Case :-cv-00-rbl Document Filed 0/0/ Page of 0 Honorable Ronald B. Leighton 0 0 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON TACOMA LEONARD PELTIER, CHAUNCEY PELTIER, Plaintiffs, vs. JOEL SACKS, individually and in his capacity as DIRECTOR OF the WASHINGTON STATE DEPARTMENT OF LABOR AND INDUSTRIES; TIMOTHY CHURCH, individually and in his capacity as PUBLIC AFFAIRS MANAGER of the WASHINGTON STATE DEPARTMENT OF LABOR AND INDUSTRIES; JAY INSLEE, individually and in his capacity as GOVERNOR OF THE STATE OF WASHINGTON; EDWARD P. WOODS; LARRY LANGBERG; DOES - 00, Defendants. I. MOTION TO STRIKE Case No. :-cv-00-rbl REPLY IN SUPPORT OF JOINT MOTION TO DISMISS CLAIMS AGAINST LANGBERG AND WOODS AND MOTION TO STRIKE HILDES DECLARATION AND EXHIBITS NOTE ON MOTION CALENDAR: June 0, 0 In opposition to this Joint Motion to Dismiss, Plaintiffs have filed a declaration and eleven exhibits (Dkt. # & attachments) that are well beyond the scope of review under Rule (b)(). Pursuant to LCR (g), Defendants move to strike Mr. Hildes impermissible declaration. This Court should disregard the entirety of Mr. Hildes declaration for the reasons set forth below. REPLY RE: JOINT MOTION TO DISMISS AND MOTION TO STRIKE - of 0 i Case No. :-cv-00-rbl Seattle, Washington 0 Telephone: (0) - Facsimile: (0) -0
Case :-cv-00-rbl Document Filed 0/0/ Page of 0 0 0 In the Ninth Circuit, the general rule is that the scope of review on a motion to dismiss... is limited to the contents of the complaint. Marder v. Lopez, 0 F.d, (th Cir. 00) (citation omitted). There are two exceptions to this general rule that allows material extrinsic to the complaint to be considered without converting a Rule (b)() motion to dismiss into a Rule motion for summary judgment. Mr. Hildes declaration, however, fails to trigger the application of either exception. As to the first exception, a court may consider materials that involve matters of public record of which a court may take judicial notice. See Lee v. City of Los Angeles, 0 F.d, (th Cir. 00). Neither Mr. Hildes declaration nor any of the exhibits attached thereto are matters of public record. Thus, this exception does not apply. Under the other exception, courts may consider material upon which a complaint necessarily relies if: () the complaint refers to the document; () the document is central to the plaintiff s claim; and () no party questions the authenticity of the copy attached to the (b)() motion. Marder, 0 F.d at (citations omitted). The court may treat such a document as part of the complaint, and thus may assume that its contents are true for purposes of a motion to dismiss[.] Id. (citing U.S. v. Ritchie, F.d 0, 0 (th Cir. 00)). As the Ritchie court explained, a document outside the complaint may be incorporated by reference if the plaintiff refers extensively to the document or the document forms the basis of the plaintiff s complaint. Ritchie, F.d at 0. Here, while the letter written by Mr. Langberg (Dkt. # at ) and the letter written by Mr. Woods (Dkt. #) form the sole basis of Plaintiffs Complaint against them, Mr. Hildes declaration (prepared in response to the Joint Motion) certainly was not mentioned in Plaintiffs Complaint. Compare Dkt. # (Complaint) with Dkt. # (Declaration). The Ritchie court ruled that declarations such as Mr. Hildes in this case are not allowed as pleading exhibits unless they form the basis of the REPLY RE: JOINT MOTION TO DISMISS AND MOTION TO STRIKE - of 0 i Case No. :-cv-00-rbl Seattle, Washington 0 Telephone: (0) - Facsimile: (0) -0
Case :-cv-00-rbl Document Filed 0/0/ Page of 0 0 0 complaint. Ritchie, F.d at 0 (disapproving the Hieronymus declaration, prepared in response to Homer s motion, because that declaration was obviously not mentioned in the motion ). For these reasons, this Court should strike and disregard Mr. Hildes declaration (and exhibits) as a matter of law. II. REPLY As an initial matter, Plaintiffs challenge whether this Joint Motion to Dismiss is actually being pursued under Rule (b)(). See Dkt. #0, at. A defense of immunity, such as Messrs. Langberg s and Woods joint motion here, is a proper basis for dismissal on Rule (b)() grounds. See, e.g., Schneider v. Amazon.com, Inc., 0 Wn. App.,, P.d (00) (affirming dismissal of a defamation and tortious interference lawsuit under CR (b)() on grounds [defendant] was immune from liability ). In response to this Rule (b)() motion, Plaintiffs devote considerable space in their -page opposition trying to dispute the content of Messrs. Langberg s and Woods letters and in trying to showcase Leonard Peltier s contributions to humanitarian and charitable causes. See Dkt. # 0, at -. None of that is germane. A. RCW..0 Immunity Applies to All Civil Liability Claims, Including Defamation. Plaintiffs have not rebutted Defendants showing of immunity under RCW..0. Plaintiffs confirm that their sole basis for liability against Defendant Langberg and Defendant Woods is for the content of letters they sent to public officials regarding their concern of the public display of art by a person convicted of murdering two FBI agents in cold blood. See Dkt. #0, at -. Plaintiffs allege that the letters included defamatory statements that are the basis of their claims against the moving parties. Plaintiffs are under the mistaken impression that RCW..0 immunity does not protect against defamation claims. See Dkt. #0, at ( Defendants cannot use an anti-slapp statute to REPLY RE: JOINT MOTION TO DISMISS AND MOTION TO STRIKE - of 0 i Case No. :-cv-00-rbl Seattle, Washington 0 Telephone: (0) - Facsimile: (0) -0
Case :-cv-00-rbl Document Filed 0/0/ Page of 0 0 0 protect them from claims made by Plaintiffs. ). Plaintiffs cite no authority for this argument. They cannot do so because there are no Washington authorities that support it. Furthermore, the Washington legislature has already indicated that communications with government officials are protected First Amendment speech. See Henne v. City of Yakima, Wn.d,, P.d (0) ( the RCW..0 immunity that was designed to protect the exercise of individuals First Amendment rights... and rights under article I, section of the Washington State Constitution. ) (quoting Segaline v. Dep t of Labor and Indus., Wn.d,, P.d 0 (00)). Contrary to Plaintiffs assertion, the applicability of RCW..0 does not hinge on whether the SLAPP action contains a defamation claim or not. The Washington Supreme Court has made clear that RCW..0 immunity applies to all civil liabilities. In Right-Price Recreation, LLC v. Connells Prairie Community Council, for instance, citizen groups made public statements at a Pierce County Council meeting concerning a land developer s activities, and the land developer then sued the citizen groups based on statements they made at the meeting. Wn.d 0,, P.d (00). Specifically, the land developer filed a defamation action against the groups that alleged slander and commercial disparagement; tortious interference with binding sewer agreements; tortious interference with the hearing process; and civil conspiracy. Id. On review, the Washington Supreme Court held that, even if the statements made at the meeting were defamatory, the defendant citizen groups were still entitled to immunity under RCW..0 from developer plaintiff s tortious interference, disparagement, slander, and civil conspiracy claims against them. Id. at ( Even if there had been statements at the meetings which were claimed to be defamatory, the citizens groups were entitled to immunity under former RCW REPLY RE: JOINT MOTION TO DISMISS AND MOTION TO STRIKE - of 0 i Case No. :-cv-00-rbl Seattle, Washington 0 Telephone: (0) - Facsimile: (0) -0
Case :-cv-00-rbl Document Filed 0/0/ Page of 0 0 0..0[.] ). In arriving at its decision, the Right-Price court made no distinction between plaintiff s tortious interference, disparagement, slander, and civil conspiracy claims when it applied RCW..0 to bar all of plaintiff s claims against defendants. Id. at -. This lack of distinction is significant because it shows that no civil claim, including defamation, falls beyond the immunity provided by RCW..0. The statute does not concern itself with specific claims asserted against a defendant seeking the protection of its immunity. Rather, RCW..0 protects a defendant s communication efforts regardless of the claim asserted by plaintiff that arise out of the content of that communication. See Bailey v. State, Wn. App.,, P.d (00) (holding that the defendant was entitled to immunity under RCW..0 from plaintiff s claims arising out of statements made by defendant at a public Spokane County air pollution control board meeting). B. The Application of RCW..0 Immunity Does Not Require Good Faith. The Ninth Circuit, in affirming the Eastern District of Washington s dismissal of defamation claims on grounds of RCW..0 immunity, made clear that a defendant seeking to invoke the immunity does not have to satisfy a good faith requirement. See Cornu-Labat v. Merred, 0 Fed. Appx. (0). In affirming the dismissal and application of RCW..0, the Merred court reasoned as follows: Cornu-Labat s claims of outrage, defamation, and false light against Merred fail because Merred is immune from civil liability under Washington s anti-slapp statute, [RCW]..0. Merred s calls to law enforcement and school employees were reasonably of concern to both, for law enforcement to enforce the protection order and for the school to ensure the safety of its students. Washington law does not require good faith on the part of Merred to receive this statutory protection. The 00 amendments to RCW..0 brought Washington law... in line with these court decisions which recognize[] that the United States Constitution protects advocacy to government, regardless of content or motive, so long as it is designed to have some effect on government decision making. LAWS OF 00, ch., (emphasis added). REPLY RE: JOINT MOTION TO DISMISS AND MOTION TO STRIKE - of 0 i Case No. :-cv-00-rbl Seattle, Washington 0 Telephone: (0) - Facsimile: (0) -0
Case :-cv-00-rbl Document Filed 0/0/ Page of 0 0 0 Id. at (internal citations omitted); see also Phoenix Trading, Inc. v. Loops LLC, F.d, (th Cir. 0) ( Section..0 grants imun[ity] from civil liability for statements to any branch or agency of federal, state, or local government... regarding any matter reasonably of concern to that agency. ). The case law is clear that the Washington Legislature removed the good faith requirement for entitlement to RCW..0 immunity in 00. See Bailey, Wn. App. at ( Former RCW..0 () contained a good faith requirement. This phrase was deleted by amendment. LAWS OF 00, ch.,. ); see also Engler v. City of Bothell, No. C--JLR, 0 WL, at * (W.D. Wash. June 0, 0) ( The communicator need not have acted in good faith in order to be entitled to immunity under this statute [RCW..0]. ). C. Authors of the Letters at Issue are Immune from Civil Liability under RCW..0. For immunity to apply under RCW..0, the communication needs to be made to a public official or agency that regard[s] any matter reasonably of concern to that agency or organization. RCW..0. Plaintiffs do not dispute that Messrs. Langberg s and Woods letters meet these requirements. Moreover, Plaintiffs acknowledge that Defendants letters satisfy the elements for the application of immunity here. Plaintiffs acknowledge that Defendant Woods wrote a letter to Washington Governor Jay Inslee[.] Dkt. #0, at. Plaintiffs acknowledge that Defendant Langberg wrote a letter to Washington State Department of Labor and Industries Director Joel Sacks[.] Dkt. #0, at. Plaintiffs acknowledge that Messrs. Langberg s and Woods letters sought the removal of paintings by Plaintiff Leonard Peltier... from a National American Indian Heritage Month art display in an L&I office. Dkt. #0, at. Lastly, Plaintiffs acknowledge that public controversy exists REPLY RE: JOINT MOTION TO DISMISS AND MOTION TO STRIKE - of 0 i Case No. :-cv-00-rbl Seattle, Washington 0 Telephone: (0) - Facsimile: (0) -0
Case :-cv-00-rbl Document Filed 0/0/ Page of 0 0 0 surrounding Plaintiff Leonard Peltier s case[.] Dkt. #0, at. In short, Plaintiffs acknowledge that Mr. Langberg and Mr. Woods wrote letters to high-ranking officials in Washington State government in an effort to remove artwork by Leonard Peltier, who is the subject of public controversy. Given that Plaintiffs concede that the elements of RCW..0 are present here, Mr. Langberg and Mr. Woods are immune from the civil claims in Plaintiffs Complaint against them. Accordingly, all claims against them should be dismissed with prejudice. Additionally, Messrs. Langberg and Woods are each entitled to their costs, reasonable attorneys fees, and statutory damages of $0,000. D. Communicating about Mr. Peltier s Murder Convictions is Not Defamatory. Defendants will not attempt to address the merits of Plaintiffs defamation arguments at this juncture of the litigation (see Dkt. #0, at -0), but the content of the letters by Messrs. Langberg s and Woods did not contain defamatory language. It is a fact that on April,, Leonard Peltier was found guilty of the June,, premeditated murder of Jack Coler and Ronald Williams, special agents of the Federal Bureau of Investigation (FBI). U.S. v. Peltier, 00 F.d, (th Cir. ). It is evident that Plaintiffs still dispute Mr. Peltier s murder convictions that occurred more than 0 years ago. See Dkt. #0, at ( Support for Leonard Peltier comes... at the result of the government not knowing who killed Agents Coler and Williams. ) While Mr. Peltier and his The Eighth Circuit affirmed Mr. Pelier s conviction on September,. See U.S. v. Peltier, F.d, (th Cir. ) ( Peltier was tried by a jury, was convicted on both counts, and was sentenced to life imprisonment on each count, the sentences to run consecutively. ), cert. denied, 0 U.S. (). Mr. Peltier s motion to vacate his conviction and for a new trial was denied and affirmed on appeal. See U.S. v. Peltier, 00 F.d (th Cir. ), cert. denied, U.S. (). Mr. Peltier s post-conviction request to set aside the conviction was denied and affirmed on appeal. See Peltier v. Henman, F.d (th Cir. ). Mr. Peltier s petition for habeas relief seeking immediate release on parole was denied and affirmed on appeal. See Peltier v. Booker, F.d (0th Cir. 00), cert. denied, U.S. 00 (00). Mr. Peltier has persistently challenged his convictions, but the appellate courts and U.S. Supreme Court have repeatedly rejected them. It is a fact that he was convicted of double murder. REPLY RE: JOINT MOTION TO DISMISS AND MOTION TO STRIKE - of 0 i Case No. :-cv-00-rbl Seattle, Washington 0 Telephone: (0) - Facsimile: (0) -0
Case :-cv-00-rbl Document Filed 0/0/ Page of 0 0 0 supporters continue to litigate his convictions, the fact that Messrs. Langberg and Woods commented on Mr. Peltier s convictions in their letters does not mean that such statements are defamatory. The U.S. Supreme Court has denied Mr. Peltier s post-conviction certiorari petitions three times. See 0 U.S. (); U.S. (); and U.S. 00 (00). Thus, it remains true that Mr. Peltier was convicted of murdering two FBI agents. E. An Award of Statutory Damages is Warranted as there is No Evidence of Bad Faith. A person prevailing upon the immunity defense at issue shall receive statutory damages of ten thousand dollars but such damages may be denied if the court finds that the complaint or information was communicated in bad faith. RCW..0. Plaintiffs acknowledge that Mr. Langberg wrote a letter to Director Joel Sacks and Mr. Woods wrote a letter to Governor Inslee to ask for the removal of paintings by Plaintiff Leonard Peltier... from a National American Indian Heritage Month art display in an L & I office. Dkt. #0, at. Further, the fact that Mr. Peltier was convicted on multiple murder charges is also undisputed. This does not constitute bad faith. Therefore, Mr. Langberg and Mr. Woods are each entitled to $0,000.00 in statutory penalties. III. CONCLUSION Under RCW..0, Mr. Langberg and Mr. Woods are immune from civil liability for Plaintiffs claims against them when the following elements are met: () defendants provide a communication to a government agency; () a civil complaint is filed against the defendants based upon the communication provided by the defendants; and () the communication is on an issue of concern to the government agency. Here, all elements have been satisfied. Consequently, Plaintiffs claims against Mr. Langberg and Mr. Woods must be dismissed as a matter of law. Mr. Langberg and Mr. Woods are entitled to an award of costs and reasonable attorneys fees. They are also entitled to an award of $0,000 in statutory damages. REPLY RE: JOINT MOTION TO DISMISS AND MOTION TO STRIKE - of 0 i Case No. :-cv-00-rbl Seattle, Washington 0 Telephone: (0) - Facsimile: (0) -0
Case :-cv-00-rbl Document Filed 0/0/ Page of 0 As to Mr. Hildes declaration, it is beyond the scope of review on this Rule (b)() motion and, therefore, should be stricken. For the reasons set forth above, and the arguments advanced in their opening motion (Dkt. #), Defendants Langberg and Woods respectfully request that this Court enter an Order striking Mr. Hildes declaration (Dkt. #), dismissing all claims against them, and awarding them costs, fees, and statutory damages. DATED this 0 th day of June 0. 0 0 III BRANCHES LAW, PLLC /s/ Joan K. Mell Joan K. Mell, WSBA # E-mail: joan@brancheslaw.com 0 Regents Blvd. Ste. 0 Fircrest, Washington Counsel for Edward Woods SMITH FREED EBERHARD, P.C. /s/ Jeremy H. Rogers Jeremy H. Rogers, WSBA No. E-mail: jrogers@smithfreed.com Kyle D. Riley, WSBA No. 0 E-mail: kriley@smithfreed.com Seattle, Washington 0 Counsel for Larry Langberg & The Society of Former Special Agents of the FBI REPLY RE: JOINT MOTION TO DISMISS AND MOTION TO STRIKE - of 0 i Case No. :-cv-00-rbl Seattle, Washington 0 Telephone: (0) - Facsimile: (0) -0
Case :-cv-00-rbl Document Filed 0/0/ Page 0 of 0 0 CERTIFICATE OF SERVICE I hereby certify that a true copy of the above REPLY IN SUPPORT OF JOINT MOTION TO DISMISS ALL CLAIMS AGAINST LANGBERG AND WOODS and MOTION TO STRIKE HILDES DECLARATION AND EXHIBITS have been filed with the United States District Court via the CM/ECF system which gives automatic notification to the following attorneys of record: Lawrence A. Hildes Law Offices of Lawrence A. Hildes P.O. Box 0 Bellingham, Washington E-mail: lhildes@earthlink.net Counsel for Plaintiffs Peter J. Helmberger Office of the Attorney General 0 Pacific Avenue, Suite 0 Tacoma, Washington 0 E-mail: peterh@atg.wa.gov Counsel for Joel Sacks, Timothy Church, & Gov. Jay Inslee DATED this 0 th day of June 0. Joan K. Mell III Branches Law, PLLC 0 Regents Boulevard, Suite 0 Fircrest, Washington E-mail: joan@brancheslaw.com Counsel for Edward Woods /s/ Jeremy H. Rogers Jeremy H. Rogers, WSBA No. 0 REPLY RE: JOINT MOTION TO DISMISS AND MOTION TO STRIKE - 0 of 0 i Case No. :-cv-00-rbl Seattle, Washington 0 Telephone: (0) - Facsimile: (0) -0