Date: 01-22-2015

Case Style: Michael Henne v. City of Yakima

Case Number: 89674-7

Judge: Gordon McCloud

Court: Supreme Court of Washington

Plaintiff's Attorney: Lish Whitson and Kristy Stell for Respondent

Defendant's Attorney: Bob Tenney, Mark Watson and Pete Ritchie for Appellant

Milt Rowland - Amicus Curiae on behalf of Washington State Association of Municipal Attorneys

George Ahrend, Bryan Harnetiaux and David P. Gardner - Amicus Curiae on behalf of Washington State Association for Justice Foundation

Bruce Johnson, Eric Stahl and Ambika Kumar Doran - Amicus Curiae on behalf of Allied Daily Newspapers of Washington; Amicus Curiae on behalf of Gannett Company, Amicus Curiae on behalf of Kiro-Tv, Inc., Amicus Curiae on behalf of the Mcclatchy Company, Amicus Curiae on behalf of the Seattle Times Company, Amicus Curiae on behalf of Sinclair Broadcase Group, Inc., Amicus Curiae on behalf of Sound Publishing, Inc.

Description: 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).
2
Henne v. City of Yakima, No. 89674-7
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).
3
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
4
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.
5
Henne v. City of Yakima, No. 89674-7
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
6
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.
7
Henne v. City of Yakima, No. 89674-7
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.").
8
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.
9
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.
10
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
11
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.
12
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).
13
Henne v. City of Yakima, No. 89674-7
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.
14
Henne v. City of Yakima, No. 89674-7
WE CONCUR:
15
<-S~-9
rr~·(J·
Henne v. City of Yakima, No. 89674-7
Fairhurst, J. (concurring in the result)
No. 89674-7
FAIRHURST, J. (concurring in the result)-The majority correctly concludes
that the trial court properly denied the city ofYakima's special motion to strike (anti-
SLAPP1 motion). As Michael Henne argued to the trial court, he did not bring a
SLAPP claim. It was Yakima's burden to show that Henne's complaint contained
SLAPP claims, and the record shows it failed to do so as a matter of law. I concur.
I. We should hold Yakima is a "person" under the anti-SLAPP statute
Whether Yakima is a "person" here is a matter of statutory construction
dependent on the statutory language. RCW 4.24.525(1)(e) defines a "'[p]erson"' in
plain, broad language as "an individual, corporation, business trust, estate, trust,
partnership, limited liability company, association, joint venture, or any other legal
or commercial entity." (Emphasis added.) Yakima is a municipal corporation and
clearly a legal entity, so it is a "person" within the meaning ofRCW 4.24.525(1)(e).
Our decision in Segaline v. Department of Labor & Industries, 169 Wn.2d 467, 238
1 Strategic lawsuit against public participation.
1
Henne v. City ofYakima, No. 89674-7
Fairhurst, J. (concurring in the result)
P.3d 1107 (2010), is not controlling on this issue. That case addressed a different
statute, RCW 4.24.51 0, that did not define the word "person" and used that word
ambiguously. Id. at 473. Yakima's anti-SLAPP motion was not brought under RCW
4.24.510.
II. We should not reach the issue of mootness
We should not reach the question of whether Henne's voluntarily amending
his complaint rendered Yakima's anti-SLAPP motion moot. In this case, Yakima
contends that if the trial court had granted its motion, its decision would "carry
through to the amended pleading," which Yakima asserts did not clearly eliminate
all the alleged SLAPP claims. Wash. Supreme Court oral argument, Henne v. City
of Yakima, No. 89674-7 (May 29, 2014), at 42 min., 34 sec., audio recording by
TVW, Washington State's Public Affairs Network, available at http://www.tvw.org.
We are not presented with a case where the amended complaint definitely did
remove all alleged SLAPP claims and should therefore not reach the issue of whether
such an amended complaint would moot a pending anti-SLAPP motion.
III. The trial court properly denied Yakima's anti -SLAPP motion because Yakima
failed to meet its initial burden
The majority reaches the correct conclusion. Henne argued to the trial court
that Yakima's anti-SLAPP motion must fail, in part, because Henne did not make
any SLAPP claims. Clerk's Papers (CP) at 129-30. The record amply supports the
2
Henne v. City of Yakima, No. 89674-7
Fairhurst, J. (concurring in the result)
conclusion that Henne was correct on that point. Yakima's anti-SLAPP motion thus
fails as a matter of law.
It is apparent from the face of Henne's complaint that while some of his
alleged injuries are connected to internal employee complaints, Henne asserts his
injuries were caused by how Yakima responded to the complaints in its capacity as
an employer. That is the basis of the challenged claims. CP at 13 (Henne's complaint
(alleging his damages are "[a]s a direct and proximate result of [Yakima's] acts" and
seeking relief in the form of "enjoining [Yakima] from perpetuating the
discrimination, harassment and hostile work environment" created by other
employees)), 130 (Henne's response to Yakima's anti-SLAPP motion ("Plaintiff
does not allege that complaints should not be investigated. On the contrary, he is
concerned that complaints are not always followed-up in a professional and impartial
manner.")).
It is clear that the actions forming the basis of Henne's claims do not meet any
of the five definitions of"action involving public participation and petition" in RCW
4.24.525(2). Four of the statutory definitions refer to "[a]ny oral statement made, or
written statement or other document submitted" in various types of proceedings.
RCW 4.24.525(2)(a)-(d). None of Henne's claims against Yakima can fall within
these first four definitions because they are based on Yakima's conduct, not its
3
Henne v. City ofYakima, No. 89674-7
Fairhurst, J. (concurring in the result)
statements.2 The final definition of "action involving public participation and
petition" does refer to conduct, but it also does not apply because Yakima's alleged
conduct was not "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 ofthe constitutional right of petition." RCW 4.24.525(2)(e). Even if
Yakima had in fact responded properly to internal complaints, such that Henne's
allegations would ultimately prove meritless, Yakima's conduct was responsive to,
not in furtherance of, protected speech.
At most, Yakima's anti-SLAPP motion shows that Henne's complaint should
have been more artfully worded.3 It cannot be contended that the substantial
penalties in the anti-SLAPP statute were intended to prevent mere unartful
pleadings. Yakima failed to meet its initial burden of showing Henne brought any
SLAPP claims against it.
21 agree with the majority that we should reject Yakima's argument that its employees'
internal complaints should be considered Yakima's own statements under agency principles.
3While Yakima is correct that informally contacting the other party is not a prerequisite to
filing an anti-SLAPP motion, it is good practice to ensure that the motion, which carries potentially
severe consequences for both the moving and responding parties under RCW 4.24.525(6)(a)-(b),
is based on something more substantial than misinterpretations of unartful pleadings.

Outcome: Reversed

Plaintiff's Experts:

Defendant's Experts:

Comments: