Both the Davis defendants and the District of Columbia today filed oppositions to the motion to dismiss their appeals filed by 3M earlier this month. As you might expect, both argue that the appeal is appropriate under the collateral order doctrine.
The Davis defendants first directly contest 3M’s position that the decision could be reviewed after the case was over. Pointing to numerous decisions holding that anti-SLAPP statutes provide immunity from suit from meritless suits, they argue that 3M’s position, if accepted, would force defendants to shoulder the burden of meritless lawsuits through discovery and, perhaps, trial – which is exactly what the statute was intended to avoid.
This argument depends, of course, on the Court concluding that the DC anti-SLAPP statute provides substantive immunity from suit. The Davis defendants contend that it does. They rely on excerpts from the legislative history of the statute. They also note that the statute originally provided for an immediate right to appeal, but that this right was removed for fear it might violate the Home Rule Act (Of course, the Home Rule Act has been raised in several other cases). This legislative history, the Davis defendants argue, shows that the DC General Council intended for there to be immediate appellate review from the denial of an anti-SLAPP motion.
The DC Attorney General’s brief makes many of the same arguments. Like the Davis defendants, that brief argues that the statute provides “the defendant the qualified right to be free from the burdens of trial or from suit altogether” if the moving party meets the requirements of the statute. It argues that this right would be destroyed if an unsuccessful movant needed to wait until after trial to have his motion reviewed by an appellate court.
Like the Davis defendants, the DC Attorney General argues that the lack of express language in the DC anti-SLAPP statute is not an indication that such a right was not intended, but rather a reaction to the constraints of the Home Rule. It argues that the legislative history shows an intent to provide a right to immediate appellate review.