Henne v. City of Yakima

• Decision Date: 22 January 2015
• Docket Number: No. 89674–7.,89674–7.
• Citation: 182 Wash.2d 447,341 P.3d 284
• Parties: Michael HENNE, Respondent, v. CITY OF YAKIMA, a Municipal Corporation, Petitioner.
• Court: Washington Supreme Court

182 Wash.2d 447

341 P.3d 284

Michael HENNE, Respondent

v.CITY OF YAKIMA, a Municipal Corporation, Petitioner.

No. 89674–7.

Supreme Court of Washington, En Banc.

Jan. 22, 2015.

As Corrected April 7, 2015.

Robert C. Tenney, Mark David Watson, Attorneys at Law, Peter McGillis Ritchie, Meyer, Fluegge & Tenney, P.S., Yakima, WA, for Petitioner.

Lish Whitson, Kristy Lee Stell, Lish Whitson PLLC, Seattle, WA, for Respondent.

Milton G. Rowland, Foster Pepper PLLC, Spokane, WA, Amicus Curiae on behalf of Washington State Association of Municipal Attorneys.

George M. Ahrend, Ahrend Law Firm PLLC, Ephrata, WA, Bryan Harnetiaux, WA State Ass'n for Justice Foundation, David P. Gardner, Winston & Cashatt, Spokane, WA, Amicus Curiae on behalf of Washington State Association for Justice Foundation.

Bruce Edward Humble Johnson, Eric Stahl, Ambika Kumar Doran, Davis Wright Tremaine LLP, Seattle, WA, Amicus Curiae on behalf of Allied Daily Newspapers of Washington, Cowles Company, Telegram Co. dba Morgan Murphy Media, Gannett Company, Kiro–Tv, Inc., McClatchy Company, Seattle Times Company, Sinclair Broadcase Group, Inc., Sound Publishing, Inc., Washington Newspaper Publishers Association, Washington State Association of Broadcasters.

Jeffrey Lowell Needle, Maynard Building, Jesse Andrew Wing, Joseph Robert Shaeffer, MacDonald Hoague & Bayless, Sarah A. Dunne, ACLU of Washington Foundation, Nancy Lynn Talner, Attorney at Law, Seattle, WA, Amicus Curiae on behalf of Washington Employment Lawyers Association, American Civil Liberties Union.

Opinion

GORDON McCLOUD, J.

¶ 1 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 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

¶ 2 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 Wash.2d 467, 473, 238 P.3d 1107 (2010). 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 Other state legislatures have recognized the potential threat to free speech—especially the free speech of those lacking financial resources—posed by such lawsuits and have enacted laws to discourage them.

¶ 3 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 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

¶ 4 In 2002, the legislature amended RCW 4.24.510. 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

¶ 5 In 2011, Michael Henne, a Yakima police officer, filed an employment-related 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.

¶ 6 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.

¶ 7 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 improper 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.

¶ 8 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 Id.

¶ 9 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 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 of Yakima, 177 Wash.App. 583, 588, 313 P.3d 1188 (2013). It therefore dismissed the appeal. Id. at 585, 313 P.3d 1188. Yakima sought review from this court, and we granted it. 179 Wash.2d 1022, 320 P.3d 718 (2014).

ANALYSIS

I. Standard of Review

¶ 10 This court reviews questions of statutory interpretation de novo. State v. Wentz, 149 Wash.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 Wash.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.” Id. (citing State v. Wilson, 125 Wash.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 Wash.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

¶ 11 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 Wash.2d at 473, 238 P.3d 1107. Therefore, we continued, the Department of Labor 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 ).

¶ 12 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 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...