400 P.3d 980
Or. Ct. App.2017Background
- Plaintiff Pam Bryant, a former Lowell city councilor, lost a 2013 recall election and sued defendants (the Recall for Lowell’s Future Committee, chief petitioner Hern, and treasurer Garratt) under ORS 260.532 alleging seven false statements in a recall petition and a flyer.
- Defendants moved to strike under Oregon’s anti‑SLAPP statute, ORS 31.150; the trial court granted the motion and dismissed Bryant’s complaint and later awarded defendants fees under ORS 31.152.
- The magistrate framed the ORS 31.150 two‑step burden: defendants first must show the claim arises from protected activity (undisputed), then plaintiff must present substantial evidence supporting a prima facie case.
- The contested statements accused Bryant of unauthorized contact with the city attorney (costing the city money), forming/nonexistent political committees, illegally recording an executive session, and other misconduct.
- On review, the court views evidence in the light most favorable to Bryant and evaluates (a) falsity (vs. protected opinion), (b) materiality (likely to influence voters), and (c) knowledge or reckless disregard.
- The court reversed dismissal in part, holding Bryant made a prima facie showing as to four statements (numbers 2, 5, 6, 7) and thus remanded; it affirmed dismissal as to the other three statements and reversed the award of fees tied to the dismissed action.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does UTCR 5.010 require denial of the special motion to strike because defendants failed to file a timely conferral certificate? | UTCR 5.010 applies to ORCP 21 motions; ORS 31.150 treats the special motion as a motion to dismiss and thus UTCR 5.010 applies. | UTCR 5.010 applies to motions "made pursuant to ORCP 21" and not to special motions under ORS 31.150; the statute only borrows ORCP 21A timing, not substantive classification. | UTCR 5.010 did not bar defendants’ special motion to strike; trial court did not err on that ground. |
| Did plaintiff present substantial evidence of falsity for each challenged statement (required to defeat anti‑SLAPP)? | Bryant argued each of the four statements (2, 5, 6, 7) were objectively false and susceptible of proof, and defendants lacked justification or investigation. | Defendants admitted publication but contended statements were opinion, ambiguous, or reasonably correct based on their sources. | Statements 2, 5, 6, and 7 are actionable factual assertions that, viewed favorably to Bryant, could be proven false; statements 1, 3, and 4 either were reasonably interpretable as nonactionable opinion/speculation or susceptible to a reasonable correct‑reading, so no prima facie falsity for those. |
| Were the false statements "material" under ORS 260.532? | The statements appeared in petition/flyer used to persuade voters and alleged misconduct likely to influence voter decisions. | Defendants argued lack of materiality or need to show actual vote change. | The court held the four false statements (2, 5, 6, 7) were material because they could significantly influence a reasonable voter's choice; actual change in votes not required. |
| Did plaintiff present evidence of knowledge or reckless disregard? | Bryant presented facts and documentary evidence permitting a reasonable inference defendants acted recklessly (failed to verify city code, Secretary of State filings, or council records). | Defendants said they relied on sources (mayor, belief about law) and lacked culpable state of mind. | The court found reasonable inferences of reckless disregard as to statements 2, 5, 6, and 7, so plaintiff met the prima facie mental‑state element at the anti‑SLAPP stage. |
Key Cases Cited
- Young v. Davis, 259 Or. App. 497 (2013) (explaining ORS 31.150 two‑step burden‑shifting framework)
- Plotkin v. SAIF, 280 Or. App. 812 (2016) (review standard for special motion to strike and view evidence favorably to plaintiff)
- Handy v. Lane County, 360 Or. 605 (2016) (defining substantial evidence/prima facie showing standard)
- Neumann v. Liles, 358 Or. 706 (2016) (three‑part test distinguishing fact from opinion in defamation context)
- Yes on 24‑367 Committee v. Deaton, 276 Or. App. 347 (2016) (applying fact‑opinion analysis to ORS 260.532 claims)
- Comm. of 1000 v. Eivers, 296 Or. 195 (1984) (statements not false if reasonable inferences support factual correctness or opinion)
- Cook v. Corbett, 251 Or. 263 (1968) (materiality need not prove that a false statement changed election outcome)