UOG Professor takes on Prop B scare tactics

For the Court of Public Opinion

Interests of Amicus Curirae

See Appendix A

1. Proposal B involves an exercise in direct democracy and government

2. Is this litigation a SLAPP Suit?

1. SLAPP Suits Defined in Guam Law
2. Novel Use of SLAPP Suits on Guam
3. Effects of SLAPP Suits
4. Context of this lawsuit as a political document

3. Is this lawsuit an election tactic?

1. Elements of Election Documents
2. Use of Press Release in Conjunction with Litigation
3. Use of histrionic language

4. Litigation and Chilling Effects on the Public Debate of Prop B

1. Use of John Does in the litigation
2. Monitors at Public Meetings
3. Threats made to press in lawsuit document

5. Were the statements in described in the lawsuit inaccurate?

6. Is Mr. Baldwin, in effect, Prop B?

7. The Lackey-Hershman's Letter and Limited SLAPP Protections in Texas

8. You know it when you see it.

Summary of Points

1. Proposal B involves an exercise in direct democracy and government

In our representative form of government, there are few opportunities for average citizens to participate directly in the governing process. Initiatives, items placed on the ballot by private citizens or groups and referendums, items placed on the ballot by legislatures or similar bodies, are a rare opportunities for the public to directly participate in the law-making process. The third type of common direct democracy in the United States is the power of recall. The individual voter has both a vote and a voice in the initative process. In effect, the individual voter is the "government" in the imitative approval process.

http://en.wikipedia.org/wiki/Direct_democracy

Since the public becomes the government in an initative election cycle, it becomes important to protect the public's ability to debate and discuss items on the ballot. The courts have a strong role protecting this right of the public.

2. Is this litigation a SLAPP Suit?

1. SLAPP Suits Defined in Guam Law

Title 7, Chapter 17 of the Guam Code contains the "Citizen Participation in Government Act." In section 17102 of this Chapter, the legislative intent and findings clearly state that the public should be provided very strong protections against litigation while participating in the policy process. At 17102 (2), "the communications, information, opinions, reports, testimony, claims and arguments provided by citizens to their governments are essential to the making of wise government decisions and public policy…" In the case of an initative, the voting public becomes the government. Communication with the voting public becomes extremely important.

2. Novel Use of SLAPP Suits on Guam

The Guam political context thrives on open discussion. While Guam adopted a SLAPP law several years ago during the heydey of these lawsuits, this type of litigation has been rare on Guam. It is not within the political context and culture of Guam to engage in this type of litigation. Thus, this may be a novel use of this tactic in Guam courts. As such, close examination of SLAPP tactics should be reviewed.

3. Effects of SLAPP Suits

SLAPP suits are designed to silence public opposition. These lawsuits are not designed to "win" in court, their true intention is to chill debate and discussion on topics in the public arena. It is also designed specifically to target leaders of public discussions and anyone else who may lead discussions. Hence, the use of numerous unnamed "John Does" in this litigation. This is the clear case in the current suit. A palpable chill now surrounds public discussion on this issue. SLAPP suits are designed to place a pall of silence on public discussions up to a point of a public decision. In this case, voters are directly affected. SLAPP suits are a direct threat to public participation in the governing process.

4. Context of this lawsuit as a political document

This lawsuit was timed in direct conjunction with the election cycle. Within one or two days of submitting this measure to the Guam Election Commission, this lawsuit was filed.

3. Is this lawsuit actually an election tactic?

1. Elements of election documents

This lawsuit reads more like a breathless political advertisement than a piece of litigation. Using simple thematic content analysis, the language used in this document labels opponents of Prop B as "zealots" while attempting to cast Mr. Baldwin in noble terms.

2. Use of Press Release in Conjunction with Litigation

This lawsuit was not filed quietly. It was filed with great fanfare using all forms of media. This seems to indicate that this is more of an attempt to use litigation for political or promotional ends than anything else.

3. Use of histrionic and political language

The language and tone of the writing in this lawsuit is histrionic. This type of dramatic writing seeks to draw attention by using emotional terms and language. This seems to indicate that this document was designed to play to a court of public opinion, rather than to a court of law. The use of name calling and an us/them mentality expressed in this document appear to be very similar to rhetoric seen in political campaigns.

4. Litigation and Chilling Effects on the Public Debate of Prop B

SLAPP suits are designed to chill public debate, inhibit public participation and punish opponents for participating in the public process. There are a number of items in the lawsuit and behavior surrounding this litigation that indicates that this is the purpose of this lawsuit.

1. Use of John Does 1-20 in the litigation

This litigation names two individuals and then further states that there are twenty additional persons, John Does 1-20. Instead of naming these persons "John Does,"

a more appropriate term might be "Up to 50,000 voters on Guam who might want to criticize Prop B." Naming non-specific John Does has a strong chilling effect on community debate.

2. Monitors at Public Meetings

Prop B monitors show up at public meetings that involve speeches opposing Prop B. This added to elusive "John Doe" claim further suppresses public debate.

3. Threats made to press in lawsuit document

Point 16 in the lawsuit states, "Shortly after Marati released the inflammatory release, Plaintiffs sent a letter to members of the Guam press that they should desist from publishing them too lest they be guilty of defaming plaintiffs…" This also indicates the chilling nature of this litigation.

4. Refusal of Prop B Proponents to Debate a Sign of Litigation Chill

Prop B proponents refuse to debate Prop b in public. This indicates that they have even chilled themselves.

5. Were the statements in described in the lawsuit inaccurate?

Here is an interesting point. Were the statements inaccurate? Using the google internet search engine, the following points were checked from points 20 and 21 in the lawsuit:

a. From the lawsuit claim, "Mr Baldwin was not involved with the DC Slot initiative…" Using the key terms -- Baldwin DC slots initiative – we find an article in the August 1, 2004 edition of the Washington Post with the title, " Financing Behind D.C. Slots Murky." Part of the text reads, "…That raises new questions about who stands to benefit if slots come to Washington. Bridge Capital is owned by Shawn Scott and John K. Baldwin, Las Vegas entrepreneurs who have tried for years to qualify for a license to operate a big-time gambling venture. They have had little luck, public records show. …" There is no retraction or clarification on this website. This article appears to directly contradict the claim by Mr. Baldwin's lawsuit that he had nothing to do with the DC Slot initiative and that these are lies. If this were not true, then Mr. Baldwin should sue this newspaper.. http://www.washingtonpost.com/wp-dyn/articles/A30891-2004Jul31.html

b. From the lawsuit, "Mr Baldwin was never denied a gaming license." Using the simple key term search ---Baldwin denied gaming license – we find an article in the December 19, 2003 edition of the Las Vegas Sun with the title, "Vegas Investor's Associates Promoting Racinos in Idaho." Part of the text from this article reads, " Scott, Bishop and John Baldwin could not be reached for comment and Brent Baldwin declined comment. … The New York Racing and Wagering Board this month denied Scott a license, saying he made false statements on his application and wasn't fit to be involved in racing -- a decision Scott has said he will appeal. … Baldwin is listed as the registered agent for one of Scott's companies that shares the same address as more than a dozen companies also affiliated with Baldwin, according to the Nevada Secretary of State's Office…." It is difficult to tell exactly how intertwined these relationships are. They seem very entwined. http://www.lasvegassun.com/sunbin/stories/gaming/2003/dec/19/516052075.html

c.From the lawsuit, "Mr. Baldwin has not… broken gaming laws…" from the same Las Vegas Sun article above, we can read, " Scott demonstrated a "lack of cooperation during investigations" conducted by the New York Racing and Wagering Board and the Louisiana State Police, the investigation said. Scott owns, holds or has held ownership interests in dozens of companies "which have demonstrated sloppy, if not irresponsible financial management and accounting practices over several years," it said. Baldwin is listed as the registered agent for one of Scott's companies that shares the same address as more than a dozen companies also affiliated with Baldwin, according to the Nevada Secretary of State's Office."

d. The lawsuit claims, "None of the DC Slot Initiative financial backers were fined…" Using the simple keyword search – DC Slot Initiative financial backers fined – we find an article from the September 4, 2006 edition of Legal Times, " D.C. Residents Ask Court to Block Initiative to Bring Slots to Anacostia" Part of the text read, " In 2004, Brizill led a community effort that derailed Scott's first casino ballot initiative, which ended with a record-setting $622,880 fine from the BOEE against the local initiative committee for more than 3,800 petition-signature violations." Using the 622,880 figure to narrow the search, we find similar articles. http://www.law.com/jsp/dc/PubArticleDC.jsp?id=1156769026542&hub=TopStories

"…Under his latest proposal, Shawn A. Scott, who owes the District $622,880 in fines for violating local election laws during his previous slots campaign…"

From The Washington Post, March 16, 2006 – http://www.washingtonpost.com/wp-dyn/content/article/2006/03/13/AR2006031301835.html A disclaimer reads,

"A story in the March 14 Metro section incorrectly stated that gambling promoter Shawn A. Scott owes $622,880 in fines for violations of election laws committed during a 2004 campaign to legalize slot machines in the District. The fine was assessed against a political action committee financed by Scott and his associates to promote the slots initiative. The fine is being appealed." Who is appealing the fine?

If we look at the consent agreement with the DC government on February 23, 2005, other views seem to exist on this point.

http://www.dcboee.org/nws/news_frame.asp?filename=nr_53.pdf&mid=2&yid=2005&type=News%20Releases&hl=t

In a nutshell, there are plenty of items on the internet about Mr. Baldwin.

6. Is Mr. Baldwin, in effect, Prop B?

This lawsuit claims that Mr. Baldwin was in some manner defamed by opponents of Prop B. The implication is that since Mr. Baldwin is an individual, his reputation should receive some sort of protection from the courts. In the September 30 edition of the Pacific Daily News, it was reported that the Proponents of Prop B would not debate the issue because Mr. Baldwin was out of town. ("Slots Proponents Miss Debate" By Gaynor Dumat-ol Daleno.) If a Prop B debate cannot proceed without Mr. Baldwin, then is Mr. Baldwin really Prop B? Under the parties listed in the lawsuit, Baldwin is described in II.A.2 as owning 99% of GG Acquisitions II, which sponsored the initiative. Therefore, is Mr. Baldwin a private citizen with protections against slander and libel or is he a public figure? If a person places themselves in the public arena and requests the public to vote on an initiative they place on the ballot, they should expect full public scrutiny and examination of all their public relationships and affairs.

7. Lackey-Hershman's Letter and Limited SLAPP Protections in Texas

On July 31, 2006, this Texas based law firm wrote a letter responding to some of the issues brought up by Ms. Marati. Last year, the HB 329, an anti-SLAPP provision sponsored by Representative Raymond, did not even make it out of committee level.

From all indications, Texas still does not have SLAPP protections.

http://www.kuam.com/exhibits/misc/proposalb-ddp-response.pdf

8. You know it when you see it.

In part 22 of the lawsuit, Mr. Baldwin claims that the initiative process was "perverted" by the opponents of Prop B. When writing on pornography in Jacobellis v. Ohio, 378 U.S. 184, 197 (1964), Justice Potter Stewart said, "… I know it when I see it." I would suggest a similar logic applies to adjudicating SLAPP suits on Guam. SLAPP suits are a perversion of basic political rights of citizens.

Appendix A

Certification of Interests

I, Ron McNinch, am an associate professor at the University of Guam. I have a PhD in Political Science from Georgia State University with a specialty in public administration. I have no financial or pecuniary interest on either side in this matter. I am not morally opposed to gambling or slot machines, nor do I endorse these activities. I do have a strong interest in safeguarding the First Amendment and the right of the public to freely debate matters of public concern.