Nevada Supreme Court Applies Anti-SLAPP Law to Federal Claims
On November 25, the Nevada Supreme Court, holding that the state’s anti-SLAPP law was “neutral and procedural,” and did not conflict with any federal interests, applied the anti-SLAPP law to dismiss federal discrimination and First Amendment claims brought in state court by a former Douglas County School District (DCSD) employee.
Greg John, a security officer at DCSD, became the subject of an investigation by the school district in 2003. John had edited surveillance tape to produce works depicting special education students, over which he narrated sexual content. He showed these videos to others in the school. John had also been the subject of a sexual harassment allegation, and one member of the security force had resigned because of John’s unprofessional conduct, including egregious racially and sexually derogatory remarks about students and staff. The school district’s investigation culminated in a two-week unpaid suspension and mandatory sexual harassment and anger management classes. The district also relieved John of his surveillance video duties, which he protested.
John filed a complaint with the EEOC, alleging that the investigation had arisen from the school’s discrimination against him. John alleged his disability, alcoholism, and his religion, Protestant Christian, had made him the target of discrimination. The EEOC found no violations, and at the conclusion of the EEOC investigation, John filed a lawsuit in Nevada state court against DCSD, alleging discrimination and violation of his first amendment rights, claiming that his protest against being taken off camera duty was protected first amendment speech, and that he was fired for exercising his right to such speech.
Further, John alleged defamation based on statements made in the investigation proceedings. He named a teacher’s aide as a defendant because she reported during a DCSD investigation that John had sexually harassed her, and named the vice principal of Douglas High School as a defendant, alleging that the vice principal discriminated against John based on John’s Protestant religion by assisting in the DCSD’s investigations. Finally, John named the former DCSD security officer who had reported to the DCSD during his exit interview that John’s unprofessional conduct had caused him to resign.*
Each of the defendants filed for dismissal under Nevada’s anti-SLAPP statute. The trial court dismissed all claims. On appeal at the Nevada Supreme Court, John argued that the DCSD was not a government body for purposes of the Nevada anti-SLAPP law, and that the Nevada law could not apply to federal claims in state court.
The Nevada Supreme Court disagreed. The court found that Nevada’s anti-SLAPP statute is a neutral procedural statute that only protects citizens from civil liability arising from good-faith communications to a government agency, and that, thus, Nevada’s anti-SLAPP statute is not an absolute bar against federal substantive claims. Because the law allows meritorious claims arising from bad-faith petitioning, the court reasoned, it does not conflict with federal law, and is in fact analogous to rules of federal procedure that are designed to weed out meritless cases before trial.
After holding that the Nevada law could apply to the federal claims at issue, the Court affirmed the dismissal of the federal claims, holding that John had failed to rebut any of the evidence DCSD had provided to support its position that its investigation and communications were protected under the anti-SLAPP statute. The court held that the evidence the DCSD had submitted, including John’s letter of discipline, and the responsive memorandum regarding John’s EEOC complaint, contained sufficient proof of good faith petitioning activity to shift the burden to John. John, however, failed to provide any evidence that any communications were untruthful or made with knowledge of falsehood, and so the Supreme Court affirmed that the complaint was properly dismissed.
The Nevada anti-SLAPP law allows a SLAPP defendant to bring a separate action (known as a SLAPPback) to recover compensatory damages, punitive damages and attorney’s fees, as well as the costs of bringing the separate action.
The determination that an anti-SLAPP law is procedural operated to protect speech in this case. And certainly, that is the right result – the teacher’s aide who reported sexual harassment during the course of a government investigation should not have to fear a defamation lawsuit for her comments, and nor should any school employees who participate in an investigation of, in this case disturbing wrongdoing, of a public employee. The Nevada court’s decision in this case is similar to that in the California case Bradbury v. Superior Court, 57 Cal. Rptr. 2d 207, 213 (Ct. App. 1996), where the court applied California’s anti-SLAPP statute to a federal civil rights claim because it viewed the statute’s provisions as procedural in nature.
But, the same determination that anti-SLAPP laws are procedural in nature has worked to deny protection to some speech. The federal district court in Massachusetts held in Stuborn Ltd. Partnership v. Bernstein, 245 F.Supp.2d 312 (D. Mass. 2003)(Lexis Nexis document), that the Massachusetts anti-SLAPP statute is a “mere matter of procedure” and therefore not applicable to state or federal claims in federal court.
The proposed Citizen Participation Act incorporates both substantive and procedural protections to provide comprehensive, uniform protection for speech for state and federal claims in state and federal courts. The proposed Act creates qualified immunity for statements made to encourage a government result (petitioning statements), a substantive federal right. The proposed Act also affords procedural protections, including the ability to move for early dismissal, to stay discovery and to recover fees. These protections are afforded to both petitioning speech and speech in connection with an issue of public interest (even if not aimed to secure a government result), creating broad protection that encourages citizen participation.
*After John had commenced his lawsuit, the DCSD launched another investigation into John when it became known that he had improper access to confidential student disciplinary files. John refused to cooperate in this investigation. Based on that refusal and his other misconduct, the school district fired John.