Slapping Back

May 25, 2008

Downstate Goliaths are increasingly swinging lawsuits at townships’ boards and planning commissions for trying to enforce local zoning laws.
So what’s a David to do?
State Representative Kevin Elsenheimer, a Republican out of Kewaydin, is showing some sympathy. He’s working on a bill that would allow a judge to fine a corporation found guilty of this expensive bullying, otherwise known as filing a SLAPP suit—short for “strategic suits against public participation.”
Elsenheimer announced the bill’s first draft six weeks ago, but now believes it didn’t go far enough. He expects a new version by early June.
Elsenheimer knows the territory well. His law firm has defended township governments against dozens of lawsuits brought by developers, although not a SLAPP suit, per se.
This proposed bill would apply to lawsuits filed against a local unit of government, as well as civil lawsuits filed against public officials, as well as individuals working for governmental units such as township boards.
Under the proposed draft of the bill, the judge would have to find evidence that the lawsuit was initiated with the primary purpose of “harassing or intimidating the individual, or otherwise hindering how the individual participates in the process of government.” If so, the judge could impose a fine of $5,000 and triple the amount of actual damages. Those numbers are not final, said Elsenheimer, adding that $5,000 wasn’t much of a threat.
The proposed bill was applauded by Traverse City attorney Chris Bzdok, who represents eight Acme government officials who are still facing the prospect of getting personally sued by the Village at Grand Traverse, which has sought to build a lifestyle mall in Acme.
“I think it’s a very positive start, and I think it’s a recognition by a very solid Republican, a moderate, smart legally experienced legislator, that we have a problem we need to address, and that’s very positive too,” Bzdok said.
Bzdok said he hopes the law ultimately goes further to apply to citizens who make public comments at a meeting.
“I’ve seen it when people go to a meeting and say you should turn down a project for this and this reason and they get a SLAPP suit with some regularity as well. This latest version does not cover them, but I think the thought process is, let’s get something on the books, and if we need to expand it, we will. It’s the needle effect—the smaller the tip, the more likely you can get it through the fabric.”
Rep. Howard Walker said he fully supports Elsenheimer’s effort to inhibit SLAPP suits.
A spokesman for Senator Jason Allen said the senator won’t take a position on a proposed bill until he sees it.
“The way you’re explaining it to me, I’m sure we’d keep an open mind on it. I personally don’t see any red flags with that, but we’d have to actually wait to see a draft before we could comment to the media on what’s going on,” said Allen’s legislative director Joe Agostinelli.
If approved, the bill would amend the Michigan Unified Zoning Act.