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Issaquah Law Group - Injury Litigation Attorneys

TRUST: Personal injuries are personal. Which is why the attorneys at ILG treat every client and every case differently. Because they are different, and extremely personal. ILG was founded on the principle that strong client relationships are the key to successful legal representation and strong relationships are built on trust. Trust that you will be heard. Trust that you will be protected. Trust that every effort will be made to see justice done in your case. The singular goal of every ILG attorney is to earn and preserve that trust.

EXPERIENCE: ILG attorneys have a broad base of litigation experience to draw on in all Federal and State courts from on-the-ground investigations to Supreme Court appeals and we bring this experience to bear on behalf of our clients in personal injury and wrongful death claims arising out of motor vehicle accidents, bus versus pedestrian accidents, defective and dangerous products, medical malpractice, slip/trip and fall accidents, and catastrophic losses due to fire.

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In addition, through The Amateur Law Professor Blog and LinkedIn postings, we share pertinent opinions and decisions of the Washington State Supreme Court, as well as the pertinent opinions and decisions of the Washington State Courts of Appeal so that our clients can be as update to date on cutting legal issues as we are.

WA Supreme Court: Anti-SLAPP Statute Violates Right to Trial, Constitutionally Invalid

Davis v. Cox

This opinion is a big one when it comes to right to trial, governmental claims, and litigation in general.

Washington's Anti-SLAPP statute is one that can get a bit confusing. In a normal civil trial, you have to prove that you are more likely than not right. If you don't, the other side loses. Most of the time, the parties each pay their own way. 

Sometimes, people file frivolous claims that they know they won't succeed upon. Those cases are governed by CR 11, otherwise known as the sanctions civil rule. If you don't have a good faith basis in the facts or in the law to support your claim, your claim can be dismissed and you can be sanctioned. In addition, there is the ability to get a case dismissed on the pleadings, meaning that even if what the Plaintiff said was true, if it doesn't provide a right to relief, the Court can dismiss the claim. Finally, there is a thing called summary judgment, which is similar, but doesn't assume facts. Instead, the party must prove they have some basis in fact and law to take their claim to trial, otherwise it is dismissed.

Now the legislature had enacted Anti-SLAPP (Washington Act Limiting Strategic Lawsuits Against Public Participation), it did so to try to curtail lawsuits involving protected speech. If the lawsuit was found to involve protected speech, then the burden shifted to the other party to show by clear and convincing evidence that they would prevail on the claim. Who decided if this was shown? The judge.

Therein lies the problem. Under summary judgment standards, once you have shown you have a bit of evidence supporting your claim, it gets to go to the jury to decide if you win your claim. If not, then your case is dismissed because no jury could ever decide in your favor based on the lack of evidence.

In this case, a group of co-op employees sued because the Board decided to initiate a boycott that the employees did not agree to, and company policies said the employees have to agree on a boycott. The Board countered that it had the right to enact the boycott, regardless of the policies. It then brought a motion to strike the complaint under the Anti-SLAPP statute, claiming the lawsuit was based on protected speech - the Board vote. The trial court granted the motion, and imposed $10,000 per defendant as mandatory fees, as well as attorney's fees, totaling well over $200,000 the Plaintiffs would have been required to pay. The Plaintiffs appealed.

Here, even if they've shown a bit of evidence supporting your claim, they were still have to show even more to avoid the Anti-SLAPP dismissal - clear and convincing evidence they would prevail. This means that there is enough for a jury to hear their claim, but because the judge has decided its not clear and convincing, their claim was dismissed and sanctions applied. 

The Washington Supreme Court, in a unanimous 9-0 ruling, held that taking the decision out of the hands of the jurors, and placing it with a judge, violates the right to trial found in our Constitution:

     Interpreting the right of trial by jury in light of the petition clause jurisprudence, we recognize that article I, section 21 of the Washington Constitution does not encompass the right of jury trial on frivolous or sham claims. Exclusion of such claims comports with the long-standing principle that litigants cannot be allowed to abuse the heavy machinery of the judicial process for improper purposes that cause serious harm to innocent victims, such as to harass, cause delay, or chill free expression. Such conduct has always been, and always will be, sanctionable. See, e.g., RCW 4.84.185 (providing a court in any civil action may award reasonable expenses, including attorney fees, incurred in defending against a claim or defense that is "frivolous and advanced without reasonable cause"); CR 11(a) (providing a court in any civil action may award an appropriate sanction, including reasonable expenses incurred and attorney fees, to a party that defends against a claim or defense that a reasonable inquiry would have shown is not "well grounded in fact," not "warranted by existing law or a good faith argument" for change to the law, or is used "for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation"); RPC 3.1 (providing a lawyer commits professional misconduct by asserting a "frivolous" claim, defense, or issue); RPC 4.4(a) (providing a lawyer commits professional misconduct by using "means that have no substantial purpose other than to embarrasses, delay, or burden a third person"); RESTATEMENT (SECOND) OF TORTS § 674 (1965) (providing a cause of action for wrongful use of civil proceedings when a claim is brought "without probable cause, and primarily for a purpose other than that of securing the proper adjudication of the claim in which the proceedings are based"); RESTATEMENT § 682 (providing a cause of action for abuse of process against "[ o ]ne who uses a legal process, whether criminal or civil, against another primarily to accomplish a purpose for which it is not designed"). All of these remedies are consistent with the right of trial by jury because they are limited to punishing or deterring frivolous or sham litigation. 

     But the same cannot be said of the anti-SLAPP statute. It is not so limited. RCW 4.24.525(4)(b) requires the trial judge to make a factual determination of whether the plaintiff has established by clear and convincing evidence a probability of prevailing on the claim. This is no frivolousness standard. See, e.g., Goldmark v. McKenna, 172 Wn.2d 568, 582, 259 P.3d 1095 (2011) ("A frivolous action is one that cannot be supported by any rational argument on the law or facts."); Millers Cas. Ins. Co. of Tex. v. Briggs, 100 Wn.2d 9, 15, 665 P.2d 887 (1983) ("' [A]n appeal is frivolous if there are no debatable issues upon which reasonable minds might differ, and it is so totally devoid of merit that there was no reasonable possibility of reversal."' (quoting Streater v. White, 26 Wn. App. 430, 435, 613 P.2d 187 (1980))). Rather, the statute mandates dismissal of a claim and imposition of sanctions merely because the claim cannot establish by clear and convincing evidence a probability of prevailing at trial. Cf BE&K Constr. Co., 536 U.S. at 532 ("[T]he genuineness of a [claim] does not turn on whether it succeeds."); Bryant v. Joseph Tree, Inc., 119 Wn.2d 210, 220, 829 P.2d 1099 (1992) ("The fact that a [claim] does not prevail on its merits is by no means dispositive of the question of CR 11 sanctions."); Holland v. City of Tacoma, 90 Wn. App. 533, 546, 954 P.2d 290 (1998) (properly holding judgment may be entered against a plaintiffs claim on summary judgment without the claim being frivolous). Significantly, a separate subsection of the anti-SLAPP statute uses a frivolousness standard, in contrast to the burden of proof under RCW 4.24.525(4)(b). The statute provides that if an anti-SLAPP motion is "frivolous or is solely intended to cause unnecessary delay," the responding party is entitled to statutory remedies. RCW 4.24.525(6)(b). This provision's standard, intended to deter improper anti-SLAPP motions, makes clear that RCW 4.24.525(4)(b)'s standard is a higher threshold than a frivolousness inquiry. 

     Thus, RCW 4.24.525( 4)(b) creates a truncated adjudication of the merits of a plaintiffs claim, including nonfrivolous factual issues, without a trial. Such a . procedure invades the jury's essential role of deciding debatable questions of fact. In this way, RCW 4.24.525(4)(b) violates the right of trial by jury under article I, section 21 of the Washington Constitution. 

So what does this mean? It means the Court has invalidated the statute, and if the legislature wants to re-enact it in some form, it will have to be in a manner where frivolity of the claim is in line with the definitions enacted by the Courts in order to impose mandatory penalties, at the very least. Even then, this may still be violative of the role of the Courts, which would be a violation of separation of powers, as sanctions under CR 11 are not mandatory, but discretionary. Could the legislature impose some sort of sanction plus attorneys fees to be granted where summary judgment is awarded when the conduct is based on speech? Possibly. I'm guessing we'll find out in a few years if the legislature brings back some version of the Anti-SLAPP statute.

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