Yes on 24-367 Comm. v. Deaton

• Decision Date: 03 February 2016
• Docket Number: 14C14391,A158181.
• Citation: 276 Or.App. 347,367 P.3d 937
• Parties: YES ON 24–367 COMMITTEE, Plaintiff–Appellant, v. Todd DEATON, an individual; George F. Stormo, an individual; Ocey Grant, an individual; and Bill Burgess, in his official capacity as Marion County Clerk, Defendants–Respondents, and Mike Holland, an individual, Defendant.
• Court: Oregon Court of Appeals

276 Or.App. 347

367 P.3d 937

YES ON 24–367 COMMITTEE, Plaintiff–Appellant,

v.Todd DEATON, an individual; George F. Stormo, an individual; Ocey Grant, an individual; and Bill Burgess, in his official capacity as Marion County Clerk, Defendants–Respondents,andMike Holland, an individual, Defendant.

14C14391

A158181.

Court of Appeals of Oregon.

Submitted Nov. 4, 2015.

Decided Feb. 3, 2016.

Ross A. Day, Matthew Swihart, and Day Law Group, PC, filed the briefs for appellant.

David L. Carson filed the brief for respondents Todd Deaton, George F. Stormo, Ocey Grant.

No appearance for respondent Bill Burgess.

Before LAGESEN, Presiding Judge, and GARRETT, Judge, and SCHUMAN, Senior Judge.

GARRETT

, J.

Plaintiff is a political committee that was organized to support the passage of a local ballot measure in Marion County in the May 2014 election. Defendants Deaton, Stormo, and Grant are individuals who placed a statement opposing the measure in the Marion County Voter Pamphlet.¹ Before the election, plaintiff brought suit under ORS 260.532

, alleging that defendants violated that statute by knowingly or recklessly making a false statement of material fact in their voters' pamphlet statement.² Defendants moved to strike the complaint under ORS 31.150, Oregon's "anti-SLAPP" statute. The trial court granted that motion and dismissed the case. Plaintiff appeals. Because we conclude that the trial court erroneously characterized defendants' statement as "opinion," rather than as an assertion of fact, and because the trial court erred in applying the legal standard relevant to an anti-SLAPP motion, we reverse and remand.

To provide context for our review, we begin with a brief overview of the anti-SLAPP statute, ORS 31.150

.³ "The

purpose of [the anti-SLAPP statute] is to ‘permit a defendant who is sued over certain actions taken in the public arena to have a questionable case dismissed at an early stage.’ " Mullen v. Meredith Corp., 271 Or.App. 698, 700, 353 P.3d 598 (2015)

(quoting Staten v. Steel, 222 Or.App. 17, 27, 191 P.3d 778 (2008), rev. den., 345 Or. 618, 201 P.3d 909 (2009) ). The anti-SLAPP statute provides for, via a special motion to strike, "the dismissal of claims against persons participating in public issues, when those claims would be privileged under case law, before the defendant is subject to substantial expenses in defending against them."

Mullen, 271 Or.App. at 700, 353 P.3d 598

(quotation marks omitted).

Special motions to strike under ORS 31.150

are resolved according to a " ‘two-step burden-shifting process.’ " Neumann v. Liles, 261 Or.App. 567, 572, 323 P.3d 521, rev. allowed, 356 Or. 516, 340 P.3d 47 (2014) (quoting Young v. Davis, 259 Or.App. 497, 501, 314 P.3d 350 (2013) ). In Neumann, we explained:

"In accordance with ORS 31.150(3)

, a court must first determine whether the defendant has met its initial burden to show that the claim against which the motion is made arises out of one or more protected activities described in ORS 31.150(2). Second, if the defendant meets that burden, the court must determine whether the plaintiff has established that there is a probability that the plaintiff will prevail on the claim by presenting substantial evidence to support a prima facie case."

Id. (internal citations, quotation marks, and brackets omitted). We review a trial court's ruling on an ORS 31.150special motion to strike for legal error. Id. at 572–73, 323 P.3d 521

; see also Mullen, 271 Or.App. at 704, 353 P.3d 598.

We take the following facts from the pleadings and from the supporting and opposing affidavits submitted to the trial court, ORS 31.150(4)

, and we state them in the light most favorable to plaintiffs. Mullen, 271 Or.App. at 702, 353 P.3d 598. Ballot Measure 24–367 in the May 2014 election would have authorized the Aurora Rural Fire Protection District No. 63 (fire district) to issue general obligation bonds to pay for capital projects. The bonds would have resulted in a property tax assessment of $0.49 per $1,000.00 of assessed value.

Defendant Deaton was formerly a lieutenant with the fire district and had also served as mayor of Aurora. He, along with defendants Stormo and Grant, published a statement opposing the ballot measure in the Marion County voters' pamphlet. At issue in this appeal is the second sentence of defendants' voters' pamphlet statement, which asserts, "This bond levy will DOUBLE the Fire District Tax assessments for the next 20 Years." (Capitalization in original.) According to plaintiff, that statement is objectively and provably false. That is so because, at the time of the May 2014 election, two other fire district property tax assessments were in effect. The first was in the amount of $0.8443 per $1,000.00 of assessed value. The second, a "local option," was in the amount of $0.49 per $1,000.00 of assessed value. Taken together, the existing assessments totaled $1.3343 per $1,000.00 of assessed value. Ballot Measure 24–367, by authorizing an additional $0.49 per $1,000.00, would, therefore, not have "doubled" the existing "assessments"; it would have doubled only one of the two existing assessments. Moreover, an additional $0.49 assessment on top of $1.3343 in existing assessments would have totaled $1.8243, resulting in only a 37 percent increase in the "assessments," and not the doubling—a 100 percent increase—as asserted in defendants' statement.

Defendants' response to plaintiff's contention is reflected in the findings of fact and conclusions of law that the trial court entered in granting defendants' anti-SLAPP motion. The trial court found:

"Defendant [Deaton] drafted the [voters' pamphlet statement] after reviewing his property tax statement. The Defendant concluded that in his opinion Measure 24–367 would impose a tax of $0.49 per $1,000.00 assessed value and that this increase was the same as the previously imposed local option tax of $0.49 per $1,000.00 assessed value, thereby doubling the presently existing local option tax used to support the fire district. His opinion was so stated in the Statement."

The trial court also found that "the [voters' pamphlet statement] was the expression of the Defendants' opinion." In its conclusions of law, the trial court reiterated that "[t]he [voters' pamphlet statement] was the expression of the Defendants' opinion." The trial court also concluded:

"f. The Plaintiff failed to present sufficient evidence to demonstrate a prima facie case that the Defendants knowingly made a false statement or made the Statement with a reckless disregard sufficient to demonstrate liability pursuant to

ORS 260.532

. Defendants presented more believable and persuasive evidence and established a reasonable explanation for Defendants' opinion.

"g. In addition, pursuant to [Committee of 1000 v. Eivers, 296 Or. 195, 674 P.2d 1159 (1983) ], supra, the Court finds that a reasonable, permissible, and indeed the most probable, interpretation of the Statement is that the Defendants intended to compare the proposed tax imposed by Measure 24–367 to the existing local option tax as listed in Defendant [Deaton's] real property tax statement; that the ‘assessments' (plural) referred to the proposed tax and the existing local option tax and that the twenty year figure referenced in the Statement referred to the period of time for which the bonds issued under Measure 24–367 would mature."

We thus understand the trial court to have concluded both that plaintiff failed to make a prima facie case that defendants made a "false statement of material fact" (because, in the trial court's view, the challenged statement was an expression of opinion) and that plaintiff failed to make a prima facie case that defendants had acted with "knowledge or reckless disregard" of any falsity (because, in the trial court's view, defendants "presented more believable and persuasive evidence and established a reasonable explanation for Defendants' opinion").

On appeal, plaintiff argues that the trial court erred because (1) the challenged statement is not an expression of opinion—it is an assertion of fact; (2) that assertion of fact is false; and (3) the trial court improperly weighed the evidence in violation of ORS 31.150

in concluding that defendants had proffered a "reasonable explanation" for why they chose the wording that they did.

Defendants counter that the trial court correctly regarded the statement as a nonactionable expression of opinion. They also argue that, even assuming that the trial court was mistaken as to that point and that the statement is factual, plaintiff failed to make the requisite showing that the statement is false, or that defendants knew or had reckless disregard of any falsity. Defendants also argue that the trial court properly considered the evidence in resolving the anti-SLAPP motion.

On review, we must first determine whether plaintiff, for purposes of surviving defendants' anti-SLAPP motion, met its burden to make a prima facie showing that defendants violated ORS 260.532

.⁴ That inquiry turns on several questions. First, if we agree with defendants that the statement is not an assertion of fact, then plaintiff's claim was properly dismissed because plaintiff failed to satisfy an element of ORS 260.532 (if there was no factual assertion, there could be no false statement of material fact). If, however, we conclude that the statement is an assertion of fact, then we must next consider whether plaintiff presented substantial evidence in support of a prima facie case that defendants' statement violated ORS 260.532.

We begin with the trial court's determination that defendants' statement was an expression of opinion. ORS 260.532

applies to statements of "fact" but does not define that term, nor does it define "opinion." In the defamation context, a statement expresses an opinion if it " ‘cannot reasonably be interpreted as stating actual facts.’ "

Neumann, 261 Or.App. at 578, 323 P.3d 521

(quoting Hickey v. Settlemier, 141 Or.App. 103, 110, 917 P.2d 44, rev. den., ...