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When mere citizens of a republic get involved in a
public issue, they may receive an education in the American
system of litigation, once defined by Ambrose Bierce as
a machine which you go into as a pig and come out of as
a sausage.
It can work like this. Suppose a developer wants to build some luxury units down the street, and needs a zoning change.
You and your neighbors are concerned about traffic and parking, and besides, you're not sure you want rich folks living nearby -- they never mind their own business, and they'll be trying to outlaw your chain-link fences, woodpiles, wind chimes and clothes lines.
So you exercise your constitutional right to petition the government for redress of grievances -- that is, you agitate against the zoning change -- and one morning there's a process server at your door.
You read the legal papers, and discover that the developer has filed a suit against you and your neighbors. You thought you were being an involved citizen exercising your right to oppose a zoning change, but the developer charges that you're engaged in a conspiracy to defame him.
The lawsuit eventually gets thrown out of court -- after a year or two, during which your time and energy and money go to fighting the suit and enduring discovery and depositions, rather than fighting the rezoning. Thus the developer gets his way.
Court filings like this are so common that they have a name: SLAPP, an acronym for Strategic Lawsuit Against Public Participation.
Rep. William D. Sinclair, a Republican from El Paso
County, has introduced a bill (HB 01-1150) in the General
Assembly that would discourage SLAPPs. According to the
bill summary, it would establish an immunity protection
for public participation by citizens in government that
protects a person who seeks relief or who petitions the
government to influence action, communicate, or otherwise
participate in the processes of government from ...
SLAPPs.
It would suspend the discovery process, put the burden of proof on the SLAPP filer, and allow the subject of a SLAPP suit to recover damages and attorney fees.
Do we need legislation like this in Colorado?
You could ask Amy Loper in Montrose, where she's an organizer for Western Colorado Congress, an environmental group. WCC wanted the state health department to hold hearings about renewing the license for a commercial radioactive waste site at Uravan on the San Miguel River.
But in requesting the hearings, WCC became a party, which allowed attorneys for Umetco (the license holder and a subsidiary of Union Carbide) to file for discovery -- WCC's files and membership lists -- as well as to put Loper through a five-hour deposition.
WCC's legal costs were $45,000 last year for this, Loper
said, and that's with a public-spirited attorney working
at cut rates. Plus there was the time fighting their
requests for our files.
And to what end? Nothing about WCC has any relevance as
to whether the radioactive dump at Uravan is a threat or a
benefit to the health of Coloradans. It's just an
effort to intimidate,
Loper said. We receive quite
few threats of lawsuits. The whole idea is to shut you up
with the threat -- the suits are hardly ever filed.
Here in Salida, we have a public hospital district with
an elected board and a citizen advisory committee. In
December, that committee sent the board a memorandum which
expressed concern about the potential for conflict of
interest on the part of Board members who work regularly in
the hospital.
One of those board members is Dr. Charles Mains, part owner of a clinic building where the hospital leases space for $150,000 a year. The hospital also pays Colorado Surgical Services, of which Mains is an officer, $225,000 a year for various services, including emergency-room coverage.
The potential for conflict of interest
seems like
a legitimate concern, and the advisory committee memorandum
is matter of public record.
Even so, Mains has his attorney send letters to some
advisory committee members. Mentioning the potential for
conflict of interest constitutes willful and wanton
conduct, a reckless disregard for the truth, libel and is
legally actionable,
and that we would request that
the memo not be published and thus avoid the unnecessary
time, expense, and anguish defending any legal actions Dr.
Mains may wish to pursue.
In other words, we have a group of citizen volunteers who are supposed to express their concerns to the hospital board. And when they do, they get threatened with a libel suit.
Some people take specious threats seriously, and thus end up deprived of their right to petition for redress of grievances. An anti-SLAPP law might serve as a reminder that our courts are supposed to serve as instruments of justice, not as sausage grinders operated for the benefit of the wealthy and powerful.
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