Because its terms are critical, we begin with a description of the anti-SLAPP statute. The purpose of ORS 31.150 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. ,
"(1) A defendant may make a special motion to strike against a claim in a civil action described in subsection (2) of this section. The court shall grant the motion unless the plaintiff establishes in the manner provided by subsection (3) of this section that there is a probability that the plaintiff will prevail on the claim. *** If the court denies a special motion to strike, the court shall enter a limited judgment denying the motion.
"(2) A special motion to strike may be made under this section against any claim in a civil action that arises out of:
"(a) Any oral statement made, or written statement or other document submitted, in a legislative, executive or judicial proceeding or other proceeding authorized by law;
"(b) Any oral statement made, or written statement or other document submitted , in connection with an issueunder consideration or review by a legislative, executive or judicial body or other proceeding authorized by law;
"(c) Any oral statement made, or written statement or other document presented, in a place open to the public or a public forum in connection with an issue of public interest; or
"(d) Any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of freespeech in connection with a public issue or an issue of public interest.
"(3) A defendant making a special motion to strike under the provisions of this section has the initial burden of making a prima facie showing that the claim against which the motion is made arises out of a statement, document or conduct described in subsection (2) of this section. If the defendant meets this burden, the burden shifts to the plaintiff in the action 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. If the plaintiff meets this burden, the court shall deny the motion."
ORS 31.150 (emphases added). In keeping with those provisions, a special motion to strike is resolved according to a "two-step burden-shifting process." Young v. Davis ,
"First, the court must 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 subsection (2). Second, if the defendant meets its burden, 'the burden shifts to the plaintiff in the action 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.' If the plaintiff succeeds in meeting that burden, the special motion to strike must be denied. ORS 31.150(3)."
In reviewing a motion to strike, we take the facts from the pleadings and from the supporting and opposing affidavits submitted to the trial court and state them in the light most favorable to plaintiff. ORS 31.150(4) ; Neumann v. Liles ,
The trial court, among other things, granted their motion for summary judgment and entered a limited judgment dismissing them from the case. Later, the court entered a judgment awarding the Seida siblings $ 62,608 in recovery of attorney fees in that proceeding.
In the meantime, before the order was entered, on July 12, 2017, defendant David Bowser, one of the attorneys for the Seida siblings, issued nine garnishment writs to banks in Lincoln City, where plaintiff maintains his law practice, seeking to collect on the judgment debt for attorney fees. In seemingly routine form, the writs recited that plaintiff owed money to the Seida siblings, that a limited judgment had been entered against plaintiff for that debt, that the debt of $ 63,098.54 was subject to garnishment, and that the garnishee must answer the writ. On July 19, 2017, Columbia Bank sent Bowser a check for $ 3,686.12 in response to the writ it received. Bowser also sent writs of garnishment to two of plaintiff's litigation clients and one to plaintiff's legal assistant.
On July 20, 2017, plaintiff told Bowser that he believed that issuing the garnishments violated a temporary judgment stay created by ORS 19.360. On the same day, Bowser sent releases of garnishment to each garnishee, and he returned $ 3,686.12 to Columbia Bank.
In response, defendants filed special motions to strike under ORS 31.150(2)(a) and (b). Defendants argued that plaintiff's claims were subject to the anti-SLAPP statute because plaintiff's claims arose out of statements or documents "submitted in a judicial proceeding or in connection with an issue under consideration or review by a judicial body." The trial court denied defendants' motion and entered a limited judgment, concluding that defendants "failed to make a prima facie showing that the claims against which the motion is made arises out of statements or documents as required by ORS 31.150(2)(a), (b)."
On appeal, defendants assign error to the trial court's denial of their motion to strike. Defendants reiterate that their acts of issuing writs of garnishment to third parties are protected by ORS 31.150(2)(a) and (b). Also, defendants argue that plaintiff failed to establish that there is a probability that plaintiff will prevail on the claims by presenting substantial evidence to support a prima facie case under ORS 31.150(3). In opposition, plaintiff makes a number of procedural arguments and, on the merits, contends that the trial court did not err. We address the merits of the question whether the anti-SLAPP statute applies.
As framed, the question is whether statements in the writs of garnishment that defendants delivered to local banks, plaintiff's clients, and his legal assistant are statements that are "submitted in a judicial proceeding" or "submitted in connection with an issue under consideration or
Resolution of the issue turns on what the legislature intended when it described those specified circumstances. When construing a statute, we examine the text of the statute in context. State v. Gaines ,
We focus primarily on the first of two particular provisions, as do the parties. In ORS 31.150(2)(a), the phrase "submitted[ ] in a *** judicial proceeding" is not defined. Because the legislature has not defined the phrase, we consider dictionary definitions to aid in our understanding of the plain meaning of the term. Central Oregon LandWatch v. Deschutes County ,
Read together, the plain meaning of statements "submitted in a judicial proceeding" means statements that are sent for consideration or presented for use in a court proceeding or a proceeding initiated to procure an order, decree, judgment, or similar action. Our issue becomes whether defendants' statements in the writs of garnishment, which defendants delivered to banks and other third parties, were statements that were sent, committed for consideration, or presented for use in a proceeding initiated to procure an order, decree, judgment, or similar action.
We apply those terms to the particular statements at issue at the time when defendants sent or presented those statements. In Oregon, a comprehensive set of statutes describes the nature, use, and function of writs of garnishment. Generally, garnishment is "the procedure by which a creditor invokes the authority of a circuit court, justice court or municipal court to acquire garnishable property of a debtor that is in the possession, control or custody of a person other than the debtor." ORS 18.602. After the court enters a valid judgment requiring the payment of money, writs of garnishment may be issued by the court administrator or by an attorney who is an active member of the Oregon Bar. ORS 18.602 (describing garnishment); ORS 18.635 (writs may be issued by court administrator or licensed Oregon attorney).
In order to issue a writ of garnishment, an attorney need not apply to the court for authorization to issue the writ or for further confirmation of the debt. See id . (authorizing attorney to issue writ for purpose of enforcing a judgment for payment of money judgment entered of record). Without any intervention of the court, a garnishee, upon receipt of a writ of garnishment, is required to determine whether the garnishee has possession, control, or custody of garnishable
Of course, a debtor may choose to challenge a garnishment to claim an exemption, to challenge the amount of the garnishment, or to assert that the property is not garnishable property. ORS 18.700(1). If the debtor challenges the garnishment, the debtor notifies the court administrator and the garnishor of the challenge to the garnishment. ORS 18.700(2). After receiving notice of the debtor's challenge, the garnishor is required to send any disputed money received to the court. ORS 18.705(1). Thus prompted, the court will hold a hearing to determine the merits of the debtor's challenge. ORS 18.710(1). The debtor's challenge, however, is the request that seeks a judicial consideration. That is not true for the writ itself, which does not seek judicial consideration.
Defendants argue that the writs of garnishment they submitted to local banks, plaintiff's clients, and his legal assistant are statements that are "submitted" in a "judicial proceeding" because, under ORS 18.602, writs of garnishment are generally described as the means by which a creditor "invokes
The plain language of the phrase "submitted in a judicial proceeding" in ORS 31.150(2)(a) does not comport with defendants' interpretation, and defendants have not offered any legislative history that demonstrates ambiguity in the meaning of ORS 31.150(2)(a). We need not exercise our discretion to seek legislative history, particularly when unnecessary. See Gaines ,
Similarly, the writs of garnishment in this case were not statements "submitted in connection with an issue under consideration or review by a judicial body" within the meaning of ORS 31.150(2)(b). (Emphasis added.) Defendants
Affirmed.
Notes
"SLAPP" is an abbreviation for "Strategic Litigation Against Public Participation." Clackamas River Water v. Holloway ,
We reject plaintiff's cross-assignment of error without discussion.
Plaintiff's claims against Seida LLC and the Seida parents remained pending.
We do not consider whether the writs of garnishment in this case included statements that were submitted in an "other proceeding authorized by law" under ORS 31.150(2)(a), because defendants have not developed that argument. It is "not this court's function to speculate as to what a party's argument might be. Nor is it our proper function to make or develop a party's argument when that party has not endeavored to do so itself." Beall Transport Equipment Co. v. Southern Pacific ,
Not all judgment collection efforts are alike. For example, a judgment debtor examination first requires a motion to the court for an order for the examination. See ORS 18.265 ("after a judgment is entered, a judgment creditor may upon motion obtain an order requiring the judgment debtor to appear" for examination (emphasis added)).
We are not persuaded by defendants' reference to California cases decided after the adoption of Oregon's statute, inasmuch as only those cases that precede Oregon's adoption of its anti-SLAPP statute may provide context for construing our statute. See Handy v. Lane County ,