Justices toss Washington law countering bad-faith lawsuits

OLYMPIA — The Washington Supreme Court has struck down a state law that attempts to curtail lawsuits brought in bad faith to hinder public discussion.

In a unanimous opinion Thursday the court said the law, enacted by the Legislature in 2010, violates the right to a trial by jury because it requires judges, not juries, to make determinations about the disputed facts of a case.

Such laws are called “anti-SLAPP” statutes for “strategic lawsuits against public participation.” They’re intended to punish those who file frivolous lawsuits to silence free expression or petitioning activities. Under Washington’s law, those who file such lawsuits can be required to pay a penalty of $10,000 as well as the other side’s legal fees.

“The constitutional conundrum … it creates is that it seeks to protect one group of citizen’s constitutional rights of expression and petition — by cutting off another group’s constitutional rights of petition and jury trial,” Justice Debra Stephens wrote for the court. “This the Legislature cannot do.”

In the case at hand, five members of the Olympia Food Cooperative, a nonprofit grocery store, sued the co-op’s board members after the board protested Israel’s human rights record by adopting a boycott of products from Israel-based companies. The lawsuit alleged that the action violated the store’s boycott policy.

The board members successfully invoked the law in Thurston County Superior Court in an effort to have the case dismissed. The group that filed the lawsuit was ordered to pay more than $220,000 in penalties and legal fees, but appealed, arguing that the law itself is unconstitutional.

The Supreme Court agreed, reversing the lower court.

Judges frequently decide cases when the facts of a case are undisputed and the sides are arguing over matters of law. But the Supreme Court said that when facts are disputed — as they were in the Olympia Food Co-op case — the right to a jury applies.