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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:
- John Baldwin was "involved in a signature buying
scheme to get a Video Lottery Terminal Initiative in Washington
D.C."
- John Baldwin was "part of group fined $622,820.
In DC signature buying scheme for slot legalization."
- John Baldwin "was denied or failed to obtain
gambling licenses in five states due to financial irregularities."
- 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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