Wednesday, August 31, 2016
Ind. Courts - "Westfield residents sued after speaking at meeting"
Chris Sikich reports this afternoon in the Indianapolis Star about remonstrators being sued in Hamilton Circuit Court. From the story:
[Tracy] Pielemeier [was being sued by Houston-based Crown Castle, a cell phone company; she was] among several residents who had spoken in October against the company's petition to the local Board of Zoning Appeals to build a cell phone tower near 166th Street and Towne Road. The board denied the petition after hearing public testimony that it would look intrusive.ILB: Indiana has an anti-SLAPP statute to protect citizens in just this kind of situation. As the Indiana Court of Appeals wrote in 2003:
The company sued the board and the five remonstrators in Hamilton Circuit Court to reverse the decision.
"We were all just completely stunned," Pielemeier said, adding she felt Crown Castle was trying to intimidate them for speaking out.
The judge ultimately told the board to reconsider the decision and did not directly consider whether or not the remonstrators should have been named in the suit. But the remonstrators' lawyer, former Fishers Board of Zoning Appeals member Jeff Heinzmann, worries that including remonstrators in such lawsuits could make citizens hesitant to speak up at government meetings.
"The biggest concern I would have would be that if remonstrators start as a matter of routine getting sued by the petitioner who failed to get something approved, it would have a chilling effect on those who want to stand up and speak out," he said. * * *
Heinzmann himself had never heard of remonstratrators being sued in such a case and could find no such examples in subsequent searches.
SLAPP is an acronym for “strategic lawsuit against public participation.” Ketchum v. Moses, 17 P.3d 735, 737 (Cal. 2001), reh’g denied. The “anti-SLAPP” statutes, of which Indiana’s is typical, are intended to reduce the number of lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances. The statute protects, inter alia, direct petitioning of the government and petition-related statements and writings, whether or not the statement is made in connection with a public issue. Id. The special motion to strike provided for by the Indiana statute -- the so-called “anti-SLAPP” motion -- is subject to statutory fee shifting as follows: “A prevailing defendant on a motion to dismiss made under this chapter is entitled to recover reasonable attorney’s fees and costs.” Ind. Code § 34-7-7-7. The statute provides that such a motion to dismiss is to be handled by the trial court as a summary judgment motion. Id. § 34-7-7-9.IC 34-7-7, which was enacted in 1998 and hasn't been amended since that time, is headed "Chapter 7. Defense in Civil Actions Against Persons Who Act in Furtherance of the Person's Right of Petition or Free Speech Under the Constitution of the United States or the Constitution of the State of Indiana in Connection With a Public Issue."
See also this Jan. 23, 2012 ILB post, quoting an Indianapolis Star editorial opposing a bill, "under which agricultural operations, such as large confined livestock complexes, would be guaranteed payment of their legal fees if found to be victims of nuisance lawsuits." The editorial concludes [ILB emphasis]:
The costs, benefits and regulation of this large and controversial industry are subject to continual debate. Closing the courthouse door to opponents, even indirectly, has no place in that political process and no warrant under our tradition of free speech.
State government said as much more than a decade ago when it banned so-called SLAPP (Strategic Lawsuit Against Public Participation) legal actions that have been taken by businesses such as landfills and power plants against remonstrators. Pre-empting these protests by onerous lawsuits has been found by Indiana and most other states to be unconstitutional and plain unfair. HB 1091 carries the same foul aroma.
Posted by Marcia Oddi on August 31, 2016 06:56 PM
Posted to Indiana Courts