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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 Attorneys for: Defendant Dorothy Brizill IN THE SUPERIOR COURT OF GUAM CIVIL CASE NO. CV0960-06
GUAM GREYHOUND, INC., and JOHN BALDWIN, Plaintiffs, MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT DOROTHY BRIZILL'S MOTION TO DISMISS
Pursuant to GRCP 12(b), Defendant Dorothy Brizill has
moved to dismiss this lawsuit on the ground that even if the allegations
of the Complaint were true, the statements that she is alleged to have
made are immunized from liability by the Citizen Participation in
Government Act of 1998, 7 G.C.A. § 17104; by the Organic Act of Guam,
48 U.S.C. § 1421b(a) and (u); and by the First Amendment to the
Constitution of the United States. This memorandum shows why the motion to dismiss should be granted. STATEMENT According to the Complaint, the plaintiffs have collected and filed sufficient signatures on petitions to place on the November 2006 ballot an initiative measure that would legalize slot machines at the Guam Greyhound racetrack. Complaint ¶¶ 810. The Complaint alleges that defendant Dorothy Brizill “provided . . . some . . defamatory material” about plaintiff Baldwin to a local opponent of the slot machines initiative, which the opponent used in a press release, and which was published in the news media. Complaint ¶¶ 12, 15. Ms. Brizill is also alleged to have made several defamatory statements about plaintiff Baldwin on a Guam radio program on August 2, 2006, Complaint ¶¶ 12, 13, 17, and to have made a false statement that “federal law precluded Guam from enacting slots legislation.” Complaint ¶ 16. These statements are alleged to have harmed the plaintiffs. Complaint ¶¶ 28, 34, 39. Arising out of these alleged facts, the Complaint asserts claims for defamation, ¶¶ 22-28, tortious interference with prospective business advantage of Guam Greyhound, ¶¶ 29-34, and false light invasion of privacy, ¶¶ 35-39. Dorothy Brizill does not admit that she made the statements attributed to her in the Complaint. She believes the statements she did make were true and came from reputable sources, and she denies that she defamed Mr. Baldwin, invaded his privacy, or tortiously interfered with Guam Greyhound’s prospective business advantage. If required to do so, she will respond to plaintiffs’ allegations in detail. However, even assuming that the factual allegations of the Complaint were true, this lawsuit must be dismissed because Dorothy Brizill’s statements were made as part of the political debate about the slot machines initiative, and are therefore protected by the Citizen Participation in Government Act, the Organic Act of Guam, and the First Amendment of the United States Constitution. Significantly, the Complaint itself admits that Ms. Brizill’s statements were “geared to bring people to the conclusion that they should vote against the slots initiative because Guam Greyhound’s owner is untrustworthy,” and that she has “reache[d] out to Guam to impose her views on its citizens.” Complaint ¶¶ 14, 18 (emphasis added). That admission shows exactly why this lawsuit merits immediate dismissal. ARGUMENT I. The Citizen Participation in Government Act of 1998 Mandates Dismissal of this Action. About twenty years ago, two professors at the University of Denver identified a widespread pattern of abusive lawsuits “filed by one side of a public, political dispute, to punish or prevent opposing points of view.” They dubbed these lawsuits “SLAPPs,” an acronym standing for “Strategic Lawsuits Against Public Participation.” See, e.g., George W. Pring and Penelope Canan, “Strategic Lawsuits Against Public Participation” (“SLAPPS”): An Introduction for Bench, Bar and Bystanders, 12 Bridgeport Law Rev. 937, 941 (1992).1 With funding from the National Science Foundation, professors Pring and Canan undertook a ten-year nationwide survey of such cases to document the nature and effects of SLAPPs. Id. What they found shows that the instant action is a classic example of a SLAPP suit, displaying every identified earmark: it was (1) a “civil complaint,” filed by a deep-pocketed corporate interest (2) “against [a] nongovernment individual[],” (3) “because of [her] communications to . . . the electorate,” (4) “on a substantive issue of some public interest or concern.” Id. at 946-47. Further, it contains fully three of the “six claim categories [that] were typically used (and are therefore ‘indicators’ of potential SLAPPs)”: (1) “Defamation,” (2) “Business torts (interference with business, economic expectancy, contract, etc. . . . )” and (6) “invasion of privacy.” Id. at 947. Finally, it arises out of one of the “predictable classes of public issues” that typically generate SLAPP suits: “Real estate development and zoning” (here, involving the right to conduct previously prohibited activity at a specific site). Id. Many courts have recognized the destructive effectiveness that SLAPP suits can have upon Americans’ ability to engage in effective public debate on matters of public importance. As the Supreme Court noted even before the term SLAPP was coined:
Bill Johnson’s Restaurants, Inc. v. NLRB, 461 U.S. 731, 740-41 (1983) (citation omitted). Responding to this problem, the legislatures of twenty-four states have now enacted special “anti-SLAPP” statutes providing enhanced procedural and/or substantive protection for defendants who have been SLAPP-sued.2 I Liheslaturan Guahan has done so as well, enacting in 1998 the “Citizen Participation in Government Act,” which has been codified at 7 G.C.A. §§ 17101-17109. The legislature’s extensive findings reflect its understanding of the scope of the problem and the need for a cure:
7 G.C.A. § 17102(a) (emphasis added). The Citizen Participation in Government Act applies squarely to this lawsuit and mandates that it be dismissed. A. The Citizen Participation in Government Act Applies to This Lawsuit. Section 17105 of the statute (“Applicability”) provides that protections apply to “any motion to dispose of a claim in a judicial proceeding on the grounds that the claim is based on, relates to or is in response to any act of the moving party in furtherance of the moving party’s rights as described in § 17104.” Section 17104, in turn, identifies “Acts in furtherance of the Constitutional rights to petition, including seeking relief, influencing action, informing, communicating and otherwise participating in the processes of government” as activities protected by the statute, “except where [the activities are] not aimed at procuring any government or electoral action, result or outcome.” (Emphasis added.) As already noted, the plaintiffs themselves have admitted that Dorothy Brizill’s actions in informing and communicating with the Guam electorate were aimed at procuring an electoral action, result or outcome regarding the slot machines initiative. As plaintiffs acknowledge, Ms. Brizill’s statements were “geared to bring people to the conclusion that they should vote against the slots initiative because Guam Greyhound’s owner is untrustworthy.” Complaint ¶ 14 (emphasis added). It necessarily follows that her actions were "in furtherance of the . . . rights . . . described in § 17104,” and are therefore covered by the Citizen Participation in Government Act. B. Ms. Brizill’s Actions are Immunized from Liability. The statute’s substantive protection is as clear as it is brief: the actions described in § 17104 “shall be immune from liability, regardless of intent or purpose, except where not aimed at procuring any government or electoral action, result or outcome.” 7 G.C.A. § 17104 (emphasis added). Because the plaintiffs have already conceded that Ms. Brizill’s actions of which they complain were aimed at procuring an “electoral action, result or outcome” — namely, defeat of the slot machines initiative — there is no escape from the conclusion that her actions are immunized from liability by the Citizen Participation in Government Act. Importantly, whether Ms. Brizill’s statements were true (as she will demonstrate if it becomes necessary) or false (as plaintiffs have alleged) is irrelevant;3 the legislature of Guam has explicitly provided that even citizen communications on issues of public policy that are “incorrect, unsound, self-interested or not in good faith,” nevertheless must be “uniformly, consistently, and comprehensively protected and encouraged,” 7 G.C.A. § 17102(a)(9) (emphasis added), because such communications 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.” 7 G.C.A. § 17102(a)(2). The Supreme Court acknowledged the same truth when it recognized that
For this reason, the Citizen Participation in Government Act immunizes from liability, “regardless of intent or purpose” all acts of “participati[on] in the processes of government,” including specifically those “aimed at procuring an[] . . . electoral action, result or outcome.” 7 G.C.A. § 17104. C. This Court Should Follow the Special Procedures Required by the Statute and Dismiss the Complaint. 7 G.C.A. § 17106 sets out the procedures to be followed by this Court in this case. Defendant Brizill having filed this “motion to dispose of a claim . . . on the grounds that the claim is based on . . . [her] act . . . in furtherance of [her] rights as described in § 17104,” 7 G.C.A. § 17105, the “responding party shall have the burden of proof, of going forward with the evidence and of persuasion on the motion,” 7 G.C.A. § 17106(c), and “discovery shall be suspended, pending decision on the motion.” 7 G.C.A. § 17106(b). The motion shall be granted and the claims dismissed, unless the plaintiffs “produce[] 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 in the statute). Accordingly, the burden now shifts to the plaintiffs to show, by clear and convincing evidence, that the statements Ms. Brizill actually made somehow did not involve “influencing action, informing, communicating and otherwise participating in the processes of government,” or that they somehow were not “aimed at procuring any . . . electoral action, result or outcome.” This they will be unable to do, as they have already admitted 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.” Complaint ¶ 14. II. The Organic Act of Guam and the First Amendment, as Reflected in the Noerr-Pennington Doctrine, Also Mandate Dismissal of this Action. Although the Citizen Participation in Government Act provides all the authority that is necessary for this Court to grant the motion to dismiss, the First Amendment and the Organic Act (which incorporates the First Amendment’s principles) also shield Ms. Brizill’s political speech from liability. The application of the First Amendment to prohibit litigation seeking damages based upon the defendant’s protected activity has come to be known as the “Noerr-Pennington doctrine,” from the names of two Supreme Court cases that first articulated the rule. As the Ninth Circuit recently explained:
Sosa v. DIRECTV, Inc., 437 F.3d 923, 929-30 (9th Cir. 2006) (some citations omitted). The Supreme Court has also applied the doctrine in the context of common-law torts. In NAACP v. Claiborne Hardware Co., 458 U.S. 886 (1982), the Court reversed a judgment for money damages based upon a state common-law tort of malicious interference with business, a close cousin of the tort of “interference with prospective business advantage” pled in this case. Claiborne Hardware grew out of a boycott by African-American citizens of white merchants, seeking to end historic inequality in a Mississippi county. The boycott had demonstrably harmed the merchants. Citing Noerr, however, the Court “h[e]ld that the nonviolent elements of petitioners’ activities are entitled to the protection of the First Amendment” and reversed the judgment. 458 U.S. at 915. At least six federal circuits, and the courts of at least five states, have applied the Noerr-Pennington doctrine to preclude state common-law tort claims — often the same torts asserted in this case — seeking to obtain damages based on a defendant’s activities constituting participation in public affairs. See, e.g., Baltimore Scrap Corp. v. David J. Joseph Co., 81 F. Supp. 2d 602, 620 (D. Md. 2000) (plaintiff asserted claims of malicious use of process, abuse of process, tortious interference with prospective advantage, fraud, and conspiracy; court held that “[b]ecause the defendants’ behavior is protected from antitrust liability by the First Amendment under Noerr-Pennington, it is likewise protected from state common law liability”), aff’d, 237 F.3d 394 (4th Cir. 2001); Cheminor Drugs, Ltd. v. Ethyl Corp., 168 F.3d 119, 128 (3rd Cir. 1999) (affirming dismissal of claims for tortious interference with prospective economic advantages and unfair competition: “We are persuaded that the same First Amendment principles on which Noerr-Pennington immunity is based apply to the New Jersey [common law] tort claims.”); Video International Production, Inc. v. WarnerAmex Cable Communications, 858 F.2d 1075, 1084 (5th Cir.1988) (applying Noerr-Pennington to tortious interference with contract claim and noting “[t]here is simply no reason that a common-law tort doctrine can any more permissibly abridge or chill the constitutional right of petition than can a statutory claim such as antitrust.”); Havoco of America, Ltd. v. Hollobow, 702 F.2d 643, 651 (7th Cir. 1983) (applying Noerr-Pennington doctrine to affirm dismissal of claims of tortious interference with business relationships); Suburban Restoration Co. v. ACMAT Corp., 700 F.2d 98, 101-02 (2d Cir. 1983) (applying Noerr-Pennington to dismiss Connecticut common law claim of tortious interference with business expectancy); Missouri v. National Organization for Women, Inc., 620 F.2d 1301 (8th Cir. 1980) (State of Missouri’s claim of intentional interference with prospective economic advantage — the same tort alleged by plaintiff Guam Greyhound, Inc., in the instant case — based on NOW’s activity in organizing a boycott of convention business in states that had not ratified the proposed Equal Rights Amendment dismissed under Noerr-Pennington principle); Alves v. Hometown Newspapers, Inc., 857 A.2d 743 (R.I. 2004) (dismissing false light invasion of privacy claim — another of the torts asserted in the instant case — against author of letters to editor of local newspaper concerning plaintiff’s conduct: “We also have adopted the Noerr-Pennington test, and applied its protection to common-law tort claims”); Harrah’s Vicksburg Corp. v. Pennebaker, 812 So.2d 163 (Miss. 2001) (applying Noerr to claim for tortious interference with contractual relations and other state common law claims); Brock v. Thompson, 948 P.2d 279 (Okla. 1997) (discussed further below); Village Supermarket, Inc. v. Mayfair Supermarkets, Inc., 634 A.2d 1381 (N.J. Super. Ct. Law Div. 1993) (Noerr-Pennington doctrine barred claims for interference with contractual advantage and prospective economic advantage against defendant who was opposing plaintiff’s variance requests); Anchorage Joint Venture v. Anchorage Condominium Ass’n, 670 P.2d 1249, 1250-51 (Colo. App. 1983) (dismissing, as inconsistent with First Amendment, claims of negligence, abuse of process, and tortious interference with business expectancies against property owners for opposing a developer’s desired variance). As one court has explained, “[g]iven the constitutional basis of the Noerr-Pennington doctrine it is apparent that activity which it shields from federal antitrust liability is also protected from claims based on state common law. To hold otherwise would be to permit state common law to supersede the right to petition created by the First Amendment and applied to the states by the Fourteenth Amendment.” City of Newark v. Delmarva Power & Light Co., 497 F. Supp. 323, 328 (D. Del. 1980). Accordingly, “Noerr immunity bars any claim, federal or state, common law or statutory, that has as its gravamen constitutionally-protected petitioning activity.” Gen-Probe, Inc. v. Amoco Corp., Inc., 926 F. Supp. 948, 956 (S.D. Cal. 1996). Several of the cases cited above also demonstrate that a person’s statements to the public or to the news media about issues of public policy are entitled to full Noerr-Pennington protection, for such statements are part and parcel of seeking to influence government action by mobilizing associational activity. Thus, for example, both NAACP v. Claiborne Hardware and Missouri v. NOW, supra, held that the communicative activity involved in organizing a boycott was immune from liability even though the communications were directed at members of the public, not at the government. Even more on point is the Rhode Island Supreme Court’s holding in Alves v. Hometown Newspapers, supra, that letters to the editor of a newspaper are protected. As that court explained:
857 A.2d 743 at 754 (internal quotations and citation omitted). Like the letter-writer in Rhode Island, Ms. Brizill was seeking to influence government action — the enactment or defeat of a proposed law — by communicating information and views to the public. Given that the law was to be enacted or defeated by the electorate, the electorate was indeed the only audience to which her communications could effectively be addressed. Brock v. Thompson, 948 P.2d 279 (Okla. 1997), is particularly instructive. In that case, the plaintiffs were trial lawyers who opposed a state “tort reform” ballot initiative that proposed to limit contingency fee rates and punitive damages. They sued the sponsors of the initiative based upon the sponsors’ public statements in support of the initiative, asserting claims for defamation, tortious interference with present and prospective business advantage, and intentional infliction of emotional distress.4 The Supreme Court of Oklahoma noted that “when exercising their right to propose laws for popular enactment, the people are deemed to be members of the ‘largest legislative body in the state,’” that the “process of changing statutory law or the State’s constitution through the initiative route is a form of sanctioned popular lawmaking,” and that “Lawmaking is a classical form of political process.” 948 P.2d at 286-87 (citation omitted; emphasis in original). The court observed that “[a]dvocacy for or against a proposed law is the purest form of political speech,” and that “[a] state cannot burden the free exchange of ideas about the objective of an initiative proposal.” Id. at 288-89 (emphasis in original). Likewise, the court explained, “[t]he right of the people to petition the government for redress of grievances is safeguarded [by] the state constitution,” and “[t]he clear import of the right-to-petition clause is to immunize from exposure to legal action persons who attempt to induce the passage or enforcement of law or to solicit governmental action, even though the result of such activities may indirectly cause injury to others.” Id. at 289 (citations omitted). Accordingly, the court granted a writ of prohibition enjoining the trial court from conducting any further proceedings in the case, explaining that the remedy of appeal after judgment would be “manifestly inadequate to protect against the chilling effect of a civil action on fundamental political freedom . . . . The state constitutional shield surrounding political activity protects these petitioners from the burden of defending themselves in court for the conduct that forms the basis of the claim sought to be prosecuted against them.” Id. at 297 (emphasis in original). Except for the parties’ role-reversal — the plaintiffs in the Oklahoma case were the well-heeled opponents rather than proponents of an initiative — Brock v. Thompson is on all fours with this case. Like the Supreme Court of Oklahoma, this Court should recognize that the constitutional imperative to protect core political speech requires this SLAPP-suit to be nipped in the bud. CONCLUSION For the reasons stated above, this action should be dismissed with prejudice.5 Respectfully submitted this 13th day of September, 2006.
CUNLIFFE & COOK By Jeffrey A. COOK, ESQ. Attachments: George W. Pring and Penelope Canan, “Strategic Lawsuits Against Public Participation” (“SLAPPS”): An Introduction for Bench, Bar and Bystanders, 12 Bridgeport Law Rev. 937, 941 (1992). Opinion of the District of Columbia Court of Appeals in Citizens Committee for the District of Columbia Video Lottery Terminal Initiative v. District of Columbia Board of Elections and Ethics, 860 A.2d 813 (D.C. 2004). Memorandum Opinion and Order of the District of Columbia Board of Elections and Ethics in Drake v. Citizens Committee for the District of Columbia Video Lottery Terminal Initiative (July 29, 2005). Excerpts from financial reports filed with the District of Columbia Office of Campaign Finance by the Citizens Committee for the District of Columbia Video Lottery Terminal Initiative, dated July 12, 2004 and October 25, 2004. Lori Montgomery, Financing Behind D.C. Slots Murky, The Washington Post, August 1, 2004, p. A-1. Six articles from The Washington Times, dated July 2, July 8, July 13, July 14, July 19 and August 7, 2004. [Footnotes] 1 A copy of this law review article is attached hereto as Attachment “A” for the Court’s convenience. 2 Links to these state laws can be found at http://www.casp.net/menstate.html. 3 As noted above, Ms. Brizill does not admit that she made the statements attributed to her in the Complaint, and if it becomes necessary at a later stage of this litigation she will show that the statements she did make were true or reasonably believed to be true based on reputable sources. Public records generated by the failed effort to place a slot machines initiative on the District of Columbia ballot in 2004 disclose Mr. Baldwin’s connection with that initiative and document the irregularities that disqualified that initiative from reaching the ballot: — Attached hereto as Attachment “B” are excerpts from the financial reports filed by the sponsoring committee of the 2004 District of Columbia slot machines initiative with the District of Columbia Office of Campaign Finance, dated July 12, 2004 and October 25, 2004. Schedule A of those reports shows that Bridge Capital (USVI) LLC contributed $159,792.49 to the sponsoring committee in May and September, 2004. The full reports are available on the District of Columbia Office of Campaign Finance’s website, at http://ocf.dc.gov/scan_images/EFS_PDFFiles_prod/INT_04_258_2261_O_0_1.pdf and http://ocf.dc.gov/scan_images/EFS_PDFFiles_prod/INT_04_260_2261_O_0_1.pdf, respectively. — Also attached are news articles published on the front pages of The Washington Post as Attachment “C” and the Washington Times Attachment “D” in July and August, 2004, when the slot machines initiative was seeking to qualify for the ballot in Washington, D.C. The articles report that John Baldwin is the President and owner (or co-owner) of Bridge Capital LLC. The articles also report the apparent connections between Bridge Capital and North Atlantic Investments, LLC. The July 12, 2004, report to the D.C. Office of Campaign Finance shows that North Atlantic Investments, LLC, had contributed $592,700 to the sponsoring committee. As of that date, the contributions of Bridge Capital and North Atlantic Investments together constituted 100% of the contributions received by the sponsoring committee, according to its official financial reports. The attached news articles also report on the financial connections between John Baldwin and one Shawn Scott, who has “failed to obtain gambling licenses in five states where regulators found evidence of financial mismanagement, irregular accounting practices and hidden partnerships,” The Washington Post, August 1, 2004, and the financial connections between Mr. Baldwin and “a failed South Carolina video poker operation that declared bankruptcy in 1999.” Id. Boldface emphasis has been added to highlight the passages in these articles that refer to Mr. Baldwin. — Also attached hereto as Attachment “E” is a copy of the decision of the District of Columbia Court of Appeals in Citizens Committee for the District of Columbia Video Lottery Terminal Initiative v. District of Columbia Board of Elections and Ethics, 860 A.2d 813 (D.C. 2004), which documents the signature-gathering irregularities that resulted in the court’s affirming the Board of Elections’ decision disqualifying the 2004 D.C. slot machines initiative from the ballot.
— Also attached as Attachment “F” is a copy of the
Memorandum Opinion and Order of the District of Columbia Board of
Elections and Ethics in Drake v. Citizens Committee for the District of
Columbia Video Lottery Terminal Initiative (July 29, 2005), imposing a
fine of $622,880 on the Citizens Committee for the District of Columbia
Video Lottery Terminal Initiative and others for their violations of
District of Columbia election laws. (The Citizens Committee is currently
seeking to overturn that fine through an action in the District of
Columbia Superior Court: Civil Action No. 05-ca-7439.) Plaintiffs also allege that Ms. Brizill “falsely claimed that federal law precluded Guam from enacting slots legislation.” Complaint ¶ 16. But see 15 U.S.C. § 1175(a) (“It shall be unlawful to manufacture, recondition, repair, sell, transport, possess, or use any gambling device in the District of Columbia, in any possession of the United States, within Indian country as defined in section 1151 of Title 18 or within the special maritime and territorial jurisdiction of the United States”) (emphasis added). 4 Some might think it impossible to inflict emotional distress upon a trial lawyer, but Oklahoma trial lawyers are apparently a sensitive lot. 5 The Complaint should also be dismissed against the purported defendants "Does 1 through 20." While the naming of John Doe defendants is a legitimate device when a plaintiff is temporarily unable to identify those against whom he actually has a claim, see, e.g., Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), that is not the situation here. The Complaint alleges no claims against the Doe defendants; the plaintiffs are not only unaware of their names but also "unaware of the[ir] basis for liability." Complaint 14. All that the plaintiffs can say is that they "believe [the Does] are in some manner liable to Plaintiffs." Id. (emphasis added). In other words, these purported defendants are imaginary people who have done imaginary things. If a plaintiff filed a complaint against "John Doe" alleging only that "someone in the world is liable to me for something," the complaint would be laughed out of court. But that is exactly what the plaintiffs have done here. Appending this nonsense to the claims against Ms. Brizill does not make it any less nonsense. The actual explanation for the inclusion of the purported Doe defendants is obvious: professors Pring and Canan's study identified the "[i]nclusion of 'Doe' defendants (to spread the chill)" as one of the "classic indicators of a SLAPP" lawsuit. Pring and Canan, "Strategic Lawsuits Against Public Participation," supra, at 950. By naming Doe defendants in a lawsuit, other citizens who might participate in the public debate are warned to keep quiet lest they be named as one of the Does. This Court should not permit its processes to be used for intimidation. The entire Complaint should be dismissed. |
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