Humboldt County Planning Department says that Dimmick is holding the cards

The Redwood Times interviewed planner Michael Richardson for this article and may answer my previous question. According to Richardson, if it comes down to the issue of the ownership of the permit Tom Dimmick will prevail. Word has it that the Mateel’s attorneys disagree and will be sharing their views with the planning department shortly.

Richardson says that the Conditional Use Permit (CUP) for Reggae on the River is issued to the property owner and is an entitlement for the use of the property without taking into consideration the private contractual agreements between the property owner, applicant, and producer of the event.

Richardson goes on to say that Dimmick can apply for the permit on his own and that minor changes in the permit, such as changing the name of the event, would not require a modification of the permit.

The article moves on to some concern of the Planning Department’s about the summary report from last year’s event, submitted by People Productions.

Richardson says that he has already expressed some concerns about the document to the Mateel Community Center. These concerns center around an absence of methodology and evidence for assertions made in the document, and a failure to address why attendance levels at the 2006 event were higher than what the Planning Commission approved. He also faults the document for failing to make suggestions to prevent such a thing happening in the future.

My question: why is he talking to the Mateel Center about it? If you take his view, they have nothing to do with it.

The article also says the Mateel Board entered into mediation with Dimmick last week. This contradicts what I’ve heard which is that mediation has yet to take place. Either way, it’s hard to see how the dispute can be resolved out of court. Assuming Richardson is right about the permit, it comes down to the lease agreement. Dimmick says there is a provision which mandates that People Productions as producer. The Mateel argues that any such provision is unreasonable and so unenforceable, especially since, in their view, People Productions refused to honor the contract and wanted a new one. People Productions denies that it refused to honor the contract. And the beat goes on.

Whoever wins, roughly half of the community is going to be bitter. I’ve already spoken to a number regular attendees who say that if a particular side wins they won’t be attending. More to the point, they won’t be volunteering.

What is a SLAPP?

SLAPP is an acronym for Strategic Lawsuit Against Public Participation. The term was phrased by University of Denver professors Penelope Canan and George W. Pring during the 1980s when the suits were at their apex referring to a lawsuit with little or no merit brought by a powerful organization against ordinary citizens in an effort to silence them. Typically, the lawsuits were filed following a public meetings for controversial development projects, wherein the speaking individuals were named along with 500 or so “does” to deal with further meetings, letters to the editor, and other forms of public opposition to the proposal. While the suits can be defeated, they require large amounts of money and time to fight and many people who might otherwise be active on the issue simply clam up out of fear because justice can never be guaranteed. Common causes of action were libel and/or slander, interference with business advantage, or ironically abuse of process. The suits would often be filed, the defendants served, with some sort of legal notice placed in the newspapers, and then not pursued. The defendants, relieved that the actions were not being pursued, avoided making waves. Meanwhile, the projects would be muscled through without opposition.

Some of the early SLAPP victims found that their defenses could be covered by their home owners insurance policies, and others worked hard to raise legal defense funds (distracting considerably from the original issues). They managed to get several of the suits dismissed, but not before the opposition to a particular project was derailed. Some farmers who had opposed large agribusiness on the peripheral canal issue had been hit with an early SLAPP. They obtained the dismissal and filed the first major “SLAPP-back,” which consists of an abuse of process and/or malicious prosecution suit. They asked for punitive damages. Eventually a jury hit the SLAPPers with a 13 million dollar judgment. A year or so later, Shell Oil was hit with a 7 million dollar judgment.

But the suits continued unabated even with these judgments. In 1991 the California Anti-SLAPP Project (C.A.S.P.) was founded by attorney Mark Goldowitz (I had the pleasure of working for him at the time with the help of a law school externship fund). Goldowitz worked with Bill Lockyer to enact (after several frustrating tries) California’s anti-SLAPP law. The text of the applicable statutes and some explanations may be found here, but the essential gist of the law is that a case that is deemed a SLAPP may be dismissed early. From the CASP site:

Code of Civil Procedure sec. 425.16

California’s anti-SLAPP statute provides for a special motion to strike a complaint where the complaint arises from conduct that falls within the rights of petition and free speech. The statute was first enacted in 1992. See Cases Applying the Anti-SLAPP Statute.

Code of Civil Procedure sec. 425.17

This statute was enacted to correct abuse of the anti-SLAPP statute (CCP § 425.16). It prohibits anti-SLAPP motions in response to (1) public interest and class actions when certain conditions are met, and (2) actions against a business that arise from commercial statements or conduct of the business.

Code of Civil Procedure sec. 425.18

This statute was enacted primarily to facilitate SLAPP victims in recovering their damages through a SLAPPback (malicious prosecution action) against the SLAPP filers and their attorneys after the underlying SLAPP has been dismissed. It provides that the prevailing defendant attorney fee and immediate appeal provisions of the anti-SLAPP law do not apply to SLAPPbacks, and that an anti-SLAPP motion may not be filed against a SLAPPback by a party whose filing or maintenance of the prior cause of action from which the SLAPPback arises was illegal as a matter of law.

Civil Code sec. 47

Defines privileged publication or broadcast and immunizes participants in official proceedings or litigation against all tort actions except malicious prosecution. This statute figures prominently in several cases republished here in Other California Cases.

Despite these protections, SLAPPS remain a popular technique for silencing grassroots political opposition. And although the laws protecting online First Amendment protected activities have held well so far the law is still developing. There are a number of organizations dedicated to maintaining freedom of expression on the Internet and links to some of them may be found here. And if you believe you’ve been hit with a SLAPP, CASP has a form to fill out and submit in order to obtain help if they can be of assistance.

Now, not every suit filed by a corporation or powerful figure is necessarily a SLAPP. If the case has merit, it cannot be dismissed per the anti-SLAPP provisions. A plaintiff in a defamation suit must prove several elements. Basically, the statement must be false (“truth is an absolute defense”), it must be “published” (ie. made to a party other than the plaintiff). And it must not be privileged.

If the statement is made in the context of a discussion of public concern, the defendant must be proven negligent – ie. that the defendant made the false statement when a reasonable inquiry would have let the speaker/publisher know that the statement was false. And in fact you can defeat a defamation suit if your statement is deemed a “fair comment on a matter of public interest.” And example given in this analysis is “if the mayor of a town is involved in a corruption scandal, expressing the opinion that you believe the allegations are true is not likely to support a cause of action for defamation.”

Opinion is protected, although merely couching a statement with a phrase “in my opinion” is not an adequate defense if the circumstances are that the community would reasonably assume that you are a party in the know, thus giving your “opinion” a unique power of persuasion.

Hyperbole is likewise protected, no matter how insulting it may be, so long as it is not intended nor likely to convince someone of the truth of the matter stated. Satire is similarly protected.

And if the plaintiff (the person allegedly defamed) is a public figure, he or she must prove that the speaker/publisher was malicious, either knowing the statement was false or making the statement with a reckless disregard for the truth – a standard which was set in the landmark U.S. Supreme Court Case, New York Times v Sullivan. From the decision:

Thus, we consider this case against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.

The Court added: “erroneous statement is inevitable in free debate.” And so the Court imposed the requirement of malice, which must be proven by clear and convincing evidence, a standard a bit tougher than a mere propensity of evidence.

What is a public figure? The Supreme Court defines the term as individuals who “thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved” to be considered a “limited purpose” public figure. Gertz v. Robert Welch, Inc. (1974) 418 U.S. 323, 345. You don’t have to be a “public official” or a celebrity.

There are other defenses as well. A plaintiff has to mitigate damages, and in California a plaintiff must notify the defendant and demand a retraction or removal if he or she intends to collect general damages – ie. emotional distress, pain and suffering, etc. Also, the defendant cannot be held responsible for any damages occurring as a result of continued publication if he or she was not warned and the plaintiff had the opportunity to provide the warning.

There are other defenses as well.

If anybody wants, I can explore some of the other torts typically associated with SLAPPs, but I believe these resources provide a good starting point. I will research the legal protections as they apply to anonymous bloggers as well and post about them.

And hey, while researching some of this stuff I came across an old article on SLAPPs I wrote for the CLMP Newsletter. I didn’t realize CLMP rated so high on Google.