By Bruce E. H. Johnson, Eric M. Stahl, and Ambika Kumar Doran
The Washington Supreme Court in May struck down the state’s 2010 anti-SLAPP statute, holding in a unanimous opinion that the law violates the state constitution’s right to a jury trial and is invalid on its face. The decision, Davis v. Cox, is the first in the nation to hold an anti-SLAPP statute unconstitutional. 351 P.3d 862; 183 Wn.2d 269; 2015 WL 3413375 (Wash. 2015).
The statute, RCW 4.24.525, provided a procedure for early and efficient disposition of lawsuits targeting “public participation and petition,” including petitioning as well as speech on issues of public concern. Like statutes in California and elsewhere, the law enabled defendants facing such claims to bring an early motion to strike, requiring the plaintiff to show at the outset that the claim had merit. The law also provided for attorneys’ fees and a statutory damages award to defendants who won an anti-SLAPP motion.
Davis held that the law violates the state constitutional protection for the right to trial by jury. Specifically, the court held that the requirement that a plaintiff “establish by clear and convincing evidence a probability of prevailing on the claim” meant the trial court had to weigh and decide disputed factual evidence, which is the purview of a jury. Until Davis, every court to interpret the law held the provision was akin to a summary judgment procedure, but the court found that to adopt that interpretation, it would have to rewrite the law. Instead, it held the law’s plain language requires a judge deciding an anti-SLAPP motion to rule on factual issues and dismiss even nonfrivolous claims if they do not meet the “clear and convincing” standard. That, the court held, “creates a truncated adjudication of the merits of a plaintiff’s claim” and “invades the jury’s essential role of deciding debatable questions of fact.”
Notably, the claims in Davis did not permit plaintiffs to demand a jury trial. The plaintiffs, five members of the Olympia Food Co-op, alleged purely equitable claims, arguing the defendants—former and current members of the Co-op Board—acted ultra vires and breached their fiduciary duties when the board adopted a boycott of Israel. The trial court dismissed the claims under the anti-SLAPP statute, and the Court of Appeals affirmed, both holding the plaintiffs had failed to satisfy a summary judgment standard. The Supreme Court did not weigh in on whether summary judgment was warranted, remanding the case.
Although plaintiffs in other cases in Washington state had argued the anti-SLAPP statute is unconstitutional, Davis was the first to squarely present the issue before the state Supreme Court. Opposition to the law was spearheaded by the Washington State Association for Justice Foundation, a trade association for plaintiffs’ attorneys. The association was joined by the American Civil Liberties Union (ACLU) of Washington and the Washington Employment Lawyers Association. Although the ACLU has consistently supported anti-SLAPP laws in other states, including by opposing similar constitutional challenges, the Washington state chapter has taken a different position on the anti-SLAPP law and other state legislation protecting the public’s right of participation and petition—such as by supporting privacy-based exemptions to public-records access, new rules making it easier to seal criminal court records, and legislation criminalizing certain ads that a court ultimately declared unconstitutional.
Amici in support of the statute included the State of Washington, the Reporters Committee for Freedom of the Press, 26 major news media organizations, and several organizations that support Palestinian rights.
Davis is significant because it holds the anti-SLAPP statute unconstitutional on its face, meaning it cannot apply in any circumstance. Because the basis for the decision is the state constitution, the Washington Supreme Court’s opinion is the last word, pending any future legislative fix. Media defendants and other SLAPP victims have therefore lost an important protection against baseless lawsuits targeting their First Amendment activities, at least for now.
The authors are all partners in Davis Wright Tremaine LLP’s Seattle office. DWT represented the defendants in Davis v. Cox, along with the Center for Constitutional Rights.