Hawaii Appeals Court: Communicating To Mayor Is Not ‘Testimony’ In A ‘Proceeding’ So Anti-SLAPP Law Inapplicable

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Robert Thomas

BY ROBERT THOMAS – Here’s a case where the Hawaii Intermediate Court of Appeals’ opinion, while interesting (and, we think, correct), teases us with the underlying story.

In Perry v. Perez-Wendt, No. 30329 (Feb. 8, 2013), a lawyer was in the running to be appointed as the County Attorney for the County of Kauai. Five of his brothers and sisters, however, opposed his appointment and not only communicated with the Mayor and county council to voice their thoughts, but filed a complaint with the attorney disciplinary board accusing him of some kind of professional misconduct (and told the mayor about it). The lawyer didn’t take kindly to this display of brotherly and sisterly love, and when he failed to get appointed to the position, he filed suit against them alleging defamation, interference with business relations, and other related claims.

Hawaii, like many other jurisdictions, has an “anti-SLAPP” statute. A “SLAPP” suit is a “strategic lawsuit against public participation,” and the statute is designed to thwart lawsuits  intended to inhibit the public’s willingness to exercise First Amendment rights, and, well, participate in the public process. The one sibling remaining as a defendant (three settled, one was dismissed for lack of service) asserted that the lawsuit was a SLAPP, filed as retaliation for her communicating with public officials, and for submission of the disciplinary action. She moved to dismiss under the anti-SLAPP statute.

The statute is codified at Haw. Rev. Stat. ch. 634F, and defines a SLAPP suit thusly:

“SLAPP” means a strategic lawsuit against public participation and refers to a lawsuit that lacks substantial justification or is interposed for delay or harassment and that is solely based on the party’s public participation before a governmental body.

Haw. Rev. Stat. § 634F-1.


The trial court denied the motion to dismiss, and as allowed by the statute, the defendant immediately appealed. The ICA agreed with the trial court, and concluded that the lawsuit was not a SLAPP suit as defined by the statute:

“Public participation” means any oral or written testimony submitted or provided to a governmental body during the course of a governmental proceeding.

Haw. Rev. Stat. § 634F-1. Communicating to the Mayor and other officials is not “testifying,” and there was no “governmental process” ongoing about the plaintiff’s appointment as County Attorney. Sounds about right. The ICA also rejected the argument that the defendant’s complaint to the disciplinary board constituted “public participation,” and the complaint was a request for an investigation, and not “testimony.” Again, sounds about right.

No SLAPP case would be complete without something on the Noerr-Pennington doctrine, and the opinion does not disappoint. The ICA rejected the defendant’s call to “expand the reach of HRS Chapter 643F to the full extent of the protections under the Petition Clauses and theNoerr-Pennington doctrine.” Slip op. at 12. That issue, the court held, was beyond the scope of the limited review of a motion to dismiss under the anti-SLAPP law.

Overall a quick read, a good result, and a helpful section on the special procedures in an anti-SLAPP motion (only the allegations of the complaint are considered, the burden shifts to the non-moving party to show it isn’t a SLAPP, and an immediate interlocutory appeal). But the opinion still leaves us wondering — what’s the deal with the family fight?

Perry v. Perez-Wendt, No. 30329 (Haw. App. Feb. 8, 2013)



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Robert H. Thomas is one of the preeminent land use lawyers in Hawaii. He specializes in land use issues including regulatory takings, eminent domain, water rights, and voting rights cases. He has tried cases and appeals in Hawaii, California, and the federal courts. Robert received his LLM, with honors, from Columbia Law School where he was a Harlan Fiske Stone Scholar, and his JD from the University of Hawaii School of Law where he served as editor of the Law Review. Robert taught law at the University of Santa Clara School of Law, and was an exam grader and screener for the California Committee of Bar Examiners. He currently serves as the Chair of the Condemnation Law Committee of the American Bar Association’s Section on State & Local Government Law. He is the Hawaii member of Owners’ Counsel of America, a national network of the most experienced eminent domain and property rights lawyers. Membership in OCA is by invitation only, and is limited to a single attorney from each state. Robert is also the Managing Attorney for the Pacific Legal Foundation Hawaii Center, a non-profit legal foundation dedicated to protecting property rights and individual liberties. Reach him at rht@hawaiilawyer.com He is also a frequent speaker on land use and eminent domain issues in Hawaii and nationwide. For a list of upcoming events and speaking engagements.