Yes on 24-367 Committee v. Deaton

367 P.3d 937, 276 Or. App. 347, 2016 Ore. App. LEXIS 128
CourtCourt of Appeals of Oregon
DecidedFebruary 3, 2016
Docket14C14391; A158181
StatusPublished
Cited by12 cases

This text of 367 P.3d 937 (Yes on 24-367 Committee v. Deaton) 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
Yes on 24-367 Committee v. Deaton, 367 P.3d 937, 276 Or. App. 347, 2016 Ore. App. LEXIS 128 (Or. Ct. App. 2016).

Opinion

GARRETT, J.

Plaintiff is a political committee that was organized to support the passage of a local ballot measure in Marion County in the May 2014 election. Defendants Deaton, Stormo, and Grant are individuals who placed a statement opposing the measure in the Marion County Voter Pamphlet.1 Before the election, plaintiff brought suit under ORS 260.532, alleging that defendants violated that statute by knowingly or recklessly making a false statement of material fact in their voters’ pamphlet statement.2 Defendants moved to strike the complaint under ORS 31.150, Oregon’s “anti-SL APP” statute. The trial court granted that motion and dismissed the case. Plaintiff appeals. Because we conclude that the trial court erroneously characterized defendants’ statement as “opinion,” rather than as an assertion of fact, and because the trial court erred in applying the legal standard relevant to an anti-SL APP motion, we reverse and remand.

To provide context for our review, we begin with a brief overview of the anti-SLAPP statute, ORS 31.150.3 “The [350]*350purpose of [the anti-SLAPP statute] is to ‘permit a defendant who is sued over certain actions taken in the public arena to have a questionable case dismissed at an early stage.’” Mullen v. Meredith Corp., 271 Or App 698, 700, 353 P3d 598 (2015) (quoting Staten v. Steel, 222 Or App 17, 27, 191 P3d 778 (2008), rev den, 345 Or 618 (2009)). The anti-SLAPP statute provides for, via a special motion to strike, “the dismissal of claims against persons participating in public issues, when those claims would be privileged under case law, before the defendant is subject to substantial expenses in defending against them.” Mullen, 271 Or App at 700 (quotation marks omitted).

Special motions to strike under ORS 31.150 are resolved according to a “‘two-step burden-shifting process.’” Neumann v. Liles, 261 Or App 567, 572, 323 P3d 521, rev allowed, 356 Or 516 (2014) (quoting Young v. Davis, 259 Or App 497, 501, 314 P3d 350 (2013)). In Neumann, we explained:

“In accordance with ORS 31.150(3), a court must first determine whether the defendant has met its initial burden to show that the claim against which the motion is made arises out of one or more protected activities described in ORS 31.150(2). Second, if the defendant meets that burden, the court must determine whether the plaintiff has established that there is a probability that the plaintiff will prevail on the claim by presenting substantial evidence to support a prima facie case.”

Id. (internal citations, quotation marks, and brackets omitted). We review a trial court’s ruling on an ORS 31.150 [351]*351special motion to strike for legal error. Id. at 572-73; see also Mullen, 271 Or App at 704.

We take the following facts from the pleadings and from the supporting and opposing affidavits submitted to the trial court, ORS 31.150(4), and we state them in the light most favorable to plaintiffs. Mullen, 271 Or App at 702. Ballot Measure 24-367 in the May 2014 election would have authorized the Aurora Rural Fire Protection District No. 63 (fire district) to issue general obligation bonds to pay for capital projects. The bonds would have resulted in a property tax assessment of $0.49 per $1,000.00 of assessed value.

Defendant Deaton was formerly a lieutenant with the fire district and had also served as mayor of Aurora. He, along with defendants Stormo and Grant, published a statement opposing the ballot measure in the Marion County voters’ pamphlet. At issue in this appeal is the second sentence of defendants’ voters’ pamphlet statement, which asserts, “This bond levy will DOUBLE the Fire District Tax assessments for the next 20 Years.” (Capitalization in original.) According to plaintiff, that statement is objectively and provably false. That is so because, at the time of the May 2014 election, two other fire district property tax assessments were in effect. The first was in the amount of $0.8443 per $1,000.00 of assessed value. The second, a “local option,” was in the amount of $0.49 per $1,000.00 of assessed value. Taken together, the existing assessments totaled $1.3343 per $1,000.00 of assessed value. Ballot Measure 24-367, by authorizing an additional $0.49 per $1,000.00, would, therefore, not have “doubled” the existing “assessments”; it would have doubled only one of the two existing assessments. Moreover, an additional $0.49 assessment on top of $1.3343 in existing assessments would have totaled $1.8243, resulting in only a 37 percent increase in the “assessments,” and not the doubling — a 100 percent increase — as asserted in defendants’ statement.

Defendants’ response to plaintiffs contention is reflected in the findings of fact and conclusions of law that the trial court entered in granting defendants’ anti- SLAPP motion. The trial court found:

[352]*352“Defendant [Deaton] drafted the [voters’ pamphlet statement] after reviewing his property tax statement. The Defendant concluded that in his opinion Measure 24-367 would impose a tax of $0.49 per $1,000.00 assessed value and that this increase was the same as the previously imposed local option tax of $0.49 per $1,000.00 assessed value, thereby doubling the presently existing local option tax used to support the fire district. His opinion was so stated in the Statement.”

The trial court also found that “the [voters’ pamphlet statement] was the expression of the Defendants’ opinion.” In its conclusions of law, the trial court reiterated that “[t]he [voters’ pamphlet statement] was the expression of the Defendants’ opinion.” The trial court also concluded:

“f. The Plaintiff failed to present sufficient evidence to demonstrate a prima facie case that the Defendants knowingly made a false statement or made the Statement with a reckless disregard sufficient to demonstrate liability pursuant to ORS 260.532. Defendants presented more believable and persuasive evidence and established a reasonable explanation for Defendants’ opinion.
“g. In addition, pursuant to [Comm. of 1000 v. Eivers,

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Bluebook (online)
367 P.3d 937, 276 Or. App. 347, 2016 Ore. App. LEXIS 128, Counsel Stack Legal Research, https://law.counselstack.com/opinion/yes-on-24-367-committee-v-deaton-orctapp-2016.