Kent L. Davis et al., Petitioners,
Grace Cox et al., Respondents
Argued January 20, 2015
Robert M. Sulkin and Avi J. Lipman (of McNaul Ebel Nawrot & Helgren PLLC ), for petitioners.
Bruce E.H. Johnson, Angela C. Galloway, and Ambika K. Doran (of Davis Wright Tremaine LLP ) ( Barbara M. Harvey, Steven Goldberg, and Maria C. LaHood, of counsel), for respondents.
George M. Ahrend, Bryan P. Harnetiaux, and David P. Gardner on behalf of Washington State Association for Justice Foundation, amicus curiae.
Alicia O. Young, Assistant Attorney General, on behalf of State of Washington, amicus curiae.
Jeffrey L. Needle, Jesse A. Wing, Joseph R. Shaeffer, and Tiffany M. Cartwright on behalf of Washington Employment Lawyers Association, amicus curiae.
Matthew J. Segal, Sarah C. Johnson, Sarah A. Dunne, and Nancy L. Talner on behalf of American Civil Liberties Union of Washington, amicus curiae.
Jessica L. Goldman and Bruce D. Brown on behalf of Reporters Committee for Freedom of the Press, Allied Daily Newspapers of Washington, American Society of News Editors, Association of Alternative Newsmedia, The Association of American Publishers, Inc., Bloomberg L.P., California Newspaper Publishers Association, The E.W. Scripps Company, Forbes Media LLC, Gannett Co., Inc., Hearst Corporation, Investigative Reporting Workshop at American University, KIRO-TV, The McClatchy Company, MediaNews Group, Inc., National Press Photographers Association, Newspaper Association of America, North Jersey Media Group Inc., Online News Association, Public Participation Project, The Seattle Times Company, Sound Publishing, Inc. d/b/a the Daily Herald of Everett, Stephens Media LLC, Time Inc., Tully Center for Free Speech, Washington Newspaper Publishers Association, and Washington State Association of Broadcasters, amici curiae.
Neil M. Fox on behalf of Jewish Voice for Peace, Palestine Solidarity Legal Support, National Lawyers Guild, American Muslims for Palestine, and International Jewish Anti-Zionist Network, amici curiae.
AUTHOR: Justice Debra L. Stephens. WE CONCUR: Chief Justice Barbara A. Madsen, Justice Charles W. Johnson, Justice Susan Owens, Justice Mary E. Fairhurst, Justice Charles K. Wiggins, Justice Steven C. González, Justice Sheryl Gordon McCloud, Justice Mary I. Yu.
Debra L. Stephens, J.
[183 Wn.2d 274] ¶ 1 This case requires us to decide the contitutionality of the Washington Act Limiting Strategic Lawsuits Against Public Participation (anti-SLAPP statute). Laws of 2010, ch. 118 (codified at RCW 4.24.525). In the statute's prefatory findings, the legislature explained it was " concerned about lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances," id. § 1(1)(a), and so the statute's purpose was to establish " an efficient, uniform, and comprehensive method for speedy adjudication" of such lawsuits, id. § 1(2)(b).
¶ 2 The statute attempts to achieve this goal in three principal ways. It halts discovery in such cases presumptively, RCW 4.24.525(5)(c), creates a " special motion to strike a claim" (anti-SLAPP motion), id. at (4)(b), and awards a prevailing party on the motion attorney fees and a $ 10,000 assessment, id. at (6)(a). When ruling on an anti-SLAPP motion, the trial court first determines whether the claim at issue is " based on an action involving public participation and petition," a defined term that broadly describes rights of expression and petition. Id. at (4)(b). If that is so, the trial court then decides whether the party bringing the claim can prove by " clear and convincing evidence a probability of prevailing on the claim." Id. at (4)(b). If the party cannot meet that burden, the statute requires the trial court to dismiss the claim and award statutory remedies to the opposing party. Id. at (6)(a).
¶ 3 Though the statute seeks to " [s]trike a balance between the rights of persons to file lawsuits and to trial by jury and the rights of persons to participate in matters of public concern," Laws of 2010, ch. 118, § 1(2)(a), we conclude [183 Wn.2d 275] the statute's evidentiary burden fails to strike the balance that the Washington Constitution requires. Because RCW 4.24.525(4)(b) requires the trial judge to adjudicate factual questions in nonfrivolous claims without a trial, we hold RCW 4.24.525 violates the right of trial by jury under article I, section 21 of the Washington Constitution and is invalid. We reverse the Court of Appeals and remand this case to the superior court for further proceedings.
A. Overview of Washington's Anti-SLAPP Laws
¶ 4 Anti-SLAPP statutes punish those who file lawsuits--labeled strategic lawsuits against public participation or SLAPPs--that abuse the judicial process in order to silence an individual's free expression or petitioning activity. Tom Wyrwich, A Cure for a " Public Concern" : Washington's New Anti-SLAPP
Law, 86 Wash. L.Rev. 663, 666-68 (2011). Such litigation is initiated " [w]ith no concern for the inevitable failure of the lawsuit" and instead only forces the defendant into costly litigation that " devastate[s] the defendant financially and chill[s] the defendant's public involvement." Id. at 666-67. Though such suits are " typically dismissed as groundless or unconstitutional," the problem is that dismissal comes only after " the defendants are put to great expense, harassment, and interruption of their productive activities." Laws of 2010, ch. 118, § 1(1)(b).
¶ 5 In 1989, Washington became the first state to enact anti-SLAPP legislation. Laws of 1989, ch. 234 (codified as amended at RCW 4.24.500-.520). This initial statute grants speakers immunity from claims based on the speaker's communication to a governmental entity regarding any matter reasonably of concern to the governmental entity. See RCW 4.24.510. However, this statute has come to be seen as having a limited effect because it applies only to communications to governmental entities and it creates no method for early dismissal. Wyrwich, supra, at 669-70.
[183 Wn.2d 276] ¶ 6 In 2010, the legislature enacted the anti-SLAPP statute at issue in this case. Laws of 2010, ch. 118 (codified at RCW 4.24.525). This statute is unique from its predecessor in that it creates an entirely new method for adjudicating SLAPPs, separate from the rules of civil procedure. The new statute did not amend or repeal the prior statute and instead codifies its new procedures in one new statutory section. See RCW 4.24.525. Subsections (1) and (2) define key terms. Subsection (3) provides that the law does not apply to prosecutors. Subsection (4) is the law's mainspring: it establishes a " special motion to strike a claim" and sets forth the evidentiary standard that trial courts must use to adjudicate the motion. Subsection (5) contains various procedural rules to halt discovery and ensure speedy adjudication of an anti-SLAPP motion. Subsection (6) provides the prevailing party on the motion statutory damages of $ 10,000, attorney fees, costs, and discretionary additional relief. Subsection (7) states the statute does not abridge any other rights the movants possess.
¶ 7 The law's mainspring, subsection (4), provides that a party may bring a special motion to strike any claim that is based on " an action involving public participation and petition." RCW 4.24.525(4)(a). That phrase--" an action involving public participation and petition" --is a defined term that uses capacious language in five nonexclusive examples. See id. at (2)(a)-(e). When a party brings such a motion, the moving party has " the initial burden of showing by a preponderance of the evidence" that the claim is based on an action involving public participation and petition. Id. at (4)(b). If the moving party meets this burden, the burden shifts to the responding party " to establish by clear and convincing evidence a probability of prevailing on the claim." Id. When a trial judge adjudicates such a motion, " the court shall consider pleadings and supporting and opposing affidavits stating the facts upon which the liability or defense is based." Id. at (4)(c). If the court determines the responding party has met its burden to establish by [183 Wn.2d 277] clear and convincing evidence a probability of prevailing on the claim, " the substance of the determination may not be admitted into evidence at any later stage of the case," id. at (4)(d)(i), and the case proceeds toward trial.
¶ 8 Upon the filing of a special motion to strike, subsection (5) freezes all other aspects of the litigation. Discovery is stayed, as are pending motions and hearings. Id. at (5)(c). The discovery stay remains in effect until the court rules on the special motion to strike, though on a party's motion and for good cause shown, the court may order ...