Anti-SLAPP Statutes: Now Held Invalid in Washington and should be Invalidated in Oregon

In Davis v. Cox, 183 Wn.2d 269 (2015), the Washington Supreme Court held that Washington’s Anti-SLAPP Law, RCW 4.24.525, violated the state constitutional right to jury trial of civil cases and the First Amendment right to petition government under the United States Constitution. As this note will briefly show, the court’s rationale in Davis for invalidating the Washington law is equally applicable to the analogous Oregon Anti-SLAPP Law.

Summary of the Washington and Oregon Anti-SLAPP Laws

Washington, Oregon, and many other states have enacted laws intended to punish strategic lawsuits thought to lack merit brought against defendants for “any claim” based on the defendant’s “public participation and petition” in connection with “an issue of public concern” RCW 4.24.525(2)(e), or a defendant’s, “. . . conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.” ORS 31.150(2)(d).

These statutes, commonly referred to as “Anti-SLAPP Laws”, permit a defendant to file a “Special Motion to Strike” any claim stemming from any expression or conduct within the Anti-SLAPP statute at the outset of the case, after which discovery in the litigation is immediately stayed until the court decides whether the plaintiff can proceed with the litigation of their claim. Once a defendant establishes that the plaintiff’s claim arises out of a statement or conduct subject to the Anti-SLAPP law, broadly defined, the plaintiff must present “substantial evidence” (Oregon) or “clear and convincing evidence” (Washington) that there is a probability the plaintiff will win on that claim.

If the plaintiff, without the benefit of discovery, can’t prove, to the satisfaction of a judge, the probable success at trial of its claim subject to the Anti-SLAPP Law, the claim will be dismissed. In Washington and Oregon, a defendant who prevails on a Special Motion to Strike is entitled to recover their reasonable attorney fees and court costs. In Washington a prevailing defendant is also entitled to recover statutory damages of $10,000.00 for “each motion on which the defendant prevailed”. A plaintiff who successfully defeats such a motion under the Anti-SLAPP statute in either Oregon or Washington is only entitled to recover attorney fees and costs from a defendant in the unlikely event that the court finds that the Special Motion to Strike was “frivolous” or was brought “solely to cause unnecessary delay”.

Application of the Washington Anti-SLAPP Law in Davis v. Cox

The plaintiffs in Davis v. Cox were five members of a nonprofit food cooperative who claimed that the Cooperative’s sixteen past and present directors had exceeded their corporate authority when they adopted a policy to boycott Israeli companies and products in violation of the Cooperative’s written “Boycott Policy.” The superior court granted the defendants’ Special Motion to Strike plaintiffs’ claims under Washington’s Anti-SLAPP statute and awarded the defendants judgments against the plaintiffs totaling $160,000.00 in statutory damages ($10,000.00 per claim per defendant) and $61,668.00 in attorney fees. The Washington Court of Appeals affirmed that judgment.

The Washington Anti-SLAPP Law Violates the State Constitutional Right to Jury Trial and the U.S. Constitutional Right to Petition

In Davis the Washington Supreme Court decided that Washington’s Anti-SLAPP statute violated both the state constitutional right to jury trial in civil cases and the right to petition the government defined in the First Amendment to the United States Constitution.

The Davis court premised its decision on the authority the Anti-SLAPP statute gives the trial court judge to weigh evidence and decide what, if any, weight to give the evidence for purposes of deciding the motion. In other words, the trial court performs the work of the jury in deciding whether a jury itself will ever get to see and weigh the evidence. The Davis court also relied on the U.S. Supreme Court precedents expansively interpreting the petition clause of the First Amendment to protect litigation from “frivolous” litigation lacking a reasonable basis or “sham” litigation which is both objectively baseless and brought solely to “’interfere directly with the business relationships of a competitor . . . through the use [of] the governmental process – as opposed to the outcome of that process – as an anticompetitive weapon.’” Davis, 183 Wn.2d at 290-291, quoting, BE&K Constr. Co., 536 U.S. 516, 526, quoting, Prof’l Real Estate Investors, Inc. v. Columbia Pictures Indus., Inc., 508 U.S. 49, 60-61.

Oregon’s Anti-SLAPP Law is Constitutionally Invalid for the Same Reasons Discussed in Davis

Although the constitutionality of Oregon’s Anti-SLAPP statute has been questioned, the Oregon appellate courts have so far successfully sidestepped that question. Yet Oregon’s Anti-SLAPP law is constitutionally invalid for the same reasons that prompted the Washington Supreme Court to invalidate the Washington statute.

The past failure of appellate courts to address the constitutionality of Oregon’s law leaves the very real threat of its continued use to make an already expensive legal process even more intimidating to anyone thinking about making a claim that would come within the scope of Oregon’s Anti-SLAPP law. Not only must any such plaintiff consider the costs of the litigation itself, but also the possibility that a trial court will wrongly apply the Anti-SLAPP statute to dismiss their claim. The added delay and expense of a possible appeal create an additional obstacle to the plaintiff’s access to the legal system. That this legal obstacle is itself patently illegal is an ironic comment concerning the present state of our legal system.

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