Superior Court Judge Grants Anti-SLAPP Special Motion to Dismiss

For the second time in ten months, Superior Court Judge Steven Wellner has granted a special motion to dismiss under the DC anti-SLAPP statute. Here’s the background of this case.

Two brothers (Peter and John Gordon) inherited the family home after their mother passed away. They alleged that, after they listed the house for sale, neighbors became concerned that the new buyers would tear down the house in favor of a larger house. According to the complaint, one of the neighbors (Soloman) allegedly submitted a petition in the name of The Forest Hills Alliance to the DC Historic Preservation Review Board, asking it to designate the house as a historic landmark. By a vote of 3-2, the Board voted to designate the house as a historic landmark. According to the Gordons, the house still sold, but at a much lower price ($1.2 million instead of $1.55 million) because of the historic designation.

Apparently unsatisfied at the fact they did not receive the original $1.55 million, and that they spent over $26,000 (unsuccessfully) opposing the historic preservation application, the Gordons sued Alliance and Soloman last August in DC Superior Court. Their allegations: (1) fraudulent misrepresentation to a third person (because Alliance allegedly was not a “functioning corporation” at the time it submitted the application); and (2) tortious interference with contract (because the application interfered with the contract between the Gordons and the potential buyers).

The defendants responded by filing an anti-SLAPP special motion to dismiss. They first argued that the suit arose from an act in furtherance of their right of advocacy on issues of public interest:

[t]he act of signing the historic landmark application and filing it with the HPRB is unquestionably a written statement that involves petitioning the government . . . [and] the preservation of historic properties in the District of Columbia is “an issue related to the health or safety; environmental, economic, or community well-being.”

The motion argued that the complaint must be dismissed because the Gordons could not show that they were likely to prevail on the merits.

In response, the Gordons argued that the DC anti-SLAPP statute violated their Seventh Amendment right to a jury trial because it allowed the trial judge to weigh evidence, and because dismissal was with prejudice and accompanied by an award of costs. The Gordons also argued that the statute violated their “First Amendment Right to Petition the Government for Redress of Grievances.” I would describe this argument further, but it is so nonsensical that it defies description. Finally, the Gordons argued that the movants had not shown that the suit arose from protected activity and, in any event, the Gordons were likely to prevail on the merits.

The Gordons’ constitutional attack on the DC anti-SLAPP statute got the attention of the DC Attorney General who, in January, noted its intent to intervene in the case. By that time, however, the DC Court of Appeals had issued its long-awaited Mann decision which, among other things, interpreted the burden under the DC anti-SLAPP statute in a way that did not violate the Seventh Amendment.

One would think that the Mann decision would put an end to the Gordon’s Seventh Amendment argument. One would be wrong. In February, the Gordons filed a supplemental brief, arguing that the Mann decision only disposed of their “facial” challenge, but did not resolve their “as applied” argument that the statute’s fee-shifting, dismissal with prejudice, and discovery provisions violated their Seventh Amendment right to a jury trial. The Gordons also repeated their indecipherable First Amendment argument.

Both the defendants and the District of Columbia filed their own briefs on the constitutionality of the DC anti-SLAPP statute. The defendants’ supplemental brief argued that the Mann decision disposed of both a facial and as-applied Seventh Amendment challenge and that the Gordons’ argument was simply a rehash of the arguments which had already been rejected by the Mann court. The defendants’ brief also persuasively argued that a dismissal with prejudice or fee-shifting provision does not violate the Seventh Amendment. Finally, with respect to the Gordons’ First Amendment argument, the defendants explained that nothing in the statute prevented the Gordons from bringing a meritorious claim – it simply prevented them from continuing a meritless SLAPP.

The District of Columbia’s brief picked up on this theme, arguing that nothing in the anti-SLAPP statute restricted the Gordons’ ability to file a petition on any subject, but that the First Amendment did not immunize baseless litigation: “[i]f a plaintiff’s claims have merit, they will proceed. If not, they will be dismissed early, pursuant to the Act. This process does not violate the First Amendment.”

During this same time, the court allowed the Gordons to lodge a second amended complaint. As readers of this blog know (from the first Mann appeal), that filing mooted the prior anti-SLAPP motions to dismiss. As such, in March, the defendants filed a special motion to dismiss the second amended complaint, incorporating their prior arguments. The Gordons’ opposition brief and the defendants’ reply brief largely repeated the prior arguments.

Earlier this month, the Superior Court granted the defendants’ special motion to dismiss. The court had no difficulty concluding that the suit arose from defendants’ petition to the historic preservation board, which qualifies as speech covered by the statute because it was based upon “expressive conduct that involves petitioning the government . . . in connection with an issue of public interest.”

The court held that the Gordons had not carried their burden of showing a likelihood of success on the merits on either of their causes of action. With respect to the fraudulent misrepresentation claim, the court reasoned that the Gordons had not shown – as they must – that defendants intended to induce the Gordons into relying upon her alleged misrepresentations. With respect to the tortious interference claim, the court similarly held that there was a lack of causation:

the effects of Ms. Soloman and Alliance’s actions, while potentially influencing the value of the Gordon house, did not force the Gordons to have to take their house off of the market. Instead, the Gordons and their real estate agent decided to take the home off of the market for an undisclosed reason. Therefore, Plaintiffs have failed to show a likelihood of success on their claim of tortious interference.

The court denied the Gordons’ request for targeted discovery, concluding that it would not change the outcome. There was no mention of the First or Seventh Amendment arguments made by the Gordons. Instead, the court granted defendants’ anti-SLAPP special motion to dismiss and allowed the defendants to file a motion to recover their reasonable fees.

Takeaway: this is why we have anti-SLAPP statutes. Soloman exercised her First Amendment rights by asking the DC Historic Preservation Review Board to designate a house as a historic landmark. The Board did not conclude the application was frivolous; instead, it granted it. While the Gordons were undoubtedly upset at the fact this decision thwarted their original plans to sell the house for $1.55 million, that sometimes happens in a democracy.  A developer’s plans are frustrated by a neighborhood association. What shouldn’t happen is that the speakers are sued for their speech.

Leslie Machado

About: Leslie Machado

Mr. Machado counsels and advises a diverse range of clients on various areas of law. He is also an experienced litigator, having tried cases to verdict in state and federal courts.

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