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Published on Friday, June 19, 2015

New proposal in response to Supreme Court decision on anti-SLAPP law

In 2010, the Legislature adopted a statute to provide an expedited special motion in cases aimed at penalizing parties from bringing strategic lawsuits against public participation (SLAPP), defined as lawsuits seeking to chill a valid exercise of free speech or public participation (anti-SLAPP legislation).  The anti-SLAPP law provided penalties of $10,000 and attorney fees for any party found to have brought a case meeting the definition of a strategic lawsuit against public participation if they could not show by clear and convincing evidence that they were likely to prevail in the underlying lawsuit, as well as a $10,000 penalty for any party who frivolously brought an anti-SLAPP claim.

While originally aimed at environmental litigation practices, the law has been used in other contexts.  Since its passage, local governments have risked becoming become the targets of anti-SLAPP actions if they brought actions or counterclaims in environmental, employment law cases, or pre-election challenges to local initiatives.

Last month in Davis v Cox, the State Supreme Court struck down Washington's anti-SLAPP statute as unconstitutional. The court found that the statute’s provisions violated the right to jury trial because they required a judge to weigh evidence and dismiss non-frivolous claims unless the plaintiff has shown by clear and convincing evidence the likelihood of prevailing in the underlying lawsuit at trial.

In response, the Senate Law & Justice Committee heard a new proposed bill on June 17 to address the court’s decision about the statute’s constitutionality by limiting the dismissal of cases to those in which there are no material facts at issue. AWC will be taking a close look at the proposals and will seek to ensure that any new process to replace the one struck down by the court does not create incentives for litigation or increased liability for local governments.

If you have any comments on the proposal, please contact Candice Bock.

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