June 2016 Bar Bulletin
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Domestic Violence Survivors and Abusive Litigation:

The Need for Washington To Restore
Its Recently Invalidated Anti-SLAPP Law

By By Antoinette Bonsignore

(Second of Two Parts)


Washington Moves to Strengthen Its Anti-SLAPP Laws

In March 2010, the Legislature enacted a completely new anti-SLAPP law in a new section of the Revised Code of Washington.25 The new statute expanded the scope of the previous version of the anti-SLAPP law by providing, among other reforms, broader protections for the types of public participation covered under the Act,26 and was “aimed at protecting speech made to the general public that relates to a matter of public concern.”27

The previous versions of the law limited the public participation that was covered by the statute to speech and to “statements made to government officials in the course of government decision making directed towards government officials.”28

The 2010 law had four goals:

(1) to provide as a matter of substantive law a statutory immunity for statements (and expressive conduct) on matters of public concern, where the plaintiff is unable to establish a prima facie case supporting his or her cause of action;

(2) to furnish a suggested procedural framework that encourages and facilitates prompt and inexpensive resolution of such SLAPP claims;

(3) to provide a right of immediate appeal of a trial court’s ruling on an anti-SLAPP motion; and

(4) to require appropriate reimbursement for the targets of SLAPP lawsuits through an award of reasonable attorney’s fees and a $10,000 sanction.29

The filing of a motion under the 2010 anti-SLAPP law fast-tracked court action and provided for an automatic stay in the SLAPP lawsuit wherein the burden to show good cause automatically shifted to the SLAPP plaintiff. “The statute provides for special motions to strike, which operate as early motions for summary judgment that require SLAPP plaintiffs to demonstrate, at the outset of the litigation, that they can establish the required elements of their case with convincing clarity.”30

Specifically, the SLAPP plaintiff needed to demonstrate a probability of prevailing on the merits of the SLAPP lawsuit under the clear and convincing evidence standard. This provision of the law was designed to facilitate an early summary judgment disposition. Additionally, the 2010 law protected a person defending against abusive litigation from being forced through unnecessary and time-consuming discovery until the court decided whether the action should move forward.

This reform in the law was particularly critical for domestic violence survivors who often are trapped by repeated court appearances where they are personally forced to confront their abusers. Halting and/or limiting the abuse of discovery proceedings until the merit of the lawsuit can be established restricts the degree of access the abuser may have with the victim inside the courtroom. Abusers would be precluded from unilaterally piling on discovery requests.

The statute specifically provided that all of the provisions of Washington’s anti-SLAPP law were to be construed liberally by the courts.31 The reasoning for this liberal construction was expressed in the Legislature’s finding that “it was concerned about claims ‘brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances.’”32 The Legislature also emphasized that “[a]lthough SLAPP suits are typically dismissed, the litigation often is not resolved before ‘the defendants are put to great expense, harassment, and interruption of their productive activities.’”33

Another critical reform derived from the 2010 law that was particularly relevant to domestic violence survivors seeking relief from abusive litigation was that the law “has achieved its goal of prompt resolution of meritless claims by significantly shortening the life of non-viable SLAPP claims from a matter of years to months.”34 Moreover, “Because of the cost that it entails, the threat of lengthy litigation becomes vital to a SLAPP’s effectiveness. Plaintiffs rarely win in court but often realize their ultimate goal: to devastate the defendant financially and chill the defendant’s public involvement.”35

Often, the ultimate goals of abusive litigation directed against survivors include suppressing the survivor’s ability to seek help from law enforcement and/or the courts along with financial and emotional devastation. Accordingly, the fact that the 2010 reforms shortened the duration of SLAPP suits was a critical development that survivors could benefit from in taking advantage of the anti-SLAPP law.

Finally, if the anti-SLAPP motion was granted, the statute provided for both an award of attorney’s fees and a mandatory $10,000 fine imposed on the SLAPP plaintiff. A common problem that many domestic violence survivors face when confronted with abusive litigation tactics is the inability to retain legal representation. In fact, a 2008 Washington survey of domestic violence programs indicated that a mere 8 percent of those programs could reliably connect survivors with an attorney when representation was requested.36

The provision of attorney’s fees removed another hurdle a survivor encounters when seeking legal representation. Absent this provision, survivors who cannot afford attorneys have only limited protections under the current anti-SLAPP law, whereas the groundbreaking 2010 law provided far greater protections and opportunities to retain legal representation.

Washington Supreme Court Finds the 2010 Anti-SLAPP Law Unconstitutional

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