Attorneys for Erickson, Salinas make case to appeals court in campaign defamation suit

While U.S. Rep. Andrea Salinas, D-Oregon, and Republican businessman Mike Erickson prepare for a possible electoral rematch in November, a defamation lawsuit tied to their last race in 2022 is still moving through the state court system. 

A three-judge panel of the Oregon Court of Appeals heard oral arguments Monday in Salem over whether to toss Erickson’s 2022 defamation lawsuit against Salinas over a negative campaign ad. A Clackamas County Circuit Court judge allowed the case to continue in December 2022, triggering an appeal. Appellate judges Kristina Hellman, Darleen Ortega and Steven R. Powers will issue their decision at a later date. 

They’ll determine whether Erickson can move forward with an $800,000 lawsuit over a campaign ad that says he was “charged with felony drug possession” and featured an image of four lines of an unidentified white powder. The ad stems from Erickson’s 2016 arrest for drunken driving, when officers found a single 5 mg oxycodone pill in his wallet while booking him into jail. They recommended drug charges, but those charges were never officially filed. Erickson pleaded guilty to driving under the influence and completed a diversion program.

Erickson, who lost to Salinas by 2.5 percentage points in Oregon’s new Willamette Valley-based 6th Congressional District, maintains that the negative ad contributed to his loss. His attorneys pointed out that Salinas continued to run the ads even after receiving a call from the Hood River district attorney informing her that he was never charged with drug possession. 

Salinas and her attorneys maintain that Erickson’s lawsuit is invalid under Oregon’s anti-SLAPP law. SLAPP, an acronym for “strategic lawsuit against public participation,” refers to lawsuits that are intended to silence criticism and stifle free speech. 

Clackamas County Circuit Court Judge Todd L. Van Rysselberghe rejected the anti-SLAPP argument in December 2022, triggering the appeal. If the appeals court agrees with Van Rysselberghe, the defamation case will continue in circuit court.

David Anderson, an attorney representing Mike Erickson, speaks to appeals court judges on Monday, Feb. 5. (Julia Shumway/Oregon Capital Chronicle)

Salinas attorney Ben Stafford, with the national Democratic election law firm Elias Law Group, warned that allowing Erickson’s case to continue would chill political speech. 

“Robust and sometimes contentious speech is the essence of our democracy,” he said. 

In both the campaign ad and legal arguments, Salinas pointed to public records that supported her claim Erickson was charged. An arrest report included drug possession among recommended charges, and a handwritten plea agreement included with court documents and signed by Erickson said twice that the district attorney “has agreed to dismiss felony possession of controlled substance” in exchange for a guilty plea. Erickson’s 2016 defense attorney later said she erred in filling out that form

But Salinas missed a key part of the criminal justice system: prosecutors, not police, charge people with crimes. 

“Just pointing to police records doesn’t get to ‘this can also be true,’ because when you look at what happened he simply was not, in fact, charged,” said David Anderson, Erickson’s attorney. 

The appeals court judges questioned both attorneys and gave little indication of how they would rule over the course of a half hour. 

Ortega noted that people often don’t use technically correct language when talking about criminal cases. Erickson’s attorneys needed to establish that Salinas knew the documents she relied on to make her ads were false, she said. 

“People talk about what happens in criminal cases in ways that are technically inaccurate all the time,” she said. 

But she also pressed Stafford on whether Salinas and her campaign needed to do more research, especially after they heard from the Hood River district attorney about Erickson not facing charges. 

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Julia Shumway is deputy editor of Oregon Capital Chronicle and has reported on government and politics in Iowa and Nebraska, spent time at the Bend Bulletin and most recently was a legislative reporter for the Arizona Capitol Times in Phoenix. An award-winning journalist, Julia most recently reported on the tangled efforts to audit the presidential results in Arizona.