Daily Blast May 28, 2015

On May 28, 2015, the Washington Supreme Court issued a unanimous opinion striking down the Washington Act Limiting Strategic Lawsuits Against Public Participation codified at RCW 4.24.525 (anti-SLAPP statute) in 2010. According to the Court, the anti-SLAPP statute violates the Washington Constitution because it requires judges rather than juries to make determinations about the disputed facts of a case.

In Davis v. Cox, Supreme Court Cause No. 90233-0, five members of the nonprofit grocery store Olympia Food Cooperative (“members”) sued 16 current or former members of the co-op's Board of Directors after the Board protested Israel's human rights record by adopting a boycott of products from Israel-based companies. The members alleged that the action violated the co-op’s boycott policy. The Board successfully invoked the anti-SLAPP statute in Thurston County Superior Court and had the case dismissed. The members were ordered to pay more than $220,000 in penalties and legal fees pursuant to RCW 4.24.525(6)(a). They appealed, arguing the anti-SLAPP statute is unconstitutional. The Court of Appeals affirmed on all issues.

The Supreme Court accepted review and reversed, holding the statute violates the right of trial by jury. It did not resolve the members’ other constitutional challenges and declined to consider whether the statute required that $10,000 be awarded to each prevailing defendant (here, $160,000 total) or instead $10,000 to all defendants in total because it invalidated the statute. Before turning to the constitutional arguments against the anti-SLAPP statute, the Court resolved a dispute over how the statute operates. Siding with the members, the Court concluded the plain language of RCW 4.24.525(4)(b) establishes a preliminary procedure for the factual adjudication of claims without a trial rather than a summary judgment procedure. The Court distinguished between Washington’s statute and California’s, noting that Washington’s statute expressly ratchets up the plaintiff’s evidentiary burden and requiring the plaintiff to establish by clear and convincing evidence a probability of prevailing on the claim rather than simply a probability of prevailing.

Turning to the merits, the Court concluded the anti-SLAPP statute’s evidentiary burden failed to strike the 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 that the Washington Constitution requires. According to the Court, the statute creates a truncated adjudication of the merits of a plaintiff’s claim, including non-frivolous factual issues, without a trial. This procedure invades the jury’s essential role of deciding debatable issues of fact and violates the right of trial by jury under art. I, sec. 21 of the Washington Constitution.

Finally, the Court held that the constitutionally invalid aspects of RCW 4.24.525 could not be severed from its remaining provisions because RCW 4.24.525(4)(b) is the law’s mainspring because every provision in the anti-SLAPP statute has meaning and effect only in connection with the filing of the special motion to strike under that subsection. Without subsection (4)(b), the rest of RCW 4.24.525 is “useless to accomplish the purpose of the legislature.” The Court invalidated RCW 4.24.525 as a whole.

Justice Debra L. Stephens authored the Court’s opinion, which can be found here.