Philip Shelton v. Nancy Pavon

Supreme Court of Louisiana
FOR IMMEDIATE NEWS RELEASE NEWS RELEASE #050
FROM: CLERK OF SUPREME COURT OF LOUISIANA
The Opinions handed down on the 18th day of October, 2017, are as follows:
BY GUIDRY, J.:
2017-CC-0482 PHILIP SHELTON v. NANCY PAVON (Parish of Orleans)
After reviewing the applicable law, we hold that La. Code Civ.
Pro. art. 971(F)(1)(a), which states that “[a]ny written or oral
statement or writing made before a legislative, executive, or
judicial body” is an “[a]ct in furtherance of a person’s right of
petition or free speech … in connection with a public issue,”
must nonetheless satisfy the requirement of La. Code Civ. Pro.
art. 971(A)(1), that such statements be made “in connection with
a public issue….” We therefore conclude the court of appeal was
correct in reversing the trial court’s ruling granting Dr.
Shelton’s special motion to strike, and in awarding reasonable
attorney fees and costs to Ms. Pavon as the prevailing party, to
be determined by the trial court on remand. Accordingly, the
judgment of the court of appeal is affirmed.
AFFIRMED
WEIMER, J., dissents and assigns reasons.
CLARK, J., dissents for the reasons given by Justice Weimer.
HUGHES, J., dissents with reasons.
CRICHTON, J., additionally concurs and assigns reasons.
10/18/17
SUPREME COURT OF LOUISIANA
No. 2017-CC-0482
PHILIP SHELTON
VERSUS
NANCY PAVON
ON WRIT OF CERTIORARI TO THE COURT OF APPEAL,
FOURTH CIRCUIT, PARISH OF ORLEANS
GUIDRY, Justice
We granted the writ application to determine whether the court of appeal erred
in reversing the trial court’s ruling granting the plaintiff’s special motion to strike
defendant’s reconventional demand for defamation, pursuant to La. Code Civ. Pro.
art. 971, the so-called anti-SLAPP statute, where the appellate court found that
plaintiff’s petition did not involve a “public issue.” For the reasons expressed below,
we find the court of appeal was correct in reversing the trial court’s ruling. We hold
that La. Code Civ. Pro. art. 971(F)(1)(a), which states that “[a]ny written or oral
statement or writing made before a legislative, executive, or judicial body” is an
“[a]ct in furtherance of a person’s right of petition or free speech … in connection
with a public issue,” must nonetheless satisfy the requirement of La. Code Civ. Pro.
art. 971(A)(1), that such statements be made “in connection with a public issue….”
FACTS AND PROCEDURAL HISTORY
Philip Shelton, M.D. (hereinafter “Dr. Shelton”) married Judith Shelton
(hereinafter “Mrs. Shelton”) in 2001. During their marriage, the couple each owned
a life insurance policy that named the other as the beneficiary. At some point, Mrs.
Shelton was diagnosed with cirrhosis of the liver and Hepatorenal Syndrome (rapid
deterioration of kidneys) as a result of alcoholism. In July 2011, Mrs. Shelton was
1
admitted to Ochsner Baptist Medical Center for treatment and was soon discharged
to Woldenberg Village, an inpatient assisted living facility. Mrs. Shelton died on
December 31, 2011, at the age of 64.
After Mrs. Shelton=s death, Dr. Shelton learned that, in July 2011, she had
changed her beneficiary to her personal assistant/paralegal/friend, Nancy Pavon. In
November 2013, Dr. Shelton filed a Petition to Nullify Change of Beneficiary. He
alleged Mrs. Shelton had lacked the capacity to execute a change of beneficiary form
due to her poor health, including dementia, confusion, disorientation, and personality
changes. Alternatively, he alleged Mrs. Shelton=s signature on the change of
beneficiary form was a forgery or had been obtained through undue influence by Ms.
Pavon.
In response, Ms. Pavon filed an answer and reconventional demand alleging
Dr. Shelton=s petition constituted defamation per se. In response, Dr. Shelton filed a
Special Motion to Strike pursuant to La. Code Civ. Pro. art. 971. Ms. Pavon opposed
the motion to strike, arguing that it should be dismissed as a matter of law because
Dr. Shelton’s petition to nullify did not involve a public issue. She also argued that
a motion to strike was not the proper mechanism to dismiss her defamation claim.
After a hearing and taking the matter under advisement, the trial court granted
Dr. Shelton=s special motion to strike. The trial court reasoned that, under La. Code
Civ. Pro. art. 971(A)(1), the moving party must first satisfy the burden of proof that
the “cause of action against [the moving party] arise[s] from any act of that person
in furtherance of his right of petition or free speech under the United States or
Louisiana Constitution in connection with a public issue….” Thus, the trial court
noted it must first consider whether Dr. Shelton’s action, that is, the petition to
nullify change of beneficiary, arises from an act in the exercise of his right of petition
or free speech in connection with a public issue. The trial court concluded Dr.
2
Shelton’s petition fell into the category of such “acts” as defined in La. Code Civ.
Pro. art. 971(F)(1)(a), because it is a “written … statement or writing made before a
… judicial proceeding.” The trial court then noted that pursuant to Article 971(A)(1)
the burden shifted to the non-mover, Ms. Pavon, to show a probability of success on
her claim for defamation. The trial court ultimately concluded she could not. The
trial court then awarded attorney fees to Dr. Shelton as the prevailing party on the
motion, pursuant to La. Code Civ. Pro. art. 971(B).
Ms. Pavon sought review in the court of appeal, which ultimately reversed the
trial court’s ruling. The court of appeal observed that the trial court was correct in
first determining whether Dr. Shelton’s petition to nullify the change of beneficiary
constituted an act in furtherance of his right to petition in connection with a public
issue. However, the court of appeal disagreed with the trial court=s conclusion that
Dr. Shelton met his prima facie burden under Article 971. The court of appeal found
the language of Article 971(F)(1)(a) was ambiguous because it was susceptible to
different meanings. Relying on the Fifth Circuit=s decision in Yount v. Handshoe,
14-919 (La. App. 5 Cir. 5/28/15), 171 So.3d 381, writ denied, 15-2302 (La. 2/19/16),
187 So.3d 462, the court of appeal held that, in light of the legislative history,
relevant case law, and the statutory language as a whole, La. Code Civ. Pro. art.
971(F)(l)(a) requires the statements made in a judicial proceeding be made in
connection with a public issue. Shelton v. Pavon, 16-0758 (La. App. 4 Cir. 2/15/17),
212 So.3d 603. The court of appeal concluded Dr. Shelton’s petition was not an
exercise of his right of petition in connection with a public issue.
Dr. Shelton sought writs in this court, asserting the Fourth Circuit’s decision
was in conflict with rulings from the First, Second, and Third Circuits. He cited,
among others, Gibbs v. Elliott, 12-212 (La. App. 1 Cir. 09/13/13), 186 So.3d 667;
3
Jones v. Delta Fuel Co., 48885 (La. App. 2 Cir. 05/28/14), 141 So.3d 352; and
Jeansonne v. Roy, 13-741 (La. App. 3 Cir. 03/05/14), 156 So.3d 134, 142, reversed
in part, 14-0729 (La. 6/30/14), 147 So.3d 1116), all of which held that pleadings
filed into the record of a judicial proceeding fall within the definition of A[a]n act in
furtherance of the person=s right of petition or free speech@ as contemplated by
Article 971(F)(1)(a). We granted Dr. Shelton’s writ application to resolve a conflict
in the circuits. Shelton v. Pavon, 17-0482 (La. 2/15/17), 212 So.3d 603.
LAW and DISCUSSION
Resolving this conflict requires us to interpret Article 971, and so we begin
with the language of the statute itself. M.J. Farms, Ltd. v. Exxon Mobil Corp., 07–
2371 (La. 07/01/08), 998 So.2d 16, 27). “When a law is clear and unambiguous and
its application does not lead to absurd consequences, the law shall be applied as
written and no further interpretation may be made in search of the intent of the
legislature.” La. Civ. Code art. 9. “When the language of the law is susceptible of
different meanings, it must be interpreted as having the meaning that best conforms
to the purpose of the law.” La. Civ. Code art. 10. Generally, words are given their
prevailing meaning, but “when the words of a law are ambiguous, their meaning
must be sought by examining the context in which they occur and the text of the law
as a whole.” La. Civ. Code arts. 11 and 12.
Louisiana Code of Civil Procedure Article 971 provides in pertinent part:
A. (1) A cause of action against a person arising from any act of that
person in furtherance of the person’s right of petition or free speech
under the United States or Louisiana Constitution in connection with a
public issue shall be subject to a special motion to strike, unless the
court determines that the plaintiff has established a probability of
success on the claim.
(2) In making its determination, the court shall consider the pleadings
and supporting and opposing affidavits stating the facts upon which the
liability or defense is based.
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(3) If the court determines that the plaintiff has established a probability
of success on the claim, that determination shall be admissible in
evidence at any later stage of the proceeding.
B. In any action subject to Paragraph A of this Article, a prevailing
party on a special motion to strike shall be awarded reasonable attorney
fees and costs.
***
C. All discovery proceedings in the action shall be stayed upon the
filing of a notice of motion made pursuant to this Article. The stay of
discovery shall remain in effect until notice of entry of the order ruling
on the motion. Notwithstanding the provisions of this Paragraph, the
court, on noticed motion and for good cause shown, may order that
specified discovery be conducted.
***
F. As used in this Article, the following terms shall have the meanings
ascribed to them below, unless the context clearly indicates otherwise:
(1) “Act in furtherance of a person’s right of petition or free speech
under the United States or Louisiana Constitution in connection with a
public issue” includes but is not limited to:
(a) Any written or oral statement or writing made before a legislative,
executive, or judicial proceeding, or any other official proceeding
authorized by law.
(b) Any written or oral statement or writing made in connection with
an issue under consideration or review by a legislative, executive, or
judicial body, or any other official body authorized by law.
(c) Any written or oral statement or writing made in a place open to the
public or a public forum in connection with an issue of public interest.
(d) Any other conduct in furtherance of the exercise of the
constitutional right of petition or the constitutional right of free speech
in connection with a public issue or an issue of public interest.
Our appellate courts interpret this statute as requiring a two-part, burden-
shifting analysis, which the trial court had in fact performed. See, e.g., Thomas v.
City of Monroe Louisiana, 36,526 (La. App. 2 Cir. 12/18/02), 833 So.2d 1282;
Aymond v. Dupree, 05–1248 (La. App. 3 Cir. 04/12/06), 928 So.2d 721. In cases
where right of petition and free speech activities form the basis of the claims, the
mover must first establish that the cause of action against him arises from an act by
5
him in the exercise of his right of petition or free speech under the United States or
Louisiana Constitution in connection with a public issue. La. Civ. Code Pro. art.
971(A)(1); Yount v. Handshoe, 14-919, pp. 6-7, 171 So.3d at 385-86; Thinkstream,
Inc. v. Rubin, 06–1595 p. 9 (La. App. 1 Cir. 09/26/07), 971 So.2d 1092, 1100, writ
denied, 07–2113 (La.1/7/08), 973 So.2d 730. If the mover makes a prima facie
showing that his comments were constitutionally protected and in connection with a
public issue, the burden shifts to the plaintiff to demonstrate a probability of success
on the claim. Id. In cases where more than one claim is alleged in the petition, the
courts examine the probability of success of each claim individually. Darden v.
Smith, 03–1144 p. 8 (La. App. 3 Cir. 06/30/04), 879 So.2d 390, 397, writ denied, 04-
1955 (La 11/15/04), 887 So.2d 480; Melius v. Keiffer, 07–0189 p. 5 (La. App. 4 Cir.
03/12/08), 980 So.2d 167, 172, writ not considered, 08-1039 (La. 8/29/08), 989
So.2d 90. If the plaintiff can demonstrate a probability of success on any of his
claims, then the special motion to strike must fail. Darden, supra.
Dr. Shelton contends the court of appeal=s ruling departs from the rules of
statutory interpretation, citing La. Civ. Code art. 10, because it does not conform to
the purpose of the law. In his view, Article 971(F)(1) sets forth specific examples of
what the legislature meant by an Aact in furtherance of a person=s right of petition or
free speech under the United States or Louisiana Constitution in connection with a
public issue,@ expressly providing that such acts include:
(a) Any written or oral statement or writing made before a legislative,
executive, or judicial proceeding, or any other official proceeding
authorized by law.
(b) Any written or oral statement or writing made in connection with
an issue under consideration or review by a legislative, executive, or
judicial body, or any other official body authorized by law.
Applying the article=s plain and unambiguous language to this case, and
adhering to the legislature=s express intent in La. Acts 1999, No. 734, § 2 that Article
6
971 be broadly construed, Dr. Shelton argues his Petition to Nullify Change of
Beneficiary and his allegations of forgery and undue influence on the part of Ms.
Pavon constitute written statements before a judicial proceeding as defined in Article
971(F)(1)(a). He contends Ms. Pavon=s defamation claim against him thus arises
from the allegations set forth in his petition, and, therefore, Ms. Pavon=s defamation
claim is subject to a special motion to strike under Article 971. However, he claims
the court of appeal=s opinion rewrites the law, because the court concluded that La.
Code Civ. Pro. art. 971(F)(l)(a) requires the statements made in a judicial proceeding
be made in connection with a public issue. Dr. Shelton asserts this interpretation
effects a change in the law.
Ms. Pavon supports the ruling of the Fourth Circuit below, which properly
resorted to this court’s rules of statutory interpretation after determining the
language of La. Code Civ. Pro. art. 971 is ambiguous and its application leads to
absurd consequences. Ms. Pavon asserts the lower court correctly found that Article
971 (F)(1)(a) was ambiguous, that reading it broadly to apply to any act in
furtherance of one’s right of petition leads to absurd results, and that it was therefore
superseded by the operative clause of Article 971, namely subparagraph 971(A)(1),
which mandates that the act in furtherance of the person’s right of petition or free
speech must be made in connection with a public issue. She also points out that the
Fifth Circuit in Yount similarly held that Article 971(F)(1)(b) was ambiguous and
leads to absurd consequences and was therefore subject to the operative clause of
Article 971(A)(1).
The parties have correctly noted that Article 971(F)(1)(a) defines an act in
furtherance of a person’s right of petition or free speech under the United States or
Louisiana Constitution in connection with a public issue as “[a]ny written or oral
7
statement or writing made before a legislative, executive, or judicial proceeding, or
any other official proceeding authorized by law.” As observed by the Fourth and
Fifth Circuits, though the latter with regard to Article 971(F)(1)(b), this language
can be read to provide that a special motion to strike will apply to any issue brought
before a judicial proceeding, because it was made in furtherance of the person’s right
of petition. On the other hand, Article 971(F)(1)(a) may as easily be interpreted to
mean that a special motion to strike will apply only to statements or writings before
a judicial proceeding in connection with a public issue. Clearly there is ambiguity in
this language given that all five of our circuit courts have reviewed and interpreted
this language, with two circuits adopting the latter view, and three circuits adopting
the former.
Ultimately, pursuant to our duty to resolve such impasses, we agree that a
reading of the statute to apply to any issue made before a judicial proceeding, without
a requirement that it be connected to a public issue, can lead to absurd results. As
the Yount court explained with regard to La. Code Civ. Pro. art. 971(F)(1)(b), which
is analogous, under such an interpretation “any cause of action arising from any
written or oral statement made in connection with any kind of government activity
or proceeding would be subject to special motions to strike regardless of whether or
not the statements were made in connection with a public issue.” Yount, 14–919, p.
8, 171 So.3d at 387. Interpreting subsection (F)(1)(b), the Yount court concluded that
“any party could defame or invade the privacy of a person involved in a divorce
proceeding, traffic violation, child custody dispute, marriage, mortgage registration,
passport application, or driver’s license renewal and be immunized from legal
repercussions of damage to others through the use of an extraordinary procedural
remedy.” Id., 14–919, p. 8–9, 171 So.3d at 387. That same logic applies to subsection
(F)(1)(a), as the court below found.
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We nevertheless acknowledge the views of the other circuits. The First Circuit
in Gibbs v. Elliott, for example, found that the plain language of Article 971(F)(1)(a)
and (b) provides that an act “in connection with a public issue” includes by definition
“[a]ny written ... statement or writing made before a ... judicial proceeding” or “made
in connection with an issue under consideration or review by a ... judicial body.”
Gibbs, 12-2121, p. 6, 186 So.3d at 672. In Gibbs, a plaintiff’s defamation suit was
dismissed pursuant to a special motion to strike under La. Code Civ. Pro. art. 971.
The defamation suit in Gibbs was based on allegations made against Gibbs in a
succession matter, wherein it was alleged that Gibbs had engaged in efforts to
transfer assets for purposes of evading judgment creditors. In dismissing Gibbs’s
claim, the First Circuit reviewed the assignment of error that the Article 971 special
motion to strike should have been denied because the alleged defamatory statements
did not arise out of a matter of public significance, but rather was related to a dispute
between private parties. The First Circuit court declined to interpret the provisions
of La. Code Civ. Pro. art. 971(F)(1)(a) and (b) as requiring statements made before
a judicial proceeding or in connection with an issue under consideration or review
by a judicial body must also be related to matters “in connection with a public issue.”
Ibid.The First Circuit recently upheld its view, disagreeing with the Fifth Circuit’s
holding in Yount. See Aloise v. Capital Management Consultants, Inc., 16-1174 (La.
App. 1 Cir. 4/12/17), 2017 WL 1378223.1 The Aloise court disagreed with Yount
that, unless the provisions of Article 971(F)(1)(a) and (b) were interpreted as
requiring statements made in judicial proceedings to also be made in connection with
a public issue, any party could defame the privacy of a person in a variety of
1
A writ application is currently pending in this court: Aloise v. Capital Management
Consultants, Inc., No. 2017-C-0784, filed on May 12, 2017.
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situations. In the Aloise court’s view, Article 971 was enacted by the legislature as
a procedural right to be used in the early stages of litigation to screen out meritless
claims bought primarily to chill the valid exercise of the constitutional rights of
freedom of speech and petition for redress of grievances. 16-1174, p. 8, ___ So.3d
___, citing Thinkstream, 971 So.2d at 1100.
There is some support for that view in the language of Article 971(A), which
limits the special motion to strike only to a “cause of action against a person arising
from any act of that person in furtherance of the person’s right of petition or free
speech….” Defamation suits, when filed against a petitioner who has alleged fraud
or the like, as in this case, clearly seem to fall within the rubric of suits intended to
chill the litigant’s right of free speech and right to petition for redress of grievances.
As the concurring judge in Aloise pointed out: “Articles 971(F)(1)(a) and (b)
statutorily define a protected act to include statements made before a judicial
proceeding or in connection with an issue under consideration by a judicial body—
that is, statements made during the course of litigation or in connection with an issue
under consideration in litigation. So, it appears that the right to litigate is in itself a
matter of public concern.” Aloise, supra, McDonald, J., concurring.
Given the competing viewpoints among our lower courts as to how to interpret
the plain language of the statute, 2 it is no surprise that there is similarly a divergence
of views on what the legislature intended. As La. Civ. Code art. 10 instructs, when
the language of the law is susceptible to different meanings, we must interpret the
law as having the meaning that best conforms to the purpose of the law.
The Yount court examined the history of Article 971, which evolved from
Louisiana=s Anti-SLAPP statute:
2
The federal district court has recently agreed with Yount’s reasoning in Schmidt v. Cal–Dive
International, Inc., 183 F.Supp.3d 784 (W.D. La. 2016).
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Code of Civil Procedure Article 971 is Louisiana’s Anti–SLAPP
statute. ‘SLAPP’ is an acronym for Strategic Lawsuit Against Public
Participation, a term first coined by Professors George W. Pring and
Penelope Canan to describe generally meritless suits brought by large
private interests to deter common citizens from exercising their
constitutional right to petition or to punish them for doing so. Pring,
SLAPPs: Strategic Lawsuits Against Public Participation, 7 Pace
Envtl. L.Rev. 3 (1989). Courts have difficulty identifying these suits
which masquerade as ordinary lawsuits, most often in the form of
defamation or a business tort. Id. SLAPP suits consist of a civil
complaint or counterclaim (for monetary damages and/or injunction)
filed against non-governmental individuals and/or groups because of
their communications to a government body, or the electorate on an
issue of some public interest or concern. Id. Typical examples of
SLAPP suits include cases brought by 1) police, teachers, and other
public officials and employees against their critics; 2) landlords against
tenants reporting problems to the city health inspectors; 3) businesses
against consumers reporting problems with their products or services;
and 4) by dumps, toxic waste incinerators, bars, and other less-than-
attractive enterprises against their NIMBY (“Not–In–My–BackYard”)
homeowner opponents. Id. At their heart, SLAPP suits threaten a
citizen’s right to petition because the mere filing of the suit limits public
participation in the political process.
In response to the growing prevalence of such suits and
recognizing that traditional legal remedies such as abuse of process or
malicious prosecution claims and motions for summary judgment were
inadequate tools to ameliorate the problem, states enacted legislation
creating the special motion to strike. This extraordinary procedural
remedy limits discovery, dismisses meritless claims quickly, and
awards attorney’s fees to the prevailing party. California was the first
state to adopt an anti-SLAPP statute in 1992, followed by many other
states, including Louisiana in 1999 with Act 734.
Yount, pp. 9-10, 171 So.3d at 387-88 (footnotes omitted).
The legislature expressly stated its intent behind Article 971: “The legislature
finds and declares that there has been a disturbing increase in lawsuits brought
primarily to chill the valid exercise of the constitutional rights of freedom of speech
and petition for redress of grievances. The legislature finds and declares that it is in
the public interest to encourage continued participation in matters of public
significance, and this participation should not be chilled through abuse of judicial
process. To this end, it is the intention of the legislature that the Article enacted
pursuant to this Act shall be construed broadly.” 1999 La. Acts 734, § 2. The
11
legislature thus expressed its desire to encourage participation in matters of public
significance, which suggests Article 971 is intended to protect statements made in
connection with public rather than private issues under consideration by a
government body. The Yount court resourcefully collected and reviewed Louisiana
cases to demonstrate the types of issues that would be protected under the special
procedures of Article 971, noting that suits involving private disputes between
private parties have generally been found to fall outside the ambit of Article 971.
Yount, pp. 11-12, 171 So.3d at 388-89.
Having completed our review, and giving due respect to our colleagues on the
appellate courts, we must conclude that La. Code Civ. Pro. art. 97l(F)(l)(a) applies
to any written or oral statement made before a legislative, executive, or judicial
proceeding, or any other official proceeding authorized by law, so long as it is made
“in connection with a public issue.” In Connick v. Myers, 461 U.S. 138, 146, 103
S.Ct. 1684, 1690, 75 L.Ed.2d 708 (1983), the United States Supreme Court described
speech on matters of public concern as speech “relating to any matter of political,
social, or other concern to the community.”
With regard to the merits of the dispute before us, the court of appeal correctly
found that Dr. Shelton’s petition to nullify a change in beneficiary to his wife’s life
insurance policy is a private dispute involving private parties, and not a matter of
public concern or significance. Therefore, Dr. Shelton did not satisfy his initial
burden of demonstrating that his petition is an act in furtherance of his right of
petition “in connection with a public issue” as required by Article 971(A)(1).
Finally, the court of appeal in this case awarded reasonable attorney fees and
costs to Ms. Pavon as the prevailing party pursuant to La. Code Civ. Pro. art. 971(B),
to be determined by the trial court on remand. Dr. Shelton asserts in this court that
the court of appeal erred in awarding Ms. Pavon attorney fees and costs as the
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prevailing party under La. Code Civ. Pro. art. 971(B), citing this court’s decision in
Jeansonne v. Roy, 14-0729 (La. 6/30/14), 147 So.3d 1116, and arguing the trial court
had properly granted his special motion to strike. Ms. Pavon distinguishes
Jeansonne, arguing this court reversed the award of attorney fees in Jeansonne
because the appellate court itself had fixed the amount rather than remanding the
matter to the district court for it to determine reasonable attorney fees and costs.
We do not find Jeansonne necessarily instructive on this issue. There, the
plaintiff sued an attorney and a funeral home alleging the attorney, by misleading
the court, had improperly orchestrated an exhumation of the plaintiff’s daughter for
an autopsy. The trial court sustained the defendant attorney’s exception of no cause
of action, but denied the defendant attorney’s Article 971 special motion to strike
the allegations against him and accompanying request for attorney fees. The court
of appeal affirmed the trial court’s ruling sustaining the exception of no cause of
action, but reversed the trial court’s denial of the special motion to strike and
awarded attorney fees in the amount $2500. This court denied the plaintiff’s writ
application, but granted the application in part to reverse the award of attorney fees,
stating the court of appeal had erred in awarding attorney fees pursuant to Article
971. Because the Jeansonne court did not explain the basis of its ruling, we find it
of little value as to whether attorney fees in the instant case were properly awarded
by the court of appeal, to be determined on remand by the trial court.
In the instant case, Dr. Shelton filed a special motion to strike Ms. Pavon’s
allegations against him; the trial court granted Dr. Shelton’s motion and awarded
him attorney fees and costs. The appellate court reversed that ruling, finding that Dr.
Shelton had not met his initial burden of proof because the statements in question
were not made in furtherance of his right to petition in connection with a public
issue. Shelton v. Pavon, 16-0758, p. 11, 212 So.3d at 611 Other than citing
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Jeansonne and arguing that he should have prevailed, Dr. Shelton makes no other
argument in his brief regarding attorney fees and costs. Accordingly, we decline to
review the matter further. Because Ms. Pavon was ultimately “a prevailing party”
on the Article 971 special motion to strike, we find the court of appeal correctly
awarded her reasonable attorney fees and costs, to be determined by the trial court
on remand. See Yount, p. 14, 171 So.3d at 390.
CONCLUSION
After reviewing the applicable law, we hold that La. Code Civ. Pro. art.
971(F)(1)(a), which states that “[a]ny written or oral statement or writing made
before a legislative, executive, or judicial body” is an “[a]ct in furtherance of a
person’s right of petition or free speech … in connection with a public issue,” must
nonetheless satisfy the requirement of La. Code Civ. Pro. art. 971(A)(1), that such
statements be made “in connection with a public issue….” We therefore conclude
the court of appeal was correct in reversing the trial court’s ruling granting Dr.
Shelton’s special motion to strike, and in awarding reasonable attorney fees and
costs to Ms. Pavon as the prevailing party, to be determined by the trial court on
remand. Accordingly, the judgment of the court of appeal is affirmed.
AFFIRMED
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10/18/17
SUPREME COURT OF LOUISIANA
NO. 2017-CC-0482
PHILIP SHELTON
VERSUS
NANCY PAVON
ON WRIT OF CERTIORARI TO THE COURT OF APPEAL,
FOURTH CIRCUIT, PARISH OF ORLEANS
WEIMER, J., dissenting.
Because I find that the language of La. C.C.P. art. 971 is clear and
unambiguous, and its application does not lead to absurd consequences, I respectfully
dissent.
The issue presented in this case is whether a defendant,1 moving specially
under La. C.C.P. art. 971 to strike a plaintiff’s demand for defamation, arising out of
a written statement made in a judicial proceeding, must additionally demonstrate that
the statement concerned an issue of public significance. The majority answers this
question in the affirmative. I disagree, believing the conclusion is supported neither
by the plain language of the article, the rules of statutory construction, nor the
expressed intent of the legislature.
Plain Language
As the majority acknowledges, the interpretation of a legislative enactment
begins with the language of the statute itself. Shelton v. Pavon, 17-0482, slip op. at
4 (La. 10/18/17); Duckworth v. Louisiana Farm Bureau Mutual Ins. Co., 11-2835,
p. 12 (11/2/12), 125 So.3d 1057, 1064.
1
Although, technically, this matter involves a plaintiff-in-reconvention and a defendant-in-
reconvention, for simplification, we use plaintiff and defendant.
In this case, the language of La. C.C.P. art. 971 is strikingly clear. It
encompasses the plaintiff’s claim for defamation arising out of written statements
made in a judicial proceeding without any separate “public issue” requirement.
Louisiana C.C.P. art. 971(A) makes subject to the special motion to strike “[a]
cause of action against a person arising from any act of that person in furtherance of
the person’s right of petition or free speech under the United States or Louisiana
Constitution in connection with a public issue.” For purposes of this provision, an
“‘[a]ct in furtherance of a person’s right of petition or free speech under the United
States or Louisiana Constitution in connection with a public issue,’” is defined to
include “[a]ny written or oral statement or writing made before a legislative,
executive, or judicial proceeding, or any other official proceeding authorized by law.”
La. C.C. P. art. 971 (F)(1)(a) (emphasis supplied). Thus, plainly read, La. C.C.P. art.
971 encompasses a cause of action against a person arising from any statement made
in a judicial proceeding. I find there is nothing ambiguous about this language.
Apart from noting there is a split among the courts of appeal as to the proper
interpretation of the code article, no authority, legal or grammatical, is provided for
the conclusion that the language of La. C.C.P. art. 971(F)(1)(a) is ambiguous. Quite
the opposite: the finding of ambiguity results solely from the decision of some courts
to insert qualifying language not present in La. C.C.P. art. 971(F)(1)(a)–the phrase
“in connection with a public issue”–to otherwise clear and straightforward language.
Perhaps recognizing the thin thread upon which the finding of ambiguity rests,
the conclusion reached in the opinion is that a literal reading of the codal provision
“can lead to absurd results” because its application could extend beyond matters of
“public significance” into purely private concerns. Shelton, slip op. at 8. However,
the legislative response to this objection is found in the plain language of the
2
provision itself: pursuant to La. C.C.P. art. 971(F)(1) and (1)(a), any written or oral
statement or writing made before or in connection with a judicial proceeding is by
definition an “[a]ct in furtherance of a person’s right of petition or free speech under
the United States or Louisiana Constitution in connection with a public issue.”
(Emphasis added). As noted by Judge McDonald in his concurrence in Aloise v.
Capital Mgmt. Consultants, Inc., 16-1174, p. 1 (La.App. 1 Cir. 4/12/17), unpub’d.,
and quoted by the majority:
Article 971(F)(1)(a) and (b) statutorily define a protected act to include
statements made before a judicial proceeding or in connection with an
issue under consideration by a judicial body–that is, statements made
during the course of litigation or in connection with an issue under
consideration in litigation. So, it appears that the right to litigate is in
itself a matter of public concern.
Id., McDonald, J., concurring.
In other words, the language of La. C.C.P. art. 971(F)(1)(a) and (b), reflects a
clear choice by the legislature in these two provisions to define a “public issue” in
terms of setting or context rather than content. Thus, under La. C.C.P. art.
971(F)(1)(a), it is the setting–in this case, a judicial proceeding–that makes the issue
a public one. There is no additional requirement that the statement relate to an issue
of public significance.
This is, incidentally, consistent with, and reflects the legislature recognizing
the special protection that has been afforded statements made in the course of judicial
proceedings. That protection is embodied in the qualified privilege that exists in
Louisiana with respect to such speech.2 It is also reflective of a legislative
2
“Statements made in the course of a judicial proceeding are subject to a qualified privilege if the
statements are material to the proceeding, and are made with probable cause and without malice.”
Costello v. Hardy, 03-1146, p. 16 n.13 (La. 1/21/04), 864 So.2d 129, 142 n.13 (citing Freeman v.
Cooper, 414 So.2d 355 (La. 1982)).
3
recognition that any matter pending before the judiciary possesses some measure of
“public significance” owing to the public nature of judicial proceedings.
Thus, a plain reading of the language of La. C.C.P. art. 971(F)(1)(a)
demonstrates that the article does not limit its application to the content or context of
statements made in the course of judicial proceedings, but applies to any statement.
Rules of Statutory Construction
My conclusion in this regard is buttressed by the rules of statutory construction.
Louisiana C.C.P. art. 971(F)(1) lists four protected acts that are included within the
definition of an “[a]ct in furtherance of a person’s right of petition or free speech
under the United States or Louisiana Constitution in connection with a public issue.”
In addition to the acts protected under La. C.C.P. art. 971(F)(1)(a) and (b), protection
is extended under La. C.C.P. art. 971(F)(1)(c) and (d) to:
(c) Any written or oral statement or writing made in a place open
to the public or a public forum in connection with an issue of public
interest.
(d) Any other conduct in furtherance of the exercise of the
constitutional right of petition or the constitutional right of free speech
in connection with a public issue or an issue of public interest.
[Emphasis added.]
Clauses (c) and (d) of La. C.C.P. art. 971(F)(1) include an express “issue of
public interest” limitation that is not present in either clause (a) or (b).3 Certainly, had
the legislature intended the “issue of public interest” limitation to apply to clauses (a)
3
La. C.C.P. art. 971(F)(1)(a) and (b) protect, by contrast:
(a) Any written or oral statement or writing made before a legislative,
executive, or judicial proceeding, or any other official proceeding authorized by law.
(b) Any written or oral statement or writing made in connection with an issue
under consideration or review by a legislative, executive, or judicial body, or any
other official body authorized by law.
4
and (b) of the article, the legislature knew how to include such a limitation. However,
the legislature did not include such a limitation.
If the legislative intent, as expressed in 1999 La. Acts 734, § 2, was to impose
a separate and additional “public issue” requirement to motions brought under all four
clauses of La. C.C.P. art. 971(F)(1), then no purpose would be served by the
legislature’s specification in clauses (c) and (d) that the protected acts must be “in
connection with an issue of public interest.”
It is a cardinal rule of statutory interpretation that, because it is presumed every
word, sentence, or provision in a law was intended to serve some useful purpose,
some effect is to be given to each such provision, and no unnecessary words or
provisions were employed by the legislature. See Moss v. State, 05-1963, p. 15 (La.
4/4/06), 925 So.2d 1185, 1196. Thus, courts are bound, if possible, to give effect to
all parts of a law and to construe no sentence, clause or word as meaningless or
surplusage if a construction giving force to, and preserving, all words can legitimately
be found. See Id. A contrary interpretation in this case is at odds with this rule of
statutory construction, as it renders the phrase “in connection with an issue of public
interest” in La. C.C.P. art. 971(F)(1)(c) and (d) meaningless and mere surplusage.
Believing that the legislature included the phrase in clauses (c) and (d) for some
definite purpose, I cannot support an interpretation that would render that phrase
meaningless when there is a reasonable interpretation of the language that would give
it meaning. Nor do I believe that it is necessary or appropriate to embark on such a
course in order to honor the legislative intent.
Legislative Intent
The Act that created La. C.C.P. art. 971 contains an express declaration of
legislative intent. The pertinent provision in that statement of intent recites: “[I]t is
5
the intention of the legislature that the Article enacted pursuant to this Act shall be
construed broadly.” 1999 La. Acts 734, § 2. The interpretation offered in the
majority opinion has the opposite effect, narrowing the application of the article by
requiring proof of an additional element: that statements made in a judicial
proceeding must be made in connection with a “public issue.” However, as discussed
above, there is no support for this narrow construction in the plain language of the
article.
Nevertheless, the declaration is made that the broad construction directed by
the legislature would produce an “absurd” result because “any party could defame or
invade the privacy of a person involved in a divorce proceeding, traffic violation,
child custody dispute, marriage, mortgage registration, passport application, or
driver’s licence renewal and be immunized from legal repercussions of damage to
others through the use of an extraordinary procedural remedy.” Shelton, slip op. at
8 (quoting Yount v. Handshoe, 14-0919, pp. 8-9 (La.App. 5 Cir. 5/28/15), 171 So.3d
381, 387, writ denied, 15-2302 (La. 2/19/16), 187 So.3d 462. With all due respect,
I cannot agree with this declaration.
Louisiana C.C.P. art. 971 “was enacted as a procedural device to be used in the
early stages of litigation to screen out meritless claims brought primarily to chill the
valid exercise of the constitutional rights of freedom of speech and petition for
redress of grievances.” Thinkstream, Inc. v. Rubin, 06-1595, p. 9 (La.App. 1 Cir.
9/26/07), 971 So.2d 1092, 1100. Rather than immunize a person from the legal
repercussions of statements defaming or invading the privacy of another, its
application requires a two-part burden-shifting analysis: “the mover must first
establish that the cause of action against him arises from an act ... in exercise of his
right of petition or free speech ... in connection with a public issue. If this burden is
6
met, the burden then shifts to the plaintiff to demonstrate a probability of success on
the claim.” Id.That the threshold showing of an act in furtherance of the right to petition or
free speech in connection with a public issue, as defined in La. C.C.P. art.
971(F)(1)(a) and (b), encompasses a broad range of situations does not mean the
application of clear and unambiguous language produces absurd consequences.
Indeed, it is not absurd to conclude (as the legislature obviously did) that judicial
proceedings, which are open to the public, present matters of public significance and
are deserving of protection from efforts to chill the right to petition or free speech in
connection therewith, or that it is appropriate, in light of the qualified privilege that
exists with regard to statements made in judicial proceedings, to allow the protection
that extends to such statements to be recognized at an early stage of the proceedings.
Parenthetically, it is worth noting that California was the first state to adopt an
anti-SLAPP statute and the Louisiana and California statutes are “virtually identical.”
Yount, 14-0919 at 10 and n.4, 171 So.3d at 387 and n.4. (“Examination of the
statutes shows that when adopted, the Louisiana and California statutes matched word
for word with only the State name changed.”) When the same question of statutory
construction presented herein was raised in California, its supreme court concluded,
in an opinion rendered prior to the enactment of La.C.C.P. art. 971, that “a defendant
moving to strike a cause of action arising from a statement made before, or in
connection with an issue under consideration by, a legally authorized official
proceeding [the equivalent of La. C.C.P. art. 971(F)(1)(b)] need not separately
demonstrate that the statement concerned an issue of public significance.” Briggs v
7
Eden Council for Hope & Opportunity, 969 P.2d 564, 575 (Cal. 1999).4 A similar
interpretation of “virtually identical” language in the Louisiana article can hardly be
said to produce absurd consequences.
In our civil law system, in which legislation is supreme, we must be careful not
to prematurely declare a result absurd when there is a reasonable construction of the
language that can avoid such a conclusion. Although La. C.C. art. 9 enables the
judiciary to abandon statutory language in instances in which an absurd result would
ensue from a literal application of the words, the judiciary should be hesitant to alter
the legislative will by doing so.
In this case, the clear and unambiguous language of La. C.C.P. art. 971, the
rules of statutory construction, and the declared legislative intent all support the
conclusion that a defendant moving to strike a cause of action arising from a
statement made in a judicial proceeding need not separately demonstrate that the
statement concerned a public issue. Therefore, I respectfully dissent from the opinion
to the contrary.5
4
But see, e.g., Felis v. Downs Rachlin Martin PLLC, 133 A.3d 836, 851-54 (Vt. 2015), in which
the Vermont Supreme Court declined to follow Briggs and reached a different conclusion with
respect to the statutory analysis.
5
While ordinarily a finding that the defendant met his initial burden of demonstrating that the cause
of action against him arises from an act in exercise of his right of petition or free speech in
connection with a public issue would require an evaluation of the affidavits submitted by the plaintiff
to determine whether those affidavits demonstrate a probability of success on the merits, because of
the majority’s resolution of this case on grounds that defendant did not meet his initial burden under
La.C.C.P. art. 971, and my dissent from that conclusion, I find it unnecessary to evaluate the
affidavits for purposes of this dissent.
8
10/18/17
SUPREME COURT OF LOUISIANA
No. 2017-CC-0482
PHILIP SHELTON
VERSUS
NANCY PAVON
ON WRIT OF CERTIORARI TO THE COURT OF APPEAL
FOURTH CIRCUIT, PARISH OF ORLEANS
CLARK, Justice, dissenting
I dissent for the reasons given by Justice Weimer.
10/18/17
SUPREME COURT OF LOUISIANA
No. 2017-CC-0482
PHILIP SHELTON
V.
NANCY PAVON
ON WRIT OF CERTIORARI TO THE COURT OF APPEAL,
FOURTH CIRCUIT, PARISH OF ORLEANS
Hughes, J., dissents with reasons.
I respectfully dissent and would reinstate the judgment of the trial court, who
in my opinion handled this matter exactly right. The Legislature was very specific
in writing the law and in my opinion addresses this situation perfectly. The law
allows the weeding out of frivolous claims or those interposed to delay or
intimidate, and does not lead to absurd consequences.
10/18/17
SUPREME COURT OF LOUISIANA
No. 2017-CC-0482
PHILIP SHELTON
VERSUS
NANCY PAVON
ON WRIT OF CERTIORARI TO THE COURT OF APPEAL,
FOURTH CIRCUIT, PARISH OF ORLEANS
CRICHTON, J., additionally concurs and assigns reasons.
I agree with the majority’s interpretation of La. C.C.P. article 971. I write
separately to make clear that, in my view, this outcome is consistent with the intent
of the legislature to make this procedure an extraordinary remedy. See La. C.C.P.
art. 971 Ann., Acts 1999, No. 734, § 2 (“The legislature finds and declares that it is
in the public interest to encourage continued participation in matters of public
significance, and that this participation should not be chilled through abuse of the
judicial process.”) (emphasis added). In the event the legislature intended otherwise,
it may of course amend the article to make clear that any pleading before a judicial
proceeding is, by definition, a “public issue” pursuant to C.C.P. art. 971(F)(a).
1