Jacob v. Bezzant

212 P.3d 535

2009 UT 37

William T. JACOB, an individual; Commercial Properties, Inc., a Utah corporation; and Phillips Manufacturing Company, Inc., a Utah corporation, Plaintiffs and Appellants, v. B. Brett BEZZANT, an individual; Newtah, Inc., dba American Fork Citizen New Utah, a Utah corporation; and Does I-X, Defendants and Appellees.

No. 20060856.

Supreme Court of Utah.

June 16, 2009.

Randall K. Spencer, Jennifer K. Gowans, Provo, for plaintiffs.

Jeffrey J. Hunt, David C. Reymann, Salt Lake City, for defendants.

NEHRING, Justice:

INTRODUCTION

¶ 1 William Jacob appeals a district court ruling that summarily dismissed his defamation action against Brett Bezzant. The central legal issue which we will resolve is whether Utah's Citizen Participation in Government Act, Utah Code Ann. §§ 78B-6-1401 to -1405 (2008),¹ also known as the Anti-SLAPP Act,² shields Mr. Bezzant from Mr. Jacob's claims. We disagree with the district court and hold that it does not. We were also asked to examine the district court's award of attorney fees to Mr. Bezzant and its dismissal of Mr. Jacob's defamation action. We reverse the district court's award of fees under the Anti-SLAPP Act but affirm the district court's dismissal of Mr. Jacob's defamation action and the award of attorney fees under 42 U.S.C. § 1988(b). Finally, we were asked to address whether Utah's Anti-SLAPP Act violates the open courts clause of the Utah Constitution. Because Mr. Jacob raised this argument for the first time on appeal and because nothing in the argument meets the threshold of exceptional circumstances, we will not address this issue.

BACKGROUND

¶ 2 In 1992, American Fork City adopted Ordinances No. 92-05-20 and 92-05-21, which govern city employees. The ordinances stirred debate over whether they prohibited certain city employees from holding a seat on the city council. In 1997, the American Fork City attorney submitted a legal opinion to city officials concluding that the ordinances did not bar city employees from running for seats on the city council. The city attorney's legal opinion did not, however, end the debate in the minds of some, including Mr. Jacob. In 1999, Tom Hunter, who had served as a health insurance consultant for American Fork City, and Rick Storrs, who was an EMT working part-time for the city's ambulance service, decided to seek seats on the city council. The presence of Mr. Hunter's and Mr. Storrs' names on the ballot sparked controversy from those, including Mr. Jacob, who believed that the men's relationships with the city created conflicts of interest of such a degree that both should be disqualified from seeking office. Once the objections to their candidacies became known, Mr. Hunter and Mr. Storrs sought and received the city council's permission to continue their quests for seats on the council. Newspapers published articles about the potential conflicts of interest, opinions were voiced about the topic to the city council, and citizens publicly questioned Mr. Hunter about the issue.

¶ 3 Approximately a week before the election, Mr. Jacob prepared and paid for a political advertisement flyer in the American Fork Citizen New Utah!, a local weekly newspaper. Mr. Jacob's advertisement appeared in the Citizen's last issue before the election and claimed that, notwithstanding the city attorney's opinion and the city council's blessing of their candidacy, the ordinances prohibited Mr. Hunter and Mr. Storrs from holding office as city council members because they were city employees. The advertisement did not contain Mr. Jacob's name but instead was titled, "Nonpartisan Citizens Group Information Bulletin."

¶ 4 When Mr. Hunter and Mr. Storrs saw Mr. Jacob's advertisement, they complained to the Citizen's editor, Mr. Bezzant. Mr. Hunter and Mr. Storrs felt the advertisement contained false information and were frustrated because they would not have the opportunity to rebut it in the Citizen prior to the election. Mr. Bezzant then paid for and published an "Urgent Election Notice," which contained an apology to Mr. Hunter and to Mr. Storrs and reasserted that the ordinances did not bar the men's eligibility to run for the city council. The Election Notice also disclosed Mr. Jacob's identity as the author of the advertisement. Mr. Jacob claimed that the following four excerpts contained defamatory language.

(1) In fairness to Mr. Hunter and his candidacy, New Utah! apologizes for distributing this flyer without giving Mr. Hunter the opportunity to respond to what we believe is false and misleading information regarding his service to American Fork City.

(2) Mr. Jacob's flyer is falsely labeled as a "nonpartisan" group. Since American Fork no longer has political parties, there is no such thing as a "nonpartisan" group.

(3) Unfortunately, this flyer is a classic example of negative campaigning intended to hurt one candidate in order to favor another. We believe it hurts the entire process.

(4) Again, we apologize to Candidates Hunter and Storrs for distributing this misinformation.

Mr. Bezzant had the Election Notice distributed by mail and hand delivery to American Fork residents, which included the mayor and the city council members. Additionally, Mr. Bezzant posted the Election Notice on the newspaper's website. After receiving Mr. Jacob's bulletin, but before the print copy of Mr. Bezzant's Election Notice was circulated, a citizen attempted to bring up the subject of Mr. Jacob's bulletin during the public comment period of a city council meeting regarding fire and ambulance services but was specifically informed that no questions on the subject would be entertained.

¶ 5 Mr. Hunter and Mr. Storrs both won seats on the city council. After the election, Mr. Jacob sued Mr. Bezzant for defamation. After a series of motions, Mr. Bezzant responded to Mr. Jacob's Amended Complaint by asserting in his Answer and Counterclaim that he was shielded from liability by Utah's Anti-SLAPP Act. Utah Code Ann. §§ 78B-6-1401 to -1405 (2008). More motions followed, including a rejected attempt by Mr. Jacob to remove the case to federal court. It was not until 2004 that the district court issued its opinion granting Mr. Bezzant's Motion for Judgment on the Pleadings and/or Motion for Summary Judgment and denying Mr. Jacob's Motion to Dismiss Counterclaim. The court noted the following in its holding that Mr. Jacob violated the Anti-SLAPP Act:

[T]he evidence presented to this Court intimates that Jacob filed the litigation at issue for the purpose of chilling Bezzant's political speech and thereby preventing or interfering with Bezzant's proper participation in the process of government. The lengthy procedural history set forth in ... this opinion supports the proposition that Jacob intended to use this litigation as a means of punishing Bezzant for Bezzant's publication of the political speech contained in the election notice.

Following the dismissal of Mr. Jacob's claims, only Mr. Bezzant's counterclaims remained. Mr. Bezzant then filed a Motion for Partial Summary Judgment in which he sought an award of attorney fees and costs under Utah Code section 78B-6-1405(1)(a). The district court granted Mr. Bezzant's motion. Consistent with our decision in Anderson Development Co. v. Tobias, 2005 UT 36, ¶ 48, 116 P.3d 323, the district court only awarded fees and costs that were incurred after the effective date of the Anti-SLAPP Act, which was April 30, 2001. Mr. Jacob now appeals to us for relief. We have jurisdiction to hear this matter under the authority granted us in Utah Code section 78A-3-102(3)(j) (2008).

DISCUSSION

¶ 6 Mr. Jacob asks us to review five issues. These are (1) whether Mr. Bezzant's Election Notice was "participat[ion] in the process of government" and thus shielded by the Anti-SLAPP Act, Utah Code Ann. §§ 78B-6-1401 to -1405 (2008); (2) whether the district court erred in awarding attorney fees and costs to Mr. Bezzant under the Anti-SLAPP Act; (3) whether the district court abused its discretion when it awarded Mr. Bezzant attorney fees as the prevailing party on a civil rights claim under 42 U.S.C. § 1988; (4) whether the district court erred in dismissing Mr. Jacob's claims of defamation and false light because he failed to state a claim; and (5) whether Utah's Anti-SLAPP Act is unconstitutional as applied to this case under the open courts clause of the Utah Constitution. We will address each of these issues in turn.

I. UTAH'S ANTI-SLAPP ACT DOES NOT SHIELD MR. BEZZANT FROM MR. JACOB'S LAWSUIT

¶ 7 By its terms, Utah's Anti-SLAPP Act applies to an action that is "primarily based on, relates to, or is in response to an act of the defendant while participating in the process of government." Utah Code Ann. § 78B-6-1403(1) (2008). The Act defines process of government as "the mechanisms and procedures by which the legislative and executive branches of government make decisions, and the activities leading up to the decisions, including the exercise by a citizen of the right to influence those decisions under the First Amendment to the U.S. Constitution." Id. § 78B-6-1402(5).

¶ 8 At its core, Mr. Jacob's claim on appeal is that Utah's Anti-SLAPP Act does not apply to his suit against Mr. Bezzant. The district court held that "Jacob filed the litigation at issue for the purpose of chilling Bezzant's political speech and thereby preventing or interfering with Bezzant's proper participation in the process of government." The district court found that the Anti-SLAPP Act applied, impliedly holding that political speech was participation in the process of government. Whether the definition of process of government includes all political speech is a question of statutory interpretation. We review questions of statutory interpretation for correctness without giving any deference to the lower court's holding. Carter v. Univ. of Utah Med. Ctr., 2006 UT 78, ¶ 8, 150 P.3d 467.

¶ 9 When the district court ruled on this...