In November 2014, this intrepid blogger trooped down to the DC Court of Appeals to watch the Mann v. National Review oral argument. In my post, I wrote that the panel was likely to conclude that the denial of an anti-SLAPP motion to dismiss was immediately appealable (having already held, in Burke v. Doe I, that the denial of a special motion to quash under the DC anti-SLAPP statute was immediately appealable), and that the tougher question would be how to apply the “likely to succeed” standard at the motion stage.
Yet, here we are, almost 18 months later, still waiting for the Court’s decision. Not only has that delay paralyzed the Mann lawsuit, with the Superior Court staying all proceedings in the case since April 2014, but it has impacted several other cases, so that there are now several appeals pending at the Court of Appeals, backed up like planes at O’Hare, all waiting to learn if the denial of an anti-SLAPP motion is immediately appealable. (As a recent article in the National Law Journal notes, the delay has prompted Mark Steyn, who did not appeal the denial of his anti-SLAPP motion, to ask the Superior Court to lift the stay, and has led Mann’s attorney to take the unusual step of asking the Court of Appeals to “issue its decision without further delay”).
Also in limbo are the movants in the VanderSloot case, which I briefly discussed in my last post. There, after non-parties received domesticated subpoenas seeking documents and testimony in connection with a libel suit then pending in Idaho, they responded by filing anti-SLAPP motions to dismiss. The Superior Court initially held that an anti-SLAPP motion to dismiss could only be filed in response to a “claim,” and that the subpoenas were not a “claim” within meaning of the statute.
The court held, however, that, VanderSloot’s motion to compel qualified as a “claim,” which made the anti-SLAPP motions proper. It nevertheless denied them, holding that VanderSloot had shown a likelihood of success on the merits. The movants appealed the denial of their anti-SLAPP motions to the Court of Appeals, where the Court, after receiving briefing on its jurisdiction, issued an order in December 2014, holding the case in abeyance pending resolution of the Mann appeal.
Another case pending at the DC Court of Appeals is Washington Travel Clinic. v. Kandrac. There, the Superior Court granted most, but not all, of the defendant’s anti-SLAPP motion to dismiss and dismissed most of the plaintiff’s defamation complaint. The court denied the defendant’s subsequent motion for reconsideration and fees. The defendant appealed the partial denial of his anti-SLAPP motion, the denial of his motion for reconsideration and the denial of his request for attorneys’ fees, in September 2014. Since then, the Superior Court has scheduled, and then continued, status hearings every six months, while the parties (and the Superior Court) wait for the Mann decision.
The most recent additions to the queue are the defendants in the lawsuit brought by Two Rivers Charter School. After the Superior Court denied their anti-SLAPP motions to dismiss, they filed notices of appeal and moved to stay the case. The Superior Court issued an Order requiring the defendants to file answers, but otherwise staying discovery. Last week, the Court of Appeals, sua sponte, issued an order holding the consolidated appeals in abeyance pending the Court’s decision in Mann.
It is not clear what is delaying the Court of Appeals’ Mann decision. What is clear is that the delay is having a ripple effect.