LLP’s Portland, Ore., office.