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RE: E-M:/ RE: / SLAPPS



The ACLU has been very engaged in fights against SLAPP suits against enviros in Michigan and deserve our thanks! Lots of larger environmental organizations will defend against attempts to silence their staff and volunteers as well.  These are clearly important in the fight to protect our rights and environment.  The ACLU also took on the fight to try to get anti-SLAPP legislation passed a few years ago -- litigation is seldom the tool of choice for any of the myriad fights we have.  Litigation is often the sign of a failure to protect through many other means, or, as it is here, a weapon to hurt those who are correct and are actually making headway in protecting the environment or their rights.

 

The only membership you should need to raise legitimate concerns about environmental issues should be membership in the human race.  Legislative processes can be (at their best) a way for us to discuss what is that collective good and how to protect and provide it to all.  Keep in mind that no one files something called a “SLAPP suit”.  What they file is an action that on its surface has some vague sense of reasonableness -- interference with business practices, restraining orders, personal protection orders.  Being taken into court even if it is an entirely trumped up and malicious claim is a distracting, energy sapping experience.  One of the worst aspects of SLAPP suits is they seek to intimidate or embarrass the victim/targets out of speaking at all.  It is not unheard of that only well after the opportunity to influence a process (a zoning decision, a DEQ permit, etc.) that the decision makers learned that people were afraid to speak because of a SLAPP threat.  It is often the threat itself that is the insidious tool. 

 

I think Dave Holtz is right -- this is an issue that deserves to be raised in the legislative arena now, again, with a demand that legislators commit to protect the public’s rights.

 

 

Anne Woiwode, State Director

Sierra Club Mackinac (Michigan) Chapter


From: owner-enviro-mich@great-lakes.net [mailto:owner-enviro-mich@great-lakes.net] On Behalf Of harrisc
Sent: Saturday, September 02, 2006 4:42 PM
To: 'enviro Mich'
Subject: RE: E-M:/ RE: / SLAPPS

 

so far the discussion has approached slapps as a legislative problem . . .

another way to approach slapps is as a collective good problem . . .

 

the way that persons interested in civil liberties dealt with the many small threats to civil liberties around the country was to form the american civil liberties union . . . it is my understanding that local and state chapters can call upon the resources of the national organization to oppose local threats to civil liberties . . .

 

one thing that is distinctive about the environmental movement, both at the national and at the state level, is that it is highly fractionated into many small organizations . . . if the environmental movement were to agree that slapps are one of its biggest problems, then environmental organizations could all contribute some fraction of their annual income to a u.s. environmental rights organization that would have sufficient financial resources to combat slapps . . .

 

cheers,

 

craig

 

craig k harris

department of sociology

michigan agricultural experiment station

kellogg biological station longterm ecological research project

national food safety and toxicology center

institute for food and agricultural standards

food safety policy center

michigan state university

http://www.msu.edu/~harrisc/

 

 


From: owner-enviro-mich@great-lakes.net [mailto:owner-enviro-mich@great-lakes.net] On Behalf Of David Holtz
Sent: Saturday, September 02, 2006 4:01 PM
To: enviro Mich
Subject: Re: E-M:/ RE: / SLAPPS

As a practical matter the burden for defendants in SLAPP suites to overcome the good-faith standard this rule sets out is a high hurdle only overcome by the cash they must lay out  for legal fees that goes to the heart of why SLAPP suits are a harrassment tool.

jmgear wrote:

Anne Woiwode wrote:

The challenge in Michigan, as Bill Tobler pointed out in his response, is that nothing in law protects concerned citizens or activists nor authorizes costs to be paid to the victim of these nefarious plots. The attempt a few years ago to get legislation passed in Michigan failed, and unfortunately this is clearly still a state where the laws are not friendly to individuals are rightfully speak their minds about important issues of public controversy.

. . .



Things are actually slightly better than this would suggest.  Michigan court rule 2.114 includes this

(D)
Effect of Signature. The signature of an attorney or party, whether or not the party is represented by an attorney, constitutes a certification by the signer that

(1) he or she has read the document;

(2) to the best of his or her knowledge, information, and belief formed after reasonable inquiry, the document is well grounded in fact and is warranted by existing law or a good-faith argument for the extension, modification, or reversal of existing law; and

(3)
the document is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.

(E) Sanctions for Violation. If a document is signed in violation of this rule, the court, on the motion of a party or on its own initiative, shall impose upon the person who signed it, a represented party, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the document, including reasonable attorney fees. The court may not assess punitive damages.

(F) Sanctions for Frivolous Claims and Defenses. In addition to sanctions under this rule, a party pleading a frivolous claim or defense is subject to costs as provided in MCR 2.625(A)(2). The court may not assess punitive damages.

And MCR 2.625(A)(2)  provides:

Frivolous Claims and Defenses. In an action filed on or after October 1, 1986, if the court finds on motion of a party that an action or defense was frivolous, costs shall be awarded as provided by MCL 600.2591.

Which takes you to

600.2591 Frivolous civil action or defense to civil action; awarding costs and fees to prevailing party; definitions.

Sec. 2591.

(1) Upon motion of any party, if a court finds that a civil action or defense to a civil action was frivolous, the court that conducts the civil action shall award to the prevailing party the costs and fees incurred by that party in connection with the civil action by assessing the costs and fees against the nonprevailing party and their attorney.

(2) The amount of costs and fees awarded under this section shall include all reasonable costs actually incurred by the prevailing party and any costs allowed by law or by court rule, including court costs and reasonable attorney fees.

(3) As used in this section:

(a) “Frivolous” means that at least 1 of the following conditions is met:

(i) The party's primary purpose in initiating the action or asserting the defense was to harass, embarrass, or injure the prevailing party.

(ii) The party had no reasonable basis to believe that the facts underlying that party's legal position were in fact true.

(iii) The party's legal position was devoid of arguable legal merit.

(b) “Prevailing party” means a party who wins on the entire record.

==========
Thus, any enviro who is SLAPPed in Michigan needs to (1) get a good attorney, pronto--don't waste time or stress trying to do this yourself; and have the attorney consider responses under these rules.  (Such as moving to dismiss, probably under MCR 2.116(c)(8), but other rules may also apply, and also a motion for sanctions.)

The essence of a SLAPP suit is precisely the grounds for sanctions stated in the court rules and in the statute--that a baseless action was filed to harass or intimidate the victim(s) by driving up the legal costs.

Note:  Although I am an attorney, I am not _your_ attorney, and nothing in this message is intended or should be construed as legal advice to you (except maybe the part about consulting a good attorney if you are ever SLAPPed).