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Lobbyists stop some, but not all, legislation
Andrew Harris
The National Law Journal
December 6, 2001
law.com
With seven different states considering anti-SLAPP legislation this year,
the movement would appear to be gathering steam. But with powerful business
interests posing a stumbling block, that, in fact, may not be the case.
SLAPPs -- the acronym stands for "strategic lawsuits against public
participation" -- are usually retaliatory suits aimed at muting community
activists who speak out against developers, industrialists and city hall.
Anti-SLAPP laws are supposed to make it easier for people defending against
a SLAPP to obtain dismissal of a suit, meant to silence their opposition.
In the 12 years since Washington became the first state to pass such a law,
18 other states have followed suit, including five in the past two years.
But bills failed this year in Texas, Colorado and Arkansas, and the
compromises made to push legislation through in Oregon, New Mexico and Utah
this year may have limited their effectiveness.
Colorado House Majority Whip William D. Sinclair, R-Colorado Springs, saw
his own bill was defeated this year by one vote in the state house, even
after it had resoundingly passed a second house reading.
Sinclair attributed the defeat to an aggressive last-minute lobbying effort
by the Colorado Association of Commerce and Industry, on behalf of mining
and oil interests, as well as the Coors Brewing Co. But, he said, "Any
industry would just as soon not have this on the books."
All three new state laws offer relief to SLAPP suit victims in the form of
expedited rulings on motions to dismiss, rather than create a new cause of
action. Nonetheless, in Utah and Oregon, the burden is on the defendant to
prove that the underlying claim is a SLAPP suit meant to silence the victim
and not a meritorious claim.
Oregon state Rep. Kurt Schrader, D-Canby, said passage of Oregon's bill was
"a clear victory for moderates." That victory, however, required the bill's
supporters to overcome "formidable" opposition from lobbyists for
home-builders, developers, realtors and mining interests. "It's taken us
two sessions to get it through," Schrader said. He said the original bill
was overly broad in the types of speech it protected and was derided by
some as a "license to lie."
New Mexico's statute was supported by former-governor-turned-lobbyist Toney
Anaya. The bill sailed through the committee, he said, but when it reached
the house floor for a vote, Minority Floor Leader Earlene Roberts,
R-Lovington, announced that at the behest of that state's Association of
Commerce and Industry (ACI), she was opposing it. Anaya, who described the
ACI as a "private sector business lobbying group," said that it was "mostly
land developers and construction companies" within it that opposed the law.
Roberts was unable to siphon enough votes to defeat the bill. After
additional compromises in the state Senate to allay the ACI's concerns, New
Mexico's current governor, Gary E. Johnson, signed it April 24. Utah state
Rep. Rebecca Lockhart, R-Provo, the sponsor of one of two previous bills
there, said, "A lot of attorneys didn't like it. [And] the courts did like
it" because of an interlocutory appeal provision. "The bill passed the
House, and went to the Senate," she said, "but the courts made it clear
that they were going to ask the governor for a veto." The measure was
buried by parliamentary maneuvering. It never reached the floor for a vote.
This year, Lockhart said, however, she "worked with attorneys from the
beginning" to get it passed. In contrast to Schrader's measure, there is no
point in Lockhart's bill where the burden shifts to the plaintiff to prove
the suit has merit. Lockhart defends the provision: "There are legitimate
reasons for being sued."
"If there's a legitimate SLAPP going on, we've got to stop it," she
explained, but "we've got to take responsibility for the things we say. The
First Amendment was not intended to protect every itty-bitty part of speech."
Calling the terms of a Texas anti-SLAPP bill "a radical departure from
traditional concepts of our adversarial justice system and the roll of the
courts," Gov. Rick Perry vetoed state Rep. Richard Raymond's legislation on
June 17. This was the fourth anti-SLAPP measure to fail in that state, but
the first to make it as far as the governor's desk.
Raymond, D-Laredo, professed complete surprise at Perry's veto, saying that
the governor's statement was completely inconsistent with the content of
the legislation. Raymond said the governor's staff was "either misinformed
or uninformed," and chided Perry for holding himself out as being
interested in lawsuit reform, then killing the proposal. "What better
lawsuit reform than this bill?" Raymond asked.
Earlier this year, Arkansas state Rep. Jan A. Judy, D-Fayetteville,
withdrew the anti-SLAPP legislation she had sponsored, conceding she "did
not have the expertise to get [the bill] out of committee." She cited state
insurance companies and trial lawyers as opponents of the measure.
Michigan's legislature is expected to take up the issue before the year's end. |
