Davis v. Cox, 183 Wash. 2d 269

Background

Washington enacted RCW 4.24.525 (2010) — a broad anti‑SLAPP statute creating a “special motion to strike” for claims "based on an action involving public participation and petition," imposing discovery stays, a fast hearing schedule, and statutory remedies (attorney fees and a $10,000 assessment) for prevailing movants.
The statutory procedure requires the movant to show by a preponderance that the claim is covered; then the respondent must establish by clear and convincing evidence a probability of prevailing on the claim, with the court considering pleadings and affidavits.
Olympia Food Cooperative members sued board directors alleging ultra vires action and breach of fiduciary duty for adopting a boycott without staff consensus; defendants filed an anti‑SLAPP special motion to strike.
The superior court granted the motion, struck the claims, and awarded defendants $221,846.75 (statutory assessments, fees, costs); the Court of Appeals affirmed and the Supreme Court granted review.
The Supreme Court held RCW 4.24.525(4)(b) requires a trial judge to weigh disputed evidence and make factual findings (not a summary‑judgment type inquiry), and that procedure infringes the state constitutional right to jury trial because it disposes of nonfrivolous claims on factual disputes without a jury.
Because subsection (4)(b) is the statute’s mainspring and not severable from the rest of RCW 4.24.525, the Court invalidated the entire statute and remanded for further proceedings.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Proper construction of RCW 4.24.525(4)(b): does it permit factual findings by the judge or is it equivalent to summary judgment?	Davis: statute requires judge to weigh evidence and make factual findings (clear and convincing probability of success).	Defendants: statute functions like summary judgment — no fact‑finding, only whether genuine issues of material fact exist.	The statute requires the judge to weigh evidence and make factual findings about probability of prevailing; it is not a summary judgment standard.
Compatibility with jury trial right (Wash. Const. art. I, § 21): may the judge decide disputed facts and dismiss nonfrivolous claims without a jury?	Davis: the statutory procedure violates the right to a jury because it allows the judge to resolve disputed material facts and dismiss nonfrivolous claims.	Defendants: summary‑judgment analog preserves jury right because summary judgment only applies when no genuine factual dispute exists.	The anti‑SLAPP provision violates the state constitutional right to jury trial because it permits adjudication of disputed facts and dismissal (and punishment) of nonfrivolous claims without a jury.
Severability: if subsection (4)(b) is invalid, may the remainder of RCW 4.24.525 stand?	Davis: the unconstitutional provision is the statute’s mainspring and not severable from the rest.	Defendants: statute contains a severability clause; remainder should survive.	Subsection (4)(b) is not severable; the entire statute is invalid.
Scope of permissible regulation of frivolous/sham litigation	Davis: law exceeds permissible limits by suppressing nonfrivolous petitioning and usurping jury factfinding.	Defendants: statute targets SLAPPs and protects petition/speech without infringing constitutional rights.	The petition clause and First Amendment permit punishment of objectively baseless or sham litigation, but RCW 4.24.525(4)(b) is broader — it can punish nonfrivolous claims and thus is unconstitutional in that respect.

Key Cases Cited

Sofie v. Fibreboard Corp., 112 Wn.2d 636 (1989) (explains the inviolate nature of the jury‑trial right under Wash. Const. art. I, § 21)
Bill Johnson’s Restaurants, Inc. v. National Labor Relations Bd., 461 U.S. 731 (1983) (First Amendment petition‑clause protection does not extend to frivolous suits)
BE&K Construction Co. v. National Labor Relations Bd., 536 U.S. 516 (2002) (Noerr/Pennington doctrine: petitioning protected except for objectively baseless sham litigation)
Intercon Solutions, Inc. v. Basel Action Network, 969 F. Supp. 2d 1026 (N.D. Ill. 2013) (federal court analyzing RCW 4.24.525 and concluding it permits dismissal without trial based on judge’s view of merits)
Leiendecker v. Asian Women United of Minnesota, 848 N.W.2d 224 (Minn. 2014) (Minnesota Supreme Court holding a similar clear‑and‑convincing anti‑SLAPP standard requires judicial factfinding and cannot be treated as summary judgment)
LaMon v. Butler, 112 Wn.2d 193 (1989) (summary judgment does not violate the right to jury trial when no genuine issue of material fact exists)