The Olympic Food Cooperative Board of Directors adopted a boycott of goods produced by Israel- based ?companies ?to ?protest?? Israel?s ?perceived human rights violations. Five members of the Cooperative brought a derivative action against the individual members of the Board alleging that Board acted ultra vires and breached its fiduciary duties by violating the Cooperative?s written ?Boycott Policy.? ?The Defendants filed a special motion to strike under Washington?s Anti-SLAPP statute, RCW 4.24.525. ?The Plaintiffs challenged the statute on constitutional grounds. ?The Superior Court rejected the constitutional challenge and granted the motion to dismiss. ?The Court ordered the Plaintiffs to pay attorney fees in the amount of $221,846.75; $10,000 statutory damages to each of six defendants; and costs. Plaintiffs appealed and the Court of Appeals affirmed. The Supreme Court granted review and reversed in an unanimous opinion by Justice Stephens.
Washington?s???? ?Anti-SLAPP???? ?Statute,???? ?RCW 4.24.525, established a procedure for dismissing lawsuits and/or claims which are based upon ?an action involving public participation and petition? as?? ?broadly?? ?defined?? ?by?? ?the?? ?statute.?? ?RCW 4.24.525(2)(a)-(e).?? The statute provides that the moving party may move to dismiss the pending lawsuit ?or ?claim ?prior ?to ?any ?discovery.?? ?RCW 4.24.525(5)(c). ?To prevail, the moving party must establish by a preponderance of the evidence that the claim is based upon ?public participation,? and then the burden shifts to the non-moving party (typically the plaintiff) to establish by ?clear and convincing evidence a probability of prevailing on the claim.?? ?RCW 4.24.525(4)(b).?? If the moving party prevails, she may recover attorney fees and costs and $10,000 as liquidated damages.?? Every party has a right to an expedited appeal of the court?s order either denying or granting the motion. The ?Supreme ?Court ?ruled? that? Washington?s Anti-SLAPP statute, RCW 4.24.525, was unconstitutional on the grounds that it violated the state constitutional right of trial by jury under Art. I, Section 21.
The Supreme Court first rejected the Defendant?s argument and the Court of Appeals’ ruling that the fact finding provisions of the statute were the equivalent of the summary judgment provisions of CR 56.?? The Court found that ?[t]he plain language? of? RCW? 4.24.525(4)(b)? requires? the trial court to weigh the evidence and make a factual determination of plaintiffs? ?probability of prevailing on the claim.?? ?By contrast, summary judgment? is? proper? only? if? the? moving? party shows that there is ?no genuine issue as to any material fact and that the moving party is entitled to? a? judgment? as? a? matter? of? law.??? ?By? their terms, the two standards involve fundamentally different inquiries.?? ?The Court rejected the Defendants? and Court of Appeals? reliance on California law.
Under the Washington Constitution, “[t]he right of trial by jury shall remain inviolate.” WASH. CONST. Art. I, ? 21.? ??The term ?inviolate? connotes deserving of the highest protection and indicates that the right must remain the essential component of our legal system that it has always been.? ?At its core, the right of trial by jury guarantees ?litigants ?the? right ?to ?have ?a ?jury resolve? questions? of? disputed? material? facts.? The court relied heavily upon federal First Amendment ?law ?to ?inform? its ?ruling.?? ??Thus, when a suit raises ?a genuine issue of material fact that turns on the credibility of witnesses or on the proper inferences to be drawn from undisputed facts,? the First Amendment requires that the suit cannot be enjoined because that would ?usurp the traditional fact-finding function of the . . . jury.?? Citing Bill Johnson’s Rests., Inc. v. Nat’l Labor Relations Bd., 461 U.S. 731, 745 (1983). ??In sum, the United States Supreme Court has interpreted the petition clause to expansively protect plaintiffs’ constitutional right to file lawsuits seeking redress for grievances.
The only instance in which this petitioning activity may be constitutionally punished is when a party pursues frivolous litigation, whether defined as lacking a ?reasonable basis,? or as sham litigation.? The Court held that ?RCW 4.24.525(4)(b) violates the right of trial by jury under Article I, Section 21 of the Washington Constitution because it requires a trial judge to invade the jury’s province of resolving disputed facts and dismiss – and punish – nonfrivolous claims without a trial.??Davis v. Cox, ????????Wn.2d ??????????, ?????????? P.3d