WA Supreme Court: WA Yakima anti-SLAPP suit gets slapped.
So there is this law called an anti-SLAPP statute. It is designed to curb people from infringing on your free speech rights. Only the way it is starting to be used is a sword by defendants when people file lawsuits. The acronym fully means “anti strategic lawsuit against public participation.” A SLAPP lawsuit, by design, is used to curb free speech. Usually this arises in when someone claims defamation, but the things that were said were true.
The first iteration of the law dealt with people who made good faith reports to government entities. If someone sued you for making the report, you could file a suit. In 2002, the law was changed to include damages for people that successfully assert a statutory defense to a suit. The most likely being that the thing said was true. In 2010, the law changed again to put it beyond just reporting to governmental entities, to any action “involving public participation."
So that’s the background. What about this case specifically. Here, Henne (a police officer with Yakima) filed an employment lawsuit against the city, saying that several officers complained as harassment and retaliation, which even led to an internal investigation. The city said that this was classic Anti-Slapp, because the lawsuit was based on coworker complaints and the resulting internal investigation. In essence, the employee complaints were protected, thus Henne could not base his lawsuit on them without it amounting to a SLAPP.
The Superior Court (trial level court in Washington) found that this was an improper use of the anti-SLAPP lawsuit, because Henne was seeking redress of grievances from the government, and “that’s exactly the opposite of the purpose of the statute."
So what of the lawsuit. First, the supreme court held that because it wasn’t the government doing the talking, the government could not bring an anti-SLAPP motion. Essentially, if Henne had sued the individual officers who reported him, that may amount to an anti-SLAPP. Bue here he sued the City for the conduct of the officers, which is different. The City made no speech, and thus Henne’s lawsuit could not be anti-speech. Nothing in the statute allows one person to assert an anti-SLAPP on behalf of the speech of others.
The use of anti-SLAPP statutes now has a chink in the armor. The way it is being used against people who bring legitimate lawsuits is atrocious, and hopefully future cases will bring this issue to bear.
Because this an important case, I will provide the breakdown. Justice McCloud authored the opinion with Justices Stephens, Wiggins, Owens, Gonzalez, and Chief Justice Madsen concurring.
Justice Fairhurst offered a concurrence in the result, but noted that Yakima failed to prove in the record that Henne’s suit was a SLAPP suit. The basis for Henne’s claims were how the city responded to his complaints of being harassed by others. Though the harassment may also have been speech conduct, the core of the suit was how the City failed to respond to Henne’s complaint that their speech had risen to the level of harassment and creating a hostile work environment. It was not an action involving public participation and petition. “It cannot be contended that the substantial penalties in the anti-SLAPP statute were intended to prevent mere in artful pleadings.” Justice Fairhurst was joined by remaining Justices Chuck Johnson and Yu.
All nine felt Yakima’s stance was off the mark. Its a great victory for the right of access to the Courts.