On February 8, 2013, the ICA issued an opinion in Warren C.R. Perry v. Mehealani Perez-Wendt et al., No. 30329, (authored by Judge Ginoza and joined by Judges Leonard and Reifurth), a case involving the Hawaii anti-SLAPP statute. The anti-SLAPP statute (HRS Chapter 634F). SLAPP means “strategic lawsuit against public participation.” The statute is intended to providing protection against lawsuits that “lack substantial justification or [are] imposed for delay or harassment and that [are] solely based on the party’s public participation before a governmental body.” Slip. Op. at 5.
The case involved a complaint filed by Perry against five of his siblings, including Perez-Wendt. According to Perry (among other claims), his siblings engaged in communications with the Kauai County Mayor, the Mayor’s Assistant, and the Kauai County Council geared as dissuading the Mayor from appointing Perry as County Attorney. Perry claimed that the siblings informed those involved that a complaint with the Office of Disciplinary County was or would be filed. Perez-Wendt filed a motion to dismiss under the anti-SLAPP statute claiming that the lawsuit was filed to punish her and the other siblings for “exercising their rights as citizens to participate in the government process.” Slip. Op. at 3.
In affirming the circuit court and holding that the lawsuit was not a SLAPP under the anti-SLAPP statute, the ICA held that Perry’s complaint did not make allegations related to public participation before a governmental body – one of the two fundamental requisites for a lawsuit to be considered a SLAPP. Specifically, the communications with the Mayor, the Mayor’s Assistant, and the Members of the County Council did not qualify as “testimony” before a governmental body.
According to the court, “an individual’s unsolicited informal communications with a government official, where there is no formal process or procedure in progress” does not come within the ambit of participation before a governmental body. Slip. Op. at 9-10. The court also held that a complaint filed with the ODC is also not public participation before a governmental body because there is no oral or written testimony involved.
The ICA’s full opinion is available here.