Washington's Unusual SLAPP Statute Struck Down Under Washington Constitution

by Paul Alan Levy

In a ruling issued this morning in Davis v. Cox, the Washington Supreme Court unanimously struck down that state's anti-SLAPP statute because of a provision, not contained in most other state anti-SLAPP statutes, under which once a case is found to over a matter of free speech or petition within the law's coverage, the trial judge must weigh the evidence and decide whether the plaintiff can "establish by clear and convincing evidence a probability of prevailing on the claim."  By giving a judge the power to weigh evidence and dismiss the lawsuit with prejudice if the plaintiff cannot meet this high standard, the court held, the statute violated the right to a jury trial under the state constitution.