Palmer v. Olson

586                  October 23, 2024               No. 746

         IN THE COURT OF APPEALS OF THE
                 STATE OF OREGON

                    Glenn PALMER,
                  Plaintiff-Respondent,
                            v.
                     Haley OLSON,
                  Defendant-Appellant.
               Grant County Circuit Court
                 20CV34464; A176858

  Thomas B. Powers, Judge.
  Argued and submitted July 12, 2023.
   Nadia H. Dahab argued the cause for appellant. Also on
the briefs was Meredith Holley, Eris Conflict Resolution and
Sugerman Dahab.
  Paige Chrz argued the cause for respondent. On the brief
were Emerson Lenon, Daniel E. Thenell and Thenell Law
Group, P. C.
  Before Ortega, Presiding Judge, and Powers, Judge, and
Hellman, Judge.
  HELLMAN, J.
  Reversed and remanded as to defendant’s 

 counterclaim; otherwise affirmed.
Cite as 

 (2024)                                               587

           HELLMAN, J.
         Plaintiff Glenn Palmer, when he was the thenelected sheriff of Grant County, brought this civil action
alleging claims of defamation and false light against defendant Haley Olson for statements she made on social media
in the months leading up to the November 2020 election.
Defendant filed three counterclaims alleging that plaintiff’s
pursuit of his claims constitutes retaliation under state
and federal law. The trial court granted plaintiff’s special motion to strike defendant’s counterclaims under ORS
31.150, Oregon’s Anti-Strategic Lawsuits Against Public
Participation (anti-SLAPP) statute, after concluding that
they were barred by Oregon’s litigation privilege. On appeal
from the limited judgment dismissing her counterclaims,
we conclude that defendant has not established reversible
error with regard to her state law counterclaims. We further conclude that Oregon’s litigation privilege does not bar
defendant’s federal law counterclaim under 

, because state law cannot immunize an alleged violation of federal law and plaintiff has not demonstrated that
his conduct is immune under the common law as it existed
in 1871 when Congress enacted section 1983. We therefore
reverse the limited judgment of dismissal as to defendant’s
federal counterclaim and otherwise affirm.
         ORS 31.1501 authorizes a party to make a “special
motion to strike against a claim in a civil action” that is
“predicated on speech and petitioning activity potentially
entitled to constitutional protection.” Tokarski v. Wildfang,

, 

, rev den, 

 (2021).
A special motion to strike may be made “against any claim
in a civil action that arises out of … [a]ny oral statement
made, or written statement or other document submitted, in a
legislative, executive or judicial proceeding or other proceeding authorized by law,” among other enumerated categories of
speech and conduct. ORS 31.150(2)(a). Once the moving party
has met their “initial burden of making a prima facie showing that the claim against which the motion is made arises
    1
      The parties litigated this special motion to strike in the trial court under
ORS 31.150 (2021). The legislature amended ORS 31.150 during the pendency of
this appeal. See Or Laws 2023, ch 71, § 1 (effective Jan 1, 2024). Those changes
do not affect our analysis, so we cite the current version of the statute.
588                                                           Palmer v. Olson

out of” one of those categories, the burden then shifts to the
nonmoving party “to establish that there is a probability that
the [nonmoving party] will prevail on the claim by presenting
substantial evidence to support a prima facie case” on each
claim. ORS 31.150(4). The court shall grant the motion unless
the nonmoving party meets that burden. ORS 31.150(1).
         “We review a trial court’s ruling on a special motion
to strike for legal error.” Davoodian v. Rivera, 

, 

 (2023). In doing so, we “consider
pleadings and supporting and opposing affidavits stating
the facts upon which the liability or defense is based.” ORS
31.150(5).
          Plaintiff’s operative complaint claims three counts
each of defamation and false light and alleges that defendant
“began a sustained and targeted social media campaign
against [p]laintiff by publicly publishing statements about
him on social media, as well as commenting on the social
media posts of others.” Plaintiff identified three statements
defendant made on social media between April and August
2020 and alleges that defendant made the statements knowing they were false or with reckless disregard for their truth
or falsity.
         In her answer, defendant raised several affirmative defenses, including that all three statements reference
allegations she had made against plaintiff in a separate,
pending lawsuit that she filed in April 2020.2 Defendant
also brought three counterclaims against plaintiff, alleging
First Amendment retaliation under 

;
retaliation in violation of her right to free expression under
Article I, section 8, of the Oregon Constitution; and aiding
and abetting discrimination in a public accommodation
under ORS 659A.406. Defendant asserted that the conduct
from which her counterclaims arose was plaintiff’s filing of
the complaint against her in the instant case alleging defamation and false light.
         Plaintiff filed an ORS 31.150 special motion to
strike as well as an ORCP 21 motion to dismiss defendant’s

    2
       Defendant also filed a special motion to strike plaintiff’s claims, which the
trial court granted in part and denied in part. Defendant did not appeal that ruling.
Cite as 

 (2024)                                              589

counterclaims, arguing that the counterclaims are barred
by Oregon’s “absolute” litigation privilege as set forth in
Mantia v. Hanson, 

, 

 (2003). In
response, defendant acknowledged that plaintiff had met
his initial burden to show that her counterclaims arose
from a document submitted in a judicial proceeding, ORS
31.150(2)(a), and that the burden therefore shifted to her
to make a prima facie showing of prevailing on her claims.
Defendant argued that the absolute privilege does not apply
in the ORS 31.150 context, that it cannot preclude statutory
and constitutional claims, and that she properly pleaded
and established a prima facie case in support of her counterclaims. The trial court concluded that all three of defendant’s counterclaims are barred by Oregon’s absolute privilege and granted plaintiff’s special motion to strike.3 This
appeal followed.
          “Oregon courts have long recognized, and enforced,
an absolute privilege for statements in the course of or incident to judicial and quasi-judicial proceedings” that “applies
equally to parties to such proceedings and to their attorneys.” Mantia, 

 (collecting cases). The public policy underlying the privilege is “securing to attorneys
as officers of the court the utmost freedom in their efforts
to secure justice for their clients.” 

 (quoting Restatement
(Second) of Torts § 586 comment a (1977); see also Ramstead
v. Morgan, 

, 

 (1959) (“[T]here
are certain relations of life in which it is so important that
the persons engaged in them should be able to speak freely
that the law takes the risk of their abusing the occasion and
speaking maliciously as well as untruly, and in order that
their duties may be carried on freely and without fear of any
action being brought against them[.]” (Internal quotation
marks and citation omitted.)).
        Defendant argues that Oregon’s litigation privilege does not foreclose her counterclaims because they are
“based not on defamatory statements or actions taken in the
    3
      In her second assignment of error, defendant argues that the trial court
erred in granting plaintiff’s ORCP 21 motion to dismiss her counterclaims on
the same basis. Because we agree with plaintiff that the trial court did not rule
on that motion, we reject defendant’s second assignment of error without further
discussion.
590                                                             Palmer v. Olson

filing of [p]laintiff’s complaint … but on the fact of the filing
itself as a means of retaliating” against her for the claims
she asserted in her separate lawsuit and that “[t]hat conduct
is simply not the sort of conduct against which the absolute privilege is intended to protect.” (Emphasis in original.)
She further argues that “retaliation-based counterclaims
are among the very sort of counterclaims that should not be
foreclosed by the litigation privilege” because “claims relating to the prosecution of unfounded litigation are intended
to prohibit conduct that subverts the underlying purpose of
the judicial process,” which the litigation privilege is meant
to protect.4 We are not persuaded.
          The absolute litigation privilege squarely applies
to “statements or writings made during or as part of the
litigation itself.” Chard v. Galton, 

, 

 (1977). But we have also held that the absolute privilege extends to “actions taken and statements made in
connection with a judicial proceeding.” Franson v. Radich,

, 

 (1987) (emphasis added); see
also Mantia, 

 (explaining that Franson
“extended the application of the absolute privilege” by holding that “the principle applied not merely to defamatory
statements, but also to conduct undertaken in connection
with litigation”). In Franson, we affirmed the dismissal of a
tort claim against the defendant attorney based in part on
her conduct of filing an action for a temporary injunction.

. Defendant has not asked us to overrule
    4
      We note what defendant does not argue on appeal. First, defendant does not
dispute, as she did below, that the litigation privilege may be considered in the
second step of the ORS 31.150 analysis of whether the nonmoving party has established that there is a probability of prevailing on their claim. Although we have not
squarely decided that issue, we decline to address it here because defendant has
not advanced that argument on appeal. See Plotkin v. SAIF, 

,

 (2016), rev den, 

 (2017) (noting that we have yet to address
whether ORS 31.150 requires a nonmoving party to produce evidence capable of
defeating affirmative defenses in order to meet their prima facie burden at the
second step of the anti-SLAPP analysis); Johnson v. Monsanto Co., 

, 700, 

 (2024) (declining to undertake analysis on an issue when the
party “has failed to do so itself” in its briefing). Second, defendant does not dispute,
as she did below, that the litigation privilege applies to constitutional and statutory retaliation claims. That also appears to be an open question, given that the
privilege originally applied only to defamation actions but has been extended to
“any tort action based on statements made in connection to a judicial proceeding.”
Wollam v. Brandt, 

, 162 n 5, 

 (1998) (emphasis added).
We also decline to undertake that analysis without briefing on the issue.
Cite as 

 (2024)                               591

Franson or argued that its holding is plainly wrong. In any
event, we see no reason to distinguish between the conduct
of filing a complaint in a judicial proceeding and the statements made within the complaint itself for purposes of the
absolute privilege. Even if the act of filing the complaint
were not absolutely privileged, the allegations in the complaint are. It would be difficult, if not impossible, to evaluate
whether filing a complaint constitutes retaliation without
also taking into consideration the contents of that filing.
         To be sure, we have recognized two exceptions to
absolute privilege: wrongful use of civil proceedings and
intentional interference with economic relations when the
“improper means” is wrongful use of civil proceedings. See
Mantia, 

 (explaining that “an absolute privilege [is] not absolute” when “[a]n actor’s conduct
is so egregious as to be deprived of the protections of the
absolute privilege when that conduct satisfies the elements
of wrongful initiation” of civil proceedings or when “the
prosecution of unfounded litigation constitutes actionable
‘improper means’ for purposes of tortious interference” with
economic relations). And while we agree with defendant
that the public policy underlying the absolute privilege militates against shielding unfounded litigation, in our view,
the exceptions carved out in our case law and synthesized
in Mantia adequately protect against subversion of the purpose of the privilege. Mantia does not foreclose the possibility that the privilege could be overcome for any (tort) claim
premised on wrongful initiation of civil proceedings, so long
as the elements of wrongful initiation are subsumed within
the elements of the claim. Here, as evidenced by this appeal,
defendant necessarily cannot plead and prove an essential
element of wrongful initiation: that the underlying proceeding was terminated in her favor. See Mohabeer v. Farmers
Ins. Exchange, 

, 318 n 3, 

, rev den,

 (2022) (“The elements of a claim for wrongful initiation of a civil proceeding are (1) commencement and prosecution by the defendant of a judicial proceeding against the
plaintiff; (2) termination of the underlying proceeding in the
plaintiff’s favor; (3) absence of probable cause to prosecute
the underlying proceeding; (4) malice in initiating the underlying proceeding; and (5) damages.” (Citation omitted.)).
592                                           Palmer v. Olson

         Alternatively, defendant argues that the litigation
privilege does not apply to her federal counterclaim under

. Defendant points to Martinez v.
California, 

, 

, 

 (1980),
where the Court explained that state law cannot immunize
conduct that violates federal law, even when the federal
cause of action is brought in state court. We agree.
          In Martinez, the Court considered whether a
California statute granting absolute immunity to public
employees who make parole-release determinations applied
to the plaintiff’s claim brought under section 1983. 

. The Court explained, “It is clear that the California
immunity statute does not control this claim even though
the federal cause of action is being asserted in the state
courts.” 

. The Court reasoned that “[c]onduct by
persons acting under color of state law which is wrongful
under 

 … cannot be immunized by state law”
because “[a] construction of the federal statute which permitted a state immunity defense to have controlling effect
would transmute a basic guarantee into an illusory promise; and the supremacy clause of the Constitution insures
that the proper construction may be enforced.” 

 at 284 n 8
(internal quotation marks and citation omitted). Although
plaintiff argues that that language from Martinez is dictum,
the Court later reaffirmed Martinez’s holding that “a state
law that immunizes government conduct otherwise subject
to suit under § 1983 is preempted, even where the federal
civil rights litigation takes place in state court, because the
application of the state immunity law would thwart the congressional remedy.” Felder v. Casey, 

, 

, 

 (1988) (citing Martinez, 

); see also Kimes v. Stone, 

 (9th
Cir 1996) (stating that “the existence of § 1983 immunities is a matter of federal law,” that “state immunity law
does not govern § 1983 claims,” and that Felder “explicitly
treated” that language in Martinez as its holding); Beason v.
Harcleroad, 

, 

 (1991) (“With
respect to any action under section 1983, federal law controls
both the substantive elements of the claim and all defenses
based on immunity.”). Thus, while Oregon’s litigation privilege is a judicially created rule of state law that has not been
Cite as 

 (2024)                            593

codified by the legislature, it nonetheless cannot thwart the
federal cause of action in state court.
          We acknowledge that “Congress did not intend
§ 1983 to abrogate immunities ‘well grounded in history and
reason.’ ” Buckley v. Fitzsimmons, 

, 

, 

 (1993); see also 

 (“Certain immunities were so well established in 1871, when § 1983 was
enacted, that we presume that Congress would have specifically so provided had it wished to abolish them.” (Internal
quotation marks and citation omitted.)). But plaintiff does
not contend that his conduct was immunized under the common law as it existed in 1871, and we will not venture to
develop that argument on his behalf. Johnson v. Monsanto
Co., 

, 700, 

 (2024) (declining to
undertake analysis on an issue when the party “has failed
to do so itself” in its briefing). Instead, he argues that
Oregon’s litigation privilege bars defendant’s section 1983
claim because “she has an alternate forum to vindicate her
federal rights” in federal court. We reject that argument as
inconsistent with Martinez and its progeny.
         Having concluded that Oregon’s litigation privilege
precludes defendant’s counterclaims brought under state law
but not her counterclaim under federal law, the remaining
question is whether defendant has established that there is
a probability that she “will prevail on the claim by presenting substantial evidence to support a prima facie case.” ORS
31.150(4). Defendant acknowledges, and we agree, that the
trial court did not reach that issue. Even so, we may address
an issue that the trial court did not reach in its analysis
under ORS 31.150 when “that question was fairly presented
to the trial court, and the record was sufficiently developed
to enable our review.” Mullen v. Meredith Corp., 

, 

 (2015). However, we decline to do so
here, given that defendant expressly asks that we remand
to the trial court to make that determination in the first
instance.
         Reversed and remanded as to defendant’s 

 counterclaim; otherwise affirmed.