Michael Henne v. City of Yakima

The city of Yakima claims the protection of.

statutes that were designed to protect the rights of those who engage in First

Amendment protected communicative activity. U.S. CONST. amend. I. Those

statutes-Washington's "anti -SLAPP" 1 laws-protect speakers against frivolous,

speech-chilling lawsuits. We hold that a governmental entity like Yakima cannot

take advantage of the anti-SLAPP statutes at least where, as here, the challenged

1 A "SLAPP" is a '"Strategic Lawsuit[ ] Against Public Participation.''' LAws OF

2010, ch. 118, § 1(b).

Henne v. City of Yakima, No. 89674-7

lawsuit is not based on the government's own communicative activity. We reverse

the Court of Appeals' decision to dismiss as moot Yakima's appeal of the trial

court's decision to deny Yakima's anti-SLAPP motion. Instead, we hold that the

case is ripe for review and reinstate the trial court's decision to deny Yakima's anti-

SLAPP motion.

FACTS AND PROCEDURAL HISTORY

I. A BRIEF HISTORY OF ANTI-SLAPP LAWS IN WASHINGTON STATE

A SLAPP suit is designed to discourage a speaker from voicing his or her

opinion. See Segaline v. Dep't of Labor and Indus., 169 Wn.2d 467,473,238 P.3d

1107 (20 1 0). A commonly used example of such suits is a defamation suit, where

the plaintiff brings the suit to silence the defendant through the stress and expense

of litigating, and not because the plaintiff has a legitimate claim of defamation.2

Both Congress and state legislatures have recognized the potential threat to free

speech-especially the free speech of thos~ lacking financial resources-posed by

such lawsuits, and both have enacted laws to discourage them.

Washington's first laws of this sort were enacted in 1989. That year, the

legislature passed RCW 4.24.500-.520. LAWS OF 1989, ch. 234, § 1. Those new

2 See Tom Wyrwich, A Cure for a "Public Concern": Washington's New AntiSLAP?

Law, 86 WASH. L. REV. 663, 664 (2011).

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enactments, however, addressed the SLAPP problem indirectly: they offered

protection only to "individuals who make good-faith reports to appropriate

governmental bodies." RCW 4.24.500. Thus, although commentators sometimes

called them Washington's "anti-SLAPP" statutes, "the [1989] legislation more

closely resembles a whistleblower immunity statute."3

In 2002, the legislature amended RCW 4.24.51 0. It added a strong policy

statement against SLAPP litigation and large statutory damages for a SLAPP

litigation target who successfully asserts the statutory defense. LAws OF 2002, ch.

232, § 2. And in 2010, the legislature passed RCW 4.24.525; that new law expanded

statutory anti-SLAPP protections beyond suits based on reports to government

bodies to include "any claim, however characterized, that is based on an action

involving public participation and petition." RCW 4.24.525(2). That statute also

establishes procedures independent from those contained in RCW 4.24.500-.520 for

bringing and resolving a motion to strike SLAPP suits and claims, as well as for

obtaining damages, costs, and fees. See generally RCW 4.24.525.

II. MICHAEL HENNE'S SUIT AGAINST THE CITY OF YAKIMA

3 Michael E. Johnston, A Better SLAPP Trap: Washington State's Enhanced

Statutory Protection for Targets of "Strategic Lawsuits Against Public Participation," 38

GONZ. L. REV. 263, 282 (2003).

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Henne v. City of Yakima, No. 89674-7

In 2011, Michael Henne, a Yakima police officer, filed an employmentrelated

lawsuit against his employer, the city of Yakima. Several other officers had

filed complaints about Henne's behavior, resulting in internal investigations of

Henne. Henne's lawsuit alleged that those other officers' complaints lodged against

him formed a pattern of harassment and retaliation that amounted to a hostile

workplace. He sued Yakima for negligent hiring, training, and supervision of its

employees, which, he asserted, perpetuated a hostile work environment and entitled

him to damages.

Yakima responded to Henne's complaint not with an answer but with a motion

to strike under RCW 4.24.525, the 2010 anti-SLAPP statute. Yakima's motion

asserted that because Henne's claims were based on coworker complaints and the

city's resulting internal investigations, the new, broader anti-SLAPP statute applied

to those claims. In other words, Yakima claimed the protection of the anti-SLAPP

suit law because it received controversial communications from others; Yakima

made no communications of its own.

Henne filed a response to the anti-SLAPP motion along with a motion to

amend his complaint. Henne argued that his suit was "not, as characterized by the

Defendant, a complaint about the YPD [Yakima Police Department] internal

investigations (the heart of the Defendant's anti-SLAPP allegations), but rather the

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Henne v. City ofYakima, No. 89674-7

1mproper acts of omission and commission by city employees that negatively

impacted the life and employment of the Plaintiff." Clerk's Papers (CP) at 130.

Henne asked the court to permit him to amend his complaint to clarify the basis for

his claims and to deny Yakima's anti-SLAPP motion.

The trial court denied Yakima's anti-SLAPP motion. It found that "if this

statute can be used to recover penalties and attorney fees from an individual who's

petitioning the government for redress of grievances, that's exactly the opposite of

the purpose of the statute." CP at 321. It also granted Henne's motion to amend.4

!d.

Yakima appealed under the anti-SLAPP statute's expedited appeal provision,

RCW 4.24.525(5)(d). At the Court of Appeals, Henne argued that Yakima was not

a "person" as defined in the 2010 anti-SLAPP statute, RCW 4.24.525, and therefore

could not bring an anti-SLAPP motion in the first place. Yakima contended that

governmental entities are among those who may claim the statute's protection. The

Court of Appeals held that Yakima was a "person" within the meaning of the anti-

SLAPP law and could therefore file an anti-SLAPP motion, but it also held that

4 I agree with Justice Fairhurst's concurrence (at 2) that Henne's amended complaint

did not clearly eliminate all the claims that Yakima targeted in its anti-SLAPP motion.

Hence, the question of whether Yakima could take advantage of the 2010 anti-SLAPP

statute is squarely before us. And the question of whether an amended complaint that

deletes all allegedly objectionable SLAPP claims is not.

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Henne's amendment to his complaint rendered Yakima's appeal moot due to the

"removal of the allegations relating to the City's internal investigations of Officer

Henne." Henne v. City ofYakima, 177 Wn. App. 583,588,313 P.3d 1188 (2013).

It therefore dismissed the appeal. !d. at 585. Yakima sought review from this court,

and we granted it. 179 Wn.2d 1022, 320 P.3d 718 (2014).

ANALYSIS

I. STANDARD OF REVIEW

This court reviews questions of statutory interpretation de novo. State v.

Wentz, 149 Wn.2d 342, 346, 68 P.3d 282 (2003). In interpreting statutes, we strive

to discern and implement the legislature's intent. State v. J.P., 149 Wn.2d 444, 450,

69 P.3d 318 (2003). Where the plain language of a statute is unambiguous, and "the

legislative intent is apparent, ... we will not construe the statute otherwise." !d.

(citing State v. Wilson, 125 Wn.2d 212,217, 883 P.2d 320 (1994)). However, plain

meaning may be gleaned "from all that the Legislature has said in the statute and

related statutes which disclose legislative intent about the provision in question."

Dep't of Ecology v. Campbell & Gwinn, LLC, 146 Wn.2d 1, 11,43 P.3d 4 (2002).

II. A GOVERNMENTAL ENTITY CANNOT BE A MOVING PARTY UNDER RCW

4.24.525 IF IT Is NOT THE SPEAKER

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Henne v. City of Yakima, No. 89674-7

Henne argues that Yakima lacked standing to file an anti-SLAPP motion

because Yakima is not a "person" under RCW 4.24.525.5 Henne notes that in a

previous case this court determined that "a government agency is not a 'person'

under RCW 4.24.510." Segaline, 169 Wn.2d at 473. Therefore, we continued, the

Department ofLabor and Industries could not take advantage of"the RCW 4.24.510

immunity" that was designed "to protect the exercise of individuals' First

Amendment rights ... and rights under article I, section 5 of the Washington State

Constitution." Id. (citing RCW 4.24.510, Historical and Statutory Notes). Henne

argues that if a governmental entity is not a person under our anti-SLAPP immunity

statutes (RCW 4.24.500-.520), then it cannot ever be a person entitled to sue under

the broader 2010 anti-SLAPP statute (RCW 4.24.525).

Yakima responds that the new RCW 4.24.525 differs significantly from RCW

4.24.510 because the older statute does not define "person," while the newer statute

does. That new definition states, '"Person' means an individual, corporation,

business trust, estate, trust, partnership, limited liability company, association, joint

venture, or any other legal or commercial entity." RCW 4.24.525(1 )(e). Yakima

5 Yakima and Henne also argue about whether the Court of Appeals erred when it

held that Henne's amendments to his complaint cured any possible SLAPP problem. But

as discussed above, supra note 4, Yakima had the same complaints about the amended

complaint. Whether voluntary amendment to delete objectionable claims moots an antiSLAPP

motion is thus an issue left for another day.

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argues that it is a municipal corporation, or at the very least a legal entity, and

therefore government entities will always fit the plain language definition of

"person" under the statute. Yakima's statutory interpretation argument does not

consider the portion of that newer anti-SLAPP statute that explicitly distinguishes

between the governmental entity and a "moving party" who can bring an anti-

SLAPP suit. RCW 4.24.525(4)(e). Nor does it consider the portions of that newer

anti-SLAPP statute stating that it protects the "right of free speech" and "the

constitutional right of petition," (RCW 4.24.525(2)), rights that the constitution

grants to individuals against the government not to the government against

individuals.6

But we need not reach that broad question of whether Yakima can ever be a

moving party under RCW 4.24.525, because there is a more narrow, preliminary

question presented here. That question is whether the party being sued-here,

Yakima-engaged in any communicative activity that the statute protects. As

discussed below, the answer to that question is no.

6 See United States v. Stevens, 559 U.S. 460, 480, 130 S. Ct. 1577, 176 L. Ed. 2d

43 5 (20 1 0) ("[T]he First Amendment protects against the government."); Women Strike for

Peace v. Morton, 153 U.S. App. D.C. 198, 472 F.2d 1273, 1280 (1972) ("The First

Amendment was not designed to protect the voice of government or government-approved

speech. The First Amendment in this country protects the voice of the people, even against

government.").

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Henne v. City of Yakima, No. 89674-7

a. RCW 4.24.525 Protects Speakers Engaged in Communicative Activity

The legislature enacted Washington's first anti-SLAPP laws, RCW 5.24.500-

.520, because it "was concerned with civil lawsuits that were being used to intimidate

citizens from exercising their First Amendment rights and rights under article I,

section 5 of the Washington State Constitution." Segaline, 169 Wn.2d at 473.

Similarly, the legislature expanded our anti-SLAPP laws in RCW 4.24.525

because it was "concerned about lawsuits brought primarily to chill the valid

exercise of the constitutional rights of freedom of speech and petition for the redress

of grievances." LAWS OF 2010, ch. 118, § 1(a) (legislative findings and declaration

of intent). The legislature continued, "Such lawsuits, called 'Strategic Lawsuits

Against Public Participation' or 'SLAPPs,' are typically dismissed as groundless or

unconstitutional, but often not before the defendants are put to great expense,

harassment, and interruption of their productive activities." !d. § 1 (b). The

legislature further explained, "The costs associated with defending such suits can

deter individuals and entities from fully exercising their constitutional rights to

petition the government and to speak out on public issues." !d. § 1 (c) (emphasis

added). Thus, the legislature made clear that the purpose of RCW 4.24.525 was to

prevent frivolous SLAPP suits from deterring individuals and entities from

exercising their constitutional speech rights-that is, their communicative activity.

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Henne v. City of Yakima, No. 89674-7

The statute's plain language reflects the legislature's stated purpose. It applies

to "any claim, however characterized, that is based on an action involving public

participation and petition." RCW 4.24.525(2). An "action involving public

participation and petition" is defined as (1) "[a]ny oral statement made, or written

statement or other document submitted" in various circumstances, RCW

4.24.525(2)(a)-(d), and as (2) "[a]ny other lawful conduct in furtherance of the

exercise of the constitutional right of free speech in connection with an issue of

public concern, or in furtherance of the exercise of the exercise of the constitutional

right of petition," RCW 4.24.525(2)(e). The statute thus provides protection for a

person engaged in some communicative activity-"ma[king]" an oral statement,

"submit[ing]" a written statement or document, or engaging in other "lawful conduct

in furtherance of the exercise of the constitutional right of free speech." RCW

4.24.525(2).

b. No Provision in RCW 4.24.525 Permits a Nonspeaker To Assert the

Rights of a Speaker

Yakima argues that a claim can be "based on" communicative activity even if

it is not directed against the speaker, i.e., the person engaged in that communicative

activity. Thus, Yakima contends, the statute's protections apply to it, even though

it only received communications and did not make any communications of its own.

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Henne v. City of Yakima, No. 89674-7

We disagree. Such an interpretation stands in stark contrast to the legislature's

concern that SLAPP suits "can deter individuals and entities from fully exercising

their constitutional rights ... to speak out." LAws OF 2010, ch. 118, § 1 (c).

Moreover, the statute itself makes clear that it does not apply to protect

someone other than the speaker whose communicative activity forms the basis of the

claim. RCW 4.24.525(1)(c) explains that a "'[m]oving party' means a person on

whose behalf the motion described in subsection (4) ofthis section is filed seeking

dismissal of a claim." We may therefore frame the question in this case as whether

Yakima may be a "moving party" on whose behalf an anti-SLAPP motion may be

filed.

RCW 4.24.525(4)(e) provides guidance on how to answer that question. It

states, "The attorney general's office or any government body to which the moving

party's [communicative] acts were directed may intervene to defend or otherwise

support the moving party." (Emphasis added.) The statute thus expressly

distinguishes the "moving party" from the "government body to which the moving

party's acts were directed." Under the statute, Yakima would be free to intervene to

"defend or otherwise support" the officers who submitted reports to the city, had

Henne sued those officers. Certainly the officers themselves, had they been sued,

would have standing to challenge the lawsuit under RCW 4.24.525. But the statute

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Henne v. City ofYakima, No. 89674-7

does not contemplate that the government body to which speech is directed may

itself be a "moving party." Instead, it recognizes that the speaker is the "moving

party" and the governmental entity to which the speech is directed is not the "moving

party."7 Because Yakima is the government entity to which the speech at issue in

this case was directed, and not the speaker, it cannot take advantage of RCW

4.24.525's anti-SLAPP protections for speakers.

c. California Law Does Not Control Our Interpretation ofRCW 4.24.525

Yakima urges us to follow California's law by holding that governmental

entities can take advantage of anti-SLAPP laws. Yakima is correct that RCW

4.24.525 is based in part on California's similar law. As a result, commentators have

noted, Washington "courts have begun using California law to interpret the

Washington [anti-SLAPP] Act." Wyrwich, supra, at 672.

But despite some similarities, the laws also have significant differences. Id.

at 682 (noting that the Washington statute "differs in several respects" from the

California statute). Most relevant to this case, the California anti-SLAPP statute

states that it "shall be construed broadly." CAL. CODE CN. PROC. § 425.16(a). Our

7 For this reason, we reject Yakima's argument that its employees are its agents, and

its agents' actions of submitting reports may thus be considered Yakima's actions. Yakima

cannot avoid the fact that the statute distinguishes between the speaker and the receiver of

speech.

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Henne v. City of Yakima, No. 89674-7

legislative findings, on the other hand, state, "This act shall be applied and construed

liberally to effectuate its general purpose of protecting participants in public

controversies from an abusive use of the courts." LAWS OF 2010, ch. 118, § 3

(emphasis added). Our legislature thus phrased its findings more narrowly than

California's, emphasizing that the protection extends to "participants"-the actors

who speak out on public affairs.

Moreover, California's case law does not address the question at issue here;

that is, whether the government can take advantage of the anti-SLAPP statute when

it was not even the speaker who exercised speech rights. To be sure, some California

cases have found that a defendant governmental entity may bring an anti-SLAPP

motion under California's statute. E.g., Bradbury v. Superior Court, 49 Cal. App.

4th 1108, 1117, 57 Cal. Rptr. 2d 207 (1996) ("The anti-SLAPP suit statute is

designed to protect the speech interests of private citizens, the public, and

governmental speakers."). And some California cases have found that a defendant

governmental agency may rely on California's anti-SLAPP statute even where it

appears from the facts of the case that the governmental agency received, rather than

made, communications. E.g., Hansen v. Cal. Dep 't of Carr. & Rehab., 171 Cal.

App. 4th 1537, 1544-45, 90 Cal. Rptr. 3d 381 (2008).

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But in no California case did the court ever expressly consider whether a silent

governmental defendant could take advantage of an anti-SLAPP statute designed to

protect the defendant's speech. And even if California had considered the question

and decided that its statute-a statute "designed to protect the speech interests of ..

. governmental speakers," Bradbury, 49 Cal. App. 4th at 1117 (emphasis added)also

protected governmental nonspeakers, such a conclusion would not be

persuasive to our interpretation of our own statute given the difference in legislative

findings discussed above.

CONCLUSION

Given the plain language of RCW 4.24.525 and the legislative findings

enacted in Laws of2010, chapter 118, section 1, we hold that a governmental entity

lacks standing to bring an anti-SLAPP motion under RCW 4.24.525 where the

governmental entity has not engaged in the communicative activity on which the suit

is based. We therefore reverse the decision of the Court of Appeals to dismiss the

appeal. We reinstate the trial court's orders denying the anti-SLAPP motion and

granting the motion to amend. Since Yakima does not prevail, it is not entitled to

attorney fees.

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WE CONCUR:

15

Reversed