Fallout from SLAPP accumulates for city

The six residents who were wrongfully sued by Boulder City for circulating ballot initiatives in 2010, according to the Nevada Supreme Court, are coming after the city for another $600,000 in compensatory damages.

“It’s still stressful for them, but now it’s a little bit different,” the residents’ attorney and former Boulder City Councilwoman Linda Strickland said. “It’s an ability to vindicate yourself. The Supreme Court has said that what happened was wrong, so now it’s trying to get the city to acknowledge it was wrong.”

After the three ballot initiatives were circulated, the city sued to challenge their legality. The initiatives aimed to limit city debt, establish term limits for volunteer committees and prevent the city from owning more than one golf course.

The city, represented by the law firm Lionel Sawyer &Collins, successfully argued in District Court in Clark County that it had the right to sue the petitioners to challenge the initiatives.

But the Supreme Court overturned the rulings of three District Court judges, ruling that they were strategic lawsuits against public participation, or SLAPPs, and the city could have challenged the initiatives by naming the secretary of state or another government entity as a defendant.

In September, District Judge Steven Kosach ordered the city to pay the residents $190,000 in attorney fees. The city sought to have the judgment reduced to $30,000 but that request was denied.

Additionally, three new lawsuits were filed in June by the initiative sponsors against the city to seek damages from the SLAPP, Strickland said. She also said the court combined the three lawsuits into one.

“This is the best we can do. Monetary damages are the only way the courts can compensate these individuals,” Strickland said.

Along with her husband, Tracy Strickland, Linda Strickland has represented the six residents since the lawsuits began. She said they are requesting $100,000 in compensatory damages for each plaintiff, the maximum under Nevada’s statute.

“We believe that our clients’ damages clearly exceed $100,000 per plaintiff,” she added.

Under a SLAPP, a person who is wrongfully sued has the right to bring his or her separate action for compensatory actions stemming from the lawsuit, which include emotional distress and public humiliation.

But City Attorney Dave Olsen said the city intends to aggressively defend itself.

“We’re probably going to depose every single one of the plaintiffs and get as much information as we can,” he said.

The city also will make requests for documents, admissions and every other resource available, Olsen added.

“Right now, we haven’t done deposition one yet. We’re in the very early stages of this,” he said. “We’re going to start preparing for written discovery as well as depositions in the mean time.”

Olsen said the city’s lone intention was to see if the petitioners’ initiatives were legal by filing a declaratory relief.

“Three judges we went in front of said this is definitely not an anti-SLAPP situation, then the Supreme Court sat on it,” he said about the previous rulings that favored the city. “If we would have had (an intermediate appellate court), maybe our case wouldn’t have gotten hung up with the Supreme Court until the Legislature had a chance to come around and change the law on us and then apply it to us retroactively.”

In September, Olsen said the city had already paid about $200,000 for its own attorney fees for the case. This latest lawsuit will not be cheap, and both Strickland and Olsen acknowledged that.

“The most expensive part of this lawsuit is about to begin,” Olsen said.

“By the time they pay their lawyers, attorney fees they owe us already, and attorney fees they’re going to owe us, it’s going to be over a million dollars,” Strickland said.

Olsen added that the city had already submitted the case to its professional liability, or errors and omissions, insurance carrier for review.

“This is a very unhappy, unpleasant situation,” he said. “The thing that bothers me is that we never got to the underlying issues. We just wanted the judge to tell us whether it was legal or not, then we got bogged down in all this anti-SLAPP stuff.”

The city also filed an appeal with the state Supreme Court on the original lawsuit that went in the residents’ favor. According to the Supreme Court’s website, the city’s appeal was filed Oct. 28 with contracted attorney Steve Morris representing Boulder City.

Olsen said the latest appeal is just to have it on record before the deadline passed so the city has time to assess possible actions.

“We’re not sure if we want to push through with it or not. The question came up, ‘Should we appeal this?’ And the general consensus was that we should,” Olsen said.

But he said if the city were to sit on its appeal for about six months, the other side could file a motion to have it dismissed.

“If we go to court on this and we win, we owe it to the taxpayers to ask for attorney fees as well so it isn’t the taxpayers fronting the bill,” Olsen said. “Although the amount that we would get in attorney fees would be a drop in the bucket compared to what we’d be spending.”

Strickland said the city has learned nothing from the SLAPPs, and that it will continue to punish residents for exercising their First Amendment rights.

“They’re just going to make it as difficult and expensive and stressful as possible,” she said.

The compensatory damage trial is scheduled for March 16.

Contact reporter Steven Slivka at sslivka@bouldercityreview.com or at 702-586-9401. Follow @StevenSlivka on Twitter.