On May 28, 2015, in Davis v Cox, the Washington State Supreme Court invalidated the Washington Anti-SLAPP statute, RCW 4.24.525. In a unanimous decision, the Court found that section (4)(b) of statute unconstitutionally violates the right to a jury trial. The Court further held that, because every other section in RCW 4.24.525 is dependent upon section (4)(b), the provision is nonseverable and the statute is invalid as a whole.
The Washington Anti-SLAPP statute was adopted to address and dissuade “lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances”. A defendant may file a special motion to strike any “action involving public participation and petition”. If the action is found to involve “public participation and petition”, the responding party must “establish by clear and convincing evidence a probability of prevailing on the claim”. If the moving party prevails, the statute contains a provision for a mandatory $10,000 civil penalty and attorney fees for instituting a lawsuit in violation of the statute.
The focus of the Court’s decision was the standard of proof placed upon the party responding to a special motion to strike. The responding party must “establish by clear and convincing evidence a probability of prevailing on the claim”. The Court held that the statutory language requires a trial judge to make factual findings and adjudicate the claim.
Article I, Section 21 of the Washington State Constitution states, “The right of trial by jury shall remain inviolate”. The Court noted that, “At its core, the right of trial by jury guarantees litigants the right to have a jury resolve questions of disputed material facts”. The Court discussed situations in which the right to a jury trial may be constitutionally limited, particularly situations involving frivolous or sham litigation. The remedial statute or rule must be limited to punishing or deterring frivolous litigation. The Court found that the “clear and convincing evidence a probability of prevailing on the claim” standard of proof required of a plaintiff does not contain any such frivolousness standard. As such, section (4)(b) of the Washington Anti-SLAPP statute requires the trial judge to adjudicate nonfrivolous claims and factual issues, which is the role of the jury. The Court held, therefore, that the Washington Anti-SLAPP statute violates the right to a jury trial under Article I, Section 21 of the Washington State Constitution.
The case will be remanded to the trial court for further proceedings.