Tulsa Attorney BlogWashington County Judge Upholds Oklahoma Citizen Participation Act

Rogers Co. Cases Portend Free Speech Showdown

Tulsa Oklahoma libel attorneyA controversy that has simmered and at times raged among Rogers County officials since 2013 refuses to go away. It has become one of those “just when you thought it was over” things.

Voters have long since ousted former 12th Judicial District D.A. Janice Steidley in a landslide 2014 defeat. Two Rogers County commissioners have been indicted on various allegations referenced in a 2013 citizens petition seeking a grand jury investigation of the county commissioners and the District Attorney’s office. Charges related to alleged corruption by commissioners are winding through the courts.

Now, a Washington County judge has dismissed a libel lawsuit Steidley filed against petition sponsors and the Claremore newspaper. You might think that more or less settles at least the part of the controversy focused on citizens’ rights to petition for redress of grievances. It does not. That is probably not the end of that.

Several news organizations reported Steidley is likely to appeal the dismissal. That appeal will land in courts already tendering appeals in at least two similar cases. Those other cases also involve Steidley, some of the same defendants and a 2014 free speech law – the Oklahoma Citizens Participation Act (OCPA).

Steidley’s arguments against the preempitve February, 2016 dismissal of her case question the 2014 law legislators enacted to protect citizens who criticize public officials. Steidley says the law deprives her of a constitutionally guaranteed right to a jury trial.

The law further falls short of constitutional requirements because it changes rules of evidence in judicial proceedings for a special class of people, Steidley has argued in court filings.

“The OCPA does not create a special class or treat some public officials differently than others,” wrote Washington County Judge Robert Vaclaw.

Vaclaw dismissed Steidley’s case in a detailed order that explained the public’s right to criticize government officials. US law singles out government officials as fair targets for strong criticism, Vaclaw explained. The Washington County Judge heard the Rogers County case after two other judges asked that it be reassigned.

Yet Steidley does not allege that OCPA makes a special class only of public officials. Her pleadings argued that the law singles out people who file a certain kind of lawsuits. It creates “a small class of civil litigants – those advancing speech related claims,” she argued.

In support of her contention, Steidley cited the OCPA definition of a “[m]atter of public concern” for which fast-track motions to dismiss can scuttle libel actions on free speech grounds. The special class deprived of constitutional protected trial rights could include merchants, because matters of public concern include “a good, product or service in the marketplace.”

Whatever appeal Steidley advances on Vaclaw’s decision – along with a handful of other pending OCPA appeals – might settle some constitutional questions about legislator’s authority to codify constitutional protections by mandating judicial processes. If the law stands, appeals might not settle every looming question about the scope of Oklahoma’s newly coined free speech law.

An appeals court might conclude government officials libel claims against critics do not provide a reason to weigh whether the OCPA unfairly hampers manufacturers from suing critics of commercial products.

Fast Track Justice To Guard Free Speech

The Oklahoma Citizens Participation Act (OCPA) spells out a timetable for hearings and standards of proof at hearings when civil litigants allege they were targeted for constitutionally protected advocacy. It is intended to provides a fast track remedy for free speech defenses against libel claims.

Defendants who show by a “preponderance of evidence” that they were engaged in protected advocacy can have defamation cases against them dismissed. Plaintiffs can keep a defamation action alive by establishing “by clear and convincing evidence a prima facie case” for essential elements of their defamation actions. Oklahoma Attorney General Scott Pruitt’s office has joined defendants in several of the libel lawsuits, acting in an attorney general’s capacity to defend legislative actions against courtroom challenges.

Vaclaw’s decision highlighted what has become a bedrock element required for successful defamation actions by government officials. He cited New York Times v. Sullivan 376 U.S. 254 (1964), a case in which the Supreme Court excused minor factual errors in newspaper content critical of public officials in Southern states during the 1960s civil rights crisis.

The New York Times court – not the Oklahoma Citizens Participation Act (OCPA) – sets government officials apart for different treatment when it comes to free speech, Vaclaw wrote. Yet, while New York Times raises the bar for government officials’ defamation claims, it also establishes – in very general terms – where the bar is set.

Since New York Times, reckless disregard for truth is only a cause of action in government officials’ libel claims when falsehoods were advanced maliciously. Inadvertent errors in otherwise thoughtfully prepared criticism does not comprise libel against public officials. (It is otherwise generally understood that truth is a defense against defamation claims – although publication of true information might sometimes be an actionable invasion of privacy.)

As the 2014 Oklahoma free speech law is written, a public official’s defamation lawsuit might survive an OCPA hearing if the defendant claimed free speech but the official offered clear and convincing evidence that the speech was both false and intended maliciously.

Vaclaw noted that Steidely did not argue in his court the merits of her case against her critics when they requested an OCPA hearing. Steidley’s defamation pleadings otherwise allege the defendants acted maliciously, but she did not use the OCPA hearing as an occasion to establish that element of her case, as OCPA would seem to require.

Instead, Steidley’s OCDA arguments have targeted the merits of the law. She argues that she has a right to let a jury decide factual questions, and that the legislature cannot set different court procedures and different standards of evidence for particular groups of people.

Who Pays to Defend Free Speech against Libel Claims?

In an added twist, the judge also departed from Steidley’s arguments that a court would be required to make her pay defendants’ attorneys fees if the court dismissed her case under OCPA.

By Vaclaw’s order, assessment of attorneys fees seemed to be contingent on another section of the law, which allows a party to seek a ruling as to whether they had been targeted by a lawsuit intended to deter their exercise of constitutional rights for an “improper purpose.”

The judge did not find that Steidley had sued critics to harass, unnecessarily delay legal action or increase their litigation costs. With no such “improper purpose” he did not find a reason to award their attorney’s fees.

Steidley herself offered a strong argument to the contrary. The law says courts “shall” award attorneys’ fees to defendants if it dismisses a case on OCPA grounds, she pointed out. It does, but there is more to it.

By our reading, neither approach correctly interprets the law. The 2014 free speech law at Okla. Stat. tit. 12 § 1438 makes the award of fees contingent, “as justice and equity many require.” That last clause could arguably be the basis for not awarding fees to the winner where the court does not otherwise find a losing party brought a libel case for an improper purpose as prescribed in Okla. Stat. tit. 12 § 1438.

Yet justice or equity could suggest plaintiffs should pay defendants fees if, for arguments sake, they filed a defamation action to discourage criticism of government officials, beyond any other “improper purpose” defendants may ask courts to document.

However, the “justice and equity” contingency is not mentioned in the next subsection, which prescribes sanctions against a party whose defamation case is dismissed on free speech grounds. That section says a court “shall” impose sanctions to deter the party who brought the action from bringing similar actions described in the Oklahoma Citizens Participation Act.

Other Citizens Participation Act Appeals Pending

Two other pending appeals by defendants Steidley has sued also ask the Oklahoma Court of Civil Appeals to decide whether the Citizens Participation Act is an unconstitutional special law. Those appeals raise a third constitutional question – related to the Oklahoma Bill of Rights’ assurance that courts are open to provide everybody a “speedy and certain remedy.”

So far, district courts have returned widely divergent decisions on strikingly similar pleadings in strikingly similar OCPA cases. Among four defamation lawsuits Steidley filed against critics in Rogers County, one judge declined to hold an OCPA hearing, one denied a motion to dismiss on OCPA arguments and Vaclaw granted an OCPA motion to dismiss.

After Vaclaw dismissed Steidley’s 2015 lawsuit in February, 2016, some of the same defendants in a similar libel case sought an OCPA hearing. The court has not yet settled new OCPA pleadings in that case, brought by former Rogers County Commissioner Kirt Thacker against Rogers County sheriff Scott Walton and several defendants also named in Steidley’s cases.

Rogers County Sheriff Scott Walton was earlier dropped as a defendant in Steidley’s actions, but remains a named defendant in Thackers case.

Thacker was arrested in 2015 on embezzlement charges related to alleged misuse of county property. He alleges Walton and others maliciously defamed him when they petitioned for a grand jury investigation of his conduct.

Vaclaw joined a growing list of district judges, appeals courts judges and Oklahoma Supreme Justices who have now addressed OCPA motions out of Rogers County cases. Other actions have included procedural questions that asked appeals courts to require district courts to either hold OCPA hearings or enter default judgments so a case could advance to appellate courts.

Legislators adopted the law in 2014 after Steidley had leveled defamation complaints against the Claremore Daily Progress owners, newspaper staff, the Rogers County sheriff, a Claremore detective and several others who had publicly criticized her conduct in office. A looming question that sets some of the OCPA cases apart is whether procedures spelled out in the 2014 law can be applied retroactively.

In addition to constitutional questions particular to OCPA, appeals by the Claremore Daily Progress and others ask “Can a DA and two of her assistants consistent with the First Amendment, state constitution and statutory law use a libel suit to punish and/or silence critics?”

During an election cycle when candidates for President of the United States brashly exchange insults, calling other candidates losers and liars, it might seem improbable that Oklahoma courts are considering whether one public official can sue other officials and the media for circulating petitions, reporting on petitions or reporting allegations leveled against government officials. Nonetheless, such is the case, and the procedural questions raised about Oklahoma legislators’ efforts to codify constitutional protections are interesting, to say the least.

Free Consultation: Tulsa Criminal Defense Lawyer

For our purposes, it is an interesting question as to whether prosecutors can assert immunity from liability for bringing criminal charges that get tossed out of court, yet also be shielded from citizens’ allegations that public officials’ conduct might be criminal. Whatever Oklahoma appeals courts decide about OCPA might not be the end of that debate.

If you have been charged with a crime in Tulsa or anywhere in Northeast Oklahoma, and believe the prosecution might be tainted by public corruption, contact an Oklahoma criminal defense lawyer at Wirth Law Office for a free, confidential consultation. Call 918-879-1681 or send your question using the email form at the top of this page.

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