On May 28, the Washington Supreme Court held in Davis v. Cox that the state’s primary anti-SLAPP statute, RCW 4.24.525, violates the right to a jury trial guaranteed by the Washington Constitution. The statute, which creates a procedure for early summary dismissal of lawsuits targeting public participation and petition activities (so-called “strategic lawsuits against public participation,” or SLAPPs), was deemed unconstitutional because it requires trial courts to weigh competing evidence and perform a fact-finding function expressly reserved for a jury.

RCW 4.24.525 was enacted in 2010 in an effort to spare defendants the expense of litigating frivolous SLAPP suits through summary judgment. The main feature of the statute is a “special motion to strike” causes of action arising from a broad range of protected First Amendment-related activities. The filing of such a motion effectively stays the case pending a decision on whether the challenged claims can proceed. The defendant must make a threshold showing, by a preponderance of the evidence, that the challenged claims are based upon “action involving public participation and petition.” RCW 4.24.525(2). The burden then shifts to the plaintiff to “establish by clear and convincing evidence a probability of prevailing on the claim.” RCW 4.24.525(2). If the plaintiff fails to carry this burden, the court must dismiss the challenged claims and award the defendant its attorney’s fees, costs, and a $10,000 statutory penalty. RCW 4.24.525(6)(a).

The plaintiffs in Davis had their claims dismissed on a special motion to strike and were assessed over $200,000 in costs, attorney’s fees and penalties. On appeal to the Washington Supreme Court, the plaintiffs argued that the statute violated Article 1, Section 21 of the Washington Constitution, which guarantees the right to a jury trial in civil cases. The crux of the plaintiffs’ argument was that the statute requires trial courts to resolve disputed questions of fact that can only be decided by a jury.

The Court agreed with this analysis. Central to its holding was the fact that the statute requires trial courts to weigh competing evidence, submitted through declarations, and to make a finding about whether the plaintiff is likely to prevail. The Court distinguished this procedure from an ordinary summary judgment analysis, noting that it incorporates a burden of persuasion—clear and convincing evidence—rather than a mere burden of production. By calling for a substantive weighing of the evidence, the Court explained, the statute necessarily casts trial courts in a fact-finding role that the Constitution expressly reserves to the jury.

Notably, the Court ruled that the statute was facially unconstitutional, meaning that it is unconstitutional in all its applications. This, however, raises an interesting question: can the statute still be applied to causes of action on which the defendant is not entitled to a jury trial? The Court seemed to answer this question in the negative. See Davis v. Cox, --- Wn.2d ---, 2015 WL 3413375 at *11 n.10 (“Our decision does not turn on the character of the particular claims here, as there is no question the statute broadly applies to all claims, with the only limitation being that they concern an action involving public participation and petition. RCW 4.24.525(2), (4)(b). By its plain terms, the special motion to strike procedure is incompatible with article I, section 21 of the Washington Constitution.”) Thus, the Court struck down RCW 4.24.525 in its entirety, without regard to the actual availability of a jury trial.

This decision is specific to RCW 4.24.525, with its burden shifting framework and “clear and convincing evidence” requirement. It is important to note that Davis does not invalidate the immunity defense authorized by RCW 4.24.510 (also an anti-SLAPP statute), which protects those who communicate with a federal, state or local government agency about matters of reasonable concern to the agency. RCW 4.24.510 remains good law because its immunity defense must be raised in the normal course of litigation and cannot be asserted via the special motion to strike procedure that the Davis Court deemed improper. An award of attorney fees, costs, and $10,000 in statutory damages remains available to those who prevail on this defense.

The immediate impact of Davis is that defendants who are sued for engaging in activity that was protected under the statute can no longer move to strike the plaintiff’s claims under RCW 4.24.525 and can no longer recover attorney’s fees, costs, and penalties under the statute. The decision will surely affect pending cases in which a motion to strike has been filed, and may also affect cases in which a motion to strike was previously granted.

Whether the Legislature will amend the statute to cure the constitutional defect identified in Davis remains to be seen. K&L Gates will provide additional information about a possible legislative fix if and/or as it becomes available.