Davis v. Cox, 351 P.3d 862, 183 Wn.2d 269 (Wash. May, 2015)

1. This case requires us to decide the constitutionality of the Washington Act Limiting Strategic Lawsuits Against Public Participation (anti-SLAPP statute). LAWS OF 2010, ch. 118 (codified at RCW 4.24.525). In the statute's prefatory findings, the legislature explained it was "concerned about lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances," id. § 1(1)(a), and so the statute's purpose was to establish "an efficient, uniform, and comprehensive method for speedy adjudication" of such lawsuits, id. § 1(2)(b).

2. The statute attempts to achieve this goal in three principal ways. It halts discovery in such cases presumptively, RCW 4.24.525(5)(c), creates a "special motion to strike a claim" (anti-SLAPP motion), id. at (4)(b), and awards a prevailing party on the motion attorney fees and a $10,000 assessment, id. at (6)(a). When ruling on an anti-SLAPP motion, the trial court first determines whether the claim at issue is "based on an action involving public participation and petition," a defined term that broadly describes rights of expression and petition. Id. at (4)(b). If that is so, the trial court then decides whether the party bringing the claim can prove by "clear and convincing evidence a probability of prevailing on the claim." Id. at (4)(b). If the party cannot meet that burden, the statute requires the trial court to dismiss the claim and award statutory remedies to the opposing party. Id. at (6)(a).

3. Though the statute seeks to "[s]trike a balance between the rights of persons to file lawsuits and to trial by jury and the rights of persons to participate in matters of public concern," LAWS OF 2010, ch. 118, § 1(2)(a), we conclude the statute's evidentiary burden fails to strike the balance that the Washington Constitution requires. Because RCW 4.24.525(4)(b) requires the trial judge to adjudicate factual questions in nonfrivolous claims without a trial, we hold RCW 4.24.525 violates the right of trial by jury under article I, section 21 of the Washington Constitution and is invalid. We reverse the Court of Appeals and remand this case to the superior court for further proceedings.