Loveall

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

EUGENE DIVISION

DAVID LOVEALL, a Lane County Case No. 6:26-cv-00534-MC

Commissioner,

OPINION AND ORDER

Plaintiff,

v.

LANE COUNTY, a local government entity;

STEVE MOKROHISKY, in his personal and

official capacity as Lane County

Administrator; HEATHER BUCH, in her

personal and official capacity as a Lane

County Commissioner; LAURIE TRIEGER,

in her personal and official capacity as a Lane

County Commissioner; and PAT FARR, in

his personal and official capacity as a Lane

County Commissioner,

Defendants.

MCSHANE, Judge:

Plaintiff David Loveall, a Lane County Commissioner, alleges that Defendants—Lane

County and certain members of its Board of Commissioners—violated his constitutional rights

and Oregon Public Meetings Law because they disagreed with Plaintiff’s publicly expressed

views. Compl. ¶¶ 1–4, ECF No. 1.

Commissioner Defendants1 now move to strike Plaintiff’s Fifth Claim for Relief pursuant

1 Plaintiff brought this action against Lane County, Steve Mokrohisky (in his personal and official capacity as Lane

County Administrator), and three “Commissioner Defendants”: Heather Buch, Laurie Trieger, and Pat Farr, all in their

personal and official capacities as Lane County Commissioners. It is the Commissioner Defendants who make this

Special Motion to Strike.

to Oregon’s anti-SLAPP2 statute. Comm’r Defs.’ Special Mot. to Strike (“Defs.’ Mot.”), at 1–2,

ECF No. 10; Compl. ¶¶ 135–48.

Plaintiff’s Fifth Claim is subject to Oregon’s anti-SLAPP statute. And because Plaintiff

fails to sufficiently plead his Fifth Claim for Relief under Federal Rule of Civil Procedure 12(b)(6),

Commissioner Defendants’ Motion is GRANTED. Plaintiff’s Fifth Claim for Relief is

accordingly DISMISSED without prejudice.

BACKGROUND

At the time he filed this action, Plaintiff David Loveall was a Lane County Commissioner,

elected in 2022 and campaigning for reelection in the May 19, 2026, election. Compl. ¶¶ 1, 5.

Plaintiff is a Christian whose “political and personal views ‘triggered’ certain county

employees.” Id. ¶ 1. In 2025, County administration opened an investigation into complaints made

against Plaintiff by county employees. This investigation resulted in a “safety plan” that prohibited

Plaintiff from accessing his county office two days per week. Id. ¶¶ 1, 30. While Plaintiff would

characterize the investigation as retaliation for the constitutionally protected expression of his

religious views, the complaints against him could reasonably be characterized as something else.

For example:

• “Tell the employees to fuck off, commissioners can do what they want and

there’s nothing anyone can do about it.”

• “This is your [Mokrohisky’s] responsibility. You’re allowing these people

to make these complaints, so you need to stop them from making these

complaints or I’m going to deal with it.”

• “Tell employees to stop it. There’s nothing they can do to stop

commissioners from saying and doing whatever they want. You are not

doing your job . . . I’m really upset. And if you don’t fix this, then you and

I have a problem and I am going to do everything I can to get rid of these

2 “Strategic Lawsuits Against Public Participation.” E.g., Craft Renovations Inc. v. Harris, 570 P.3d 629, 632 n.1 (Or.

Ct. App. 2025) (citing Neumann v. Liles, 369 P.3d 1117, 1127 (Or. 2016)).

people.”

• “Can someone give me a list of bad words that I can’t say? We need a

culture change. This DEI thing is over the top. Words like blessings and

spinster are triggers?”

See Defs.’ Mot. to Dismiss Ex. 1, at 4, ECF No. 9-1.3

The investigation found that, by expressing his views, “Plaintiff retaliated against

employees in violation of a county personnel rule.” Compl. ¶ 3. “The Board of Commissioners

voted to censure Plaintiff at a meeting without prior notice to the public” as required by Oregon

Public Meetings Law. Id. Plaintiff submits that Defendants denied him both “a name clearing

hearing” and “his statutory right to have an open meeting to consider the allegations, investigation,

and evidence against him.” Id.

Plaintiff alleges that all Defendants violated his First Amendment rights of free speech and

free exercise of his “Christian beliefs.” Id. ¶¶ 90–118. Plaintiff also claims that Defendants

retaliated against him for engaging in protected activities and denied him procedural due process

in violation of the Fourteenth Amendment. Id. ¶¶ 119–134. Finally, Plaintiff alleges four violations

of Oregon Public Records Law by the County and Commissioner Defendants—his Fifth Claim for

Relief. Id. ¶¶ 135–48.

When Defendants filed this Motion, they also moved to dismiss his Fourth and Fifth Claims

under Federal Rule of Civil Procedure 12(b)(6). Defs.’ Mot. to Dismiss, at 1–2, ECF No. 9; see

3 When Defendants moved to strike Plaintiff’s Fifth Claim, they also moved to dismiss Plaintiff’s Fourth and Fifth

Claims for Relief under Federal Rule of Civil Procedure 12(b)(6). See Defs.’ Mot. to Dismiss, ECF No. 9. While the

scope of review on a motion to dismiss under Rule 12(b)(6) is generally limited to the complaint, a court may consider

other evidence if: “(1) the complaint refers to the document; (2) the document is central to the plaintiff’s claim; and

(3) no party questions the authenticity of the copy attached to the 12(b)(6) motion.” Daniels-Hall v. Nat’l Educ. Ass’n,

629 F.3d 992, 998 (9th Cir. 2010) (quoting Marder v. Lopez, 450 F.3d 445, 448 (9th Cir. 2006)). Here, Plaintiff

references the County’s investigation and its investigative report, both central to the dispute. See, e.g., Compl. ¶¶ 1–

3, 63–71. And Plaintiff does not question the authenticity of the copy of the investigative report Defendants submitted

with their Motion to Dismiss. See Defs.’ Mot. to Dismiss Ex. 1.

also Aug. 19, 2026, Op. & Order (dismissing without prejudice Plaintiff’s Fourth and Fifth

Claims).

LEGAL STANDARD

Oregon’s anti-SLAPP statute “creates an expedited procedure for dismissal of certain

nonmeritorious civil cases without prejudice at the pleading stage.” Neumann v. Liles, 369 P.3d

1117, 1127 (Or. 2016); Gardner v. Martino, 563 F.3d 981, 986 (9th Cir. 2009) (citing Verizon

Del., Inc. v. Covad Commc’ns Co., 377 F.3d 1081, 1090 (9th Cir. 2004)) (stating that anti-SLAPP

provisions allow “the early dismissal” of lawsuits “aimed at chilling expression through costly,

time-consuming litigation.”); see also OR. REV. STAT. (“O.R.S.”) § 31.150.

The statute applies to state law claims pending in federal court. E.g., Card v. Pipes, 398

F.Supp.2d 1127, 1137 (D. Or. 2004) (citing U.S. ex rel. Newsham v. Lockheed Missiles & Space

Co., Inc., 190 F.3d 963, 972–73 (9th Cir. 1999), cert. denied, 530 U.S. 1203 (2000)) (applying

Oregon’s anti-SLAPP statute to a federal diversity case); cf. CoreCivic, Inc. v. Candide Grp., LLC,

46 F.4th 1136, 1146 (9th Cir. 2022) (applying the special motion to strike provision of California’s

anti-SLAPP statute to claims pending in federal court).

Under the statute, defendants may move to strike claims arising from, in pertinent part: (1)

any oral or written statement “in a legislative, executive or judicial proceeding or other proceeding

authorized by law;” (2) any oral or written statement “in connection with an issue under

consideration or review by a legislative, executive or judicial body or other proceeding authorized

by law;” or (3) “[a]ny conduct in furtherance of the exercise of . . . the constitutional right of free

speech or freedom of the press in connection with a public issue or an issue of public interest.”

O.R.S. §§ 31.150(2)(a), (b), (d).

A court evaluates a special motion to strike using a two-step process. E.g., Gardner, 563

F.3d at 986. First, the defendant must show that the challenged statement or conduct falls under

one of the provisions described in O.R.S. § 31.150(2). Id. If the defendant does so, the plaintiff

must “establish that there is a probability that the plaintiff will prevail on the claim by presenting

substantial evidence to support a prima facie case.” O.R.S. § 31.150(4).

The second step diverges in federal and state court. See Planned Parenthood Fed’n of Am.,

Inc. v. Ctr. for Med. Progress, 890 F.3d 828, 834–35 (9th Cir. 2018) (holding that the Federal

Rules of Civil Procedure apply at step two in the face of a conflicting state procedural rule). When

a defendant challenges the legal sufficiency of a claim, the district court “should apply the Federal

Rule of Civil Procedure 12(b)(6) standard and consider whether a claim is properly stated.” Id. at

834.

If a plaintiff cannot meet his burden at step two, the court shall enter a judgment of

dismissal without prejudice. E.g., Davoodian v. Rivera, 535 P.3d 309, 314 (Or. Ct. App. 2023);

Gardner, 563 F.3d at 986.

DISCUSSION

I. Protected activity

The first question is whether Plaintiff’s Fifth Claim for Relief arises out of one of the four

categories described in O.R.S. § 31.150(2). Commissioner Defendants contend that Plaintiff’s

Fifth Claim alleges public meetings violations stemming from conduct clearly within the

protections of Oregon’s anti-SLAPP statute. Defs.’ Mot., at 4.

Plaintiff submits that the claims at issue “arise from alleged statutory violations” and not

“from protected statements or conduct.” Pl.’s Resp. in Opp’n to Defs.’ Mot (“Pl.’s Resp.”), at 4,

ECF No. 14. “Plaintiff does not challenge what was said at these unauthorized meetings; he

challenges the occurrence of these meetings.” Id. at 5. Failure to give statutorily required notice,

for instance, does not qualify as protected conduct under Oregon’s anti-SLAPP statute. Id. at 4–5.

The Court concludes that all four Counts of Plaintiff’s Fifth Claim for Relief are subject to

O.R.S. § 31.1504, which is “to be liberally construed in favor of” a special motion to strike. O.R.S.

§ 31.152(6). The gravamen of Plaintiff’s Fifth Claim is that Commissioner Defendants discussed,

considered, and decided on certain issues relating to Plaintiff’s conduct and discipline.

A. Count One

Count One alleges a violation of O.R.S. § 192.660(2)(b), which provides that a public body

may hold an executive session regarding “the dismissal or disciplining of” a public officer “who

does not request an open hearing.” O.R.S. § 192.660(2)(b).

Plaintiff claims that after he requested an open meeting, “the Board considered in executive

session issues it was not authorized to discuss,” including his potential discipline and complaints

against him. Compl. ¶ 136. The Complaint challenges both the occurrence of the non-public

meeting and the topics of discussion and deliberation at that meeting. Id. ¶ 137 (“[Commissioner

Defendants] discussed these issues in executive session in violation of Oregon’s Public Meetings

Law.”).

The Ninth Circuit has applied California’s anti-SLAPP statute to a “whisper campaign” by

city officials relating to the plaintiff’s removal from a city agency for alleged misconduct. Hill v.

City of El Segundo, 33 F. App’x 254, 258 (9th Cir. 2002) (citing Aisenson v. Am. Broad. Co., 269

Cal. Rptr. 379, 382 (Cal. Ct. App. 1990) (citing Ocala Star-Banner Co. v. Damron, 401 U.S. 295,

300–01 (1971)) (stating that “[p]ublic discussion about the qualifications of those who hold or

wish to hold positions of public trust presents the strongest possible case for application of the

safeguards afforded by the First Amendment.”)). The “whisper campaign” was found to involve

“statements made at legislative and other official proceedings by City officials in a public forum,

in connection with an issue of public interest.” Id.

4 The Court could reasonably find that Plaintiff’s Fifth Claim arises out of conduct described by O.R.S.

§ 31.150(2)(a), (b), or (d). See Defs.’ Mot., at 4–7.

City of El Segundo is instructive because the court cites California cases predating 2001,

which the Oregon legislature intended to follow in enacting O.R.S. § 31.150. Id.; Craft

Renovations Inc., 570 P.3d at 634 (stating that “Oregon’s [anti-SLAPP] statute was modeled” after

California’s). California cases decided after 2001, while not binding, are persuasive in Oregon

courts. Handy v. Lane Cnty., 385 P.3d 1016, 1026 n.12 (Or. 2016).

A California intermediate court concluded that individual board member defendants

satisfied step one because “[t]he gravamen of petitioners’ suit is that defendants violated Board

policy by voting in a manner inconsistent with Board policy to extend” a meeting. Schwarzburd v.

Kensington Police Prot. & Cmty. Servs. Dist. Bd., 170 Cal. Rptr. 3d 899, 907 (Cal. Ct. App. 2014).

The Schwarzburd petitioner’s claim arose out of protected “voting and legislative deliberative

activities concerning an important public issue” because the individual defendants were sued for

“how they voted and expressed themselves at the Board meeting.” Id. at 906–07. “These

defendants were not sued simply because they voted.” Id. at 907.

Courts in this district have found that oral statements at board meetings and social media

posts “were made in a public forum and in connection with an issue of public interest.” Medina v.

Columbia River Fire & Rescue, No. 3:23-cv-01203-HZ, 2024 WL 2209111, at *3 (D. Or. May 15,

2024). The defendant’s oral statements at Columbia River Fire and Rescue Board meetings, as

well as her written statements on the Columbia County Transparency & Accountability Facebook

page, qualify as protected speech under O.R.S. § 31.150(2). Id. The defendant “criticized actions

[p]laintiff took as CRFR Chief and expressed concerns about CRFR leadership.” Id. (stating that

“[t]he Court agrees that Defendant has met her initial burden under the [Oregon] anti-SLAPP

statute.”).

Plaintiff alleges that the Board met on February 28, 2026, “for the stated purpose of going

immediately into an executive session” to consider his discipline. Compl. ¶ 72. Plaintiff avers that

he exercised his statutory right “to request an open meeting at a later date to discuss” the

investigation, the complaints against him, and his potential discipline. Id. ¶ 73. Instead, the Board

“went into executive session, excluding Plaintiff,” to address those topics. Id. ¶ 75. In Count One,

Plaintiff essentially opposes the substance of the Commissioner Defendants’ discussions,

specifically the complaints against him and whether he should be sanctioned. The Court is satisfied

that Plaintiff’s claims arise out of conduct described in O.R.S. § 31.150(2)(a), (b), or (d).

B. Count Two

Count Two alleges that “the Board met in open session without notice as required by O.R.S.

[§] 192.640 to vote upon a ‘statement of unity’ concerning the investigation of Plaintiff.” Id. ¶ 140.

Plaintiff also contends that the Board, at that same meeting, voted on whether Plaintiff was

required to apologize “for allegedly harming employees.” Id.

It is true, as Plaintiff advances, that he alleges a deficiency in statutorily required notice.

Id. But the fact that Plaintiff asserts a violation of Oregon Public Meetings Law does not disqualify

his claim from anti-SLAPP protections. Step one “aims merely to assess more generally what sort

of claim this is.” Mullen v. Meredith Corp., 353 P.3d 598, 603 (Or. Ct. App. 2015). If Plaintiff’s

claim is “one that arises out of conduct in furtherance of free speech in connection with an issue

of public interest,” for instance, Commissioner Defendants have met their burden. Id.

Plaintiff relies on Handy for the contention that his claim is not subject to the anti-SLAPP

statute because it is based on insufficient notice of a public meeting. Pl.’s Resp., at 5–6. In Handy,

the plaintiff alleged that defendants violated Oregon Public Meetings Law by failing to give

sufficient notice of an emergency meeting. 385 P.3d at 1020. The Oregon Court of Appeals held

that the factual basis for plaintiff’s claim—“defendants’ alleged failure to comply with the

statutory requirements for holding an emergency meeting”—does not fall within one of the

activities listed in O.R.S. § 31.150(2). 362 P.3d 867, 883 (Or. Ct. App. 2015), aff’d in part, rev’d

in part, 385 P.3d 1016 (Or. 2016). The defendants did not challenge the conclusion that the

plaintiff’s notice claim is not subject to a motion to strike. 385 P.3d at 1021–22. And the plaintiff

ultimately conceded that the anti-SLAPP statute applies to his claim arising from the

commissioners’ deliberation about whether to release a public record. Id. at 1022. Unlike Handy,

Plaintiff here does not concede that his Fifth Claim is subject to Oregon’s anti-SLAPP law.

But also unlike Handy, Plaintiff does not simply challenge the decision of Commissioner

Defendants to meet in open session “without notice.” See Compl. ¶ 140. Rather, Plaintiff’s lack of

notice claim centers the decision to vote upon “‘a statement of unity’ concerning the investigation

of Plaintiff and to vote upon requiring Plaintiff to apologize.” Id. His “notice claim” is really a

“deliberations claim.” In Schwarzburd, the California appellate court determined that the portion

of the plaintiff’s claim stemming from the Board “discussing and voting on a matter . . . that was

not properly noticed” was subject to the state’s anti-SLAPP statute. 170 Cal. Rptr. 3d at 907. The

Court takes the same view with respect to Plaintiff’s similar claim.

Because Plaintiff avers that Commissioner Defendants improperly deliberated about and

voted on matters relating to his discipline and a “statement of unity,” Defendants satisfy their initial

burden as to Count Two.

C. Count Three

Count Three alleges that, on March 3, 2026, Commissioner Defendants “met and voted to

censure Plaintiff in an open meeting” in violation of O.R.S. § 192.640. Compl. ¶ 143. The agenda

improperly failed to “provide the required public notice that the Board would consider censuring

Plaintiff.” Id. Like Count Two, Count Three alleges more than procedural inadequacy under the

law. As Plaintiff’s claim arises from discussing and voting on the topic of his censure without

proper notice, it is subject to O.R.S. § 31.150(2)(a), (b), or (d).

D. Count Four

Finally, Count Four alleges a violation of O.R.S. § 192.630 stemming from the release of

the investigative summary to the public without holding a vote on the matter in an open meeting.

Compl. ¶ 146. Plaintiff ultimately challenges Commissioner Defendants’ decision to release the

results of the investigation. Count Four thus arises from conduct described in O.R.S.

§ 31.150(2)(b) or (d).

It is true that Plaintiff alleges procedural deficiencies giving rise to his claim that

Defendants violated Oregon Public Meetings Law on multiple occasions. But practically, the Fifth

Claim for Relief challenges how Defendant Commissioners considered, discussed, and determined

issues of public interest—Plaintiff’s conduct as a Lane County Commissioner and its effects. The

Court proceeds to step two.

II. Likelihood of success on the merits

The Court construes Commissioner Defendants’ Special Motion to Strike as one

challenging the legal sufficiency of Plaintiff’s Fifth Claim for Relief. See Defs.’ Mot., at 7–9.

Accordingly, the Court applies the Federal Rule of Civil Procedure 12(b)(6) standard to “consider

whether [Plaintiff’s] claim is properly stated.” Planned Parenthood, 890 F.3d at 834.

For the reasons stated in the Court’s Opinion and Order dismissing Plaintiff’s Fourth and

Fifth Claims for Relief under Federal Rule of Civil Procedure 12(b)(6), Plaintiff fails to meet his

burden at step two. See Aug. 19, 2026, Op. & Order (granting Defendants’ Motion to Dismiss

Plaintiff’s Fourth and Fifth Claims for Relief).

/ / / /

/ / / /

CONCLUSION

For the reasons stated above, Defendants’ Special Motion to Strike, ECF No. 10, is

GRANTED. Plaintiff’s Fifth Claim for Relief is DISMISSED with leave to amend according to

this Court’s August 19, 2026, Opinion and Order.

IT IS SO ORDERED.

DATED this 19th day of August 2026.

s/Michael J. McShane

Michael McShane

United States District Judge