Oregon’s Anti-SLAPP Statute Misused by Attorneys (1/5) - Arnold Law in Eugene, Oregon – Powerful Advocacy. Proven Results.

Oregon’s Anti-SLAPP Statute Misused by Attorneys (1/5)

06.01.2012- by Emilia Gardner and Mike Arnold

ORS 31.150 permits a defendant to file a special motion to strike when a cause of action arises out of a statement made in specific circumstances: “in connection with an issue under consideration or review by a legislative, executive or judicial body or other proceeding authorized by law” and “any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.” ORS 31.150(2)(b); ORS 31.150(2)(d).

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Pursuant to ORS 31.150(3):

A defendant making a special motion to strike under the provisions of this section has the initial burden of making a prima facie showing that the claim against which the motion is made arises out of a statement, document or conduct described in subsection (2) of this section. If the defendant meets this burden, the burden shifts to the plaintiff in the action to establish that there is a probability that the plaintiff will prevail on the claim by presenting substantial evidence to support a prima facie case. If the plaintiff meets this burden, the court shall deny the motion.

Defendant’s prima facie burden under ORS 31.150(3) in proving that ORS 31.150(2)(b) applies to statements alleged by a plaintiff

A Defendant has the obligation to produce evidence sufficient to establish a prima facie showing that ORS 31.150(2)(b) applied. A “prima facie case” requires evidence that will “suffice, until contradicted and overcome by other evidence.” Pacific Tel. & Tel. Co. v. Wallace, 158 Or 210, 221, 75 P2d 942 (1938). Prima facie evidence is “such evidence as in judgment of law is sufficient to establish the fact, and if not refuted, remains sufficient for the purpose.” In re Estate of Thornberg, 186 Or 570, 577, 208 P2d 349 (1949).

In Portland Distributing Co. v. Department of Revenue, 307 Or 94, 763 P2d 1189 (1988), the Oregon Supreme Court called the phrase “in connection with” an “ambiguous phrase that means a relationship or association.” Id. at 99.  Black’s Law Dictionary defines “connection” as the “state of being connected or joined; union by junction, by an intervening substance or medium, by dependence or relation, or by order in a series.” Black’s Law Dictionary, 302 (6th ed 1991). When the legislature has not provided an express meaning for a particular term, the court will look to the term’s plain and ordinary meaning. Portland General Elec. Co. v. Bureau of Labor and Industries, 317 Or 606, 611, 859 P2d 1143, 1146 (1993).

The term “in connection with” as it relates to statements and an issue under consideration requires a junction, association, relation or association at the time the statements were made. A Defendant’s likely argument in response is based upon ORS 174.010[1], as the statute does not contain the words “then under consideration” or “under review at that time.” The argument cuts both ways, as the statute does not contain any provision that authorizes retroactive application either. There is nothing specific in the statute that covers statements made up to a certain period of time prior to the instigation of an applicable proceeding.

[1] “In the construction of a statute, the office of the judge is simply to ascertain and declare what is, in terms or in substance, contained therein, not to insert what has been omitted, or to omit what has been inserted; and where there are several provisions or particulars such construction is, if possible, to be adopted as will give effect to all.” ORS 174.010.

[Next Page (part 2 of 5): A Defendant’s defamatory statements about a plaintiff may not always constitute an exercise of a constitutional right of free speech in connection with a public issue or an issue of public interest pursuant to ORS 31.150(2)(d).”]

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