John Stephen Alexandrowicz
Several months ago, a friend asked me to assist him and a local historical society in a variety of efforts to preserve historical and prehistoric archaeological sites, historic buildings, and landscape that were in jeopardy of destruction through government agency inactivity, general negligence, and environmental erosion. Of particular concern were changes in a developer's construction plan that appeared to contradict a Section 106 review process memorandum of agreement (MOA) between the developer and local, state, and federal agencies.
My colleague, a member of a local historical society, had legal right to visit historical properties, including this site. At his invitation I accompanied him and we amassed a photographic documentary of the demise of these significant resources. Concurrently, we wrote letters and included photographs to federal, state, and local government agencies regarding the project, asking for their assistance and support. Our petitions and photographs got the attention of federal and state agencies, and their review process impinged on the developer's construction schedule, as well as other matters relating to the city. For our efforts to preserve historic properties evaluated as eligible for the National Register of Historic Places and protected by a memorandum of agreement, the developer served separate lawsuits on me and my friend. In particular, the developer accused me of "trespass," which allegedly caused "damages" to the development.
In reality, we were sued for exercising our First Amendment rights of freedom of speech and freedom to petition the government. The developer's trespass lawsuit was really a thinly disguised "Strategic Lawsuit Against Public Participation" (SLAPP) against me and 10 unnamed "Does" (i.e., John Does). SLAPPs most commonly seem to be filed against anybody who publicly complains about a public issue. As Pring and Canan (March 29, 1996) state in their New York Times article entitled "Slapp-Happy Companies":
More and more often the companies' targets are neighborhood groups, environmentalists, consumer watchdogs, good government groups, homeowners associations, and individuals. Their sin? Exercising their first amendment right `to petition the government' by speaking out at public hearings or contacting their elected representatives about corporate or governmental misdeeds.Furthermore, Mark Goldowitz, attorney and director, and Anna Marie Stenberg, organizer, at the California Anti-SLAPP Project, recently wrote in a letter to Archaeological Consulting Services, Lytle Creek, Calif., that
Lawyers and judges call such suits SLAPPs, for strategic lawsuits against public participation. A nationwide study we recently completed for the National Science Foundation found that there were virtually no such suits before 1970, but since then tens of thousands of Americans have been sued and untold thousands have been silenced by threats...
Recognizing that public participation is essential to a democracy, 10 states, including New York, have passed laws against SLAPPs.
California's pioneering anti-SLAPP law, Code of Civil Procedure 425.16, was finally signed into law by Governor Wilson in 1992, after twice being passed by overwhelming majorities in both houses of the Legislature and then vetoed by Republican governors Deukmejian and Wilson. Since the anti-SLAPP law has been on the books, it has been a big help in protecting our constitutional right to petition the government and speak freely on issues of public interest.
However, in the last year, there have been three decisions from the First Division of the First District Court of Appeal (in San Francisco) that narrowly interpret 415.16 and limit the protection citizens who are exercising their First Amendment rights to petition the government or speak freely on issues of public interest have under the law.
However, SLAPP lawsuits and attendant allegations can be successfully dismissed before any court trial. For example, California laws include a provision for a "Special Motion to Strike" against such SLAPP actions, which should be seriously considered in preparing a case. In order to provide a brief background on the Special Motion to Strike, I cite the following excerpt from an article by Mark Goldowitz that appeared August 4, 1997, in the San Francisco Daily Journal and was entitled "Critical Stops: Battle over the Scope of California's Anti-SLAPP Law":
California's anti-SLAPP law, Code of Civil Procedure (C.C.P.) Section 425.16 was enacted in 1992 by bipartisan votes of 34-1 in the Senate and 68-1 in the Assembly. Its stated purpose is to protect citizens' rights to petition the government and to speak on public issues without being faced with a retaliatory lawsuit--that is, a strategic lawsuit against public participation.
SLAPPs are generally considered meritless lawsuits designed to silence critics. Opponents say they clog the courts and chill public participation in the democratic process.
C.C.P. Section 425.16 provides for speedy identification and dismissal of SLAPPs at the beginning of the case. Since its enactment almost five years ago, the anti-SLAPP law has spawned 19 published opinions, and all but four found the law applicable.
The statute requires a two-step process. First, a defendant making a special motion to strike a complaint must make a prima-facie showing that the action arises from acts in furtherance of constitutional rights of the petition of free speech. Then the plaintiff must make a prima-facie showing of a probability of prevailing on the claims. [Wilcox v. Superior Court, 27 Cal. App. 4th 809, 819-821, 830 (1994)].
If the Special Motion to Strike is successful, then the plaintiff is responsible for paying for the defendant's legal fees and court costs. The bottom line is that you can win against SLAPP actions, while preserving our nation's cultural heritage. I survived the SLAPP and beat the opposition by filing such a motion, which forced the plaintiff into settlement of the lawsuit.
Here are a few personal suggestions in the event that you are confronted with a SLAPP:
(1) All of your knowledge of a particular project or subject must be accurate and verifiable. Keep records of all pertinent communications (i.e., letters, faxes, telephone calls, email, etc.)I am not an attorney, but I am a dedicated historic preservationist who has worked closely with attorneys and their professional staffs. I share this information with the historic preservation community so that we may accomplish our mutual mission of preservation, while being aware of and prepared for malicious SLAPPs.
(2) All of your correspondence should be addressed and/or copied to a government agency (i.e., federal, state, and/or local).
(3) To avoid libel or slander complaints, do not accuse any person or entity of any crime. Instead, gather facts and ask questions regarding the particular project and responsibilities regarding regulatory compliance.
In the event that you are SLAPPed, here are a few recommendations:
(1) Discuss the situation with family, respected colleagues, and potential legal counsel.
(2) Contact the local bar association referral service, as well as the local historic preservation organizations and/or agencies in order to locate a lawyer qualified to represent your case.
(3) Retain the services of a reputable attorney. The attorney should be proficient in constitutional law, as well as SLAPPs. Several California attorneys spearheaded the passage of anti-SLAPP legislation in the state. In addition, information on SLAPPs can be obtained from the California Anti-SLAPP Project (below). Cooperate fully and provide all necessary documentation. Note that review of your files, preparations of declarations, and background paperwork will consume a great deal of time.
(4) Ask the attorney to represent you for the entire case. Inquire if the attorney can be paid through your homeowners insurance policy, especially if you do not have several thousands of dollars to commit to your legal defense fund. Before doing this, make sure that your insurance company will not cancel your policy as a result of this action.
(5) If depositions take place, appear in formal attire. Be well prepared in all factual matters regarding your activities that relate to the case. Take your time in answering all questions. If appropriate, while you are testifying, question the plaintiff's attorney(s) on important points.
(6) Maintain professionalism during all facets of the legal proceedings.
(7) Be reasonable in your expectations in settling the case, prior to additional hearings and trial. Settlements do not always equate with a "get rich quick scheme."
(8) Make sure that all parties (i.e., plaintiff, defendant, and their respective attorneys) sign and date any settlement agreement(s).
(9) Your attorney should ensure that the plaintiff's attorney files a "Request for Dismissal" regarding your case with the appropriate court and county clerk.
The Senate today sent to the Governor's desk legislation by Senate President Pro Tem Bill Lockyer, to stop SLAPP suits, lawsuits designed to prevent citizens from exercising their constitutional right of free expression. `No one should have to worry about being sued because they exercised their constitutional rights,' said Lockyer.The bill unanimously passed the senate on May 28, 1997, and the state assembly on July 18, 1997. I might add that my anti-SLAPP colleagues lobbied our California legislative representatives through our First Amendment rights of free speech and petition of the government in order to request support for S.B. 1296. State Senator James Brulte (1997), my local representative, voted in favor of this legislation as stated in his reply to my petition.
I would like to highlight the fact that State Senator Lockyer's July 28, 1997, press release contained a statement directly relating to my SLAPP:
Lockyer authored the original anti-SLAPP law in 1994, but he said the new law is necessary because of court rulings which have interpreted the law too narrowly. Existing law protects `written or oral statements' made in government proceedings, but courts have allowed SLAPP suits aimed at stopping other types of protests. S.B. 1296 extends the protections to `any other conduct' designed to express a viewpoint on an issue of public interest. For example, S.B. 1296 would apply to a recent lawsuit by a rent control board aimed at silencing a protesting property owner by a landlord aimed at silencing protesting tenants by a school district aimed at stopping a parent protest, by a garage owner aimed at stopping an environmental group from obtaining air quality samples, and by a developer aimed at stopping a historical society from photographing his illegal actions...Finally, and most importantly, on August 11, 1997, Governor Pete Wilson signed S.B. 1296 into California Law, protecting the broad interpretation of Californians' First Amendment rights, including historic preservationists who are actively pursuing preservation of our cultural heritage.
For more information, contact Mark Goldowitz, Director, California Anti-SLAPP Project, 1611 Telegraph Ave., Ste. 1200, Oakland, CA 94612, (510) 835-0850, fax (510) 465-1986, email firstname.lastname@example.org, or Anna Marie Stenberg, Organizer, California Anti-SLAPP Project, 254 Wall St., Fort Bragg, CA 95437, (707) 964-9109, fax (707) 964-7846, email email@example.com.
Acknowledgments: I would like to express sincere appreciation to the following individuals who provided legal counsel, information, and/or support during my SLAPP: Mark Goldowitz and Anna Marie Stenberg of the California Anti-SLAPP Project, Jason Walsh (attorney), Susan Brant Hawley (attorney), Jeff Eichenfield (past-president, California Preservation Foundation), and John Anicic, Jr. (historic preservationist). In addition, Stenberg provided continuous support and thoughtful comments during preparation of this article.
John Stephen Alexandrowicz is director of Archaeological Consulting Services in Lytle Creek, Calif.