The Procedural Tail That Wags The Substantive Dog: Update On Michael Mann's "Hockey Stick" Lawsuit
I've collected, under this tag, my posts about Michael Mann's defamation lawsuit against National Review, Mark Steyn, the Competitive Enterprise Institute, and Rand Simberg.
The lawsuit is back to the District of Columbia Court of Appeal upon the National Review's denial of their renewed anti-SLAPP motion. The key issue currently presented is a procedural one that will strike many non-lawyers as irritatingly dry, obscure, and removed from the heart of the case: when a District of Columbia court denies an anti-SLAPP motion under DC's anti-SLAPP statute, can the losing party appeal immediately, or do they have to wait until the end of the case?
Though seemingly procedural, the question has such a substantive impact that it transforms how anti-SLAPP statutes work and how effective they are at stopping and deterring frivolous suits.
Stand by while I put you in a coma with my lawsplaining.
As lawyers know, some judicial decisions are immediately appealable, but most aren't. Most of the time, in most jurisdictions, you have to wait for a final judgment in an action before you can appeal all the things you think the trial judge did wrong. That usually means appealing after the judge has dismissed the case, or after you've had a judgment entered against you after trial. In many jurisdictions you can file an emergency immediate appeal — sometimes called an interlocutory appeal, and sometimes called a writ — but they are much less likely to succeed on the merits than a regular appeal at the end of a case. There are a few categories of decisions you can appeal immediately because the law provides you with a right not to be subjected to trial — for instance, double jeopardy arguments and some qualified immunity arguments. But immediate appeals are the exception, not the rule.
Some states — like California — explicitly provide for an immediate appeal of an anti-SLAPP motion. That provision is transformative. The entire point of an anti-SLAPP statute is that legislatures recognize that defendants should not have to go through the entire process of discovery and trial when faced with a vexatious attack on speech. If a litigant can't appeal the denial of an anti-SLAPP motion immediately, that purpose is not achieved — if the trial judge gets it wrong (and they do), then the defendant has to endure discovery and (at least) filing a motion for summary judgment, and may have to go to trial. If, on the other hand, a defendant can immediately appeal the denial of his or her anti-SLAPP motion, then they can stop the plaintiff from forcing them to go through expensive discovery and trial. Appellate courts are more reliable at addressing complex legal issues that often come up in anti-SLAPP motions and, in my experience, more protective of speech in general. Moreover, the strategic imapct is vast. Given the congestion of modern appellate courts, if a defendant can appeal an unsuccessful anti-SLAPP motion immediately, then plaintiffs know they will not be able to force the defendant into financially ruinous discovery and trial for years, and that the defendant's free speech arguments will be reviewed twice. That makes plaintiffs think twice about censorious lawsuits.
There are downsides to immediate appealability, of course. It means that a defendant can stall a meritorious case for years based on a meritless anti-SLAPP motion. There are counterbalance to that problem, like the ability of trial and appellate courts to award sanctions and fees for frivolous anti-SLAPP positions.
The District of Columbia's anti-SLAPP statute, inexplicably, left the question of immediate appealability annoyingly ambiguous. DC could have, but did not, explicitly address the issue one way or the other, the way other jurisdictions have learned to do.
The parties in this case have already briefed the issue once, but the Court of Appeals punted and dismissed the appeal on an even more obscure procedural issue rather than resolve appealability, let alone the substance of the anti-SLAPP motions.1
The trial court has now stayed proceedings in the trial court while the D.C. Court of Appeals resolves this issue. If the Court of Appeals says that DC anti-SLAPPs can't be appealed immediately, the statute is weakened substantially and it comes back to the trial court for discovery, summary judgment motions, and possible eventual trial. If the Court of Appeals finds it is immediately appealable, it will look at the anti-SLAPP motions on their merits. As I've said before, I think the defendants have the better arguments.
Note that Mark Steyn is still attempting to blaze his own trail. He hasn't joined the appeal of the renewed anti-SLAPP motions, and he has expressed a desire to move forward with discovery. Mann wanted to move forward with his own anti-SLAPP motion against Steyn's ill-considered counterclaim and to take discovery in connection with it. The trial court, reasonably, said that allowing any discovery subjects everyone to discovery, and that until the Court of Appeal clarifies whether National Review has the right to an immediate appeal, trial court proceedings are stayed. (That includes, as far as I can tell, somewhat ironically, Mann's anti-SLAPP motion against Steyn's "IMA SUE YOU FOR SUING ME" counter-claim.) Put another way, the trial court says they have to hang together, not hang separately.
So: here we are. Mr. Mann has filed a motion to dismiss the appeal on the theory that the denial of an anti-SLAPP statute is not immediately appealable and on the theory that the defendants are all awful haterz who think Waterwold is a feel-good movie. That motion and the Court of Appeals' order for the parties to brief the issue apparently crossed in the mail. If the District of Columbia Court of Appeals had a docket accessible online, or gave electronic notice of orders, that would not have happened, but since it is 1986 and the District of Columbia is an obscure jurisdiction, it is understandable they do not. National Review et al. has filed response to the order saying they are entitled to an immediate appeal and that, in so many words, Mann is a butthurt censorious twit. Defendants are supported by amicus briefs on the appealability issue from the ACLU, a conglomerate of media companies, and the District of Columbia itself, whose amicus ought to say "lol we suxxors at drafting statutes plz fx k thx bye," but in fact does not.
Next up, unless it finds another procedural dodge, the Court of Appeals will decide whether the DC Anti-SLAPP statute allows an immediate appeal. If the answer is no, it goes back to trial court for discovery and motions and possibly trial; if the answer is yes, then the Court of Appeals addresses the merits of the anti-SLAPP motions — which, in my opinion, are meritorious.
A tremendous amount of time and money is being spent, and this has dragged on since 2012. I understand Mr. Steyn's vocal frustration. My point is this: procedural issues can be dry, obscure, difficult to understand, annoying, and completely transformative of the way the court system works for real people. A win on this procedural issue for the defendants is a very important victory for all defendants in DC seeking to vindicate their free speech rights, because it gives a defendant two bites of the apple under the anti-SLAPP statute. Stay tuned.
Edited: I am informed by a reliable source that my criticism of the draftsmanship of the D.C. City Council is unfair and misguided, and that the reason they didn't put an immediate appeal provision in the anti-SLAPP statute is that the D.C. Court of Appeals has previously said they their home rule doesn't extend to making things immediately appealable. If that's the case, I don't know why they couldn't put a provision in like "It is the position of the District that this statute should be interpreted to allow an immediate appeal if possible."
- It's ear-bleedingly boring. Basically the Court of Appeals found that the order denying the anti-SLAPP was moot because Mann filed an amended complaint before the trial court issued the order. In California, and other jurisdictions, once the defendant files an anti-SLAPP motion you can't amend the complaint, which avoids this annoying problem. ▲
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