JAMES LOEFFELHOLZ, an individual,	}
and PIERCE COUNTY, a government 	}   NO.  99-2-00224-2
entity,                                 }
			Plaintiffs,     }   Defendants' Special Motion
			                }   to Dismiss under
			 v.             }   RCW 4.24.500 et seq.
CITIZENS FOR LEADERS WITH   	        }   ["anti-SLAPP" Statute]
ETHICS AND ACCOUNTABILITY NOW           }
(C.L.E.A.N.), a Washington non-profit	}   Date of Hearing: 10/1/99
corporation; TOM RICHESON and 		}   Assigned Judge: Pomeroy
SUSAN COFFEY, a marital community; 	}
SHERRY BOCKWINKEL, a single person,	}
			Defendants.	}

INTRODUCTION: SLAPP & FACTS

This action is a SLAPP suit [Strategic Lawsuit Against Public Participation in government] filed by a Pierce County against a nonprofit, tax-exempt, citizen group and individuals associated with that group, for exercising their First Amendment right to petition government. All of the plaintiffs' claims and all of the citizens' actions relate to a very public political controversy, specifically the secrecy and security of absentee ballots. [1] See, "Slapping around citizens who demand accountability", The Seattle Times Editorial (January 19, 1999).

In that Seattle Times editorial, by Michelle Malkin, she discusses this specific SLAPP suit and states, in part, that:

The aroma in Tacoma still lingers, but don't blame pulp mills or garbage dumps. The public stench comes form a retaliatory lawsuit filed by Pierce County government against one of the state's most effective civic watchdogs.

....

CLEAN's most notable achievement in forcing government accountability may be its aggressive monitoring of election practices in Pierce County. In 1996, the group won a cease-and-desist order from the state Supreme Court that stopped Pierce County from counting absentee ballots more than a week before election day. CLEAN showed that the Pierce County Auditor's office -- run by Cathy Pearsall-Stipek -- was breaking the security envelopes, removing the ballot and re-marking ballots.

Last year, an investigative report by KING-TV, which was prompted by CLEAN, found that Pearsall-Stipek's office had apparently rigged ballot positions for local incumbents. The positions are supposed to be drawn randomly. But of 11 races, including her own, Pearsall-Stipek drew the incumbent's name for the top ballot position 11 times. The auditor dismissed this as "an amazing coincidence." KING-TV noted that the chances of this result were 12,000 to 1 and concluded that the auditor had used marked cards in drawing the positions.[2]

CLEAN's success in exposing Pierce County's election shenanigans has exposed its members to financial, legal and physical risks.

....

This legal maneuver smacks of government bullying by a county with deep pockets and obvious incentives to encroach on CLEAN members' freedom of speech, association and privacy rights.

The plaintiffs allege that these citizens engaged in malicious prosecution and defamation as a result of an altercation that occurred at an undisclosed warehouse where absentee ballots were being handled. The plaintiffs' claims and all of the defendants' actions (directly or indirectly) relate to the public political controversy. This was confirmed by Pierce County Superior Court Judge Sergio Armijo when he granted CLEAN's motion to change venue:

And when I realized that to some degree, whether you want to say it or not, it is political. The actions from the CLEAN people is [sic] political. And it does touch a lot of people in this county directly, indirectly.

I. THE COURT SHOULD FOLLOW U.S. SUPREME COURT PRECEDENT AND IMMEDIATELY DISMISS THIS SLAPP SUIT. FAILING TO DO SO CONTINUES THE CONSTITUTIONAL VIOLATIONS AND MAKES THE COURT AN ACCESSORY TO THE CHILL ON THE RIGHTS OF CITIZENS TO PETITION GOVERNMENT.

A SLAPP suit is simply the use of lawsuits against the exercise of fundamental rights protected by the First Amendment's Petition Clause. It is the use of litigation by Pierce County to achieve political intimidation. See attached, "Slapping around citizens who demand accountability", The Seattle Times Editorial (January 19, 1999); "Pierce County Sues Activist Group", News Tribune, (January 31, 1999).

According to Professor George W. Pring, originator of the "SLAPP" term and a major commentator on the SLAPP phenomenon:

To qualify as a SLAPP ... we required that a lawsuit meet one primary and three secondary criteria. Primarily, it had to involve communications made to influence a governmental action or outcome, which, secondarily, resulted in (a) a civil complaint or counterclaim (b) filed against nongovernment individuals or organizations (NGOs) and (c) a substantive issue of some public interest or social significance.

Based on the allegations made in the complaint, this case meets this four-part definition. Professor Pring has also noted that typically SLAPPS work by "masquerading as ordinary lawsuits ... They come camouflaged as any of six ordinary torts," among them defamation, business torts (including interference with contract), judicial torts (including abuse of process), conspiracy, constitutional-civil rights violations, and nuisance. Id., at 150-151. Again, these same allegations are made in this case.

The U.S. Supreme Court addressed SLAPPS and the issue of the "right of petition for redress of grievances" in City of Columbia v. Omni Outdoor Advertising Inc., 499 U.S. 365, 111 S.Ct. 1344 (1991). Omni was an antitrust dispute between two competing billboard companies. Omni Outdoor Advertising, a newcomer, was trying to gain a foothold in the Columbia, Georgia , market but was blocked by the bigger, already established Columbia Outdoor Advertising (COA) firm. COA lobbied city government officials to adopt ordinances restricting new billboards; contributed funds and free space to city officials and attempted inducement of breaking Omni's contracts with city customers. Omni sued the city and COA for antitrust violations. The U.S. Supreme Court, in a unanimous decision, ruled it irrelevant that a private party's political motives are "selfish" because the Petition Clause "shields a concerted effort to influence public officials, regardless of intent or purpose." Id. at 380; Pring at 27.

Thus, SLAPPs should be dismissed whenever the target's petitioning seeks an outcome of government process (legislation, rulings or other government action or inaction). Id.; Pring at 27. Again, that is the case here.

II. WASHINGTON'S "ANTI-SLAPP" STATUTE BROADLY PROHIBITS LITIGATION THAT ATTEMPTS TO PUNISH EFFORTS TO PETITION THE GOVERNMENT.

In 1989, Washington State passed the first modern anti-SLAPP law as a result of the Brenda Hill case. [3] Like the other states [4] that have similar statutes, Washington anti- SLAPP law was passed to counter the growing phenomenon of frivolous lawsuits filed to chill individuals and citizen groups who openly express their views to government agencies by exercising their right to petition government. Such suits are brought, not because of their merits, but to obtain the collateral economic and strategic advantage of forcing their targets to devote substantial time and money to the defense of litigation. See, Barker, Common-Law and Statutory Solutions to The Problem of SLAPPS, 26 Loy. L.A.L. Rev. 395, 406 (1993).

Washington's anti-SLAPP law at RCW 4.24.500 states, in part, that: The legislature finds that the threat of a civil action for damages can act as a deterrent to citizens who wish to report information to federal, state, or local agencies. The costs of defending against such suits can be severely burdensome. The purpose of RCW 4.24.500 through 4.24.520 is to protect individuals who make good-faith reports to appropriate governmental bodies. RCW 4.24.510 also provides:

A person who in good faith communicates a complaint or information to any agency of federal, state, or local government regarding any matter reasonably of concern to that agency shall be immune from civil liability on claims based upon the communication to the agency. A person prevailing upon the defense provided for in this section shall be entitled to recover costs and reasonable attorneys' fees incurred in establishing the defense.

Pierce County Superior Court Judge Sergio Armijo acknowledged CLEAN's distrust of the county when he recently granted the group's request to move the case elsewhere. It will be heard by a Thurston County judge.

....

County officials said Friday they have no problems with most citizens activist groups but contended CLEAN and its members are extreme. Sutherland and the County Council made the decision to sue CLEAN. Sutherland and County Council chairwoman Jan Shabro said CLEAN's actions are unproductive and cost the taxpayers money. "They, to me, represent the far extreme, and they attract people who are extremists. They deal with emotions rather than facts," Shabro said. Added Sutherland, "That's how they raise money." Continued Shabro, "And they make it sound noble."

Recently, CLEAN was the subject of two editorials in The Olympian. On September 17, 1999, The Olympian editorialized that:

We're equally pleased that there are organizations such as Citizens for Leaders with Ethics and Accountability Now (CLEAN) around to raise these important ethical issues. ... It's good to have independent voices checking the legality of Neuheisel's contract. [7]

You see, Newman and his organization -- Citizens for Leaders with Ethics and Accountability Now (CLEAN) -- are consistent voices for open government accountable to the public it serves. [8]

These principles require dismissal of the plaintiffs' claims which are a classic SLAPP suit. The defendants' actions are constitutionally protected. The Plaintiffs, like the parade of liars, thieves and mobsters that have historically populated Pierce County government, [9] use litigation and their publicly financed "deep pockets" to intimidate citizen groups that would dare question their "public"duties. All of the defendants' activities challenged by the plaintiff are protected by their constitutional right to petition government. Accordingly, each of them should be dismissed with costs and attorney fees awarded pursuant to RCW 4.24.510.

III. OPINIONS ARE NOT ACTIONABLE AND ARE NOT SUBJECT TO DISCOVERY

Even statements of fact may assume the character of opinion, and thus be privileged and unactionable when made in public debate or other circumstances in which an audience may anticipate efforts by parties to persuade others to their positions. Camer v. Seattle Post Intelligencer, 45 Wn.App.29, 723 P.2d 1195 (1986). The plaintiff must submit convincingly clear proof of his identity as a target of allegedly libelous statements. Id. The law also requires that the substance of the statements make a substantial danger to reputation apparent. Id. at 38. Here, the plaintiff alleges false statements but does not explain how of if they were damaged. [10]

Any statements defendants made in the form of opinion and are not actionable under Camer; the rule is especially important in public debate. If citizens were required to prove the truth of everything said, everyone would practice self-censorship to avoid lawsuits. The plaintiff has not submitted clear proof of libelous statements. The statement at issue in this case was part of a 250 plus word article entitled "County election Workers Hard at Work." (See attached). The article, which included photos of Mr. Arends assaulting Ms. Coffey, states that:

Neither of the men seemed to be afraid that any of the 30 or so people who were working there would contradict their official account of the incident, although it would be totally false.

As detailed in their declaration, the defendants sought to file assault charges but were given the run-a-round by public officials concerned with the "political nature" of the incident. They had repeatedly requested that charges be filed against Mr. Billy Joe Arends; repeatedly requested copies of any police report; etc. They were told in writing by then Tacoma Police Chief Phillip Arreola that they would need to sue to obtain a copy of the police report "since criminal proceedings" were pending. [Declaration, Ex. K]. The defendants were never charges with any crime. They finally got a copy of the report on May 1, 1997, via discovery in their federal case -- over six months after the incident. This, despite the fact that an election worker [Barbara Boekholt] wrote a letter to the editor of the News Tribune which was published less than a week after the incident on November 7, 1996, stating, in part that: "If anyone has any doubts about what happened at the warehouse last week, they should read the official sheriff's report. I did ..." [Declaration, Ex. F].

To allege statements damaging to a reputation, there must be a substantial danger to a person's reputation. A reasonable person would hardly believe a statement made in an obscure newsletter or website would damage Sgt. Loeffelholz's reputation, let alone constitute a substantial danger. In fact, the plaintiffs never contacted the defendants about the article prior to filing suit. Once suit was filed, CLEAN removed the offensive language in the article from its web page. A reasonable person would find it difficult to believe that the plaintiffs suffered "disparagement," and a loss of reputation when the comments addressed an assault on a citizen seeking to investigate absentee ballot processing.

The defendants request that the court find that the complaint cannot be sustained based on defendants' opinions expressed in a public forum.

IV. THE COMPLAINT FAILS TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED GIVEN DEFENDANTS' CONSTITUTIONAL AND STATUTORY RIGHT TO PETITION GOVERNMENT.

When a party files a complaint, it must make a "short and plain statement" of a claim, which must show, at a minimum, that 1) a legal wrong was committed and 2) damages foreseeably resulting therefrom. Christiansen v. Swedish Hospital, 59 Wn.2d 545, 548, 368 P.2d 897 (1962). "A complaint must contain direct allegations on every material point necessary to sustain a recovery on any legal theory or contain allegations from which an inference fairly may be drawn that evidences that these material points will be introduced at trial." Havsy v. Flynn, 88 Wn.App. 524, 518, 945 P.2d 221 (1997). If a plaintiff alleges injury in fact, the court must determine if the defendants are the proximate cause and responsible for any alleged injuries. City of Seattle v. Blume, 134 Wn.2d 243, 252, 947 P.2d 223 (1997). The complaint must contain material facts, i.e., one that is essential to the claim or defense, without which it cannot be supported. McDonald v. Murray, 83 Wn.2d 17, 19, 515 P.2d 151 (1973)

Looking solely at the pleadings is not the proper test; the party seeking to defeat a claim of privilege must do more than state a cause of action. Clampett v. Thurston Cy., 98 Wn.2d 638, 658 P.2d 641 (1983). That case involved an action for outrage against a county based on the disclosure to a newspaper of a memorandum regarding a conversation between county officials. The plaintiffs sought to discover the identity of the newspaper's source from a reporter who was not a party to the action. The motion to compel discovery was brought in the county in which the reporter's deposition had been taken. The Supreme Court vacated the discovery order. In so doing .the court found that:

The lower court also erred in its analysis of the merit of respondents' claim. As noted above, one of the requirements of Senear is that the party seeking discovery show that his or her claim is not frivolous. In considering this requirement the lower court apparently looked solely to respondents' pleadings. This is not the proper test. A party seeking to defeat a claim of reporter's privilege must do more than state a cause of action. The party must show further that he or she can "establish jury issues on the essential elements of [his or her] case not the subject of the contested discovery." Bruno & Stillman, Inc. v. Globe Newspaper Co., supra at 597. Hence, a lower court considering a motion to compel reporter disclosure of a confidential source must assure that the party seeking discovery has at least some evidence to support his claim.

Dismissal of a complaint must be granted in a case where the plaintiff includes allegations that show on the face of the complaint that there is some insuperable bar to relief. Fondrick v. Klickistat Cy., 79 Wn.App. 850, 854, 905 P.2d 928 (1995).

Plaintiff Loeffelholz alleges false statements but does not explain how or if he was damaged. In fact, Plaintiff Loeffelholz was promoted from a deputy sheriff to a sergeant shortly after the incident. The plaintiffs have not shown any evidence of damages or identified the allegedly tortious statements that would trump the defendants constitutional rights.

V. DEFENDANTS REQUEST THAT THE COURT IMPOSE RULE 11 SANCTIONS ON OPPOSING COUNSEL.

A complaint is subject to CR 11 sanctions if three conditions are met:

(1) the complaint was not well-grounded in fact or law
(2) the complaint was not warranted by existing law; and
(3) the attorney signing has failed to conduct reasonable inquiry into factual or legal basis of the action.

This lawsuit is an unconstitutional attempt to use the courts to violate the federal and state constitutional rights of the defendants to petition their government for redress of grievances. The right to petition is directly linked with the effectiveness and survival of our representative form of government. As stated by the West Virginia Court of Appeals in Webb v. Fury,

We shudder to think of the chill ... on ... freedom of speech and the right to petition were we to allow this lawsuit to proceed. The cost to society ... is beyond calculation ... Competing social and economic interests are at stake. To prohibit robust debate on these questions would deprive society of the benefit of its collective thinking and, in the process, destroy the free exchange of ideas which is the adhesive of our democracy ... It is exactly this type of debate which our federal and state constitutions protect; debate intended to increase our knowledge, to illustrate our differences, and to harmonize those differences .... We see this dispute ... as ... more properly within the political arena than in the court house.

SLAPP suits chill individual constitutional rights and harm our entire government system. Failure to dismiss this action extends the chill and makes the court an accessory to the chill. This case should be dismissed with prejudice since there is no way it can be rewritten without violating the defendants' constitutional rights. If the court fails to dismiss the plaintiff's claims, their rights under the constitution and laws will be significantly chilled, as will the rights of others who suffer similar wrongs in the future.

Dated September 21, 1999

Respectfully Submitted,

Shawn Timothy Newman,
Attorney at Law WSBA#14193

Attached:

"Slapping Around Citizens who Demand Accountability," Seattle Times Editorial (January 19, 1999)

"Pierce County Sues Activist Group," News Tribune (January 31, 1999)

"County Election Workers Hard at Work", CLEAN Watch (November, 1996)

Declarations of Richeson, Coffey and Bockwinkel (with attachments)