John Drabik opened his mouth about a developer's plans in Draper and got slapped.
Slapped, as with a lawsuit. And SLAPP-ed with what legal experts are calling a chilling threat to American democracy -- lawsuits aimed at people exercising their right to petition local government."If the goal was to limit my involvement in politics in Draper, this suit has already succeeded," Drabik said before turning over all other questions about the suit to his attorney.
"These are so heinous. They are intended to chill, and they do," said Penelope Canan, associate professor of sociology at the University of Denver. She coined the SLAPP acronym, which stands for "strategic lawsuits against public participation," as a way to describe a strategy often used by developers to silence their opposition.
It's a real threat to democracy, Canan said.
Nonsense, say developers and their attorneys. Their clients have every legal right to haul into court loudmouths and busybodies who raise false claims, cost developers time and money and ruin reputations.
Free speech has limitations, said Michael Hutchings, a former judge and business partner with Anderson Development, a company suing several South Jordan residents. The residents, the suit claims, tried to interfere with the company's real-estate deal. There's nothing in the First Amendment that allows them to do that, Hutchings said.
A SLAPP is generally a civil complaint, filed against individuals or organizations, arising from their communications to government on an issue of public concern.
Canan and University of Denver law professor George Pring have examined 100 SLAPPs and say they are evidence of a legal trend that has been growing since the 1980s. Their research resulted in a 1996 book "SLAPPs: Getting Sued for Speaking Out." It highlighted cases where people were being sued for circulating petitions, testifying at public hearings, writing letters to the editor and even signing an attendance sheet at meetings.
Consider these local lawsuits:
Drabik, a member of the Corner Canyon Neighborhood Association in Draper, protested a proposed residential development. The developer retaliated with a $45,000 lawsuit, plus punitive damages for defamation and interference with contracts or business.
Bonnie Callis, chairwoman of Concerned Families of Provo, testified and circulated a petition against a proposed housing plan on the benches above Seven Peaks water resort. The developer sued the city and 100 John and Jane Does for $12 million, claiming economic losses.
Janalee Tobias, Judy Feld and Brent Foutz, founders of the grass-roots group Save Open Space, petitioned against a developer's plans to put a business park along the banks of the Jordan River in South Jordan. The developer filed a $1.2 million lawsuit for business interference.
The litigation sends a message to people who oppose developers: Shut up or get sued.
Utah Supreme Court Justice I. Daniel Stewart said there are several cases in Utah that could be characterized as SLAPPs but because they are pending, he didn't want to comment.
But he previously has said he's concerned by the chilling effect that developers' lawsuits could have on public participation. Residents do have a right to voice opinions at public hearings, he said during an appeal case this summer before the state Supreme Court.
In 1991, the U.S. Supreme Court determined that SLAPPs violate the Constitution. The justices ruled that as long as a defendant's activities are aimed at influencing some government action, they are protected by the petition clause of the First Amendment.
As a result, the majority of SLAPPs get thrown out of court. But it can take years to get them dismissed and can bankrupt defendants.
Eighteen states have passed anti-SLAPP laws intended to get a quick ruling from judges on such issues. Utah isn't among them. At least not yet.
"There is clear opposition to this kind of law in the Legislature, but I'm looking at trying again next session," said Sen. Mont Evans, R-Riverton, whose bill last January died before it could make it out of committee. "There are already some laws on the books about frivolous lawsuits, and we want to make sure the law is meaningful in relationship to that."
Last time, the proposed legislation was opposed by the Utah Trial Lawyers Association.
"The concern we had initially was that the bill was too broad," said association vice president Edward Havas. "SLAPP suits are designed to be intimidating and expensive, but we don't want a new law to be used as a weapon against claims that are legitimate."
Basically, Evans' bill would make it easier for judges to dismiss lawsuits if there's no merit to them.
Havas said Evans has tweaked the language in his bill, and the association will now take a neutral position on it in the future.
But both the Legislature's Judicial Rules Review Committee and the Utah Supreme Court Subcommittee on Rules of Civil Procedure have looked at the proposal and do not endorse it.
Advocates for an anti-SLAPP bill fear lawmakers, many of whom work in real estate or who are attorneys for developers, will never pass this kind of legislation.
Drabik's attorney, Andrew Morse, says his client was only doing his duty as a member of a local neighborhood association when he opposed developer David Mast's project in Draper.
"He was a volunteer member of an advisory body, acting in that role," Morse said. "He was critiquing a land-use application. Mr. Mast didn't like the critique, and so he filed suit."
Drabik is not being sued as an employee of the city but individually as a citizen.
"Anyone would feel threatened by this," Morse said. "They want him to be naked, to be exposed, and that's the big hammer they're using. It's a way to make a person feel vulnerable."
But the city of Draper has come to Drabik's defense, agreeing to pay for his legal fees.
And Drabik is slapping back with a $2 million lawsuit of his own.
"Now I ask you who's slapping who?" Mast said.
"Our complaint is for $45,000, just a portion of the millions it's cost me to change this development. And Drabik has a $2 million counterclaim."
Mast, also a resident of Draper, had intended to develop property at Traverse Hills for years with multifamily units.
"But the city forced us to meet with the neighbors, and the neighbors were in opposition to our development," he said. "Even though the city's master plan showed this area as multifamily, the City Council passed a resolution prohibiting it. So my density went from 12 units per acre to less than four."
Mast said he lost the buyer he had for the property and is scrambling to develop the property at a minimum of its potential.
"The land I originally purchased in good faith with the city's encouragement has led to a longer and much less profitable process than I ever expected."
'It chilled us'
The Provo case involving Callis is a $12 million lawsuit filed by Seven Peaks Development Corp. against the city and 100 John and Jane Does.
Although Callis hasn't been named in the lawsuit, she and seven others have been subpoenaed.
"It chilled us," Callis said.
Callis formed a group called Concerned Families of Provo and circulated a petition to oppose a proposal that would have allowed 51 acres on the benches above Seven Peaks water resort to be developed with a mixture of single-family, duplex, four-plex, six-plex and 20-plex condominiums.
The property, zoned for public facilities, is owned by Brent and Scott McQuarrie, who also own Seven Peaks.
When the City Council denied the zone change last year, the McQuarries sued.
In South Jordan, Tobias and Feld formed SOS in response to developer Gerald Anderson's plans to build six-story office buildings along the Jordan River bottoms, south of 10600 South.
Anderson owned about 86 acres with an option to buy 30 acres from landowner Boyd Williams.
The women wanted the property preserved and tried to persuade the landowner not to sell.
Hutchings says that's illegal.
Anderson fired off a letter, warning them of that.
Feld was unimpressed. "I thought, this is so ridiculous," she said. "I have my rights."
The City Council approved the project and a land swap that traded the Williams property for city park property.
Tobias and others bitterly fought the plans, launching seven lawsuits to stop it.
"This is a battle and not fought with bomb and bullets but letters and lawsuits," Tobias said.
In turn, Anderson sued Tobias and Feld and 20 John and Jane Does, claiming they have tried to break a real-estate deal Anderson had with Williams.
Brent Foutz, another SOS advocate, later was added to the lawsuit.
Developers have subpoenaed his mental health records. The lawsuit has cost him $15,000 to defend himself -- a huge chunk of his savings and income from a disability pension.
"It tore my marriage apart," he said.
His wife and father have petitioned the court to become guardians over Foutz in an attempt to stop him from fighting the development, saying he's become obsessed by it to the point of spending $3,000 to photocopy legal documents.
Jeff Walker, who is Anderson's attorney, said the developer wanted to file what could be construed as a SLAPP suit, but his legal team talked him into staying within the narrower contract issue.
"We've tried to keep the case within the boundaries," Walker said. "We could have done a SLAPP. It's legal in Utah. But it's not appropriate."
A fundamental right
No developer interviewed for this story claimed he was filing a SLAPP suit.
Mast says he has legitimate claims of defamation against Drabik.
"And what message does it send to future developers when the city of Draper will let anybody lie about a project and defend such actions?" he said.
At least one member of the Draper neighborhood association said Mast's actions have been intimidating.
"We'd informally polled our neighbors, and they had legitimate concerns about a development. So did I," Travis Soto said. "But I was afraid if I voted against it, I would also be sued. Honestly, I was intimidated. So I voted for approval."
The only solution, says Canan, is to SLAPP-back, like Drabik has.
Businesses and their lawyers must be assured that they can be SLAPP-ed back hard with stiff judgments for filing frivolous suits, she said.
"Citizens groups around the country are suing back and winning large damage awards," Canan said. "Juries understand the value and right to participate in government and they are outraged that someone would take it away from them."
Locally, Utah's chapter of the American Civil Liberties Union is taking note of SLAPP suits, too.
"We've been following some local cases and have decided that if somebody comes to us, we'd be interested in taking (their case) on," director Carol Gnade said.
Free speech is a fundamental right, added Canan. Government can't work if its citizens are intimidated.
"If you can't speak to government without fear," she said, "then you do not have democracy."
Brent Foutz couldn't agree more.
The lawsuit has had an impact on his life -- his savings, his marriage, his reputation, Foutz said. But he keeps fighting, on principle.
"It's the same effect as if someone put a gun to your head," Foutz said.
Added Feld: "If you say one word, you're dead."