Washington’s anti-SLAPP law violates the jury-trial guarantee, holds the Washington Supreme Court

Davis v. Cox, No. 90233-0 (Wash. May 28, 2015).

The Washington Legislature enacted its current anti-SLAPP law in 2010. Its purpose is to deter groundless lawsuits that aim merely to shut up some perceived troublemaker. To further this speech-protective purpose, the anti-SLAPP law allows the defendant to file a motion to strike—in effect, a special kind of motion to dismiss. If the motion to strike succeeds, the offending case or claim will be dismissed, and the defendant will recover statutory damages, costs, and attorneys’ fees. 

To succeed in a motion to strike, the defendant must initially show that the plaintiff’s claim is based on “an action involving public participation and petition”—terms, incidentally, that the anti-SLAPP law defines quite broadly. If the defendant succeeds in showing that the claim comes within this anti-SLAPP umbrella, the plaintiff must “establish by clear and convincing evidence a probability of prevailing on the claim.” Otherwise, the claim is dismissed. And the plaintiff, except in special circumstances, must meet this burden without the benefit of discovery. 

The question here is whether the burden that the anti-SLAPP law places on plaintiffs violates the Washington Constitution’s jury-trial guarantee. This question boils down mostly to a question of statutory interpretation. The defendants in this case argue that the anti-SLAPP law simply created a summary-judgment standard. And since summary judgment is constitutional, the anti-SLAPP law is constitutional. The plaintiffs, by contrast, say that the anti-SLAPP law creates a far higher burden than the summary-judgment standard does.

A unanimous Washington Supreme Court agrees with the plaintiffs. The language of the anti-SLAPP law does two things. First, it requires a plaintiff to show a probability of prevailing—i.e., winning. This necessarily requires a trial court to weigh evidence and resolve questions of fact—but weighing evidence and resolving factual questions is a task the Washington Constitution commits to the jury. Second, the anti-SLAPP law “expressly ratchets up the plaintiff’s evidentiary burden” by requiring “clear and convincing evidence,” even if a plaintiff wouldn’t have to prove its claim before a jury by clear and convincing evidence. This part of the law requires a trial court to rule against a plaintiff even if a jury, applying a lower burden of proof, might find in that plaintiff’s favor. 

If you read the supreme court briefing, you’ll see that the defendants didn’t really argue that the anti-SLAPP law would be constitutional if it had these consequences. They argued that the anti-SLAPP law didn’t have those consequences. That position, as the Washington Supreme Court points out, just isn’t consistent with the text of the law.