No. 73 November 25, 2016 605

IN THE SUPREME COURT OF THE

STATE OF OREGON

Rob HANDY,

Respondent on Review,

v.

LANE COUNTY,

Jay Bozievich, Sid Leiken

and Faye Stewart,

Petitioners on Review.

(CC 161213685; CA A153507; SC S063725)

En Banc

On review from the Court of Appeals.*

Argued and submitted June 14, 2016.

Stephen E. Dingle, Office of Lane County Counsel, 

Eugene, argued the cause and filed the briefs for petitioners 

on review.

Marianne Dugan, Eugene, argued the cause and filed the 

brief for respondent on review. Also on the brief was Daniel 

Galpern, Eugene.

Harry Auerbach, Portland Office of City Attorney, argued 

the cause for amici curiae Association of Oregon Counties, 

League of Oregon Cities, City of Portland, and Washington 

County. Sean O’Day, League of Oregon Cities, Salem, filed 

the brief. Also on the brief were Rob Bovett, Association of 

Oregon Counties, Katherine Thomas, Office of Multnomah 

County Attorney, Harry Auerbach, Portland Office of City 

Attorney, and Alan A. Rappleyea, Washington County 

Counsel.

Keith M. Garza, Law Office of Keith M. Garza, Oak Grove, 

filed the brief for amicus curiae Tri-County Metropolitan 

Transit District of Oregon. Also on the brief was Erik Van 

Hagen, TriMet.

______________

* On appeal from Lane County Circuit Court, Richard L. Barron, Judge. 274 

Or App 644, 362 P3d 867 (2015).
606 Handy v. Lane County

Alan A. Rappleyea, Washington County Counsel, 

Hillsboro, filed the brief for amicus curiae Washington 

County.

Jack L. Orchard, Ball Janik, LLP, Portland, filed the brief 

for amici curiae Oregon Newspaper Publishers Association, 

Albany Democrat-Herald, Beaverton Valley-Times, Canby 

Herald, Central Oregonian, Corvallis Gazette-Times, 

Eugene Register-Guard, Forest Grove News-Times, Gresham 

Outlook, Hood River News, Lake Oswego Review, Lebanon 

Express, Madras Pioneer, McMinnville News-Register, 

The Oregonian, Polk County Itemizer-Observer, Portland 

Tribune, The Dalles Chronicle, Tigard and Tualatin Times, 

Wilsonville Spokesman, and Woodburn Independent. Also 

on the brief was Amy Heverly.

KISTLER, J.

The decision of the Court of Appeals is affirmed in part 

and reversed in part. The case is remanded to the Court 

of Appeals for further consideration consistent with this 

decision.

Case Summary: Plaintiff filed this action claiming, among other things, that 

a quorum of the Lane County commissioners violated ORS 192.630(2) by engaging in a series of private communications to decide whether to comply with a 

public records request. The trial court ruled that plaintiff had not offered sufficient evidence to avoid defendants’ special motion to strike. The court accordingly 

dismissed plaintiff’s claims without prejudice. The Court of Appeals reversed. 

The majority held that a quorum can meet by means of seriatim communications 

and that plaintiff had presented sufficient evidence from which a reasonable trier 

of fact could find that a quorum of the Lane County commissioners had met to 

decide or deliberate toward deciding whether to comply with a public records 

request. Held: Even if plaintiff can rely on a series of communications to establish 

that a quorum met to decide or deliberate toward a decision, the evidence in this 

case was not sufficient to establish that a quorum had done so.

The decision of the Court of Appeals is affirmed in part and reversed in part. 

The case is remanded to the Court of Appeals for further consideration consistent 

with this decision.
Cite as 360 Or 605 (2016) 607

KISTLER, J.

Oregon’s public meetings law provides that a quorum of a public entity’s governing body “may not meet in 

private for the purpose of deciding on or deliberating toward 

a decision.” ORS 192.630(2). Plaintiff filed this action claiming, among other things, that a quorum of the Lane County 

commissioners had violated that provision by engaging in a 

series of private communications to decide whether to comply with a public records request. Plaintiff’s claim raises primarily two issues. The first is whether a quorum of a public 

body can “meet” in violation of ORS 192.630(2) by means 

of seriatim communications or whether a quorum can meet 

only if all the members of the quorum are present at the 

same time. The second issue is whether, if a quorum can 

meet by means of seriatim communications, plaintiff’s evidence was sufficient to establish that a quorum of the commissioners met privately.

The trial court assumed that a quorum can meet by 

means of seriatim communications, but it ruled that plaintiff had not offered sufficient evidence to avoid defendants’ 

special motion to strike. See ORS 31.150 (providing for special motions to strike certain kinds of claims). The court 

accordingly dismissed plaintiff’s claims without prejudice. 

The Court of Appeals reversed. Handy v. Lane County, 274 

Or App 644, 362 P3d 867 (2015) (en banc). The majority held 

that a quorum can meet by means of seriatim communications and that plaintiff had presented sufficient evidence 

from which a reasonable trier of fact could find that a quorum of the Lane County commissioners had met to decide or 

deliberate toward deciding whether to comply with a public 

records request. Id. The dissent would have held that a quorum can meet only if all the members of the quorum are 

present at the same time, either in person or electronically, 

which had not occurred in this case. Id. at 684 (DeVore, J., 

dissenting).

We allowed defendants’ petition for review to consider those issues. We now hold that, even if plaintiff can 

rely on a series of communications to establish that a quorum met to decide or deliberate toward a decision, the evidence in this case was not sufficient to establish that a 
608 Handy v. Lane County

quorum had done so. That is, we agree with the trial court 

that, given the evidence that plaintiff offered in response to 

defendants’ special motion to strike, no reasonable trier of 

fact could find that a quorum met to decide whether to comply with the public records request. We reverse the Court of 

Appeals decision in part and affirm it in part.

I. FACTS AND PROCEEDINGS BELOW

In April 2011, the Lane County Circuit Court 

entered a $350,000 judgment against the Lane County 

Board of Commissioners for violating the public meetings 

law. Dumdi v. Handy, Lane County CC No. 16-10-02760 

(2011) (general judgment).1

 Additionally, as a result of 

those public meetings law violations, the trial court entered 

$20,000 judgments individually against the plaintiff in this 

case (who was a defendant in Dumdi) and another Lane 

County Commissioner (Sorenson). Id.

A year later, plaintiff was running for reelection as 

a Lane County Commissioner. On May 1, 2012, the Lane 

County District Attorney received a call from a local businessman, who said that plaintiff “ha[d] been pushing him to 

donate money ‘anonymously’ to pay off a debt” that plaintiff 

owed Lane County. According to the caller, other persons 

may have already made anonymous donations on plaintiff’s 

behalf to help pay off the debt. Given plaintiff’s status as a 

county commissioner, the district attorney concluded that 

it was inappropriate for his office to investigate that allegation. He accordingly asked the Oregon Department of 

Justice to investigate.

The next day, on May 2, an attorney representing the businessman sent a letter to plaintiff, stating that 

plaintiff had asked the businessman to make an anonymous “campaign contribution or a $3,000 payment to 

Lane County for [plaintiff’s] personal benefit.” The letter 

explained why, in the attorney’s view, plaintiff’s request 

had violated Oregon’s ethics laws, campaign finance laws, 

and criminal laws. The attorney also observed that, in his 

1 Because the question on review is whether plaintiff’s evidence was sufficient to establish a prima facie case, see ORS 31.150(3), we state the facts in the 

light most favorable to plaintiff.
Cite as 360 Or 605 (2016) 609

opinion, plaintiff’s actions exposed Lane County to liability. Enclosed with the letter were several documents. One 

was a copy of a handwritten note that purported to be 

from plaintiff to the businessman, asking him to make an 

anonymous $3,000 contribution to help pay off the $20,000 

debt that plaintiff owed Lane County. Also enclosed was a 

list of payments that previously had been made on plaintiff’s $20,000 debt to Lane County. In addition to showing 

biweekly payroll deductions, the list showed three contributions totaling $3,020 from unnamed citizens. The attorney copied the letter on the Lane County District Attorney, 

the Secretary of State, the Elections Director, and the 

Oregon Government Ethics Commission. The attorney 

also attached a copy of the letter to an email, which he 

sent at 2:28 p.m. on May 2 to the Lane County District 

Attorney.

Within two hours after the attorney emailed the 

letter, the Lane County administrator received a public 

records request from Bill Lunden at a local radio station. 

Having received that request, the county administrator 

asked the district attorney about it. The district attorney 

responded by email at 4:04 p.m., “I assume this is the record 

Mr. Lunden is seeking. Holy cow . . . this just arrived in my 

office at 14:38 [sic]. I haven’t even read the attached letter 

yet!” (Ellipses in original.) The county administrator wrote 

back eight minutes later and said, “After you read it let me 

know what you want me to do.”

Between 4:04 p.m. and 7:30 p.m., the county administrator spoke to two county commissioners (Commissioners 

Bozievich and Stewart). Both asked her about potential county liability. At 7:38 p.m., the county administrator sent the following email to two county commissioners 

(Commissioners Leiken and Bozievich), which she copied on 

the district attorney and a senior county counsel:

“Commissioners, I’ve now had a chance to review the letter we received today from [the businessman’s attorney]. 

Commissioner Stewart asked me about County liability. 

Commissioner Bozievich had the same concern when I 

spoke to him earlier. I would like to consult with [the district attorney] and/or [the senior county counsel], but at 
610 Handy v. Lane County

the very least it makes me concerned about what else may 

be occurring that we aren’t aware of. I’d like to give some 

advice to Finance as to what they should do with the monies we’ve already received. I’m also concerned that it will 

look like we are trying to hide something if we refuse the 

public records request. Our practice is to use the exceptions if they exist, but it feels wrong in this case. I’ll consult with counsel on all of these issues and get back to you 

tomorrow.”

Twelve minutes later, Commissioner Leiken replied 

to the county administrator with a copy to Commissioner 

Bozievich. Leiken’s email stated, “I just read the letter from 

[the businessman’s attorney] and I am very concerned as 

well with regards to the county’s potential liability. I will 

be in tomorrow morning and look forward to what you find 

out.”

The next morning, May 3, at 5:56 a.m., Commissioner Bozievich replied to the county administrator and 

Commissioner Leiken. His email said:

“I will be available to come in the morning also. Looking 

forward to a quick decision on disclosure. Seems like the 

actual letter to [plaintiff] putting him on notice is already 

putting any investigation at risk and I do not want to be 

seen as covering up the receipt of funds from a possible illegitimate source.”

A minute later, Commissioner Bozievich sent a second email 

to the county administrator, saying that Lunden, the person 

who had made the public records request, was texting him 

about getting a copy of the attorney’s letter. Bozievich asked 

the county administrator whether there was “[a]ny news on 

this yet?”

Approximately an hour later, at 7:09 a.m., the county 

administrator replied to Bozievich by email, “No. Just got 

done checking emails and texts. Will call [the district attorney].” The district attorney concluded that the attorney’s letter came within an exception to the public records law and 

decided that he would invoke the exception and not release 

it. Having made that decision, the district attorney advised 

the county administrator (at some point after 7:09 a.m.) 

that the commissioners could choose to release the letter 

even though the district attorney had made a different 
Cite as 360 Or 605 (2016) 611

decision.2

 As Commissioner Bozievich later explained, “we 

were waiting for [the district attorney’s] advice as of

7:09 am. It was after [the county administrator] called [the 

district attorney] that [the county administrator] contacted 

the agenda committee, Chair and vice-Chair [of the County 

Commissioners], and it was decided to hold a meeting ASAP 

based on [the district attorney’s] response.”3

The County Commissioners held a public emergency 

meeting at 9:00 a.m., less than two hours after the district 

attorney notified the county administrator that, although 

he had decided to invoke the public records exception, the 

county commissioners could choose to release the letter. 

Commissioners Bozievich, Leiken, and Stewart attended the 

emergency meeting. Plaintiff and Commissioner Sorenson 

did not attend. The meeting lasted 16 minutes, during which 

each of the commissioners present explained why he voted 

to release the letter. After the meeting ended, the county 

administrator sent the attorney’s letter to the members of 

the media who had requested it.

Plaintiff brought this action against Lane County 

and Commissioners Stewart, Leiken, and Bozievich (defendants). Plaintiff’s complaint alleged three claims for relief. 

The first claim alleged that defendants had violated the 

public meetings law by failing to give either sufficient notice 

of the May 3 meeting or a sufficient explanation for holding 

an emergency meeting and by not issuing minutes for that 

2 The district attorney emailed Lunden at 8:48 a.m. on May 3, explaining that 

“[m]ost or all of th[e] record [that Lunden was seeking] is protected from public 

records disclosure because it provides detail and evidence relating to a potential 

criminal investigation.” After advising Lunden that he had turned the matter 

over to the Oregon Department of Justice, the district attorney explained that he 

had decided to invoke the criminal investigation exception to the public records 

law and would not himself release the letter. He noted, however, that the County 

Commissioners could choose to release the letter even though he had invoked the 

exception. Finally, he noted that Lunden could contact the Department of Justice, 

which might take a different position and also release the letter.

3 Six days later, on May 9, the county administrator emailed the Lane County 

Counsel’s office saying, “Here’s the communications about calling an emergency 

session and the reason why. I called Commissioner Stewart to get his input, and 

then we scheduled it.” Attached as an email string were the county administrator’s May 2 email to Bozievich and Leiken and their replies to her, all of which 

are set out above. It appears from her email that Commissioners Bozievich and 

Leiken were the two members of the agenda committee responsible for calling an 

emergency meeting of the County Commissioners.
612 Handy v. Lane County

meeting. The second claim for relief alleged that the communications among the three commissioners that preceded 

the emergency meeting violated ORS 192.630(2) because a 

quorum of the commissioners had met privately to decide or 

deliberate toward deciding (1) whether to meet on an emergency basis and (2) whether to release the attorney’s letter. 

The third claim for relief sought injunctive relief because of 

defendants’ repeated violations of the public meetings law. 

The third claim for relief did not identify any violation of the 

public meetings law other than the violations alleged in the 

first two claims for relief.

Defendants responded by filing a special motion 

to strike plaintiff’s complaint pursuant to Oregon’s antiSLAPP statute. See ORS 31.150 (providing for special 

motions to strike certain claims).4

 Under the anti-SLAPP 

statute, if a defendant establishes a prima facie case that 

a claim arises out of protected statements, documents, or 

conduct, the burden shifts to the plaintiff “to establish that 

there is a probability that the plaintiff will prevail on the 

claim by presenting substantial evidence to support a prima 

facie case.” ORS 31.150(3). If the plaintiff does not present sufficient evidence to meet that burden, then the antiSLAPP statute directs the trial court to dismiss the claim 

without prejudice. ORS 31.150(1).

After considering the evidence set out above, the 

trial court granted defendants’ motion to strike all plaintiff’s claims for relief. The court reasoned that the gravamen 

of the first two claims was defendants’ decision to release 

the attorney’s letter. The court concluded that those claims 

for relief arose out of the statements that the commissioners allegedly had made and thus triggered the protections 

of the anti-SLAPP statute. As noted, under that statute, 

the burden shifted to plaintiff “to establish that there is a 

probability that [he] will prevail on the claim by presenting 

substantial evidence to support a prima facie case.” ORS 

31.150(3).

4 SLAPP is an acronym for strategic lawsuits against public participation. 

See Neumann v. Liles, 358 Or 706, 722-23, 369 P3d 1117 (2016). Anti-SLAPP statutes seek to minimize the effect of strategic suits intended to deter persons from 

expressing their views. Id. Their goal is to permit defendants who are targeted 

for their statements to end such suits quickly and with minimal expense. Id.
Cite as 360 Or 605 (2016) 613

In seeking to meet that burden, plaintiff relied on 

the Lane County Circuit Court decision in Dumdi, which 

had held that a quorum of a governing body can “meet” in 

violation of ORS 192.630(2) by means of a series of communications made for the purpose of deciding or deliberating 

toward deciding an issue. In resolving defendants’ motion to 

strike, the trial court assumed that Dumdi correctly stated 

the law. It ruled, however, that even under Dumdi, “plaintiff 

has not shown he is likely to prevail.” That is, the trial court 

found that plaintiff’s evidence was insufficient as a matter 

of law to meet the legal standard that Dumdi announced.5

The court dismissed plaintiff’s first two claims for relief on 

that ground, and it dismissed plaintiff’s third claim for relief 

because it depended on the first two.

A divided Court of Appeals reversed the trial court’s 

judgment and remanded the case for further proceedings. 

Handy, 274 Or App at 669. The majority reasoned that plaintiff’s first claim for relief was not subject to the anti-SLAPP 

statute. Id. at 668-69. That claim alleged that defendants 

had violated the public meetings law by failing to give either 

sufficient notice of the May 3 meeting or a sufficient explanation for holding an emergency meeting and by not issuing 

minutes for that meeting. The court reasoned that, because 

that claim did not arise out of any protected conduct listed 

in the anti-SLAPP statute, that statute did not provide a 

basis for striking plaintiff’s first claim. Id.

Regarding plaintiff’s second claim for relief, the 

majority explained that that claim for relief challenged 

two related but separate decisions that a quorum of the 

commissioners allegedly had made: the decision to call an 

emergency meeting and the decision to release the attorney’s letter. The majority held that the public meetings law 

did not apply to the first decision. Id. at 654. On that issue, 

the majority reasoned that the public meetings law applies 

only to decisions that require a vote of a quorum of the governing body. Id.; see ORS 192.610(1) (defining “decision” as 

5 The trial court also denied plaintiff’s request to allow it to engage in further discovery beyond the documents that plaintiff had received as a result of a 

public records request. In its written order, the court stated that, “because it does 

not believe it is likely plaintiff would prevail on his claims for relief, there is no 

reason to allow further discovery.”
614 Handy v. Lane County

“any determination, action, vote or final disposition upon a 

motion, proposal, resolution, order, ordinance or measure on 

which a vote of a governing body is required, at any meeting 

at which a quorum is present”). However, under the Lane 

County charter, the decision to hold an emergency meeting 

does not require a vote of a quorum of the county commissioners. Handy, 274 Or App at 654. It followed, the majority 

reasoned, that even if a quorum of the Lane County commissioners had met privately to decide whether to hold an 

emergency meeting, doing so would not violate the public 

meetings law. Id. The Court of Appeals accordingly upheld, 

on a different ground, the trial court’s judgment regarding 

the first decision that gave rise to plaintiff’s second claim for 

relief.

The majority reached a different conclusion regarding the other decision that plaintiff’s second claim for relief 

challenged—the decision to release the attorney’s letter. 

Regarding that decision, the majority held that a quorum 

of a governing body can “meet” seriatim if each member 

of a quorum communicates with the other members of the 

quorum for the purpose of reaching a decision or deliberating toward a decision. Id. at 664-66. The majority also 

concluded that plaintiff’s evidence was sufficient to state a 

prima facie case that each of the three commissioners had 

communicated privately with the other two commissioners 

for the purpose of deciding whether to release the attorney’s 

letter. Id. at 667. The majority accordingly reversed the trial 

court’s judgment dismissing that part of plaintiff’s second 

claim for relief. Id.6

The dissent would have held that the term “meet” 

in ORS 192.630(2) should be interpreted the same way as 

the defined term “meeting.” See id. at 678-79 (DeVore, J., 

dissenting); ORS 192.610(5) (defining “meeting”). In the 

6 Although the majority did not address the trial court’s disposition of plaintiff’s third claim for relief, it reversed the trial court’s judgment in its entirety. 

The trial court had dismissed the third claim for injunctive relief because it 

depended on the first two claims stating actionable violations of the public meetings law. Having concluded that plaintiff’s first two claims for relief, in whole or 

in part, stated actionable violations of the public meetings law, the majority presumably concluded that the third claim for relief also had to go back to the trial 

court.
Cite as 360 Or 605 (2016) 615

dissent’s view, a quorum of a public body will meet only if 

there is a contemporaneous gathering of a quorum, either 

in person or electronically. It followed, the dissent reasoned, 

that a quorum cannot meet by means of a series of a communications, even if all those communications were exchanged 

for the purpose of reaching or deliberating toward a decision. Because there was no evidence of a contemporaneous 

gathering, the dissent would have affirmed the trial court’s 

judgment on that ground.

II. ISSUES ON REVIEW

On review, the parties’ arguments are limited. 

Defendants do not challenge the Court of Appeals’ conclusion that plaintiff’s first claim for relief is not subject to a 

motion to strike under the anti-SLAPP statute. Rather, 

defendants’ argument is focused on the Court of Appeals’ 

resolution of the second part of plaintiff’s second claim 

for relief—that the commissioners’ seriatim communications established that they decided or deliberated toward 

a decision to release the attorney’s letter. On that issue, 

defendants adopt, in large part, the dissent’s position that 

the public meetings law does not apply to seriatim communications among a quorum of the commissioners. They 

also point out the absence of any evidence that the county 

administrator was acting as an agent for Commissioner 

Stewart, and they question how the absence of any evidence 

that three commissioners decided or deliberated toward a 

decision whether to release the letter can be converted into 

a reasonable inference that they did.7

Plaintiff, for his part, does not challenge the Court 

of Appeals’ decision dismissing the first part of his second 

claim for relief; that is, he does not challenge the Court of 

Appeals’ conclusion that, under the Lane County charter, 

the decision whether to call an emergency meeting is not 

a “decision” to which the public meetings law applies. He 

7 Defendants’ evidentiary discussion on review is directed to showing that 

three commissioners (or two commissioners and an agent for a third) did not meet 

under the dissent’s interpretation of ORS 192.630(2)—namely, that they did not 

communicate simultaneously regarding whether to release the attorney’s letter. 

However, if defendant’s evidentiary point is correct, it also establishes that a 

quorum did not meet under plaintiff’s interpretation of ORS 192.630(2).
616 Handy v. Lane County

also does not dispute that the anti-SLAPP statute applies 

to the second part of his second claim for relief.8

 His argument focuses on one issue. Adopting the majority’s reasoning in the Court of Appeals, plaintiff argues that the second 

part of his second claim for relief can go forward because 

the seriatim communications that preceded the emergency 

meeting established a prima facie case that a quorum of the 

commissioners met to decide or deliberate toward a decision 

to release the attorney’s letter.

The question that the parties raise on review entails 

three issues. The first arises under the anti-SLAPP statute: What standard must a plaintiff’s evidence meet once 

the defendant shows that the plaintiff’s claim arises out of 

a statement to which the anti-SLAPP statute applies? The 

second issue arises under the public meetings law: Can a 

quorum of a public body “meet” by means of seriatim communications or must all the members of the quorum be present at the same time? The third issue is case specific: Was 

the evidence that plaintiff offered to support the second part 

of his second claim for relief sufficient to defeat a motion to 

strike under the anti-SLAPP statute?

The parties’ briefs on review focus on the second 

issue noted above. At oral argument, however, the parties 

were asked whether plaintiff’s evidence was sufficient, 

even under the legal standard that the Court of Appeals 

announced and that plaintiff urges us to adopt. We conclude 

that it is appropriate to begin with that issue. If plaintiff’s 

evidence is not sufficient to permit a reasonable trier of fact 

to infer that defendants “met” in violation of ORS 192.630(2), 

even under the Court of Appeals’ interpretation of that statute, then any decision as to what that statute means could 

be viewed as unnecessary and perhaps dicta. Beyond that, 

we think it fair to say that the correct interpretation of the 

term “meet” in ORS 192.630(2) is far from clear. Both the 

majority and the dissenting opinions in the Court of Appeals 

offered persuasive and diametrically opposed interpretations of that term after invoking competing rules of statutory interpretation and seeking to glean the legislature’s 

8 The Court of Appeals noted that plaintiff had conceded that issue. Handy, 

274 Or App at 652-53.
Cite as 360 Or 605 (2016) 617

intent from scraps of legislative history and different views 

of the purpose of the public meetings law.

Admittedly, courts are charged with determining 

what a statute means even when the sources for making 

that determination can only be described as opaque. But we 

think the more prudent course in this case is to determine 

initially whether we need to undertake that task. That is, 

the better course in this case is to ask whether plaintiff’s 

evidence was sufficient to avoid defendant’s special motion 

to strike, even under the interpretation of ORS 192.630(2) 

that plaintiff urges us to adopt. If it was, only then would we 

need to determine the statutory question that divided the 

Court of Appeals—whether a quorum can “meet” by means 

of seriatim communications. In considering the sufficiency 

of plaintiff’s evidence, we first clarify the standard of review 

under ORS 31.150. We then turn to the evidence that plaintiff offered in response to defendants’ motion.

A. Standard of review

We begin with the burden that the anti-SLAPP 

statute places on a plaintiff once a defendant makes a prima 

facie showing that the plaintiff’s claim arose out of protected 

statements, documents, or conduct under ORS 31.150(2). On 

that issue, ORS 31.150(3) provides that, if a defendant

“mak[es] a prima facie showing that the claim against 

which the motion [to strike] is made arises out of a statement, document or conduct described in [ORS 31.150(2)], 

* * * the burden shifts to the plaintiff in the action to establish that there is a probability that the plaintiff will prevail 

on the claim by presenting substantial evidence to support 

a prima facie case.”

This court has not addressed what the requirement that a 

plaintiff show a “probability” of prevailing “by presenting 

substantial evidence to support a prima facie case” means, 

and we look to the text, context, and legislative history of 

ORS 31.150(3) to resolve that issue.

1. Text

Textually, the description of the plaintiff’s burden 

divides into two parts. The first part states that a plaintiff 

must “establish that there is a probability that the plaintiff 
618 Handy v. Lane County

will prevail on the claim.” ORS 31.150(3). The second part 

specifies how a probability may be established—“by presenting substantial evidence to support a prima facie case.” 

Id. We note, as an initial matter, that the two parts of that 

description do not fit neatly together. In this context, presenting a prima facie case means that the plaintiff has presented enough evidence to avoid a directed verdict—namely, 

enough evidence to meet the plaintiff’s burden of production. See State v. Rainey, 298 Or 459, 463, 693 P2d 635 

(1985) (defining “prima facie case”).9

 Ordinarily, presenting 

enough evidence to avoid a directed verdict does not necessarily equate with establishing a “probability” of prevailing, 

or at least there is some tension between those two concepts.

We also note that ORS 31.150(3) requires a plaintiff 

to present “substantial evidence” to support a prima facie 

case. It is unclear whether the phrase “substantial evidence” 

requires more evidence (or more persuasive evidence) than 

ordinarily would be required to establish a prima facie case. 

Put differently, when used in conjunction with requiring a 

plaintiff to establish a “probability” of prevailing, the phrase 

“substantial evidence” could suggest an intent to require 

something more than the ordinary showing necessary to 

meet a party’s burden of production. The text of the statute 

does not provide a clear answer.

2. Context

The context does not shed much light on the issue. 

There is no dispute that Oregon modeled its anti-SLAPP 

statute on California’s. However, the section of Oregon’s 

anti-SLAPP statute that gives rise to this issue is unique 

to Oregon; California’s anti-SLAPP statute contains no 

comparable section. Compare ORS 31.150(3), with Cal Code 

Civ Proc § 425.16 (West 2001).10 Because the relevant text 

90 The court observed in Rainey that the phrase “prima facie” can be used in 

two senses. A prima facie case “‘may mean evidence that is simply sufficient to 

get to the jury, or it may mean evidence that is sufficient to shift the burden of 

proof.’” 298 Or at 463 (quoting Lampos v. Bazar, Inc., 270 Or 256, 279, 527 P2d 

376 (1974)). The context reveals that the legislature used the phrase in the first 

sense.

10 When Oregon adopted its anti-SLAPP statute, California’s anti-SLAPP 

statute provided (and still provides) that, if that statute applies, a plaintiff must 

“establis[h] that there is a probability that the plaintiff will prevail.” Cal Code 
Cite as 360 Or 605 (2016) 619

of Oregon’s statute is not found in California’s statute, we 

cannot presume, as we ordinarily would, that California 

Supreme Court decisions that preceded the adoption of our 

statute and that addressed the showing a plaintiff must 

make in response to a motion to strike provide context for 

interpreting ORS 31.150(3). Cf. State v. Stockfleth/Lassen, 

311 Or 40, 50, 804 P2d 471 (1991) (explaining that, “when 

Oregon adopts the statute of another jurisdiction, the legislature is presumed also to adopt prior constructions of the 

statute by the highest court of that jurisdiction”).

3. Legislative history

We also consider the legislative history of Oregon’s 

anti-SLAPP statute. As initially introduced, Oregon’s antiSLAPP bill was virtually identical to California’s statute. 

Compare Bill File, House Bill (HB) 2460, Oct 17, 2000, with 

Cal Code Civ Proc § 425.16 (West 2001); Tape Recording, 

House Judiciary Subcommittee on Civil Law, HB 2460,

Mar 19, 2001, Tape 41, Side A (remarks of Dave Heynderickx). 

Initially, subsection (1) of the bill provided, as California’s 

anti-SLAPP statue provided, that a court shall grant a special motion to strike “unless the plaintiff establishes that 

there is a probability that the plaintiff will prevail on the 

claim.” Compare Bill File, HB 2460, Oct 17, 2000, with Cal 

Code Civ Proc § 425.16 (West 2001). Like California’s statute, Oregon’s bill initially did not provide further guidance 

on what a plaintiff must show.

At a hearing before the House Judiciary Subcommittee on Civil Law, two members of the Oregon State Bar’s 

Practice and Procedure Committee testified that subsection (1) of the bill was problematic. Tape Recording, House 

Judiciary Subcommittee on Civil Law, HB 2460, Mar 19, 

2001, Tape 44, Side A and Tape 43, Side B (testimony of Mark 

Morrell and Jeff Johnson). They explained that the use of 

the word “probability” implied that the plaintiff had to show 

a likelihood of prevailing and could require a court to weigh 

the plaintiff’s evidence. Id. Not only would such a procedure 

be contrary to existing rules of Oregon civil procedure, but 

Civ Proc § 425.16(b)(1) (West 2001). The California statute lacks a section comparable to ORS 31.150(3), which sets out shifting burdens and specifies how a 

plaintiff can establish a probability of prevailing. See id. § 425.16. 
620 Handy v. Lane County

dismissing a claim based on a trial court’s assessment of the 

weight of a plaintiff’s evidence could violate the plaintiff’s 

constitutional right to a jury trial. Id. To avoid those problems, the witnesses suggested that defendants could bring 

summary judgment motions against SLAPP suits. However, 

they agreed that summary judgment motions were unlikely 

to be an effective way of meeting the legislature’s goal of 

bringing a quick end to SLAPP suits. Id.

The House Subcommittee proposed amending the 

bill to meet those concerns. Although the subcommittee 

retained the requirement in subsection (1) that a plaintiff 

faced with a special motion to strike must show a probability of prevailing, it proposed two changes. First, it qualified 

the statement in subsection (1) that a plaintiff establish a 

probability of prevailing by adding the phrase, “in the manner provided by subsection (3) of this section.” Bill File, HB 

2460, Apr 20, 2001. Second, the subcommittee added subsection (3), which would have provided:

“A defendant making a special motion to strike under 

the provisions of this section has the initial burden of making a prima facie showing that the claim against which the 

motion is made arises out of a statement, document or conduct described in subsection (2) of this section. If the defendant meets this burden, the burden shifts to the plaintiff 

in the action to make a prima facie showing of facts that 

would, if proved at trial, support a judgment in favor of the 

plaintiff on the claim. If the plaintiff meets this burden, the 

court shall deny the motion.”

Id. Those amendments avoided the constitutional concerns 

that the Bar had raised by stating that a plaintiff could 

prove a “probability” of prevailing by offering sufficient 

facts to make out a prima facie case—i.e., sufficient facts to 

meet the plaintiff’s burden of production. The subcommittee 

approved the bill, as amended, which the House Judiciary 

Committee and later the full House approved.

Representative Schrader carried the bill in the 

Senate Judiciary Committee. In introducing the bill, he 

proposed several amendments to it. Tape Recording, Senate 

Committee on Judiciary, HB 2460, May 15, 2001, Tape 142, 

Side A. Among other things, Representative Schrader proposed amending the wording of subsection (3) of the bill. Id.
Cite as 360 Or 605 (2016) 621

The Bar proposed similar but slightly different modifications 

to subsection (3). Id. at Tape 142, Side B (testimony of Bob 

Olson). Those amendments required the plaintiff “to present 

substantial evidence to support a prima facie case.” Senate 

Committee on Judiciary, HB 2460, May 15, 2001, Exhibits 

Q, U, and V (-3, -4, and -5 amendments to HB 2460).

The use of the phrase “substantial evidence” 

prompted substantial discussion. Tape Recording, Senate 

Committee on Judiciary, HB 2460, May 15, 2001, Tape 

142, Side B (remarks of Sen Courtney). Senator Courtney 

observed that the proposed amendments appeared to place 

a “dramatically” greater burden on the plaintiff than the 

defendant. Id. He noted that, under subsection (3) of the 

bill, a defendant had to make a prima facie showing while 

the plaintiff had to respond with “substantial evidence.” 

Id. The representative from the Bar agreed that the bill 

required the plaintiff to offer “substantial evidence,” but 

he observed that “the question is what does that mean.” Id.

(Bob Olson). Senator Courtney replied, “Well, we know what 

that means. That’s a whole lot more than a prima facie.” 

Id. Senator Courtney added that he was not saying that the 

proposed wording was wrong, just that the amendment was 

“very significant” because the phrase “substantial evidence” 

appeared to place a greater burden on the plaintiff than the 

defendant. Id.

Dave Heynderickx from the Office of Legislative 

Counsel and representatives from the Bar explained that 

that had not been their intent. Heynderickx stated that, if 

the defendant met its burden:

“then the burden shifts to the plaintiff to come forward at 

that point and say I’ve got the goods. I’ve got something 

more than just the allegations in my complaint, and I’m not 

depending on hopefully finding something during discovery. In essence, you have to come forward and show you’ve 

got something to support, by affidavit or otherwise, your 

case.”

Id. At that point, Senator Minnis interjected and explained 

that the counsel to the Senate Judiciary Committee had 

told him that “substantial evidence” merely required “some 

showing of facts to support the prima facie basis of [the 
622 Handy v. Lane County

plaintiff’s] case.” Id. Heynderickx agreed. He clarified that 

the plaintiff has “to come forward to make a prima facie 

showing. And what that normally means is just some affidavit or some showing on the elements of your case that you’ve 

got something to support it.”11 Id.

With that point resolved, the discussion moved to 

other issues, and the Senate Judiciary Committee amended 

subsection (3) of the bill to provide:

“A defendant making a special motion to strike under the 

provisions of this section has the initial burden of making 

a prima facie showing that the claim against which the 

motion is made arises out of a statement, document or conduct described in subsection (2) of this section. If the defendant meets this burden, the burden shifts to the plaintiff 

in the action to establish that there is a probability that the 

plaintiff will prevail on the claim by presenting substantial evidence to support a prima facie case. If the plaintiff 

meets this burden, the court shall deny the motion.”

Bill File, HB 2460, May 30, 2001 (B-Engrossed Bill). The 

Senate approved the bill, as amended, and the House 

acceded to the Senate amendments. House and Senate 

Journal, Regular Session, 2001, H-95.

The legislative history of HB 2460 establishes that, 

in amending that bill, the Senate did not intend to depart 

from the terms of subsection (3) as it emerged from the 

House. Rather, the Senate agreed that, if a defendant makes 

a prima facie showing, then the burden shifts to the plaintiff 

to submit sufficient evidence to make its prima facie case; 

that is, the plaintiff must submit sufficient evidence from 

11 Heynderickx explained that the wording of the amendments had been 

taken from the California cases. Tape Recording, Senate Committee on Judiciary, 

HB 2460, May 15, 2001, Tape 142, Side B. The California cases that preceded the 

adoption of Oregon’s anti-SLAPP statute held that, if the defendant showed that 

the anti-SLAPP statute applied, the plaintiff could establish a “probability” of 

prevailing by “mak[ing] a prima facie showing of facts which would, if proved at 

trial, support a judgment in plaintiff’s favor.” ComputerXpress, Inc. v. Jackson, 

93 Cal App 4th 993, 1010, 113 Cal Rptr 2d 625 (2001); Church of Scientology 

v. Wollersheim, 42 Cal App 4th 628, 646, 49 Cal Rptr 2d 620 (1996) (same); see 

Matson v. Dvorak, 40 Cal App 4th 539, 548, 46 Cal Rptr 2d 880 (1995) (explaining 

that a plaintiff can establish a “probability” of prevailing by demonstrating that 

“the complaint is both legally sufficient and supported by a sufficient prima facie 

showing of facts to sustain a favorable judgment if the evidence submitted by the 

plaintiff is credited”).
Cite as 360 Or 605 (2016) 623

which a reasonable trier of fact could find that the plaintiff 

met its burden of production. In using terms like “probability” and “substantial evidence,” the legislature did not 

intend to require a plaintiff to do more than meet its burden 

of production. Conversely, the legislature did not intend that 

a plaintiff could avoid a special motion to strike by doing 

less than that.12

B. Plaintiff’s evidence

In evaluating the sufficiency of plaintiff’s evidence, 

we assume without deciding that the Court of Appeals correctly held that a quorum of a public body can “meet” by 

means of seriatim communications if each member of the 

quorum communicates with the other members for the purpose of deciding or deliberating toward a decision—in this 

case, the decision whether to publicly release the attorney’s 

letter. The difficulty with plaintiff’s position is that he failed 

to meet his burden of production on that issue. No reasonable trier of fact could find from the evidence that plaintiff 

submitted in response to defendants’ special motion to strike 

that each of the three commissioners (Stewart, Leiken, and 

Bozievich) decided or deliberated toward deciding whether 

to release the attorney’s letter.

The relevant time period in this case is relatively 

short. At 2:28 p.m. on May 2, the businessman’s attorney 

emailed a copy of his letter to the Lane County District 

Attorney. Within two hours, Lane County had received a 

public records request for the letter. The next morning, at 

9:00 a.m., the Lane County Commissioners held a public 

meeting to decide whether to release the attorney’s letter. 

Within that roughly 18-hour window, two county commissioners (Bozievich and Leiken) and the county administrator exchanged emails. The county administrator also spoke 

with a third commissioner (Stewart). Those communications 

12 The Court of Appeals has relied on California decisions issued after Oregon 

enacted ORS 31.150 to determine how much evidence a plaintiff must offer to 

avoid a special motion to strike. However, what our statute means turns on 

what the Oregon legislature understood in 2001 when it enacted ORS 31.150(3). 

While the legislature intended to follow the California cases that existed in 2001, 

California cases decided after 2001 are relevant, at most, only for their persuasive value. 
624 Handy v. Lane County

are insufficient, even when aggregated, to meet plaintiff’s 

burden of production.

One of the three commissioners (Leiken) said nothing about disclosing the attorney’s letter. Rather, the only 

communication from Leiken occurred on May 2 at 7:50 p.m. 

when he emailed a reply to the county administrator’s email 

with a copy to Bozievich and said, “I just read the letter from 

[the attorney] and I am very concerned as well with regards 

to the county’s potential liability.” The question whether 

Lane County was financially liable as a result of plaintiff’s 

asking donors to make anonymous political contributions is 

different from the question of how the county commissioners should respond to the media’s public records request to 

release the attorney’s letter. Indeed, it was only a year earlier that plaintiff’s actions had resulted in the county’s being 

held liable for $350,000, and the attorney’s letter posed the 

possibility that plaintiff’s more recent actions also could 

subject the county to liability. It should come as no surprise 

that Leiken was concerned that the county could be held liable for additional sums. However, no reasonable trier of fact 

could find that, in expressing concern that the county could 

be subject to liability, Leiken was deciding or deliberating 

toward deciding whether to release the attorney’s letter.

To be sure, Leiken had received the county administrator’s email in which the administrator expressed her 

belief that the letter should be released. Even assuming that 

the administrator was acting as Commissioner Stewart’s 

agent in expressing that belief, Leiken’s reply did not 

address that issue. Rather, he addressed a separate issue. 

Even if plaintiff can rely on a series of separate communications to establish that each member of a quorum met to 

decide or deliberate towards deciding an issue, he must show 

something more than Leiken’s passive receipt of the county 

administrator’s email to establish that Leiken deliberated 

whether to release the attorney’s letter. Without something 

more, Leiken’s mere receipt of the county administrator’s 

views on the public records request is not sufficient to permit a reasonable inference that Leiken decided or deliberated toward deciding that issue. Without Leiken, plaintiff 

lacks a quorum.
Cite as 360 Or 605 (2016) 625

Plaintiff’s evidence suffers from another problem. 

The record does not show that Commissioner Stewart ever 

made any statement orally or by email regarding whether 

the letter should be released. Rather, all that the record 

shows is that the county administrator represented in her 

first email to Commissioners Bozievich and Leiken, which 

she sent on May 2 at 7:38 p.m., that “Commissioner Stewart 

asked me about county liability” and that “Commissioner 

Bozievich had the same concern when I spoke to him earlier.” As explained above, the fact that Stewart and Bozievich 

expressed concerns about county liability does not imply 

that they discussed whether to release the attorney’s letter 

in response to the public records request. Those are two separate issues.

Admittedly, the county administrator expressed 

her own view that the attorney’s letter should be released. 

After noting the concern about county liability, she added, in 

her first email, “I’m also concerned that it will look like we 

are trying to hide something if we refuse the public records 

request. Our practice is to use the exceptions if they exist, 

but it feels wrong in this case. I’ll consult with counsel on 

all of those issues and get back to you.” (Emphasis added.) 

Although the county administrator expressed her thoughts 

regarding releasing the letter, there is nothing in this 

record to show what Commissioner Stewart thought about 

that issue. Nor is there anything to show that, in expressing 

her own thoughts, the county administrator was acting as 

Stewart’s agent or seeking to deliberate on his behalf with 

Bozievich and Leiken toward a decision whether to comply 

with the public records request. Any conclusion that the 

county administrator was acting as Stewart’s agent is mere 

speculation.

Finally, we note that, as the county has argued, 

the district attorney initially made the decision whether to 

release the attorney’s letter in response to the public records 

request. He either had not made or had not communicated 

that decision before 7:09 a.m. on May 3, less than two hours 

before the Commission held a public emergency meeting at 

9:00 a.m. Because the decision to release the letter was initially the district attorney’s, it is less likely that any of the 
626 Handy v. Lane County

commissioners would have sought to decide that issue before 

they found out what his decision was. Admittedly, at some 

point after 7:09 a.m. on May 3, the county administrator 

learned that the district attorney was going to invoke the 

exception and not release the letter. At some point between 

7:09 a.m. and 9:00 a.m. on May 3, the county administrator conferred with Commissioners Leiken and Bozievich 

to decide whether to hold an emergency meeting, and she 

spoke with Commissioner Stewart before doing so. It is not 

impossible that, in discussing whether to call an emergency 

meeting, the county administrator spoke to Stewart, Leikin, 

and Bozievich about the merits of the meeting. However, no 

evidence in the record points in that direction, and plaintiff 

is left with nothing other than speculation to fill in the gaps 

in his evidence.

We note one final evidentiary point. It is clear that 

the county administrator spoke with Leikin and Bozievich 

about whether to hold the emergency meeting, and a trier of 

fact reasonably could infer that she spoke to Stewart about 

the same issue. However, the Court of Appeals held that the 

decision whether to hold an emergency meeting was not subject to Oregon’s public meetings law, and plaintiff has not 

challenged that decision on review. Plaintiff has not met his 

burden to produce evidence from which a reasonable trier 

of fact could find that a quorum of the commissioners met 

privately to decide or deliberate toward deciding whether to 

release the attorney’s letter.

One issue remains. As noted above, the trial court 

denied a request for further discovery that plaintiff had 

included in his response to defendant’s motion to strike. See 

ORS 31.152(2).13 Plaintiff assigned error to that ruling on 

appeal, but the Court of Appeals found it unnecessary to 

reach it because it concluded that plaintiff had introduced 

sufficient evidence regarding the second part of his second 

claim for relief to meet his burden of production. Because we 

13 Oregon’s anti-SLAPP statute provides that “[a]ll discovery in the proceeding shall be stayed upon the filing of a special motion to strike under ORS 

31.150” and that “[t]he stay of discovery shall remain in effect until the entry of 

judgment.” ORS 31.152(2). However, subsection (2) also provides that the trial 

court, “on motion and for good cause shown, may order that specified discovery be 

conducted notwithstanding the stay imposed by this subsection.” Id.
Cite as 360 Or 605 (2016) 627

have reached a different conclusion, we remand the case to 

the Court of Appeals so that it can consider whether plaintiff showed good cause for conducting further discovery and, 

if he did, whether the trial court abused its discretion in 

denying his request.

III. CONCLUSION

Plaintiff’s first claim for relief challenged defendants’ decisions regarding notice, holding an emergency 

meeting, and not providing minutes. The Court of Appeals 

held that those decisions were not subject to a special 

motion to strike under Oregon’s anti-SLAPP statute and, 

for that reason, reversed the trial court’s judgment on that 

claim. Defendants do not challenge that part of the Court of 

Appeals decision.

Plaintiff’s second claim for relief alleged that defendants had violated the public meetings law by deciding or 

deliberating toward deciding (1) whether to hold an emergency meeting and (2) whether to release the attorney’s letter. 

The Court of Appeals held that the first decision—whether 

to hold an emergency meeting—was not subject to the public 

meetings law, and plaintiff has not challenged that holding 

on review. Regarding the second decision, we have concluded 

that plaintiff failed to offer sufficient evidence from which a 

reasonable trier of fact could find that defendants met privately to decide or deliberate toward deciding whether to 

release the letter. We reverse the Court of Appeals decision 

regarding that aspect of plaintiff’s second claim and remand 

so that it can consider whether the trial court abused its discretion in denying plaintiff’s request for further discovery.

The trial court dismissed plaintiff’s third claim for 

injunctive relief because it depended on the first two claims 

for relief. The Court of Appeals reversed the trial court’s 

judgment on that claim, presumably so that the trial court 

could reevaluate its ruling in light of the Court of Appeals 

decision. Neither party has challenged that part of the Court 

of Appeals’ ruling.14

14 The trial court also awarded defendant’s costs and attorney fees pursuant 

to ORS 31.150. The Court of Appeals reversed that award, and neither party has 

challenged that ruling on review.
628 Handy v. Lane County

The decision of the Court of Appeals is affirmed 

in part and reversed in part. The case is remanded to the 

Court of Appeals for further consideration consistent with 

this decision.