A special motion filed pursuant to the Uniform Public Expression Protection Act is supposed to operate much like a motion for summary judgment. But what if the moving party (the speaker) asserts an affirmative defense?
Air Force veteran Stuart Mackey was hired as a marksmanship instructor by the Utah Military Academy (“UMA”) in 2021. The next year, 2022, an incident occurred where Mackey relieved a cadet as marksmanship team captain. The cadet then quit the team, leaving his father, Jason Krause, quite displeased.
According to Mackey’s defamation complaint, Krause began a “smear campaign” as Mackey with the goal being to remove Mackey from UMA. Krause complained to the school’s principal, and then to UMA’s superintendent, William Orris. Afterwards, Krause then allegedly attended a UMA school board meeting and spoke during the public comment portion. Krause claimed that a faculty member (not naming Mackey specifically) had acted inappropriately on eight occasions, that there would be “legal and law enforcement” action taken if things were no resolved to his satisfaction, and that the instructor had a physical altercation with a cadet.
Later, Mackey’s complaint alleged, Orris had a telephone call with Krause where Mackey was identified as the offending instructor. Krause also told Orris that Mackey had physically abused other students besides his son. These complaints allegedly caused Mackey to be placed on administrative leave pending an investigation, after which Mackey was terminated by UFA without explanation.
Even after Mackey had been fired by UMA, his complaint continues, Krause emailed Orris a file on Mackey and a timeline about Mackey’s conduct. Krause contended that Mackey was a “troubled individual” who “needs help” and suffered variously from narcissistic personality disorder, entitlement mentality, bipolar disorder and was a high risk to children.
Krause then, Mackey alleges, made a false report to the local police department which repeated Krause’s complaints about Mackey engaging in physical violence against students. But after investigating the matter, the police department closed the case against Mackey.
Meanwhile, the complaint continues, Superintendent Orris contacted the Utah Division of Child and Family Services (DCFS) and passed along some of Krause’s information about Mackey. However, when DCFS investigated and interviewed the students who had allegedly been subject to Mackey’s physical abuse, they were told a quite different story than Krause had let on and thus DCFS likewise closed its investigation.
Based on Krause’s statements and conduct, Mackey sued Krause for defamation, intentional infliction of emotional distress (“IIED”), abuse of process and tortious interference. In response, Krause filed a special motion for expedited relief under the Utah Uniform Public Expression Protection Act (“UPEPA”).
In resolving Krause’s UPEPA special motion, the trial court held that Krause had failed to show that the UPEPA applied to Mackey’s claims, since Krause’s statements were not part of any governmental proceeding. As for Krause’s comments at the UMA board meeting, the court held that because those comments were mad during the public comment period which did not pertain to any agenda item, they were not part of any governmental proceeding.
The trial court also ruled that, even if Mackey’s complaint fell within the scope of the UPEPA, Mackey had demonstrated sufficient evidence of each element of his claim such that the special motion should be denied. To this end, the trial court rejected Krause’s arguments to the effect that his statements were privileged because they pertained to governmental proceedings.
Krause appealed, setting up the opinion of the Utah Supreme Court in Mackey v Krause, 2025 WL 2480059 (Utah, Aug. 28, 2025), that we shall now examine.
The court first took up the issue of whether the UPEPA applied to Mackey’s causes of action. The UPEPA allows a special motion to be filed whenever a cause of action is based upon the moving party’s (speaker’s) communications in relation to a governmental proceeding or upon constitutionally-protected expression on a matter of public concern. The moving party, being Krause here, has the burden of demonstrating that the challenged cause of action is within the scope of the UPEPA. The UPEPA also requires that it must be construed broadly to protect such constitutional rights.
The trial court had determined that Krause’s statements were not about a matter of public concern. Since the UPEPA does not provide a definition of “public concern”, the trial court decided to borrow the definition from the California Court of Appeals on the phrase. California had defined “public concern” as a statement that goes beyond the mere subject of something of public interest, but must also itself “contribute to the public debate.” Using this definition, the trial court found that Krause’s comments focused entirely on Mackay and thus did not contribute to any date on an issue of public concern.
The Utah Supreme Court decided that it would be proper to borrow the definition of “public concern” from that announced by the U.S. Supreme Court in First Amendment cases. This standard is that something is a matter of public concern “when it can be fairly considered as relating to any matter of political, social, or other concern to the community, or when it is a subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public.” The Utah court also noted that the Washington Court of Appeals had similarly borrowed this definition when interpreting the same phrase under the Washington UPEPA. The approach to determine this phrase, also borrowed from the U.S. Supreme Court, is to examine the facts and circumstances surrounding the offending statement including its content, form and context.
Turning to Krause’s statements, the Utah court felt that Krause expressing his views as a parent about a teacher engaged in misconduct was on a matter of public concern. “It is not a leap of logic to conclude that the community at large would share a concern about a public-school teacher assaulting a student and the potential danger such a teacher might pose to the student body at large.” Further, Krause’s statements to the UMA principal and superintendent would likewise be statements upon a matter of public concern. Thus, the Utah trial court had erred when it concluded that these statements were not within the scope of the UPEPA’s protections.
The next issue was whether the trial court had correctly determined that Mackey could prove sufficient facts as to each element of his claims. Here, the trial court had used the same standard that would have been used on a motion for summary judgment. The Utah Supreme Court affirmed that this was the correct standard to be employed on a UPEPA special motion. This means that the plaintiff gets the benefit of inferences and all evidence is viewed in the light more favorable to the plaintiff. However, the plaintiff must show that there is at least minimal evidence supporting each element of every challenged cause of action. This is where the trial court ran into some trouble.
The Utah Supreme Court goes through each and every element of all of Mackey’s causes of action in a very workmanlike method, which will be great for Utah practitioners in the future. For our purposes, however, we will limit our discussion only to those elements that the Utah Supreme Court found fault with the trial court, which were relatively few.
One of those elements dealt with Mackey’s cause of action for defamation and the element of whether Krause’s statements were privileged or, in other words, Krause could not be held liable for those particular statements even if they were otherwise defamatory. This brought up the question of which party carries the burden of proof as to privilege. Normally, privilege is an affirmative defense to defamation, which means that the defendant (the speaker) carries the burden of proving that the privilege exists. This creates what the court called an “interesting twist” in the UPEPA context, because with a UPEPA special motion the burden is on the plaintiff to prove that he could satisfy each element of his cause of action.
The trial court had placed the burden on Krause to demonstrate his entitlement to a privilege, but the Utah Supreme Court thought that was error. Instead, Thus, the burden should have been placed on Mackey to prove the absence of any privilege by Krause or that Krause had abused the privilege. Thus, the case would be remanded back to the trial court to determine whether Mackey could prove that Krause was not entitled to the benefit of any privilege as to the defamation claim.
As to the intentional infliction of emotion distress (IIED) claim, the trial court was held to have erred because Krause’s conduct did not rise to the level of “outrageous conduct” even though the language he used in relation to Mackey was sometimes quite severe. Thus, the Utah Supreme Court reversed the trial court and dismissed Mackey’s IIED claim.
Mackey’s third claim was for abuse of process, which basically means that the defendant has perverted the legal process for some improper purpose. Mackey pointed to Krause’s inflammatory notes provided to Superintendent Orris, the police complaint which came to nothing, and the Utah DCFS complaint which came to nothing, as evidence that Krause had an ulterior motive in making these official claims. The Utah Supreme Court found, however, that such actions were also consistent with a parent who was truly concerned with the possibility that an instructor was engaged in the physical abuse of students, so the abuse of process claim was dismissed as well.
The last of Mackey’s claim was for tortious interference with his economic relationship with UMA. The trial court had ruled to the effect that there was evidence that Krause intended to get Mackey fired, and he succeeded. Since the method by which Krause allegedly interfered with the Mackey-UMA relationship was by defamation, the Utah Supreme Court held that this cause of action would either stand or fall along with Mackey’s defamation claim, which was being remanded. So the tortious interference claim ended up being remanded as well.
That concluded the opinion.
ANALYSIS
This is a very well-drafted and deeply thoughtful opinion by the Utah Supreme Court of which I don’t have any criticism. It does, however, identify a very interesting issue: Who has the burden of proving the existence or non-existence of a defense to defamation? The Utah Supreme Court determines that the burden is upon a plaintiff to prove that the moving party (the speaker) does not have such a defense. The effect is that the plaintiff has to anticipate that the movant will raise the defense or, really, every defense that the movant might assert. I’m not sure that is the correct result.
To ascent to the 41,000 ft. view of a UPEPA special motion, it is designed to basically have two parts. The first part is whether the plaintiff’s cause of action falls within the scope of the UPEPA so that the special motion can properly be brought at all. The burden of proving that the cause of action is within the UPEPA’s scope is on the moving party. That is easy enough. Once the moving party makes that showing, then we move to the second part.
The second part of a UPEPA special motion is designed to be, essentially, exactly the same as a summary judgment motion. This is why the UPEPA special motion may correctly be referred to as an “early summary judgment motion” or a “motion to dismiss on steroids”. When we were drafting the UPEPA, recalling that I was an American Bar Association advisor to the drafting committee, we basically anticipated that the burden in this second part would be exactly the same as on a summary judgment motion. There were good reasons for this, with the biggest being that a summary judgment motion does not violate a party’s constitutional right to a jury trial.
Thus, a UPEPA special motion may be viewed in two parts, but there is a three-step analysis as related in-depth in my article, The Uniform Public Expression Protection Act: The Three-Phase Analysis (Mar. 15, 2021). I’m not going to re-hash that article, but suffice it to say that the burden ends on the moving party to show that there is no genuine issue of material fact as to some essential element and thus the moving party is entitled to judgment as a matter of law, i.e., summary judgment.
That the burden ends on the moving party should normally apply where the moving party asserts an affirmative defense to defamation. This is what happens with a normal summary judgment motion and it should apply to a UPEPA special motion as well.
The Utah Supreme Court doesn’t dodge this issue, but confronts it head-on and concludes that the UPEPA motion should be treated differently than a motion for summary judgment, meaning that the plaintiff must prove the lack of an affirmative defense by the moving party. But this is where I think they go off into the weeds, since it is as if the Utah Supreme Court stops its analysis at the second stage (where the burden of proof is on the plaintiff), without continuing on to the third stage where the burden shifts back to the moving party.
Or, as applied in this case, the Utah Supreme Court ultimately held that the burden of proving the absence of an affirmative defense is on Mackey as the plaintiff, and not Krause as the moving party. But, again, this ignores the third stage of the UPEPA analysis which shifts the burden back to Krause ― including the burden of proving any affirmative defense.
The upshot is that as hard as the Utah Supreme Court tried to get this right, they failed to go on to the third stage and thus reached the wrong result. The correct result would have seen the burden shifted to Krause to prove his affirmative defense. So, at least on this particular issue, the opinion here should be considered dubious authority subject to reasonable question by other courts.
But this kind of stuff is common with new statutes. It’s just growing pains of a sort.
