Last month, the Washington Supreme Court held that state’s anti-SLAPP statute was unconstitutional because it required trial courts to weigh competing evidence – which was a function expressly reserved for the jury.  With the District of Columbia’s Court of Appeals poised to potentially determine the appropriate standard for deciding a motion under the District’s anti-SLAPP statute, the Washington state decision is a potential game changer.  Here’s why:

The Washington state anti-SLAPP statute, like the District’s anti-SLAPP statute, uses a burden-shifting framework wherein the moving party 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 it meets that burden, the responding party must then establish “by clear and convincing evidence a probability of prevailing on the claim,” in order to avoid dismissal.

In Davis v. Cox, the Washington Supreme Court held that, because this framework required the trial court judge to weigh competing evidence, which was a function reserved for the jury, it was unconstitutional.  Although the movants argued that the statute simply imposed a summary judgment-type standard, in which a motion is granted if the undisputed facts show that the movant is entitled to relief as a matter of law, the Davis court held that this interpretation was contradicted by the plain language of the statute:

[t]he anti-SLAPP statute provides a burden of proof concerning whether the evidence crosses a certain threshold of proving a likelihood of prevailing on the claim. . . .  But summary judgment does not concern degrees of likelihood or probability.  Summary judgment requires a legal certainty: the material facts must be undisputed, and one side wins as a matter of law.  If the legislature intended to adopt a summary judgment standard, it could have used the well-known language of CR 56(c).  But it did not do so. It instead chose language describing the evidentiary burden to evaluate the “probability of prevailing on the claim.”  RCW 4.24.525(4)(b). . . . Thus, RCW 4.24.525(4)(b)’s plain language requires the trial judge to make factual determinations and adjudicate a SLAPP claim.

The movants in Davis also argued that, because the Washington state anti-SLAPP statute was modeled on California’s anti-SLAPP statute, and California’s anti-SLAPP statute has been interpreted to create a summary judgment type standard, the Washington state statute should be similarly construed.  The Davis court disagreed, pointing out that the two statutes contain different operative language:

the relevant provisions of the two statutes at issue – their burden of proof standards – are notably different. California’s statute provides that a plaintiff defeats a defendant’s motion by establishing “a probability that the plaintiff will prevail on the claim.” By contrast, our statute expressly ratchets up the plaintiffs evidentiary burden, requiring the plaintiff to establish “by clear and convincing evidence a probability of prevailing on the claim.”

As a result, the Davis court concluded, because Washington state’s anti-SLAPP statute “creates a truncated adjudication of the merits of a plaintiffs claim, including nonfrivolous factual issues, without a trial,” it “invades the jury’s essential role of deciding debatable questions of fact” and “violates the right of trial by jury under article I, section 21 of the Washington Constitution.”

The District of Columbia’s anti-SLAPP statute contains a similar burden shifting framework, first requiring the moving party to make “a prima facie showing that the claim at issue arises from an act in furtherance of the right of advocacy on issues of public interest.”  If it does, the responding party must “demonstrate[] that the claim is likely to succeed on the merits” in order to avoid dismissal.

Several courts interpreting the District’s anti-SLAPP statute have adopted and applied California’s anti-SLAPP standard, which does not allow the trial court to weigh evidence and, instead, requires the responding party to only provide sufficient evidence that, if true, establishes a viable claim.  Those courts include:

  • the DC Superior Court in Washington Travel Clinic v. Kandrac (“a plaintiff is required to ‘demonstrate that the complaint is legally sufficient and supported by a prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited’”);
  • the DC federal district court in Boley v. Atlantic Monthly Group (“If ‘a plaintiff presents an insufficient legal basis for the claims or when no evidence of sufficient substantiality exists to support a judgment for the plaintiff,’ the ‘anti-SLAPP motion should be granted’”);
  • the DC federal district court in Forras v. Rauf (“a plaintiff ‘must satisfy a standard comparable to that used on a motion for judgment as a matter of law’”);
  • the DC Superior Court in Mann v. CEI (“Plaintiff must present a sufficient legal basis for his claims”); and 
  • the DC Superior Court in Payne v. District of Columbia (“‘the plaintiff need only have stated and substantiated a legally sufficient claim.’  A plaintiff ‘must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited’”).

Earlier this year, however, the Superior Court in C4ADS v. Kaalbye rejected an argument that it should “employ a summary judgment standard in assessing the claim of a plaintiff faced with a special motion to dismiss” and instead held that the language of the DC anti-SLAPP statute required the responding party “prove a likelihood of success on the merits, not that its claims pass muster under the standards of Super. Ct. R. Civ. P. 12(b)(6) or Super. Ct. R. Civ. P. 56.”

And the DC Circuit in Abbas stated that “the D.C. Court of Appeals has never interpreted the D.C. Anti-SLAPP Act’s likelihood of success standard to simply mirror the standards imposed by Federal Rules 12 and 56. Put simply, the D.C. Anti-SLAPP Act’s likelihood of success standard is different from and more difficult for plaintiffs to meet than the standards imposed by Federal Rules 12 and 56.”

As I wrote after attending the DC Court of Appeals’ argument in Mann v. CEI last November, the panel was focused on the meaning of the phrase “likely to succeed” and what it meant in practice.  During oral argument, one of the movant’s counsel argued that the DC Council elected to impose a standard that was more demanding than Rule 12(b)(6) or Rule 56, which might even require the trial judge to weigh disputed facts and make a credibility determination.

Given the Davis decision, and the statement from the DC Circuit in Abbas, it will be interesting to see how the DC Court of Appeals interprets the standard language in the DC anti-SLAPP statute.  (The Davis decision, along with the DC Circuit’s Abbas decision, also shows why a federal ant-SLAPP statute is so important).