Washington Enacts New UPEPA Anti-SLAPP Law

Robert Parker is an associate in the Portland office of Holt Woods & Scisciani LLP. Robert has a varied practice covering areas from complex civil litigation to First Amendment cases, internet law, trade practice and intellectual property.

rparker@hwslawgroup.com

July 26, 2021

On May 12, 2021, Governor Inslee signed into law a new anti-SLAPP law, designed to deter and prevent non-meritorious lawsuits targeted at discouraging individuals from speaking publicly or petitioning government agencies. Washington’s first-in-the-nation anti-SLAPP law took a major hit in the state Supreme Court’s 2015 decision Davis v. Cox, which declared the law’s entire enforcement provision unconstitutional. A similar law was declared unconstitutional in Minnesota in 2017, and several states have not passed anti-SLAPP laws due to the same concerns addressed in Washington and Minnesota courts. The Uniform Law Commission, seeking to draft a strong anti-SLAPP law that still assuaged these concerns, released the Uniform Public Expression Protection Act, or UPEPA, in July 2020. Washington then became the first state to adopt the new act, which became effective on July 25, 2021.

Washington’s Former Anti-SLAPP Law and Unconstitutionality

Strategic Lawsuits Against Public Participation, or “SLAPP suits,” are brought for the purpose of chilling First Amendment rights. They are not intended to prevail in court, but are intended to use the expense and inconvenience of defending a lawsuit as a negotiating tool to coerce a party to withdraw a public statement or government petition. Support for anti-SLAPP provisions grew in the 1980s, and in 1988, Washington passed the first law intended to prevent SLAPP suits. This law, coded at RCW 4.24.500–525, provided two general protections. First, sections 500, 510, and 520 provided immunity for “good-faith reports to appropriate governmental bodies” in order to protect petitioners against the “severely burdensome” costs of defending against “the threat of a civil action . . . as a deterrent to citizens who wish to report information” to government agencies. Section 525 provided a more general protection against any “action involving public participation and petition,” which was defined to include any statement made to a legislative body, in an official proceeding, or any speech made “in a place open to the public or a public forum in connection with an issue of public concern.”

This law provided a special proceeding, called a Special Motion to Strike, which could be brought within 60 days of a claimant filing a claim against the movant (whether a claim, counterclaim, or any other kind of judicial filing requesting relief). To bring the special motion, the movant need only establish that the claimant was alleging relief from any of the protected activities listed above. It was then the claimant’s burden to “establish by clear and convincing evidence a probability of prevailing on the claim.” The claimant was required to meet this burden without the benefit of discovery. If the claimant failed to meet that burden, the defending movant was then entitled to attorney fees and a $10,000 penalty. Several other jurisdictions enacted similarly-structured anti-SLAPP laws in subsequent years, most notably California in 1992, though these comparable statutes do not include Washington’s penalty assessment provision.

In 2015, the Washington Supreme Court held in Davis v. Cox, 183 Wash.2d 269 (2015), that the anti-SLAPP’s Special Motion to Strike unconstitutionally deprived claimants’ right to trial by jury. In this decision, the Court noted that the special motion “requires the trial judge to make a factual determination” of whether the claimant can prevail in its claim, which “invades the jury’s essential role of deciding debatable questions of fact.” The Court then held that the unconstitutional aspects of Section 525 could not be severed from the remaining provisions, and therefore the entire section was deemed invalid. Subsequent appellate decisions confirmed that the preceding anti-SLAPP immunity provisions were not affected by Davis.

Importantly, the Davis decision also did not preclude SLAPP suits from being adjudicated by summary judgment. In fact, before even addressing the constitutionality of Section 425, the Court in Davis engaged in a detailed investigation into how the anti-SLAPP provision compares and contrasts with summary judgment. The Court took particular note that Washington demanded a much higher standard—clear and convincing evidence—than either summary judgment or even comparable anti-SLAPP statutes. The Court noted that in the other jurisdiction which had such a high standard for anti-SLAPP motions, such as in Minnesota, the provision’s constitutionality was also in question, and the corresponding Minnesota statute was, in fact, ultimately found unconstitutional.

Introduction of the Uniform Public Expression and Protection Act

Though anti-SLAPP laws have remained controversial, the consensus has remained that SLAPP lawsuits themselves are a problem. The Uniform Law Commission (“ULC”), authors of widely-accepted draft bills including the Uniform Commercial Code (UCC) and Uniform Trade Secrets Act (UTCA), sought to prepare a uniform anti-SLAPP law which would preserve the strength of laws in California and other jurisdictions, while also addressing the concerns raised in Davis and elsewhere. In October 2020, the ULC released UPEPA. Unlike the abolished Washington anti-SLAPP law, UPEPA begins by using the state’s summary judgment standard as the foundation, explicitly stating that the standard of proof shall include “any evidence that could be considered in ruling on a motion for summary judgment.” Additionally, the stay of discovery and attorneys’ fee provisions are softened slightly. UPEPA includes a presumption of a stay of discovery, but allows the trial court to allow for a “limited discovery” for the claimant to obtain “specific information [that] is necessary” to establish a prima facie case “and the information is not reasonably available unless discovery is allowed.” Attorneys’ fees are only available if the movant provides the claimant with a fourteen day notice of intent to file the anti-SLAPP motion and the claimant does not voluntarily withdraw the claim.

This new motion, now called a “Special Motion for Expedited Relief,” was drafted with the Court’s concerns in Davis specifically in mind. The motion no longer provides for a penalty assessment, but does allow for attorneys’ fees, and in fact provides for an even more affordable remedy, as it give the claimant an opportunity to withdraw its claim, and therefore saving the parties the expense of even litigating the special motion itself.

The UPEPA includes several minor differences from Washington’s old law, such as its new limited discovery provision and notice of intent requirement, but also slight differences in the wording of scope and exemptions. Therefore, any party familiar with the old law should take a fresh approach before filing a Special Motion for Expedited Relief, and keep in mind that the notice requirement effectively requires a quicker response to fall within the sixty-day filing window. 

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