Handy v. Lane County , 360 Or. 605 ( 2016 )

No. 73 November 25, 2016 605
IN THE SUPREME COURT OF THE
STATE OF OREGON
Rob HANDY,
Respondent on Review,
v.
LANE COUNTY,
Jay Bozievich, Sid Leiken
and Faye Stewart,
Petitioners on Review.
(CC 161213685; CA A153507; SC S063725)
En Banc
On review from the Court of Appeals.*
Argued and submitted June 14, 2016.
Stephen E. Dingle, Office of Lane County Counsel,
Eugene, argued the cause and filed the briefs for petitioners
on review.
Marianne Dugan, Eugene, argued the cause and filed the
brief for respondent on review. Also on the brief was Daniel
Galpern, Eugene.
Harry Auerbach, Portland Office of City Attorney, argued
the cause for amici curiae Association of Oregon Counties,
League of Oregon Cities, City of Portland, and Washington
County. Sean O’Day, League of Oregon Cities, Salem, filed
the brief. Also on the brief were Rob Bovett, Association of
Oregon Counties, Katherine Thomas, Office of Multnomah
County Attorney, Harry Auerbach, Portland Office of City
Attorney, and Alan A. Rappleyea, Washington County
Counsel.
Keith M. Garza, Law Office of Keith M. Garza, Oak Grove,
filed the brief for amicus curiae Tri-County Metropolitan
Transit District of Oregon. Also on the brief was Erik Van
Hagen, TriMet.
______________
*  On appeal from Lane County Circuit Court, Richard L. Barron, Judge. 274
Or App 644, 362 P3d 867 (2015).
606 Handy v. Lane County
Alan A. Rappleyea, Washington County Counsel,
Hillsboro, filed the brief for amicus curiae Washington
County.
Jack L. Orchard, Ball Janik, LLP, Portland, filed the brief
for amici curiae Oregon Newspaper Publishers Association,
Albany Democrat-Herald, Beaverton Valley-Times, Canby
Herald, Central Oregonian, Corvallis Gazette-Times,
Eugene Register-Guard, Forest Grove News-Times, Gresham
Outlook, Hood River News, Lake Oswego Review, Lebanon
Express, Madras Pioneer, McMinnville News-Register,
The Oregonian, Polk County Itemizer-Observer, Portland
Tribune, The Dalles Chronicle, Tigard and Tualatin Times,
Wilsonville Spokesman, and Woodburn Independent. Also
on the brief was Amy Heverly.
KISTLER, J.
The decision of the Court of Appeals is affirmed in part
and reversed in part. The case is remanded to the Court
of Appeals for further consideration consistent with this
decision.
Case Summary: Plaintiff filed this action claiming, among other things, that
a quorum of the Lane County commissioners violated ORS 192.630(2) by engag-
ing in a series of private communications to decide whether to comply with a
public records request. The trial court ruled that plaintiff had not offered suffi-
cient evidence to avoid defendants’ special motion to strike. The court accordingly
dismissed plaintiff’s claims without prejudice. The Court of Appeals reversed.
The majority held that a quorum can meet by means of seriatim communications
and that plaintiff had presented sufficient evidence from which a reasonable trier
of fact could find that a quorum of the Lane County commissioners had met to
decide or deliberate toward deciding whether to comply with a public records
request. Held: Even if plaintiff can rely on a series of communications to establish
that a quorum met to decide or deliberate toward a decision, the evidence in this
case was not sufficient to establish that a quorum had done so.
The decision of the Court of Appeals is affirmed in part and reversed in part.
The case is remanded to the Court of Appeals for further consideration consistent
with this decision.
Cite as 360 Or 605 (2016) 607
KISTLER, J.
Oregon’s public meetings law provides that a quo-
rum of a public entity’s governing body “may not meet in
private for the purpose of deciding on or deliberating toward
a decision.” ORS 192.630(2). Plaintiff filed this action claim-
ing, among other things, that a quorum of the Lane County
commissioners had violated that provision by engaging in a
series of private communications to decide whether to com-
ply with a public records request. Plaintiff’s claim raises pri-
marily two issues. The first is whether a quorum of a public
body can “meet” in violation of ORS 192.630(2) by means
of seriatim communications or whether a quorum can meet
only if all the members of the quorum are present at the
same time. The second issue is whether, if a quorum can
meet by means of seriatim communications, plaintiff’s evi-
dence was sufficient to establish that a quorum of the com-
missioners met privately.
The trial court assumed that a quorum can meet by
means of seriatim communications, but it ruled that plain-
tiff had not offered sufficient evidence to avoid defendants’
special motion to strike. See ORS 31.150 (providing for spe-
cial motions to strike certain kinds of claims). The court
accordingly dismissed plaintiff’s claims without prejudice.
The Court of Appeals reversed. Handy v. Lane County, 274
Or App 644, 362 P3d 867 (2015) (en banc). The majority held
that a quorum can meet by means of seriatim communica-
tions and that plaintiff had presented sufficient evidence
from which a reasonable trier of fact could find that a quo-
rum of the Lane County commissioners had met to decide or
deliberate toward deciding whether to comply with a public
records request. Id. The dissent would have held that a quo-
rum can meet only if all the members of the quorum are
present at the same time, either in person or electronically,
which had not occurred in this case. Id. at 684 (DeVore, J.,
dissenting).
We allowed defendants’ petition for review to con-
sider those issues. We now hold that, even if plaintiff can
rely on a series of communications to establish that a quo-
rum met to decide or deliberate toward a decision, the evi-
dence in this case was not sufficient to establish that a
608 Handy v. Lane County
quorum had done so. That is, we agree with the trial court
that, given the evidence that plaintiff offered in response to
defendants’ special motion to strike, no reasonable trier of
fact could find that a quorum met to decide whether to com-
ply with the public records request. We reverse the Court of
Appeals decision in part and affirm it in part.
I.  FACTS AND PROCEEDINGS BELOW
In April 2011, the Lane County Circuit Court
entered a $350,000 judgment against the Lane County
Board of Commissioners for violating the public meetings
law. Dumdi v. Handy, Lane County CC No. 16-10-02760
(2011) (general judgment).1 Additionally, as a result of
those public meetings law violations, the trial court entered
$20,000 judgments individually against the plaintiff in this
case (who was a defendant in Dumdi) and another Lane
County Commissioner (Sorenson). Id.A year later, plaintiff was running for reelection as
a Lane County Commissioner. On May 1, 2012, the Lane
County District Attorney received a call from a local busi-
nessman, who said that plaintiff “ha[d] been pushing him to
donate money ‘anonymously’ to pay off a debt” that plaintiff
owed Lane County. According to the caller, other persons
may have already made anonymous donations on plaintiff’s
behalf to help pay off the debt. Given plaintiff’s status as a
county commissioner, the district attorney concluded that
it was inappropriate for his office to investigate that alle-
gation. He accordingly asked the Oregon Department of
Justice to investigate.
The next day, on May 2, an attorney represent-
ing the businessman sent a letter to plaintiff, stating that
plaintiff had asked the businessman to make an anon-
ymous “campaign contribution or a $3,000 payment to
Lane County for [plaintiff’s] personal benefit.” The letter
explained why, in the attorney’s view, plaintiff’s request
had violated Oregon’s ethics laws, campaign finance laws,
and criminal laws. The attorney also observed that, in his
1
Because the question on review is whether plaintiff’s evidence was suffi-
cient to establish a prima facie case, see ORS 31.150(3), we state the facts in the
light most favorable to plaintiff.
Cite as 360 Or 605 (2016) 609
opinion, plaintiff’s actions exposed Lane County to liabil-
ity. Enclosed with the letter were several documents. One
was a copy of a handwritten note that purported to be
from plaintiff to the businessman, asking him to make an
anonymous $3,000 contribution to help pay off the $20,000
debt that plaintiff owed Lane County. Also enclosed was a
list of payments that previously had been made on plain-
tiff’s $20,000 debt to Lane County. In addition to showing
biweekly payroll deductions, the list showed three contri-
butions totaling $3,020 from unnamed citizens. The attor-
ney copied the letter on the Lane County District Attorney,
the Secretary of State, the Elections Director, and the
Oregon Government Ethics Commission. The attorney
also attached a copy of the letter to an email, which he
sent at 2:28 p.m. on May 2 to the Lane County District
Attorney.
Within two hours after the attorney emailed the
letter, the Lane County administrator received a public
records request from Bill Lunden at a local radio station.
Having received that request, the county administrator
asked the district attorney about it. The district attorney
responded by email at 4:04 p.m., “I assume this is the record
Mr. Lunden is seeking. Holy cow . . . this just arrived in my
office at 14:38 [sic]. I haven’t even read the attached letter
yet!” (Ellipses in original.) The county administrator wrote
back eight minutes later and said, “After you read it let me
know what you want me to do.”
Between 4:04 p.m. and 7:30 p.m., the county admin-
istrator spoke to two county commissioners (Commissioners
Bozievich and Stewart). Both asked her about poten-
tial county liability. At 7:38 p.m., the county administra-
tor sent the following email to two county commissioners
(Commissioners Leiken and Bozievich), which she copied on
the district attorney and a senior county counsel:
“Commissioners, I’ve now had a chance to review the let-
ter we received today from [the businessman’s attorney].
Commissioner Stewart asked me about County liability.
Commissioner Bozievich had the same concern when I
spoke to him earlier. I would like to consult with [the dis-
trict attorney] and/or [the senior county counsel], but at
610 Handy v. Lane County
the very least it makes me concerned about what else may
be occurring that we aren’t aware of. I’d like to give some
advice to Finance as to what they should do with the mon-
ies we’ve already received. I’m also concerned that it will
look like we are trying to hide something if we refuse the
public records request. Our practice is to use the excep-
tions if they exist, but it feels wrong in this case. I’ll con-
sult with counsel on all of these issues and get back to you
tomorrow.”
Twelve minutes later, Commissioner Leiken replied
to the county administrator with a copy to Commissioner
Bozievich. Leiken’s email stated, “I just read the letter from
[the businessman’s attorney] and I am very concerned as
well with regards to the county’s potential liability. I will
be in tomorrow morning and look forward to what you find
out.”
The next morning, May 3, at 5:56 a.m., Commis-
sioner Bozievich replied to the county administrator and
Commissioner Leiken. His email said:
“I will be available to come in the morning also. Looking
forward to a quick decision on disclosure. Seems like the
actual letter to [plaintiff] putting him on notice is already
putting any investigation at risk and I do not want to be
seen as covering up the receipt of funds from a possible ille-
gitimate source.”
A minute later, Commissioner Bozievich sent a second email
to the county administrator, saying that Lunden, the person
who had made the public records request, was texting him
about getting a copy of the attorney’s letter. Bozievich asked
the county administrator whether there was “[a]ny news on
this yet?”
Approximately an hour later, at 7:09 a.m., the county
administrator replied to Bozievich by email, “No. Just got
done checking emails and texts. Will call [the district attor-
ney].” The district attorney concluded that the attorney’s let-
ter came within an exception to the public records law and
decided that he would invoke the exception and not release
it. Having made that decision, the district attorney advised
the county administrator (at some point after 7:09 a.m.)
that the commissioners could choose to release the letter
even though the district attorney had made a different
Cite as 360 Or 605 (2016) 611
decision.2 As Commissioner Bozievich later explained, “we
were waiting for [the district attorney’s] advice as of
7:09 am. It was after [the county administrator] called [the
district attorney] that [the county administrator] contacted
the agenda committee, Chair and vice-Chair [of the County
Commissioners], and it was decided to hold a meeting ASAP
based on [the district attorney’s] response.”3
The County Commissioners held a public emergency
meeting at 9:00 a.m., less than two hours after the district
attorney notified the county administrator that, although
he had decided to invoke the public records exception, the
county commissioners could choose to release the letter.
Commissioners Bozievich, Leiken, and Stewart attended the
emergency meeting. Plaintiff and Commissioner Sorenson
did not attend. The meeting lasted 16 minutes, during which
each of the commissioners present explained why he voted
to release the letter. After the meeting ended, the county
administrator sent the attorney’s letter to the members of
the media who had requested it.
Plaintiff brought this action against Lane County
and Commissioners Stewart, Leiken, and Bozievich (defen-
dants). Plaintiff’s complaint alleged three claims for relief.
The first claim alleged that defendants had violated the
public meetings law by failing to give either sufficient notice
of the May 3 meeting or a sufficient explanation for holding
an emergency meeting and by not issuing minutes for that
2
The district attorney emailed Lunden at 8:48 a.m. on May 3, explaining that
“[m]ost or all of th[e] record [that Lunden was seeking] is protected from public
records disclosure because it provides detail and evidence relating to a potential
criminal investigation.” After advising Lunden that he had turned the matter
over to the Oregon Department of Justice, the district attorney explained that he
had decided to invoke the criminal investigation exception to the public records
law and would not himself release the letter. He noted, however, that the County
Commissioners could choose to release the letter even though he had invoked the
exception. Finally, he noted that Lunden could contact the Department of Justice,
which might take a different position and also release the letter.
3
Six days later, on May 9, the county administrator emailed the Lane County
Counsel’s office saying, “Here’s the communications about calling an emergency
session and the reason why. I called Commissioner Stewart to get his input, and
then we scheduled it.” Attached as an email string were the county administra-
tor’s May 2 email to Bozievich and Leiken and their replies to her, all of which
are set out above. It appears from her email that Commissioners Bozievich and
Leiken were the two members of the agenda committee responsible for calling an
emergency meeting of the County Commissioners.
612 Handy v. Lane County
meeting. The second claim for relief alleged that the com-
munications among the three commissioners that preceded
the emergency meeting violated ORS 192.630(2) because a
quorum of the commissioners had met privately to decide or
deliberate toward deciding (1) whether to meet on an emer-
gency basis and (2) whether to release the attorney’s letter.
The third claim for relief sought injunctive relief because of
defendants’ repeated violations of the public meetings law.
The third claim for relief did not identify any violation of the
public meetings law other than the violations alleged in the
first two claims for relief.
Defendants responded by filing a special motion
to strike plaintiff’s complaint pursuant to Oregon’s anti-
SLAPP statute. See ORS 31.150 (providing for special
motions to strike certain claims).4 Under the anti-SLAPP
statute, if a defendant establishes a prima facie case that
a claim arises out of protected statements, documents, or
conduct, the burden shifts to the plaintiff “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.” ORS 31.150(3). If the plaintiff does not pres-
ent sufficient evidence to meet that burden, then the anti-
SLAPP statute directs the trial court to dismiss the claim
without prejudice. ORS 31.150(1).
After considering the evidence set out above, the
trial court granted defendants’ motion to strike all plain-
tiff’s claims for relief. The court reasoned that the gravamen
of the first two claims was defendants’ decision to release
the attorney’s letter. The court concluded that those claims
for relief arose out of the statements that the commission-
ers allegedly had made and thus triggered the protections
of the anti-SLAPP statute. As noted, under that statute,
the burden shifted to plaintiff “to establish that there is a
probability that [he] will prevail on the claim by presenting
substantial evidence to support a prima facie case.” ORS
31.150(3).
4
SLAPP is an acronym for strategic lawsuits against public participation.
See Neumann v. Liles, 358 Or 706, 722-23, 369 P3d 1117 (2016). Anti-SLAPP stat-
utes seek to minimize the effect of strategic suits intended to deter persons from
expressing their views. Id. Their goal is to permit defendants who are targeted
for their statements to end such suits quickly and with minimal expense. Id.Cite as 360 Or 605 (2016) 613
In seeking to meet that burden, plaintiff relied on
the Lane County Circuit Court decision in Dumdi, which
had held that a quorum of a governing body can “meet” in
violation of ORS 192.630(2) by means of a series of commu-
nications made for the purpose of deciding or deliberating
toward deciding an issue. In resolving defendants’ motion to
strike, the trial court assumed that Dumdi correctly stated
the law. It ruled, however, that even under Dumdi, “plaintiff
has not shown he is likely to prevail.” That is, the trial court
found that plaintiff’s evidence was insufficient as a matter
of law to meet the legal standard that Dumdi announced.5
The court dismissed plaintiff’s first two claims for relief on
that ground, and it dismissed plaintiff’s third claim for relief
because it depended on the first two.
A divided Court of Appeals reversed the trial court’s
judgment and remanded the case for further proceedings.
Handy, 274 Or App at 669. The majority reasoned that plain-
tiff’s first claim for relief was not subject to the anti-SLAPP
statute. Id. at 668-69. That claim alleged that defendants
had violated the public meetings law by failing to give either
sufficient notice of the May 3 meeting or a sufficient expla-
nation for holding an emergency meeting and by not issuing
minutes for that meeting. The court reasoned that, because
that claim did not arise out of any protected conduct listed
in the anti-SLAPP statute, that statute did not provide a
basis for striking plaintiff’s first claim. Id.
Regarding plaintiff’s second claim for relief, the
majority explained that that claim for relief challenged
two related but separate decisions that a quorum of the
commissioners allegedly had made: the decision to call an
emergency meeting and the decision to release the attor-
ney’s letter. The majority held that the public meetings law
did not apply to the first decision. Id. at 654. On that issue,
the majority reasoned that the public meetings law applies
only to decisions that require a vote of a quorum of the gov-
erning body. Id.; see ORS 192.610(1) (defining “decision” as
5
The trial court also denied plaintiff’s request to allow it to engage in fur-
ther discovery beyond the documents that plaintiff had received as a result of a
public records request. In its written order, the court stated that, “because it does
not believe it is likely plaintiff would prevail on his claims for relief, there is no
reason to allow further discovery.”
614 Handy v. Lane County
“any determination, action, vote or final disposition upon a
motion, proposal, resolution, order, ordinance or measure on
which a vote of a governing body is required, at any meeting
at which a quorum is present”). However, under the Lane
County charter, the decision to hold an emergency meeting
does not require a vote of a quorum of the county commis-
sioners. Handy, 274 Or App at 654. It followed, the majority
reasoned, that even if a quorum of the Lane County com-
missioners had met privately to decide whether to hold an
emergency meeting, doing so would not violate the public
meetings law. Id. The Court of Appeals accordingly upheld,
on a different ground, the trial court’s judgment regarding
the first decision that gave rise to plaintiff’s second claim for
relief.
The majority reached a different conclusion regard-
ing the other decision that plaintiff’s second claim for relief
challenged—the decision to release the attorney’s letter.
Regarding that decision, the majority held that a quorum
of a governing body can “meet” seriatim if each member
of a quorum communicates with the other members of the
quorum for the purpose of reaching a decision or deliber-
ating toward a decision. Id. at 664-66. The majority also
concluded that plaintiff’s evidence was sufficient to state a
prima facie case that each of the three commissioners had
communicated privately with the other two commissioners
for the purpose of deciding whether to release the attorney’s
letter. Id. at 667. The majority accordingly reversed the trial
court’s judgment dismissing that part of plaintiff’s second
claim for relief. Id.6
The dissent would have held that the term “meet”
in ORS 192.630(2) should be interpreted the same way as
the defined term “meeting.” See id. at 678-79 (DeVore, J.,
dissenting); ORS 192.610(5) (defining “meeting”). In the
6
Although the majority did not address the trial court’s disposition of plain-
tiff’s third claim for relief, it reversed the trial court’s judgment in its entirety.
The trial court had dismissed the third claim for injunctive relief because it
depended on the first two claims stating actionable violations of the public meet-
ings law. Having concluded that plaintiff’s first two claims for relief, in whole or
in part, stated actionable violations of the public meetings law, the majority pre-
sumably concluded that the third claim for relief also had to go back to the trial
court.
Cite as 360 Or 605 (2016) 615
dissent’s view, a quorum of a public body will meet only if
there is a contemporaneous gathering of a quorum, either
in person or electronically. It followed, the dissent reasoned,
that a quorum cannot meet by means of a series of a commu-
nications, even if all those communications were exchanged
for the purpose of reaching or deliberating toward a deci-
sion. Because there was no evidence of a contemporaneous
gathering, the dissent would have affirmed the trial court’s
judgment on that ground.
II.  ISSUES ON REVIEW
On review, the parties’ arguments are limited.
Defendants do not challenge the Court of Appeals’ conclu-
sion that plaintiff’s first claim for relief is not subject to a
motion to strike under the anti-SLAPP statute. Rather,
defendants’ argument is focused on the Court of Appeals’
resolution of the second part of plaintiff’s second claim
for relief—that the commissioners’ seriatim communica-
tions established that they decided or deliberated toward
a decision to release the attorney’s letter. On that issue,
defendants adopt, in large part, the dissent’s position that
the public meetings law does not apply to seriatim com-
munications among a quorum of the commissioners. They
also point out the absence of any evidence that the county
administrator was acting as an agent for Commissioner
Stewart, and they question how the absence of any evidence
that three commissioners decided or deliberated toward a
decision whether to release the letter can be converted into
a reasonable inference that they did.7
Plaintiff, for his part, does not challenge the Court
of Appeals’ decision dismissing the first part of his second
claim for relief; that is, he does not challenge the Court of
Appeals’ conclusion that, under the Lane County charter,
the decision whether to call an emergency meeting is not
a “decision” to which the public meetings law applies. He
7
Defendants’ evidentiary discussion on review is directed to showing that
three commissioners (or two commissioners and an agent for a third) did not meet
under the dissent’s interpretation of ORS 192.630(2)—namely, that they did not
communicate simultaneously regarding whether to release the attorney’s letter.
However, if defendant’s evidentiary point is correct, it also establishes that a
quorum did not meet under plaintiff’s interpretation of ORS 192.630(2).
616 Handy v. Lane County
also does not dispute that the anti-SLAPP statute applies
to the second part of his second claim for relief.8 His argu-
ment focuses on one issue. Adopting the majority’s reason-
ing in the Court of Appeals, plaintiff argues that the second
part of his second claim for relief can go forward because
the seriatim communications that preceded the emergency
meeting established a prima facie case that a quorum of the
commissioners met to decide or deliberate toward a decision
to release the attorney’s letter.
The question that the parties raise on review entails
three issues. The first arises under the anti-SLAPP stat-
ute: What standard must a plaintiff’s evidence meet once
the defendant shows that the plaintiff’s claim arises out of
a statement to which the anti-SLAPP statute applies? The
second issue arises under the public meetings law: Can a
quorum of a public body “meet” by means of seriatim com-
munications or must all the members of the quorum be pres-
ent at the same time? The third issue is case specific: Was
the evidence that plaintiff offered to support the second part
of his second claim for relief sufficient to defeat a motion to
strike under the anti-SLAPP statute?
The parties’ briefs on review focus on the second
issue noted above. At oral argument, however, the parties
were asked whether plaintiff’s evidence was sufficient,
even under the legal standard that the Court of Appeals
announced and that plaintiff urges us to adopt. We conclude
that it is appropriate to begin with that issue. If plaintiff’s
evidence is not sufficient to permit a reasonable trier of fact
to infer that defendants “met” in violation of ORS 192.630(2),
even under the Court of Appeals’ interpretation of that stat-
ute, then any decision as to what that statute means could
be viewed as unnecessary and perhaps dicta. Beyond that,
we think it fair to say that the correct interpretation of the
term “meet” in ORS 192.630(2) is far from clear. Both the
majority and the dissenting opinions in the Court of Appeals
offered persuasive and diametrically opposed interpreta-
tions of that term after invoking competing rules of stat-
utory interpretation and seeking to glean the legislature’s
8
The Court of Appeals noted that plaintiff had conceded that issue. Handy,
274 Or App at 652-53.
Cite as 360 Or 605 (2016) 617
intent from scraps of legislative history and different views
of the purpose of the public meetings law.
Admittedly, courts are charged with determining
what a statute means even when the sources for making
that determination can only be described as opaque. But we
think the more prudent course in this case is to determine
initially whether we need to undertake that task. That is,
the better course in this case is to ask whether plaintiff’s
evidence was sufficient to avoid defendant’s special motion
to strike, even under the interpretation of ORS 192.630(2)
that plaintiff urges us to adopt. If it was, only then would we
need to determine the statutory question that divided the
Court of Appeals—whether a quorum can “meet” by means
of seriatim communications. In considering the sufficiency
of plaintiff’s evidence, we first clarify the standard of review
under ORS 31.150. We then turn to the evidence that plain-
tiff offered in response to defendants’ motion.
A.  Standard of review
We begin with the burden that the anti-SLAPP
statute places on a plaintiff once a defendant makes a prima
facie showing that the plaintiff’s claim arose out of protected
statements, documents, or conduct under ORS 31.150(2). On
that issue, ORS 31.150(3) provides that, if a defendant
“mak[es] a prima facie showing that the claim against
which the motion [to strike] is made arises out of a state-
ment, document or conduct described in [ORS 31.150(2)],
* * * the burden shifts to the plaintiff in the action to estab-
lish that there is a probability that the plaintiff will prevail
on the claim by presenting substantial evidence to support
a prima facie case.”
This court has not addressed what the requirement that a
plaintiff show a “probability” of prevailing “by presenting
substantial evidence to support a prima facie case” means,
and we look to the text, context, and legislative history of
ORS 31.150(3) to resolve that issue.
1.  Text
Textually, the description of the plaintiff’s burden
divides into two parts. The first part states that a plaintiff
must “establish that there is a probability that the plaintiff
618 Handy v. Lane County
will prevail on the claim.” ORS 31.150(3). The second part
specifies how a probability may be established—“by pre-
senting substantial evidence to support a prima facie case.”
Id. We note, as an initial matter, that the two parts of that
description do not fit neatly together. In this context, pre-
senting a prima facie case means that the plaintiff has pre-
sented enough evidence to avoid a directed verdict—namely,
enough evidence to meet the plaintiff’s burden of produc-
tion. See State v. Rainey, 298 Or 459, 463, 693 P2d 635
(1985) (defining “prima facie case”).9 Ordinarily, presenting
enough evidence to avoid a directed verdict does not neces-
sarily equate with establishing a “probability” of prevailing,
or at least there is some tension between those two concepts.
We also note that ORS 31.150(3) requires a plaintiff
to present “substantial evidence” to support a prima facie
case. It is unclear whether the phrase “substantial evidence”
requires more evidence (or more persuasive evidence) than
ordinarily would be required to establish a prima facie case.
Put differently, when used in conjunction with requiring a
plaintiff to establish a “probability” of prevailing, the phrase
“substantial evidence” could suggest an intent to require
something more than the ordinary showing necessary to
meet a party’s burden of production. The text of the statute
does not provide a clear answer.
2.  Context
The context does not shed much light on the issue.
There is no dispute that Oregon modeled its anti-SLAPP
statute on California’s. However, the section of Oregon’s
anti-SLAPP statute that gives rise to this issue is unique
to Oregon; California’s anti-SLAPP statute contains no
comparable section. Compare ORS 31.150(3), with Cal Code
Civ Proc § 425.16 (West 2001).10 Because the relevant text
90
The court observed in Rainey that the phrase “prima facie” can be used in
two senses. A prima facie case “ ‘may mean evidence that is simply sufficient to
get to the jury, or it may mean evidence that is sufficient to shift the burden of
proof.’ ” 298 Or at 463 (quoting Lampos v. Bazar, Inc., 270 Or 256, 279, 527 P2d
376 (1974)). The context reveals that the legislature used the phrase in the first
sense.
10
When Oregon adopted its anti-SLAPP statute, California’s anti-SLAPP
statute provided (and still provides) that, if that statute applies, a plaintiff must
“establis[h] that there is a probability that the plaintiff will prevail.” Cal Code
Cite as 360 Or 605 (2016) 619
of Oregon’s statute is not found in California’s statute, we
cannot presume, as we ordinarily would, that California
Supreme Court decisions that preceded the adoption of our
statute and that addressed the showing a plaintiff must
make in response to a motion to strike provide context for
interpreting ORS 31.150(3). Cf. State v. Stockfleth/Lassen,
311 Or 40, 50, 804 P2d 471 (1991) (explaining that, “when
Oregon adopts the statute of another jurisdiction, the legis-
lature is presumed also to adopt prior constructions of the
statute by the highest court of that jurisdiction”).
3.  Legislative history
We also consider the legislative history of Oregon’s
anti-SLAPP statute. As initially introduced, Oregon’s anti-
SLAPP bill was virtually identical to California’s statute.
Compare Bill File, House Bill (HB) 2460, Oct 17, 2000, with
Cal Code Civ Proc § 425.16 (West 2001); Tape Recording,
House Judiciary Subcommittee on Civil Law, HB 2460,
Mar 19, 2001, Tape 41, Side A (remarks of Dave Heynderickx).
Initially, subsection (1) of the bill provided, as California’s
anti-SLAPP statue provided, that a court shall grant a spe-
cial motion to strike “unless the plaintiff establishes that
there is a probability that the plaintiff will prevail on the
claim.” Compare Bill File, HB 2460, Oct 17, 2000, with Cal
Code Civ Proc § 425.16 (West 2001). Like California’s stat-
ute, Oregon’s bill initially did not provide further guidance
on what a plaintiff must show.
At a hearing before the House Judiciary Subcom-
mittee on Civil Law, two members of the Oregon State Bar’s
Practice and Procedure Committee testified that subsec-
tion (1) of the bill was problematic. Tape Recording, House
Judiciary Subcommittee on Civil Law, HB 2460, Mar 19,
2001, Tape 44, Side A and Tape 43, Side B (testimony of Mark
Morrell and Jeff Johnson). They explained that the use of
the word “probability” implied that the plaintiff had to show
a likelihood of prevailing and could require a court to weigh
the plaintiff’s evidence. Id. Not only would such a procedure
be contrary to existing rules of Oregon civil procedure, but
Civ Proc § 425.16(b)(1) (West 2001). The California statute lacks a section com-
parable to ORS 31.150(3), which sets out shifting burdens and specifies how a
plaintiff can establish a probability of prevailing. See id. § 425.16.
620 Handy v. Lane County
dismissing a claim based on a trial court’s assessment of the
weight of a plaintiff’s evidence could violate the plaintiff’s
constitutional right to a jury trial. Id. To avoid those prob-
lems, the witnesses suggested that defendants could bring
summary judgment motions against SLAPP suits. However,
they agreed that summary judgment motions were unlikely
to be an effective way of meeting the legislature’s goal of
bringing a quick end to SLAPP suits. Id.
The House Subcommittee proposed amending the
bill to meet those concerns. Although the subcommittee
retained the requirement in subsection (1) that a plaintiff
faced with a special motion to strike must show a probabil-
ity of prevailing, it proposed two changes. First, it qualified
the statement in subsection (1) that a plaintiff establish a
probability of prevailing by adding the phrase, “in the man-
ner provided by subsection (3) of this section.” Bill File, HB
2460, Apr 20, 2001. Second, the subcommittee added sub-
section (3), which would have provided:
“A defendant making a special motion to strike under
the provisions of this section has the initial burden of mak-
ing a prima facie showing that the claim against which the
motion is made arises out of a statement, document or con-
duct described in subsection (2) of this section. If the defen-
dant meets this burden, the burden shifts to the plaintiff
in the action to make a prima facie showing of facts that
would, if proved at trial, support a judgment in favor of the
plaintiff on the claim. If the plaintiff meets this burden, the
court shall deny the motion.”
Id. Those amendments avoided the constitutional concerns
that the Bar had raised by stating that a plaintiff could
prove a “probability” of prevailing by offering sufficient
facts to make out a prima facie case—i.e., sufficient facts to
meet the plaintiff’s burden of production. The subcommittee
approved the bill, as amended, which the House Judiciary
Committee and later the full House approved.
Representative Schrader carried the bill in the
Senate Judiciary Committee. In introducing the bill, he
proposed several amendments to it. Tape Recording, Senate
Committee on Judiciary, HB 2460, May 15, 2001, Tape 142,
Side A. Among other things, Representative Schrader pro-
posed amending the wording of subsection (3) of the bill. Id.
Cite as 360 Or 605 (2016) 621
The Bar proposed similar but slightly different modifications
to subsection (3). Id. at Tape 142, Side B (testimony of Bob
Olson). Those amendments required the plaintiff “to present
substantial evidence to support a prima facie case.” Senate
Committee on Judiciary, HB 2460, May 15, 2001, Exhibits
Q, U, and V (-3, -4, and -5 amendments to HB 2460).
The use of the phrase “substantial evidence”
prompted substantial discussion. Tape Recording, Senate
Committee on Judiciary, HB 2460, May 15, 2001, Tape
142, Side B (remarks of Sen Courtney). Senator Courtney
observed that the proposed amendments appeared to place
a “dramatically” greater burden on the plaintiff than the
defendant. Id. He noted that, under subsection (3) of the
bill, a defendant had to make a prima facie showing while
the plaintiff had to respond with “substantial evidence.”
Id. The representative from the Bar agreed that the bill
required the plaintiff to offer “substantial evidence,” but
he observed that “the question is what does that mean.” Id.(Bob Olson). Senator Courtney replied, “Well, we know what
that means. That’s a whole lot more than a prima facie.”
Id. Senator Courtney added that he was not saying that the
proposed wording was wrong, just that the amendment was
“very significant” because the phrase “substantial evidence”
appeared to place a greater burden on the plaintiff than the
defendant. Id.Dave Heynderickx from the Office of Legislative
Counsel and representatives from the Bar explained that
that had not been their intent. Heynderickx stated that, if
the defendant met its burden:
“then the burden shifts to the plaintiff to come forward at
that point and say I’ve got the goods. I’ve got something
more than just the allegations in my complaint, and I’m not
depending on hopefully finding something during discov-
ery. In essence, you have to come forward and show you’ve
got something to support, by affidavit or otherwise, your
case.”
Id. At that point, Senator Minnis interjected and explained
that the counsel to the Senate Judiciary Committee had
told him that “substantial evidence” merely required “some
showing of facts to support the prima facie basis of [the
622 Handy v. Lane County
plaintiff’s] case.” Id. Heynderickx agreed. He clarified that
the plaintiff has “to come forward to make a prima facie
showing. And what that normally means is just some affida-
vit or some showing on the elements of your case that you’ve
got something to support it.”11 Id.With that point resolved, the discussion moved to
other issues, and the Senate Judiciary Committee amended
subsection (3) of the bill to provide:
“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 con-
duct described in subsection (2) of this section. If the defen-
dant 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 substan-
tial evidence to support a prima facie case. If the plaintiff
meets this burden, the court shall deny the motion.”
Bill File, HB 2460, May 30, 2001 (B-Engrossed Bill). The
Senate approved the bill, as amended, and the House
acceded to the Senate amendments. House and Senate
Journal, Regular Session, 2001, H-95.
The legislative history of HB 2460 establishes that,
in amending that bill, the Senate did not intend to depart
from the terms of subsection (3) as it emerged from the
House. Rather, the Senate agreed that, if a defendant makes
a prima facie showing, then the burden shifts to the plaintiff
to submit sufficient evidence to make its prima facie case;
that is, the plaintiff must submit sufficient evidence from
11
Heynderickx explained that the wording of the amendments had been
taken from the California cases. Tape Recording, Senate Committee on Judiciary,
HB 2460, May 15, 2001, Tape 142, Side B. The California cases that preceded the
adoption of Oregon’s anti-SLAPP statute held that, if the defendant showed that
the anti-SLAPP statute applied, the plaintiff could establish a “probability” of
prevailing by “mak[ing] a prima facie showing of facts which would, if proved at
trial, support a judgment in plaintiff’s favor.” ComputerXpress, Inc. v. Jackson,
93 Cal App 4th 993, 1010, 113 Cal Rptr 2d 625 (2001); Church of Scientology
v. Wollersheim, 42 Cal App 4th 628, 646, 49 Cal Rptr 2d 620 (1996) (same); see
Matson v. Dvorak, 40 Cal App 4th 539, 548, 46 Cal Rptr 2d 880 (1995) (explaining
that a plaintiff can establish a “probability” of prevailing by demonstrating that
“the complaint is both legally sufficient and supported by a sufficient prima facie
showing of facts to sustain a favorable judgment if the evidence submitted by the
plaintiff is credited”).
Cite as 360 Or 605 (2016) 623
which a reasonable trier of fact could find that the plaintiff
met its burden of production. In using terms like “proba-
bility” and “substantial evidence,” the legislature did not
intend to require a plaintiff to do more than meet its burden
of production. Conversely, the legislature did not intend that
a plaintiff could avoid a special motion to strike by doing
less than that.12
B.  Plaintiff’s evidence
In evaluating the sufficiency of plaintiff’s evidence,
we assume without deciding that the Court of Appeals cor-
rectly held that a quorum of a public body can “meet” by
means of seriatim communications if each member of the
quorum communicates with the other members for the pur-
pose of deciding or deliberating toward a decision—in this
case, the decision whether to publicly release the attorney’s
letter. The difficulty with plaintiff’s position is that he failed
to meet his burden of production on that issue. No reason-
able trier of fact could find from the evidence that plaintiff
submitted in response to defendants’ special motion to strike
that each of the three commissioners (Stewart, Leiken, and
Bozievich) decided or deliberated toward deciding whether
to release the attorney’s letter.
The relevant time period in this case is relatively
short. At 2:28 p.m. on May 2, the businessman’s attorney
emailed a copy of his letter to the Lane County District
Attorney. Within two hours, Lane County had received a
public records request for the letter. The next morning, at
9:00 a.m., the Lane County Commissioners held a public
meeting to decide whether to release the attorney’s letter.
Within that roughly 18-hour window, two county commis-
sioners (Bozievich and Leiken) and the county administra-
tor exchanged emails. The county administrator also spoke
with a third commissioner (Stewart). Those communications
12
The Court of Appeals has relied on California decisions issued after Oregon
enacted ORS 31.150 to determine how much evidence a plaintiff must offer to
avoid a special motion to strike. However, what our statute means turns on
what the Oregon legislature understood in 2001 when it enacted ORS 31.150(3).
While the legislature intended to follow the California cases that existed in 2001,
California cases decided after 2001 are relevant, at most, only for their persua-
sive value.
624 Handy v. Lane County
are insufficient, even when aggregated, to meet plaintiff’s
burden of production.
One of the three commissioners (Leiken) said noth-
ing about disclosing the attorney’s letter. Rather, the only
communication from Leiken occurred on May 2 at 7:50 p.m.
when he emailed a reply to the county administrator’s email
with a copy to Bozievich and said, “I just read the letter from
[the attorney] and I am very concerned as well with regards
to the county’s potential liability.” The question whether
Lane County was financially liable as a result of plaintiff’s
asking donors to make anonymous political contributions is
different from the question of how the county commission-
ers should respond to the media’s public records request to
release the attorney’s letter. Indeed, it was only a year ear-
lier that plaintiff’s actions had resulted in the county’s being
held liable for $350,000, and the attorney’s letter posed the
possibility that plaintiff’s more recent actions also could
subject the county to liability. It should come as no surprise
that Leiken was concerned that the county could be held lia-
ble for additional sums. However, no reasonable trier of fact
could find that, in expressing concern that the county could
be subject to liability, Leiken was deciding or deliberating
toward deciding whether to release the attorney’s letter.
To be sure, Leiken had received the county admin-
istrator’s email in which the administrator expressed her
belief that the letter should be released. Even assuming that
the administrator was acting as Commissioner Stewart’s
agent in expressing that belief, Leiken’s reply did not
address that issue. Rather, he addressed a separate issue.
Even if plaintiff can rely on a series of separate communi-
cations to establish that each member of a quorum met to
decide or deliberate towards deciding an issue, he must show
something more than Leiken’s passive receipt of the county
administrator’s email to establish that Leiken deliberated
whether to release the attorney’s letter. Without something
more, Leiken’s mere receipt of the county administrator’s
views on the public records request is not sufficient to per-
mit a reasonable inference that Leiken decided or deliber-
ated toward deciding that issue. Without Leiken, plaintiff
lacks a quorum.
Cite as 360 Or 605 (2016) 625
Plaintiff’s evidence suffers from another problem.
The record does not show that Commissioner Stewart ever
made any statement orally or by email regarding whether
the letter should be released. Rather, all that the record
shows is that the county administrator represented in her
first email to Commissioners Bozievich and Leiken, which
she sent on May 2 at 7:38 p.m., that “Commissioner Stewart
asked me about county liability” and that “Commissioner
Bozievich had the same concern when I spoke to him ear-
lier.” As explained above, the fact that Stewart and Bozievich
expressed concerns about county liability does not imply
that they discussed whether to release the attorney’s letter
in response to the public records request. Those are two sep-
arate issues.
Admittedly, the county administrator expressed
her own view that the attorney’s letter should be released.
After noting the concern about county liability, she added, in
her first email, “I’m also concerned that it will look like we
are trying to hide something if we refuse the public records
request. Our practice is to use the exceptions if they exist,
but it feels wrong in this case. I’ll consult with counsel on
all of those issues and get back to you.” (Emphasis added.)
Although the county administrator expressed her thoughts
regarding releasing the letter, there is nothing in this
record to show what Commissioner Stewart thought about
that issue. Nor is there anything to show that, in expressing
her own thoughts, the county administrator was acting as
Stewart’s agent or seeking to deliberate on his behalf with
Bozievich and Leiken toward a decision whether to comply
with the public records request. Any conclusion that the
county administrator was acting as Stewart’s agent is mere
speculation.
Finally, we note that, as the county has argued,
the district attorney initially made the decision whether to
release the attorney’s letter in response to the public records
request. He either had not made or had not communicated
that decision before 7:09 a.m. on May 3, less than two hours
before the Commission held a public emergency meeting at
9:00 a.m. Because the decision to release the letter was ini-
tially the district attorney’s, it is less likely that any of the
626 Handy v. Lane County
commissioners would have sought to decide that issue before
they found out what his decision was. Admittedly, at some
point after 7:09 a.m. on May 3, the county administrator
learned that the district attorney was going to invoke the
exception and not release the letter. At some point between
7:09 a.m. and 9:00 a.m. on May 3, the county administra-
tor conferred with Commissioners Leiken and Bozievich
to decide whether to hold an emergency meeting, and she
spoke with Commissioner Stewart before doing so. It is not
impossible that, in discussing whether to call an emergency
meeting, the county administrator spoke to Stewart, Leikin,
and Bozievich about the merits of the meeting. However, no
evidence in the record points in that direction, and plaintiff
is left with nothing other than speculation to fill in the gaps
in his evidence.
We note one final evidentiary point. It is clear that
the county administrator spoke with Leikin and Bozievich
about whether to hold the emergency meeting, and a trier of
fact reasonably could infer that she spoke to Stewart about
the same issue. However, the Court of Appeals held that the
decision whether to hold an emergency meeting was not sub-
ject to Oregon’s public meetings law, and plaintiff has not
challenged that decision on review. Plaintiff has not met his
burden to produce evidence from which a reasonable trier
of fact could find that a quorum of the commissioners met
privately to decide or deliberate toward deciding whether to
release the attorney’s letter.
One issue remains. As noted above, the trial court
denied a request for further discovery that plaintiff had
included in his response to defendant’s motion to strike. See
ORS 31.152(2).13 Plaintiff assigned error to that ruling on
appeal, but the Court of Appeals found it unnecessary to
reach it because it concluded that plaintiff had introduced
sufficient evidence regarding the second part of his second
claim for relief to meet his burden of production. Because we
13
Oregon’s anti-SLAPP statute provides that “[a]ll discovery in the pro-
ceeding shall be stayed upon the filing of a special motion to strike under ORS
31.150” and that “[t]he stay of discovery shall remain in effect until the entry of
judgment.” ORS 31.152(2). However, subsection (2) also provides that the trial
court, “on motion and for good cause shown, may order that specified discovery be
conducted notwithstanding the stay imposed by this subsection.” Id.Cite as 360 Or 605 (2016) 627
have reached a different conclusion, we remand the case to
the Court of Appeals so that it can consider whether plain-
tiff showed good cause for conducting further discovery and,
if he did, whether the trial court abused its discretion in
denying his request.
III. CONCLUSION
Plaintiff’s first claim for relief challenged defen-
dants’ decisions regarding notice, holding an emergency
meeting, and not providing minutes. The Court of Appeals
held that those decisions were not subject to a special
motion to strike under Oregon’s anti-SLAPP statute and,
for that reason, reversed the trial court’s judgment on that
claim. Defendants do not challenge that part of the Court of
Appeals decision.
Plaintiff’s second claim for relief alleged that defen-
dants had violated the public meetings law by deciding or
deliberating toward deciding (1) whether to hold an emer-
gency meeting and (2) whether to release the attorney’s letter.
The Court of Appeals held that the first decision—whether
to hold an emergency meeting—was not subject to the public
meetings law, and plaintiff has not challenged that holding
on review. Regarding the second decision, we have concluded
that plaintiff failed to offer sufficient evidence from which a
reasonable trier of fact could find that defendants met pri-
vately to decide or deliberate toward deciding whether to
release the letter. We reverse the Court of Appeals decision
regarding that aspect of plaintiff’s second claim and remand
so that it can consider whether the trial court abused its dis-
cretion in denying plaintiff’s request for further discovery.
The trial court dismissed plaintiff’s third claim for
injunctive relief because it depended on the first two claims
for relief. The Court of Appeals reversed the trial court’s
judgment on that claim, presumably so that the trial court
could reevaluate its ruling in light of the Court of Appeals
decision. Neither party has challenged that part of the Court
of Appeals’ ruling.14
14
The trial court also awarded defendant’s costs and attorney fees pursuant
to ORS 31.150. The Court of Appeals reversed that award, and neither party has
challenged that ruling on review.
628 Handy v. Lane County
The decision of the Court of Appeals is affirmed
in part and reversed in part. The case is remanded to the
Court of Appeals for further consideration consistent with
this decision.