Handy v. Lane Cnty.

• Decision Date: 04 November 2015
• Docket Number: 161213685,A153507.
• Parties: Rob HANDY, Plaintiff–Appellant, v. LANE COUNTY, Jay Bozievich, Sid Leiken, and Faye Stewart, Defendants–Respondents.
• Court: Oregon Court of Appeals

274 Or.App. 644

362 P.3d 867

Rob HANDY, Plaintiff–Appellant,

v.LANE COUNTY, Jay Bozievich, Sid Leiken, and Faye Stewart, Defendants–Respondents.

161213685

A153507.

Court of Appeals of Oregon.

Argued and Submitted Aug. 13, 2014.

Decided Nov. 4, 2015.

Marianne Dugan argued the cause and filed the briefs for appellant.

Stephen E. Dingle argued the cause for respondents. With him on the brief was Lane County Office of Legal Counsel.

Before GARRETT, Presiding Judge, and ORTEGA, Judge, and DeVORE, Judge.^*

GARRETT, P.J.

Plaintiff appeals a judgment that dismissed his claims against defendants for violations of the Public Meetings Law, ORS 192.610 –192.690. Plaintiff alleges that defendants Lane County and three of the county's commissioners violated the Public Meetings Law by meeting in private for the purpose of deliberating toward a decision and by holding an emergency meeting without issuing minutes and without either giving 24–hour notice or justifying the lack of notice. Defendants moved to strike plaintiffs claims under ORS 31.150, Oregon's anti-SLAPP statute, which the trial court granted. For the reasons that follow, we conclude that plaintiffs first two claims are sufficient to survive an anti-SLAPP motion and that the trial court consequently erred in granting that motion and dismissing the complaint. We, therefore, reverse and remand.

BACKGROUND

We view the facts in the light most favorable to plaintiff. Neumann v. Liles, 261 Or.App. 567, 570 n. 2, 323 P.3d 521, rev. allowed,

356 Or. 516, 340 P.3d 47 (2014) (reasoning that this approach is in accordance with the "legal standards governing special motions to strike under ORS 31.150").

Plaintiff is a former Lane County commissioner. Defendants are Lane County and three members of the county's board of commissioners. At the time pertinent to this appeal, plaintiff was in the final weeks of a campaign for reelection. Plaintiff was also attempting to repay to Lane County a personal debt of $20,000.¹ To raise funds to pay that debt, plaintiff solicited a local resident for a $3,000 contribution. In a hand-written letter to that resident, plaintiff wrote that a contribution could be made "confidentially and anonymously."

After receiving plaintiff's letter, on the morning of May 1, 2012, the recipient telephoned Alex Gardner, the Lane County district attorney (and, at the time, also county counsel), and expressed concern about plaintiffs solicitation. Gardner asked one of his investigators to collect the evidence and then contacted the Oregon Department of Justice to request that the department take control of the investigation. The next day, the recipient's attorney, Alan Thayer, sent a letter to plaintiff that alleged that plaintiff's solicitation violated government ethics and campaign finance laws and could constitute racketeering activity. Thayer's letter opined that the county might also be "at risk" if it were to accept payments from plaintiff in payment of his debt that plaintiff had incurred for violating the law. Thayer also sent a copy of the letter to Gardner.

That afternoon, reporters at KPNW radio and the Eugene Register–Guard newspaper sent public records requests to the county seeking copies of Thayer's letter. Gardner forwarded the Thayer letter to the county administrator, Liane Richardson. Richardson then had a series of communications with three members of the five-member county commission: Leiken, Bozievich, and Stewart, the individual defendants here. At that time, Leiken was the chair of the commission and Bozievich was the vice-chair. Together, they, along with Richardson, had the responsibility to schedule meetings and determine meeting agendas as the commission's "Agenda Team."

The evidence of the communications consists of a series of emails. The first email was the following, from Richardson to Leiken and Bozievich:

"Commissioners, I've now had a chance to review the letter we received today from Alan Thayer. Commissioner Stewart asked me about County liability. Commissioner Bozievich had the same concern when I spoke to him earlier. I would like to consult with Alex [Gardner] and/or Steve Dingle [Senior Assistant County Counsel], but at the very least it makes me concerned about what else may be occurring that we aren't aware of. I'd like to give some advice to Finance as to what they should do with the monies we've already received [on plaintiff's debt to the county]. I'm also concerned that it will look like we are trying to hide something if we refuse the public records request. Our practice is to use the exceptions if they exist, but it feels wrong in this case. I'll consult with counsel on all of these issues and get back to you tomorrow."²

Twelve minutes later, at 7:50 p.m., Leiken sent a reply email to Richardson and Bozievich: "I just read the letter from Mr. Thayer and I am very concerned as well with regards to the county's potential liability. I will be in tomorrow morning and look forward to what you find out."

Early the next morning, May 3, at 5:56 a.m., Bozievich replied to Leiken's email. Bozievich wrote, "I will be available to come in the morning also. Looking forward to a quick decision on disclosure. * * * [I] do not want to be seen as covering up the receipt of funds from a possible illegitimate source." Richardson later forwarded the entire email chain to Dingle, writing, "[h]ere's the communications about calling an emergency session and the reason why. I called Commissioner Stewart to get his input, and then we scheduled it."

Between 7:09 a.m. and 7:30 a.m. on May 3, Gardner informed Richardson that Gardner would not release the Thayer letter in response to the media requests, but Gardner advised that the commission could make its own decision about whether to release the letter.³ According to the declarations filed in support of the motion to strike, the Agenda Team members—Richardson, Leiken, and Bozievich—then conferred by telephone and agreed to schedule an emergency meeting of the board of commissioners at 9:00 a.m. At 7:41 a.m., Richardson directed county staff to email a notice of the emergency meeting to plaintiff and Commissioner Peter Sorenson. The notice said, "Commissioners, an Emergency meeting of the Board has been called for 9 a.m. today; the subject is Public Records Request." At 7:42 a.m., county staff also emailed the notice to members of the media.

At 9:00 a.m., the board commenced the emergency meeting. In attendance were administrator Richardson and Leiken, Bozievich, and Stewart. Plaintiff and Sorenson did not attend. The meeting was broadcast live over a local television cable channel, recorded, and made available for viewing via a video link on the county's website. As the meeting began, Richardson announced that the purpose of the emergency meeting was to determine whether to release the Thayer letter in response to public records requests from the media. She explained that, after contacting the Agenda Team, "We decided to schedule this for a meeting as soon as possible because * * * I have received numerous calls now from the media asking for this."

The three commissioners present expressed their views that the letter was a public record and that it was a matter of public interest. They expressed concern for potential county liability arising from the acceptance of funds from plaintiff, in payment of his debt to the county, which he had received in violation of any campaign finance or ethical rules. On Bozievich's motion, the three commissioners voted unanimously to release the Thayer letter. The meeting adjourned at 9:17 a.m. At 9:24 a.m., Richardson emailed the Thayer letter to reporters.

Plaintiff sued Lane County and the three commissioners who attended the special meeting and voted to release the Thayer letter. Plaintiffs complaint alleges three claims for relief, all based on alleged violations of the Public Meetings Law. In the first claim for relief, plaintiff alleges that the May 3 emergency meeting violated procedural requirements in ORS 192.640(3) because defendants did not give at least 24–hours notice of the meeting, did not declare a justification for giving less than 24–hours notice, and did not issue minutes of the meeting. In his second claim for relief, plaintiff alleges that the three defendant commissioners violated ORS 192.630(2) by "conduct[ing] private meetings to deliberate or decide upon matters of public business." Specifically, the complaint alleges that the purpose of those meetings was "to meet on an emergency basis on May 3, 2012, and to respond to the public records request on May 3, 2012." In his third claim for relief, plaintiff requests that defendants be enjoined from committing further Public Meetings Law violations.

Defendants responded to plaintiff's complaint with a special motion to strike under ORS 31.150, the "anti-SLAPP" statute. Before the hearing on that motion, plaintiff requested that the court allow him to seek discovery from defendants.⁴ At the hearing, the trial court denied plaintiffs motion to allow discovery, granted defendants' special motion to strike, and dismissed plaintiff's complaint. At a later hearing, the trial court also awarded defendants their attorney fees and costs pursuant to ORS 31.152(3). Plaintiff appeals, assigning error to the trial court's ruling dismissing his claims. He separately assigns error to the trial court's decisions not to allow further discovery and to award defendants their attorney fees and costs.

DISCUSSION

Because plaintiff appeals the trial court's ruling under the "anti-SLAPP" statute, we begin with an overview of that statute. The acronym "SLAPP" stands for "Strategic Lawsuits Against Public Participation." Staten v. Steel, 222 Or.App. 17, 30, 191 P.3d 778 (2008), rev. den., 345 Or. 618, 201 P.3d 909 (2009). Oregon, like some other states, has enacted an "anti-SLAPP" statute on the rationale that a SLAPP's purpose, rather than to bring a legitimate claim, is to chill a person's "participation in public affairs."...