July 2015 Bar Bulletin
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July 2015 Bar Bulletin

Supreme Court Slaps Down Anti-SLAPP Law

By Avi Lipman and Curtis Isacke


In an opinion published on May 28 in Davis v. Cox, the Washington Supreme Court ruled unanimously that RCW 4.24.525 - part of the Washington Act Limiting Strategic Lawsuits Against Public Participation ("Anti-SLAPP Act") - violates the right to a jury trial under Article I, section 21 of the Washington Constitution.

Justice Debra Stephens authored the opinion, which held the Anti-SLAPP Act improperly requires trial courts to weigh competing evidence and perform a fact-finding function expressly reserved for juries. Davis is the only case in the United States in which a court has declared anti-SLAPP legislation unconstitutional.

History of Washington's Anti-SLAPP Act

Washington became the first state to enact an anti-SLAPP statute when, in 1989, the legislature codified RCW 4.24.500–.520. This initial statute, which the Supreme Court did not address in Davis, grants "immunity" from civil liability only for claims based on communication to a governmental entity regarding "any matter reasonably of concern to that agency or organization." It contains no method for early dismissal.

In 2010, the Legislature enacted RCW 4.24.525, which significantly expanded the reach of an anti-SLAPP motion, imposed a mandatory stay of discovery, and defined a procedure for early dismissal of a claim.

Under the new statute, the party filing a "special motion to strike" bears the initial burden of establishing by a preponderance of the evidence that the lawsuit constitutes an "action involving public participation and petition." This can be done by meeting one of several standards, including a "catch-all" provision relating to "any other lawful conduct in furtherance of the exercise of the constitutional right of free speech in connection with an issue of public concern, or in furtherance of the exercise of the constitutional right of petition."1

If the moving party meets its burden, "the burden shifts to the responding party to establish by clear and convincing evidence a probability of prevailing on the claim."2 If the responding party does so, the trial court must deny the anti-SLAPP motion.

A moving party who prevails on an anti-SLAPP motion is entitled to an award of reasonable attorneys' fees and a $10,000 penalty. (Whether this means an award of $10,000 to each moving party or to the moving parties collectively was a question left unanswered by the Supreme Court.) A non-moving party that persuades the trial court that the anti-SLAPP motion was "frivolous" or "solely intended to cause unnecessary delay" is entitled to the same forms of relief.

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