A trial court judge weighing the evidence in an anti-SLAPP hearing violates plaintiff’s constitutional right to a jury trial.
Article I, section 17, of the Oregon Constitution provides that “[i]n all civil cases the right of Trial by Jury shall remain inviolate.” The Oregon Constitution guarantees a jury trial in civil actions in any case in which a right to a jury trial was customary at the time the constitution was adopted, or in cases of like nature. Greist v. Phillips, 322 Or 281, 293, 906 P2d 789 (1995). Article I, section 17, guarantees a jury trial in civil actions for which the common law provided a jury trial when the Oregon Constitution was adopted in 1857 and in cases of like nature. Lakin v. Senco Products, Inc., 329 Or 62, 82, 987 P2d 463 (1999). In any such case, the trial of all issues of fact must be made by jury. Id. In State v. 1920 Studebaker Touring Car, 120 Or 254, 259, 251 P 701 (1920), the court stated:
The right to trial by jury guaranteed by the Constitution of this state, embraces every case where it existed before the adoption of the Constitution, and it is not within the power of the legislature to enact a law which deprives a litigant of that right.
Defamation was a common law claim that existed prior to the adoption of the Oregon constitution. Since the latter half of the 16th century, the common law has afforded a cause of action for damage to a person’s reputation by publication of false and defamatory statements. Milkovich v. Lorain Journal Co., 497 US 1, 11, 110 S Ct 2695, 2702 (1990).
Intentional interference with economic relations was a common law claim that existed prior to the adoption of the Oregon constitution. In Top Service Body Shop, Inc. v. Allstate Ins. Co., 283 Or 201, 582 P2d 1365 (1978), the court noted that the tort claim for wrongful interference with the economic relationships of another has an ancient lineage. Id. at 204. However, the court also noted that protection in tort against interference with business relations has been described as largely a twentieth-century development. Id. Despite the court’s comments about the development of this claim, for the purposes of this discussion, it is important to examine when the right to pursue recovery for this claim originated, and whether it was an available remedy prior to the enactment of the Oregon Constitution. It is a common law claim that has not been codified by statute, distinguishing it from a claim for wrongful death pursuant to ORS 30.020, which is entirely a statutory cause of action and has no basis in common law. Hughes v. Peacehealth, 344 Or 142, 147, 178 P3d 225 (2008) (“[I]n Oregon, wrongful death is an entirely statutory cause of action and no basis in the common law).
Wrongful use of civil proceedings is also a common law claim that existed prior to the enactment of the Oregon Constitution. An action for wrongful initiation of civil proceedings is the civil analog to a malicious prosecution action. Erlandson v. Pullen, 45 Or App 467, 470, 608 P2d 1169 (1980). The torts are so similar that the legal analysis often is used interchangeably. See Lee v. Mitchell, 152 Or App 159, 180, 953 P2d 414 (1998) (applying analysis for malicious prosecution to action for wrongful initiation of a civil proceeding). Malicious prosecution was recognized by the courts of New York in 1854, prior to the enactment of the Oregon Constitution, in Garrison v. Pearce, 3 E D Smith 255 (1854). Thus, the claim of wrongful use of civil proceedings predates the enactment of the Oregon constitution.
When, after consideration of the text, context, and legislative history, the meaning of a statute is unclear, this court will construe the statute so as to satisfy the constitution. See State v. Edgmand, 306 Or 535, 540, 761 P2d 505 (1988) (court is to preserve the legislature’s intended purpose to the extent that the statute can be construed to avoid constitutional problems).
A Plaintiff has a right to a jury trial on her claims for defamation, intentional interference with economic relations and wrongful use of civil proceedings, as all three claims are common law claims that existed prior to the enactment of the Oregon Constitution. If a trial court finds that ORS 31.150 was unclear, or struggles with how to appropriately resolve the various burdens set forth by this relatively new statute, a trial court should have erred on the side of preserving the plaintiff’s constitutional rights by denying a defendant’s motions. A court cannot dismiss plaintiff’s claims and deprive a plaintiff of the right to a trial by a jury in violation of Article I, section 17.
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