Several recent decisions have me wondering if it is time for the DC Council to revise the DC anti-SLAPP statute to clarify two issues that continue to be in serious dispute.
First, is the denial of a motion under the anti-SLAPP statute immediately appealable?
The statute does not expressly authorize a party to immediately appeal the denial of an anti-SLAPP motion. Its legislative history explains that this was not always the case:
As introduced, the Committee Print contained a subsection (e) that would have provided a defendant with a right of immediate appeal from a court order denying a special motion to dismiss. While the Committee agrees with and supports the purpose of this provision, a recent decision of the DC Court of Appeals states that the Council exceeds its authority in making such orders reviewable on appeal. The dissenting opinion in that case provides a strong argument for why the Council should be permitted to legislate this issue. However, under the majority opinion the Council is restricted from expanding the authority to District’s appellate court to hear appeals over non-final orders of the lower court. The provision that has been removed from the bill as introduced would have provided an immediate appeal over a non-final order (a special motion to dismiss).
The decision referenced in the legislative history is Stuart v. Walker. As the DC Circuit’s Sherrod opinion explains, in Stuart, the DC Court of Appeals (DC’s highest court) held that the DC Council could not enact any legislation affecting the finality of orders for purposes of appealability to the court, or attempt to modify its jurisdiction in any way. Although the decision was vacated when the court granted an en banc petition, the en banc court subsequently issued an unpublished judgment stating that it was “equally divided regarding the issue of jurisdiction.”
Because the DC anti-SLAPP statute does not expressly provide a right to interlocutory appeal, parties (and the DC Attorney General) have argued that a right to immediate appellate review exists under the collateral order doctrine (arguments here, and here, and here). The DC Circuit avoided deciding this issue in Sherrod because it held that it could resolve that case on other grounds. However, the DC Court of Appeals in Newmyer apparently rejected this argument and dismissed an appeal of the denial of an anti-SLAPP motion, albeit in a short per curiam order.
As a result, the defendants in the Mann case are asking the trial court there to certify its decision for immediate appeal under DC Code §11-721(d), which allows a trial judge to certify that a “ruling or order involves a controlling question of law as to which there is substantial ground for a difference of opinion an that an immediate appeal from the ruling or order may materially advance the ultimate termination of the litigation or case.” If the trial judge does so, then the DC Court of Appeals may “in its discretion, permit an appeal to be taken from that ruling or order.”
If the intent of the DC Council was always to provide a right to interlocutory appeal from the denial of an anti-SLAPP motion, perhaps it is time for it to make that clear. Indeed, the Nevada legislature recently amended its statute to provide a right to immediate interlocutory appeal from the denial of an anti-SLAPP motion.
Alternatively, the DC Council can make clear that the statute provides immunity from trial, which might make an immediate appeal available under the collateral order doctrine. While there is some suggestion in the statute’s legislative history that the legislation was intended to confer such immunity – for example, it states that, “[f]ollowing the lead of other jurisdictions, which have similarly extended absolute or qualified immunity to individuals engaging in protected actions, Bill 18-893 extends substantive rights to defendants in a SLAPP, providing them with the ability to file a special motion to dismiss that must be heard expeditiously by the court” – the lack of a specific statement has allowed parties to argue otherwise.
Thus, when the defendants in the Sherrod case invoked the collateral order doctrine as the vehicle for immediately appealing the denial of an anti-SLAPP motion there, Ms. Sherrod argued that, because the statute did not provide immunity from trial, immediate appellate review was unavailable under the collateral order doctrine: “[t]he key point here is that the collateral-order doctrine requires Defendants to establish a right not to stand trial, but the Anti-SLAPP Act provides no such thing.”
If the DC Council remains concerned that it cannot provide an express right to immediate appeal from the denial of an anti-SLAPP motion, revising the statute to clarify that it is intended to provide immunity from suit (if that, in fact, was the Council’s intent), could clarify the issue of immediate appellate review.
The other major issue that remains in dispute is what standard a party opposing an anti-SLAPP motion must satisfy to avoid dismissal. The statute provides that:
If a party filing a special motion to dismiss under this section makes a prima facie showing that the claim at issue arises from an act in furtherance of the right of advocacy on issues of public interest, then the motion shall be granted unless the responding party demonstrates that the claim is likely to succeed on the merits, in which case the motion shall be denied.
While the statute defines “act in furtherance of the right of advocacy on issues of public interest,” “issues of public interest” and “claim,” it does not define what “likely” means under the DC anti-SLAPP Act. As a result, parties have sparred over what it requires a non-movant to show (see discussion here). To date, courts have generally sided with non-movants, borrowing from California’s decisions applying its “probability” standard. If the intent of the DC Council was to impose a higher burden, it should make that clear. If, on the other hand, it is comfortable with the California standard, it should also make that clear.