The Washington anti-SLAPP statute allowed defendants in many libel cases — and other speech-based cases — to get cases thrown out early, unless the plaintiff could show “a probability of prevailing on the claim” by “clear and convincing evidence.” This clear-and-convincing-evidence standard, the court held in today’s Davis v. Cox decision, violated the Washington Constitution’s civil jury trial right.

The court acknowledged that a plaintiff has no right to jury trial when the claim is frivolous, or where “there is no genuine issue of material fact” that, if decided in plaintiff’s favor, would satisfy the legal standards for plaintiff to prevail. But, the court held, a requirement that “the trial judge [must] make a factual determination of whether the plaintiff has established by clear and convincing evidence a probability of prevailing on the claim”

creates a truncated adjudication of the merits of a plaintiff’s claim, including nonfrivolous factual issues, without a trial. Such a procedure invades the jury’s essential role of deciding debatable questions of fact. In this way, RCW 4.24.525(4)(b) violates the right of trial by jury under article I, section 21 of the Washington Constitution.

Many states, such as California, have anti-SLAPP statutes that don’t require a plaintiff to rebut an anti-SLAPP motion by clear and convincing evidence, but instead read “the statutes as requiring the court to determine only if the plaintiff has stated and substantiated a legally sufficient claim.” Those anti-SLAPP statutes essentially let courts decide whether plaintiff, even given his version of the facts, must lose as a matter of law; if so, then the case can be dismissed promptly (and, in many states, with the losing plaintiff having to pay the defendant’s attorney fees). But the statutes don’t call on judges to weigh evidence, and thus have generally been upheld against jury trial right challenges.

By the way, the substantive allegations in Davis are interesting and unusual — it’s a dispute among members of a nonprofit corporation, about an anti-Israel boycott — and now will presumably be considered again by lower courts:

The Olympia Food Cooperative is a nonprofit corporation grocery store. It emphasizes an egalitarian philosophy that requires consensus in decision-making and engages in various forms of public policy engagement, such as boycotts of certain goods. At issue in this case, the Cooperative’s board of directors adopted a boycott of goods produced by Israel-based companies to protest Israel’s perceived human rights violations. The board adopted this boycott without staff consensus on whether it should be adopted.

Five members of the Cooperative (plaintiffs) brought a derivative action against 16 current or former members of its board (defendants). The complaint alleged the board acted ultra vires [i.e., exceeding the powers delegated to it -EV] and breached its fiduciary duties by violating the Cooperative’s written “Boycott Policy.” That policy, adopted by the board in 1993, provides that the Cooperative “will honor nationally recognized boycotts” when the staff “decide[s] by consensus” to do so. Because the board adopted the boycott of Israel-based companies without staff consensus, the complaint sought a declaratory judgment that the boycott was void, a permanent injunction of the boycott, and an “award of damages in an amount to be proved at trial.” Defendants responded that the board’s inherent authority to govern the Cooperative under its bylaws and the Washington Nonprofit Corporation Act authorized the adoption of the boycott without staff consensus, notwithstanding the boycott policy.

Defendants filed a special motion to strike plaintiffs’ claims under the anti­ SLAPP statute. Plaintiffs opposed the motion on statutory and constitutional grounds and requested that the trial court lift the anti-SLAPP statute’s automatic stay of discovery. The superior court denied plaintiffs’ discovery request, rejected their constitutional challenges to the statute, and granted defendants’ special motion to strike. Pursuant to RCW 4.24.525(6)(a), the superior court ordered plaintiffs to pay $221,846.75 to defendants: $10,000.00 in statutory damages to each defendant ($160,000.00 total), attorney fees ($61,668.00), and costs ($178.75). Plaintiffs appealed, and the Court of Appeals affirmed on all issues.

Note: I filed an amicus brief on behalf of the Reporters Committee for Freedom of the Press, the Allied Daily Newspapers of Washington, and the Washington Newspaper Publishers Association supporting a defendant in an anti-SLAPP case. The brief didn’t focus on the jury trial issue, but it appears that the appeal will now be dismissed and the case sent back to trial court, given that the anti-SLAPP statute has now been invalidated.