Senate panel hears testimony from local man on SLAPP bill
February 16, 2005 - By SCOTT MILLER
JEFFERSON CITY — Laughter was the only response when a state senator dared anyone to testify in opposition to legislation that would expand the provisions of a law protecting Missouri residents from Stra-tegic Lawsuits Against Public Participation, or SLAPP suits.
"Does anybody dare to testify in opposition to the SLAPP bill?" asked Sen. Matt Bartle, R-Lee's Summit, during a public hearing last week in Jefferson City.
Bartle's challenge was greeted with laughter as those present had just heard testimony from an Oakville resident named in a lawsuit he alleges is a SLAPP suit aimed at stifling his free speech.
Bartle, chairman of the Senate Judiciary and Civil and Criminal Jurisprudence Committee, was referring to Senate Bill 232, legislation seeking punitive damages against plaintiffs who file lawsuits that the courts rule as attempts to chill public participation or free speech.
The legislation would expand a law en-acted last year providing for expedited legal hearings to dismiss SLAPP suits against people making statements at public hearings or meetings.
Oakville resident Tom Diehl and two of his attorneys traveled to the Capitol Feb. 7 to testify in favor of the legislation.
Fred Weber Inc. last year filed a lawsuit against Diehl, who publicly has opposed the company's efforts to construct a trash-transfer station in Oakville.
Fred Weber filed suit Feb. 20, 2004, in St. Louis County Circuit Court against Diehl and is seeking $5 million in punitive damages and at least $25,000 in actual damages. Diehl faces counts of slander, libel, civil conspiracy and business de-famation for his alleged association with fliers that were distributed in December 2003 identifying Fred Weber Inc. as "trash terrorists," according to claims made by the company in the suit.
Diehl's attorneys call the case a SLAPP suit aimed at curbing public opposition against Fred Weber, while Fred Weber officials contend they are defending the company's reputation.
The Eastern District of the Missouri Court of Appeals in December heard oral arguments and is considering dismissing the case, a motion the Circuit Court de-nied. A ruling is expected at any time.
"Tonight I come here as a target," Diehl told the committee. "As I speak, I am a target of a $5 million lawsuit. I am basically exhibit A of the SLAPP suit discussion. In fact, because of the litigation against me I'm not allowed to say all of the things I would like to say...
"On a personal level, since I have been a target, my family life is turned upside down," he continued. "My consulting bus-iness (fund-raising for non-profit organizations) has been practically ruined. I can't sleep. I'm so tired I can't find time to do the fun things I would normally do with my 8-year-old son.
"And as much as we try to shield the details of the lawsuit, we can see the fear in his eyes. I think for an 8-year-old to have to worry about what's happening to his parents, what's happening to his home is just not correct,'' Diehl added.
Diehl's wife, Barbi, said, "The emotional impacts on a family are tremendous. There's a lot of fear. The tax issues by a homeowner fighting a large corporation are horrendous. The expenses are high."
If the legislation is approved, any comment made during a public hearing or meeting would be immune from civil liability when made to persuade government action, according to the legislation.
If the court rules a case is a SLAPP suit, plaintiffs possibly could pay defendants triple damages, depending on the court's ruling. Businesses filing such suits also would lose tax credits on legal fee expenses, and plaintiffs could not dismiss their case once the defendant challenges it as a SLAPP suit.
Also, the state's attorney general could intervene and assume defense costs of any case he believes is a SLAPP suit.
"This will help level these David-vs.-Goliath situations," said state Sen. John Loudon, R-Ballwin, who sponsored the legislation.
Mike Quinlan, one of Diehl's attorneys, told the committee, "I think the advantages offered by the bill are that it makes the (appeals) process mandatory not discretionary... Personally I think this bill will put a lot more pressure on a trials judge to look at this with the appropriate degree of scrutiny. It will guarantee the losing party the opportunity for an immediate appeal, which protects not only people like Tom, who finds himself in the situation he's in today, but it will also protect (plaintiffs)."
No one spoke out against the legislation during the committee hearing last week in Jefferson City, but the proposal does have its critics.
Fred Weber attorney Gary Feder of Husch & Eppenberger told the Call when the proposal was introduced, "That (legislation) is going to make it free game for anyone to say anything they want to about a company just because they're seeking a government license or permit. Nobody's going to file any libel suit and there will be no protection against having their name slung around in the mud."
Feder is a lead attorney in the case against Diehl, which originally included unnamed John Does who had spoken at public hearings.
"When I read that certain John Does who had spoke out against this trash-transfer station were included in this lawsuit, it certainly struck me that Rep. Sue Schoemehl (D-Oakville), Rep. Jim Lembke (R-Le-may), County Councilman John Campisi (R-south county) and myself were certainly potential targets of that John Doe lawsuit as well," Rep. Walt Bivins, R-Oak-ville, told the committee.
"So I think these types of lawsuits certainly have a chilling effect on public participation,'' Bivins added.
Illustrating Bivins' concern that public officials could be sued, Creve Coeur City Councilwoman Laura Bryant also spoke in favor of Loudon's proposal.
"As an example of how far these (SLAPP) suits can go, I was sued in my capacity as an elected official and they went after my husband even though he had not said or done anything, all in an effort to get our joint assets," she said.
To assist with the costs of Diehl's lawsuit, anonymous residents have donated money.
"You would not believe the amount of anonymous cash donations that have come in," said Lester Stuckmeyer, an attorney for Diehl as well as the John Does.
A bunch of John Does last summer contributed $6,500 to assist Diehl.
More than 250 people showed up in support of Diehl during a "Rally for Free Speech" in early June at the Holiday Inn South County Center to raise money to assist in Diehl's court costs and attorney fees.
Senate committee members did not vote on the legislation last week, but only heard public testimony.