Courts Broadly Interpret and Decide Constitutional Challenges to Washington State’s Anti-SLAPP Statute

Although federal courts have interpreted Washington state's new anti-SLAPP statute several times, state appellate courts have only just begun to do so, with the first cases making their way to the state's highest court in 2014. That court is poised to issue several key opinions in 2015.

Washington enacted its Act Limiting Strategic Lawsuits Against Public Participation, RCW 4.24.525, in 2010. The statute, modeled on California's anti-SLAPP law, requires a moving party to prove the claims it seeks to strike are based on protected speech or conduct, after which the burden shifts to the nonmoving party to prove a probability or prevailing on the merits. RCW 4.24.525(4)(b). Discovery is stayed pending a decision on the motion unless the non-movant can show good cause. RCW 4.24.525(5)(c). Unlike the California law, the Washington statute requires SLAPP plaintiffs to pay $10,000 in statutory damages. RCW 4.24.525(6)(a).

Federal courts, including the Ninth Circuit, have almost uniformly relied on California cases to interpret the statute. See, e.g., Phoenix Trading, Inc. v. Loops LLC, 732 F.3d 936, 941-42 (9th Cir. 2013); AR Pillow Inc. v. Maxwell Payton, LLC, 2012 WL 6024765, at *2 (W.D. Wash. Dec. 4, 2012). But until 2014, state courts had issued just two published opinions, neither on the scope of the anti-SLAPP statute immunity. Akrie v. Grant, 178 Wn. App. 506, 514, 315 P.3d 567 (2013), rev. granted, 180 Wn.2d 1008 (2014) (deciding $10,000 award is per movant); Henne v. City of Yakima, 177 Wn. App. 583, 587-88, 313 P.3d 1188 (2013), rev. granted, 179 Wn.2d 1022 (2014) (refusing to allow municipality to bring anti-SLAPP motion).

In 2014, the Court of Appeals decided six more cases. Dillon v. Seattle Deposition Reporters, LLC, 179 Wn. App. 41, 316 P.3d 1119 (2014), rev. granted, 180 Wn.2d 1009 (2014); Davis v. Cox, 180 Wn. App. 514, 325 P.3d 255, 264 (2014); City of Seattle v. Egan, 179 Wn. App. 333, 317 P.3d 568 (2014); Alaska Structures, Inc. v. Hedlund, 180 Wn. App. 591, 323 P.3d 1082 (2014); Spratt v. Toft, 180 Wn. App. 620, 324 P.3d 707 (2014); Bevan v. Meyers, ___ Wn. App. ___ , 334 P.3d 39 (2014).

These decisions provide some basic direction to lower courts. First, as in California, courts look to the "principle thrust or gravamen" of a claim when deciding if it targets protected conduct. Dillon, 179 Wn. App. at 71-73; Alaska Structures, Inc., 180 Wn. App. at 597-98; Davis, 180 Wn. App. at 529-30; Egan, 179 Wn. App. at 338; Bevan, 334 P.3d at 43. Second, the statute applies to all conduct in furtherance of the exercise of free speech and petition rights. See Davis, 180 Wn. App. at 530-31 (claim sought to enjoin boycott of Israel); Spratt, 180 Wn. App. at 629 31 (statements about candidate during campaign); Bevan, 334 P.3d at 41 (lawsuit premised on neighbor's complaint to health department about location of septic tank installed by plaintiff). Third, in deciding the second prong of the statute, courts evaluate whether a plaintiff could survive a defense motion for summary judgment. Dillon, 179 Wn. App. at 86-89; Davis, 180 Wn. App. at 533; Spratt, 180 Wn. App. at 636-37.

However, five of the eight state court cases decided in the statute's history have been appealed to the Washington Supreme Court. Dillon, 179 Wn. App. 41 (review granted); Akrie, 178 Wn. App. 506 (same); Henne, 177 Wn. App. 583 (same); Davis, 180 Wn. App. 514 (same); Alaska Structures, Inc., 180 Wn. App. 591 (petition for review pending).

Notably, at least one of these cases, Davis v. Cox, squarely raises constitutional challenges to the anti-SLAPP law. In Davis, the trial court and Court of Appeals found the anti-SLAPP statute barred claims against current and former board members of a food co-op premised on the board's decision to adopt a boycott of Israeli goods. In Davis and another case, Dillon, the Washington State Association for Justice Foundation, a collection of plaintiffs' lawyers, as well as the American Civil Liberties Union of Washington, oppose application of the statute, leading a campaign to have it struck down—even though the ACLU has supported anti-SLAPP statutes in many other states.

Opponents of the statute raise myriad challenges, including that the statute is unconstitutionally vague and violates separation of powers, the right of access, the right to petition, and the Privileges and Immunities. To confront the constitutionality of an anti-SLAPP law, every other court, including in California, has rejected similar challenges.

The Washington Supreme Court will hear argument in Davis on January 20, 2015. And it is likely to issue decisions in Dillon, Henne, and Akrie in 2015, too. Thus, 2015 will likely be a critical year for the future of Washington's anti-SLAPP law.

Ambika Kumar Doran is a Partner in the Seattle office of the firm.