Oregon Education Ass'n v. Parks

291 P.3d 789, 253 Or. App. 558, 2012 Ore. App. LEXIS 1348
CourtCourt of Appeals of Oregon
DecidedNovember 21, 2012
Docket091015201; A147627
StatusPublished
Cited by8 cases

This text of 291 P.3d 789 (Oregon Education Ass'n v. Parks) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Oregon Education Ass'n v. Parks, 291 P.3d 789, 253 Or. App. 558, 2012 Ore. App. LEXIS 1348 (Or. Ct. App. 2012).

Opinion

BREWER, J.

Defendants appeal a limited judgment in an action under the Oregon Racketeering Influenced and Corrupt Organizations Act (ORICO), ORS 166.715 to 166.735. The trial court denied defendants’ special motion to strike pursuant to ORS 31.150, Oregon’s “anti-SLAPP” statute.1 Defendants assign error to the trial court’s conclusion that plaintiffs met their evidentiary burden under ORS 31.150(3) to provide substantial evidence to support a prima facie ORICO claim. Plaintiffs cross-assign as error the court’s conclusion that defendants met their initial burden under ORS 31.150 to show that plaintiffs’ ORICO claim arises out of conduct in furtherance of the exercise of defendants’ constitutionally protected rights of petition or free speech. We conclude that the trial court did not err in determining that plaintiffs satisfied their evidentiary burden under ORS 31.150(3). Accordingly, we affirm on appeal and need not reach plaintiffs’ cross-assignment of error.

ORICO makes it unlawful to knowingly use or invest proceeds derived from a pattern of racketeering in an enterprise, to acquire or maintain an interest in an enterprise through a pattern of racketeering, to participate in an enterprise through a pattern of racketeering, or to conspire to do any of those things. ORS 166.720. Plaintiffs, who are public employee unions, brought this ORICO action against defendants, alleging a pattern of racketeering activity and seeking damages caused by defendants’ racketeering activities in connection with placing certain measures on the statewide ballot for the November 2008 election. Defendants are Loren Parks, as well as numerous entities controlled by Parks (referred to for the sake of simplicity as “Parks” throughout this opinion), and William Sizemore. The gravamen of plaintiffs’ complaint is that, for the purposes of harming plaintiffs, avoiding the effects of prior injunctions, and thwarting plaintiffs’ abilities to collect a prior judgment, Parks and Sizemore conspired to use the tax-exempt American Tax Research Foundation (ATRF) to improperly fund campaigns to place four [561]*561antiunion ballot measures on the 2008 statewide election ballot. In particular, plaintiffs alleged that, to accomplish those purposes, Sizemore committed various acts of perjury and unsworn falsification, and Parks conspired with him to do so. Plaintiffs further asserted that they are entitled to damages based on their expenditures to defeat those ballot measures.

Defendants filed a special motion to strike plaintiffs’ complaint. See ORS 31.150(2)(d) (providing that a special motion may be made in an action arising out of “conduct in furtherance 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(3) provides that, if a defendant makes a prima facie showing that the claim arises out of protected activity under subsection (2), “the burden shifts to the plaintiff 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.” The trial court ruled that defendants made an initial showing that the claim arose out of protected activity, and, after reviewing materials submitted by plaintiffs, concluded that plaintiffs had made the requisite showing to defeat the motion.

A special motion to strike “shall be treated as a motion to dismiss under ORCP 21A but shall not be subject to ORCP 21F [pertaining to consolidation of motions].” ORS 31.150(1). As pertinent here, ORCP 21A authorizes a court, in entertaining a motion under that section, to consider matters outside the pleadings. In determining whether a party has satisfied its burden under ORS 31.150(3), a court “shall consider pleadings and supporting and opposing affidavits stating the facts upon which the liability or defense is based.” ORS 31.150(4). Finally, the court’s determination pursuant to ORS 31.150(3) “does not affect the burden of proof or standard of proof that is applied in the proceeding.” ORS 31.150(5)(b).

The trial court summarized plaintiffs’ pleadings as follows:

“Plaintiffs’ theory, in essence, is that Sizemore and defendant Loren Parks (Parks) conspired to use American [562]*562Tax Research Foundation (ATRF), a nonprofit corporation designated as a tax-exempt educational organization, to improperly fund the campaigns for the 2008 ballot measures (1) as part of their continuing effort to harm OEA and AFT; (2) to avoid paying a judgment debt owed by Sizemore; and (3) to circumvent injunctions previously entered against the Parks Foundation, OTU-PAC and OTU-EF. Plaintiffs allege that the scheme benefitted the Parks defendants by allowing them to make tax deductible contributions to ATRF that Sizemore used for personal and political purposes. Plaintiffs further allege that, as part of this scheme, Sizemore (1) lied under oath in numerous respects; and (2) submitted false ‘CT-12 reports’ (which were required to maintain ATRF’s tax-exempt status), in an effort to avoid detection.”

In their motion to strike, defendants contended that numerous assertions contained in plaintiffs’ affidavits should not have been considered by the court because they constituted inadmissible hearsay, inadmissible matters of opinion, or were mere arguments. Defendants also argued that plaintiffs had not submitted sufficient evidence to establish a causal connection between the allegedly unlawful conduct and any injury or damages to plaintiffs, and that plaintiffs had not adduced sufficient evidence that Parks was aware of or involved in any racketeering activities that may have occurred.

After considering plaintiffs’ affidavits setting out the sums that they had spent opposing the 2008 ballot measures and what the trial court described as “voluminous evidence in support of [plaintiffs’] contentions that (1) defendants intended to harm [plaintiffs] by proposing and supporting the 2008 ballot measures; and (2) defendants’ actions violated ORICO,” the court ruled that plaintiffs had satisfied their evidentiary burden under ORS 31.150.

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Cite This Page — Counsel Stack

Bluebook (online)
291 P.3d 789, 253 Or. App. 558, 2012 Ore. App. LEXIS 1348, Counsel Stack Legal Research, https://law.counselstack.com/opinion/oregon-education-assn-v-parks-orctapp-2012.