Emily Hughes of Pinal County, Arizona was unhappy with her water quality and the services of her water provider, Johnson Utilities. She complained vocally and participated in groups devoted to criticizing Johnson Utilities.
They're suing her for it.
Johnson Utilities — which has a history of suing its critics for defamation — and its owner George H. Johnson have filed a defamation lawsuit against Hughes demanding $100,000. Johnson Utilities claims among other things that Hughes must have staged a local news interview in which her tapwater ran yellow in order to defame their good services. Alternatively, they claim, the yellow water was a result of her own bad heater or pipes, not their services. They further argue that Hughes is part of some sort of conspiracy to harm Johnson Utilities because she supports a local mining project they oppose. It's . . . colorful.
But Johnson Utilities' complaint is very curious. It seems almost calculated to draw a First Amendment or anti-SLAPP attack.
First, much of the complaint is consumed with setting forth clearly protected activities:
9. Since early 2013, Defendant has repeatedly expressed extreme hostility towards Plaintiffs.
10. Defendant has repeatedly harassed Plaintiffs as a result of such hostility.
11. At some point in late 2012 or early 2013, Defendant participated in forming and/or joined a group called "Citizens Against Johnson Utilities."
12. This group,was renamed the "San Tan Valley Safe Water Advocates" in or
about August of2013. Both Citizens Against Johnson Utilities and the San Tan Valley
Safe Water Advocates are hereinafter referred to as the "Group."
13. During her involvement with the Group, Defendant has repeatedly issued disparaging statements concerning Plaintiffs.
14. Indeed, Defendant has taken every opportunity to disparage and harm Plaintiffs' interests, and has engaged in a ceaseless vendetta against Plaintiffs.
15. The Group has hosted a Facebook page which has been accessible to an undetermined number of individuals.
16. Defendant has made numerous disparaging postings on this Facebook page concerning Plaintiffs.
That's all classic protected speech under the First Amendment with no hint of how it might be defamatory. Later, Johnson Utilities does cite a few statements of fact which, if proved false, might be defamatory (for instance, the claim that Hughes somehow staged the yellow water interview). But the complaint also focuses on specific statements that are clearly protected as opinion:
"George Johnson does not run an honest business."
Plaintiff Johnson Utilities, LLC "isn't exactly forthright with us."
On June 30, 2013, Defendant falsely stated on the Group's Facebook page
14 that Plaintiff Johnson Utilities, LLC's water was "smelly yesterday."
In other words, Johnson Utilities has used its complaint to attack not just a few potentially defamatory false statements of fact, but a wide array of statements of opinion and classic protest activities.
That's not even the oddest thing.
Arizona has a fairly modest anti-SLAPP statute. An anti-SLAPP statute, as our readers know, allows a defendant in a defamation case to file an early motion forcing the plaintiff to prove that it can prevail over the defendant's First Amendment defenses. In a state with a good anti-SLAPP statute, you don't have to wait until summary judgment or trial to show that the plaintiff is trying frivolously to censor you — you can force them to support their claims at the start of the case, and get attorney fees if they fail.
I say that Arizon's anti-SLAPP statute is modest because it's much narrower than statutes in California and Texas. In those states you can file a motion when a complaint attacks any protected speech. In Arizona — as in some other states — you can only file an anti-SLAPP motion if you've been sued based on petitioning the government:
A. In any legal action that involves a party's exercise of the right of petition, the defending party may file a motion to dismiss the action under this section. . . . .
B. The court shall grant the motion unless the party against whom the motion is made shows that the moving party's exercise of the right of petition did not contain any reasonable factual support or any arguable basis in law and that the moving party's acts caused actual compensable injury to the responding party.
It would be rather easy for Johnson Utilities to avoid application of the Arizona anti-SLAPP statute by focusing only on statements not made in the course of petitioning the government. Instead, bizarrely, Johnson Utilities has decided to emphasize that Hughes was petitioning the government, portray it as sinister, and complain about it:
17. In June of 2013, Plaintiff Johnson Utilities, LLC was going to be appearing before the Arizona Corporation Commission regarding the rates to be authorized for its water and wastewater services.
18. Due to the costs associated with operating the utility (specifically including the costs associated with income tax expenses), Plaintiff Johnson Utilities, LLC intended to request permission from the Arizona Corporation Commission to increase the rates to be charged for such services to take into account those expenses.
19. Defendant had the intent to oppose any rate changes that could be beneficial to Plaintiff Johnson Utilities, LLC.
20. Plaintiff Johnson Utilities, LLC was scheduled to appear before the Arizona Corporation Commission on June 11,2013 at 12:00 P.M. to request the increase in rates.
21. Throughout the spring and summer of2013, Defendant had complained of low water pressure at her residence.
22. In a bid to derail Plaintiff Johnson Utilities, LLC's request for a rate increase, Defendant formulated a scheme to defame and disparage Plaintiff to influence the Arizona Corporation Commission to deny the request.
. . . .
115. Upon information and belief, as a contributing result of Defendant's actions, the Arizona Corporation Commission postponed Plaintiff Johnson Utilities; LLC's rate hearing and delayed the implementation of the requested rate increase.
Put another way, Johnson Utilities just conceded that the speech it is complaining about was part of a campaign to petition the government, and that part of the harm it is complaining about is government action in response to her petitioning, thus admitting that the Arizona anti-SLAPP statute applies. Perhaps there is some sort of deep legal strategy behind that. If there is, it eludes me. Hughes' attorney should consider an anti-SLAPP motion, which would allow an attack on the portions of the complaint that target opinion and protected speech and force Johnson Utilities to offer proof its conspiracy theory about Hughes.
Complaining to a government body about a utility is the classic example of what anti-SLAPP statutes are designed to protect. There's nothing closer to the heart of the statute. Johnson Utilities' requests to the government have generated controversy before. Some citizens specifically complained that Johnson Utilities sues its critics and that such a business should not be trusted. That's a fair argument. Suing consumers over criticism has a cost in credibility with the government and the public, and it should.
Meanwhile, Ms. Hughes has set up a defense fund.
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