Indiana court’s anti-SLAPP ruling echoes sentiment of recent legislation

Thursday, June 25, 1998

The decision by an Indiana superior court judge to dismiss claims against state environmentalists opposed to a major land-development project echoes the sentiment expressed in the Indiana legislature’s recently passed anti-SLAPP law.

More than a year ago, Charlotte Robertson and the Hoosier Environmental Council began to speak out against a proposed 640-acre commercial/residential development called Coffee Creek Center. When the Chesterton, Ind., Board of Zoning Appeals decided in March 1997 to allow first-phase construction to begin on the $500 million project, Robertson and the HEC sought a court review of the decision.

Saying that the environmentalists’ challenge was baseless and without standing, attorneys for the town of Chesterton and for the developer, Lake Erie Land Co., filed counterclaims in April 1997. Their suit said that Robertson and the HEC were abusing the legal system in order to delay the project and were attempting to damage the development company’s reputation. The claim also asked—as part of the discovery process—that Robertson and the HEC release personal and financial information. The Hoosier Environmental Council is the state’s largest environmental group, comprising more than 40,000 individual members and 67 member groups.

On June 12, Porter Co. Superior Court Judge Thomas W. Webber Sr. ended the 14- month-long legal battle by dismissing the countersuit against Robertson and the HEC.

“Allowing a municipality to immediately file an abuse of process claim anytime a citizen challenged a government action would have a chilling effect on an aggrieved citizen,” the judge wrote.

Robertson told “It’s been a long road, but I think we brought the issue of SLAPP suits to the forefront in Indiana.”

Charles Lukmann, an attorney representing the town of Chesterton, did not return phone calls.

It was primarily the countersuit against Robertson and the HEC that led the Indiana legislature to pass anti-SLAPP legislation last February. A SLAPP suit (Strategic Lawsuit Against Public Participation) is a legal action filed by large entities such as governments or corporations to discourage individual citizens and interest groups from protesting actions with which they disagree.

Under Indiana’s anti-SLAPP legislation, a person who petitions, communicates or otherwise participates in the process of government “is immune from civil liability arising out of the person’s act, regardless of the person’s intent or purpose, unless the act is performed without the intention of procuring a federal, state, or local governmental or electoral action, result, or outcome.”

The law accelerates the handling of motions to dismiss SLAPP litigation. It advises judges that they should consider whether they’re dealing with litigation filed solely for the purpose of SLAPPing community advocates. It also forbids requesting personal and financial information, such as membership lists and descriptions of fundraising activities, from those being SLAPPed.

“The legislature wisely recognized the threat to our First Amendment rights and passed this measure as an emergency act during this year’s short session,” Robertson said. “I am proud of our lawmakers for the strong bipartisan support they exhibited.

“We hope during the long session next year we will be able to refine and clarify some of the provisions in the bill to further deter those who would use the legal system to stifle public participation.”

Robertson and the Hoosier Environmental Council are now considering filing suit against Chesterton and the Lake Erie Land Co., as well as asking for the resignation of several city officials who supported the SLAPP suit.

Their attorney, Gordon Etzler, said, “The judge agreed that the purpose of the counterclaims was for SLAPP [effect]. Town officials signed this agreement with developers in an attempt to avoid any public scrutiny. This is a large project, and its impact on this community has the potential of doubling the size of the town of Chesterton in terms of residents.

“The other problem that is so compelling for us is that they’re going to structure it as a closed community,” Etzler said. “The marketing plans indicate that you’ll come out, buy these houses and be able to shop and socialize within the community. There’s no attempt to integrate the community [into] the town itself. This has a possibility of taking over town politics.”

Etzler has two years to file.