The Washington legislature has learned that even a good idea can be taken too far.
When Washington decided to enact an anti-SLAPP statute (it was greatly revised in 2010), it certainly had many states’ examples to choose from. Some states, feeling that anti-SLAPP protections are so essential, have added protections that exceed those of California’s anti-SLAPP statute. California was the first state to pass an anti-SLAPP statute, and many states have the based their laws on California’s tested formulation, while others have tinkered.
In the case of Washington, the legislature decided to up the ante by requiring a plaintiff to show by clear and convincing evidence that their case has merit. Even a cursory review of this heightened standard should have made clear that such a requirement is impermissible.
The Seventh Amendment of the United States Constitution guarantees the right to a jury in a civil trial, and that protection exists on the state level through the states’ own constitutions. For example, Washington’s constitution provides:
The right of trial by jury shall remain inviolate, but the legislature may provide for a jury of any number less than twelve in courts not of record, and for a verdict by nine or more jurors in civil cases in any court of record, and for waiving of the jury in civil cases where the consent of the parties interested is given thereto.
California’s Constitution very similarly provides:
Trial by jury is an inviolate right and shall be secured to all, but in a civil cause three-fourths of the jury may render a verdict. A jury may be waived in a criminal cause by the consent of both parties expressed in open court by the defendant and the defendant’s counsel. In a civil cause a jury may be waived by the consent of the parties expressed as prescribed by statute.
To set the stage for our analysis, let’s forget about anti-SLAPP statutes for the moment, and focus on long-tested motions that are familiar to us. Let’s go back in time to when the states were trying to find ways to clear their trial dockets, and came up with the idea of a summary judgment motion. How is a summary judgment motion – which allows a judge to deprive a party of their right to a jury trial – permissible? Similarly, how is a demurrer permissible?
These procedures pass constitutional muster because the court is not weighing the evidence nor deciding the case. Rather the court is simply determining whether the plaintiff’s evidence, if taken as true, would support the claims. If there are any material conflicts in the evidence, the court must deny the motion for summary judgment and allow the case to go to trial. The court cannot decide those conflicts. In the case of a demurrer, the court does not even consider the evidence, but merely takes all of the allegations as true, and determines whether those allegations are sufficient to state a cause of action.
OK, now we can return to Washington’s anti-SLAPP statute. Revised Code of Washington 4.24.525(4)(b) provides:
A moving party bringing a special motion to strike a claim under this subsection has the initial burden of showing by a preponderance of the evidence that the claim is based on an action involving public participation and petition. If the moving party meets this burden, the burden shifts to the responding party to establish by clear and convincing evidence a probability of prevailing on the claim. If the responding party meets this burden, the court shall deny the motion.
But hold on Maude. I have a right to jury in Washington. If you make me prove my case by “clear and convincing” evidence at the commencement of the action, that’s all kinds of wrong. First, I have to prove up my case before I can even conduct discovery, and the clear and convincing standard means I have to prove something to the judge. I shouldn’t have to prove anything to the judge. I have a right to jury, and I’ll do my proving to the jury, thank you very much.
The court can decide only issues of law. That means, the court can decide if my complaint adequately sets forth the elements of the causes of action, and, as in the case of a motion for summary judgment, the court can even decide if my evidence, if taken as true, would be sufficient to support my causes of action. But the court cannot decide my case on the evidence. The court can decide if I have evidence, but it can’t weigh that evidence. But for the court to make a “clear and convincing” determination, it necessarily must weigh the evidence. In doing so, the court has decided my case and deprived me of my right to jury.
So held the Washington Supreme Court. Today, the court found the anti-SLAPP statute to be unconstitutional. In the case of Davis v. Cox, the court held:
Though the statute seeks to “[s]trike a balance between the rights of persons to file lawsuits and to trial by jury and the rights of persons to participate in matters of public concern,” Laws of 2010, ch. 118, § 1(2)(a), we conclude the statute’s evidentiary burden fails to strike the balance that the Washington Constitution requires. Because RCW 4.24.525(4)(b) requires the trial judge to adjudicate factual questions in nonfrivolous claims without a trial, we hold RCW 4.24.525 violates the right of trial by jury under article I, section 21 of the Washington Constitution and is invalid.
No doubt Washington will soon pass a new anti-SLAPP statute which replaces the “clear and convincing” language with “a probability that the plaintiff will prevail on the claim.”
Note to the Washington Legislature. You may want to use California’s anti-SLAPP statute as an example. It’s not perfect, but it’s been battle tested for 25 years.