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WA Anti-Slapp Law ruled “Unconstitutional”

Logo courtesy: Wa Courts

Editor’s note:
I am astounded that the media, and especially the Nisqually Valley News since they have covered high-profile SLAPP issues previously, has not reported what rocked the State of Washington legal world last week, as reported by one of my own law firms, Davis Wright Tremaine LLP, [DWT] Seattle:

“State Supreme Court Strikes Down Washington’s Anti-SLAPP Statute”
“The Washington Supreme Court this morning invalidated the state’s broad anti-SLAPP statute, holding in a unanimous opinion that the law violates the constitutional right to a jury trial. The decision strikes the statute in its entirety, finding the constitutional problem undermined the law’s “mainspring.” The decision, Davis v. Cox, is the first in the nation to hold an anti-SLAPP statute unconstitutional.

Passed in 2010, Washington’s anti-SLAPP law, RCW 4.24.525, provided a mechanism for early and efficient disposition of lawsuits targeting “public participation and petition,” including speech and publication on issues of public concern. Like similar statutes in California and elsewhere, the law enabled defendants facing such claims to require the plaintiff to prove at the outset that the claim had merit. The law also deterred defamation and other claims targeting the exercise of First Amendment rights, by providing attorneys’ fees and a statutory award to defendants who won an anti-SLAPP motion.

Today’s [May 28] state Supreme Court decision holds 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 that the trial court had to weigh and decide disputed factual evidence, which is the purview of a jury,” by Bruce E. H. Johnson, Eric M. Stahl, and Ambika Kumar Doran, Davis Wright Tremaine LLP, Seattle.
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– By Aaron Morris of Morris & Stone, LLP, Tustin, CA
“The Washington legislature has learned that even a good idea can be taken too far.

When Washington decided to enact an anti-SLAPP statute (it was greatly revised in 2010), it certainly had many states’ examples to choose from. Some states, feeling that anti-SLAPP protections are so essential, have added protections that exceed those of California’s anti-SLAPP statute. California was the first state to pass an anti-SLAPP statute, and many states have the based their laws on California’s tested formulation, while others have tinkered.

In the case of Washington, the legislature decided to up the ante by requiring a plaintiff to show by clear and convincing evidence that their case has merit. Even a cursory review of this heightened standard should have made clear that such a requirement is impermissible.

The Seventh Amendment of the United States Constitution guarantees the right to a jury in a civil trial, and that protection exists on the state level through the states’ own constitutions.
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Posted by Steve on June 1, 2015 at 6:43 am | Permalink

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