Court Rules Cities Cannot Seek Anti-SLAPP Protection

Cities Cannot Seek Anti-SLAPP Protection for Conduct that Did Not Involve City Communications

            Washington’s Anti-SLAPP (Strategic Lawsuit Against Public Participation) laws protect speakers against frivolous, speech-chilling lawsuits. The laws were modeled on similar federal laws, and enacted in 1989 with the goal of punishing filers of lawsuits that discourage a speaker from voicing his or her opinion.

            Anti-SLAPP laws are a useful tool for defendants who believe they have been targeted for suit because of their participation in a public process, such as making a report of misconduct to a government body. Operationally, the defendant files a motion to strike, asking the trial court to dismiss the lawsuit because the defendant was sued for participating in a public process. The trial court rules on the motion and can award damages, costs, and fees to the prevailing party.

            The Washington Supreme Court recently addressed the issue of whether a city can avail itself to anti-SLAPP protections when a plaintiff’s lawsuit is based on the plaintiff’s coworkers’ complaints to the city and the city’s resulting internal investigations.

            In Henne v. City of Yakima, No. 89674-7, 2015 WL 276358, at *1 (Wash. Jan. 22, 2015), the plaintiff, a Yakima police officer, sued the City of Yakima under a hostile work environment theory (among other claims). The lawsuit alleged that other officers’ complaints lodged against him formed a pattern of harassment and retaliation. Yakima filed an anti-SLAPP motion to strike. Yakima claimed the protection of the anti-SLAPP law because it received controversial communications from others. However, Yakima did not make any communications of its own.  The trial court denied the motion because it found the purpose of the anti-SLAPP statute was not served if the statute could be used to recover penalties from an individual who’s petitioning the government for redress of grievances. Yakima appealed the order under the anti-SLAPP’s expedited appeal process. The appellate court dismissed the appeal as moot. The Washington Supreme Court granted review.

            On January 22, 2015, the Supreme Court held a governmental entity like Yakima cannot take advantage of the anti-SLAPP statute where the underlying lawsuit is not based on the government’s own communicative activity. The Court reasoned that the non-speaker (Yakima) did not have standing to assert the rights of the speakers (the officers making the complaints). Because the speech was directed at Yakima, and it was not the speaker, it could not take advantage of the anti-SLAPP statute. The Court reversed the appellate court’s decision and reinstated the trial court’s decision to deny Yakima’s anti-SLAPP motion.

            The case should not be read as prohibiting local governments from bringing an anti-SLAPP motion under the right circumstances, but such a motion is unlikely to have much traction if it is not based on statements made by a local government’s managing agents.