Lawsplainer: Washington Supreme Court Declares State's Anti-SLAPP Statute Unconstitutional

The Supreme Court of the State of Washington has ruled that the state's strong anti-SLAPP statute is unconstitutional, violating the right to jury trial enshrined in Washington's state constitution.

Here's why, and what it means.

I've lawsplained anti-SLAPP statutes before. In brief, an anti-SLAPP statute is a tool to address frivolous and vexatious lawsuits aimed at protected speech. Generally, they work like this: the defendant files a motion showing that it is being sued because of speech covered by the statute. If defendant does so, then the burden shifts to the plaintiff to show that it has evidence supporting their claims. If the plaintiff succeeds, the suit survives; if the plaintiff fails, the court dismisses the case and (usually) awards defendant its attorney fees.

Anti-SLAPP statutes vary from state to state. Some apply only to narrow ranges of speech (like only speech involved in petitioning the government) and some cover very wide ranges of speech (like everything protected by the First Amendment). Their language varies on another point as well: how much evidence does the plaintiff have to provide when the burden shifts to them?

Most state statutes say the plaintiff has to show a "probability" of prevailing, or language to that effect. Almost universally, state courts have interpreted that to require the plaintiff only to produce sufficient evidence: that is, evidence that would be legally sufficient to support plaintiff's claim if the jury accepted it as true. In those states, the judge considering an anti-SLAPP motion doesn't weigh evidence — he or she doesn't consider whose evidence is more persuasive. Instead, the judge treats it rather like a motion for summary judgment: has the plaintiff offered evidence that if believed satisfies all of the elements of the cause of action?

Washington's anti-SLAPP statute is a little different. If the defendant carries its initial burden of showing that the lawsuit targets speech covered by the statute, it requires the plaintiff "to establish by clear and convincing evidence a probability of prevailing on the claim." That plain language seems to require the plaintiff to show more than enough evidence, and requires the judge to weigh the evidence.

The case at issue arose from a dispute at a Washington grocery called the Olympia Food Cooperative. The Cooperative's board of directors adopted a boycott of goods from Israel, and members of the cooperative sued claiming that the board exceeded its power. This is not mean-spirited satire about Washington. The cooperative filed an anti-SLAPP motion, and won. The court dismissed the case and awarded defendants attorney fees and statutory penalties in excess of $220,000.

On appeal, the plaintiffs argued that Washington's anti-SLAPP statute violated many rights, including the right to trial by jury in civil cases under Article I, Section 21 of the Washington State Constitution. The Court of Appeal rejected the argument, but the Washington Supreme Court agreed to hear the matter.

Today the court ruled that the state's anti-SLAPP statute violated the state constitution's right to trial by jury in civil cases. The court didn't reach any of the plaintiffs' other asserted grounds.

The defendants tried to backpedal from the plain language of the statute — they argued that "establish by clear and convincing evidence a probability of prevailing on the claim" just meant offering sufficient evidence, as in a motion for summary judgment or in other states' anti-SLAPP statutes, and didn't require weighing of evidence. They argued, in effect, that whatever the language said, the statute should be read the way most other anti-SLAPP statutes have been read. The court rejected that. Washington looked at California's statute, followed it, but deliberately chose different language for the plaintiff's burden. The legislature must have meant for it to mean something, the court reasoned. In fact, it required the judge hearing the motion to weigh evidence.

Next, defendants argued that dismissing frivolous cases doesn't violate the constitutional right to a trial by jury. True, said the court. But this statute doesn't merely dismiss frivolous suits. That's what anti-SLAPP statutes do when they merely require the plaintiff to show sufficient evidence. By requiring the plaintiff to prove its case by "clear and convincing evidence," this statute requires the judge to take over the jury's function, assess credibility, weigh evidence, and decide not only if plaintiffs' claim is frivolous, but whether it should win on the merits. The court held that the statute made the trial court "invade the jury's province of resolving disputed facts." This, the court held, was sacrificing one set of rights (the right to jury trial) for another set of rights (the right to free speech.)

Plaintiffs win and get to proceed with their case, defendants lose and have to defend their case, and Washington's anti-SLAPP statute falls.

So what does this mean nationwide?

This points to the vulnerability of anti-SLAPP statutes that impose a burden on the plaintiff to do anything other than produce sufficient evidence. Though the court relied on the state constitutional right to a jury trial, it reviewed federal jury trial authority extensively and demonstrated that there may be nationwide problems with anti-SLAPP statutes that require a judge to weigh evidence and resolve disputed facts. Other anti-SLAPP statutes that require plaintiffs to do more than submit evidence sufficient to meet the elements will be struck down if other courts adopt this logic.

Fortunately, the fix is relatively simple — all state legislatures have to do is define the plaintiff's burden carefully so that it resembles the summary judgment burden — the burden to produce admissible evidence which, if believed, is enough to win. Practically speaking, that will continue to weed truly frivolous cases out.

Speaking as someone who hates censorious and vexatious lawsuits, it would be nice, on some level, if plaintiffs suing over speech had to prove that their evidence was not just sufficient but strong. But that requirement has always been vulnerable to attack.

This ruling will only impact the more aggressive anti-SLAPP statutes, not the most common ones.

Thanks to tipster David.

Last 5 posts by Ken White


  1. Marzipan says

    I wonder how this will impact the continued debate over weakening Nevada's anti-SLAPP statute. From my understanding, debate is still raging over it (albeit in watered down form with the original "clear and convincing" burden intact), and I'm concerned that this gives those seeking to weaken it additional ammunition. "If we can't 'fix' it through the legislature, we'll overturn it through the judiciary!"

  2. Matthew Cline says

    The Cooperative's board of directors adopted a boycott of goods from Israel, and members of the cooperative sued claiming that the board exceeded its power. This is not mean-spirited satire about Washington. The cooperative filed an anti-SLAPP motion, and won.

    That sounds to me like a contractual dispute between the board and the members. Why would the anti-SLAPP statute apply to it?

  3. Shelby says

    It doesn't sound like a contractual dispute to me, rather a corporate one. The Board has certain authority under the Cooperative's controlling documents (articles of incorporation and bylaws, or the equivalent), and possibly under statutes and case law. The members claim the Board's action was not so authorized. (This is all based just on Ken's description, I'm not familiar with either the case or Washington's corporation laws.)

    The anti-SLAPP law would have been invoked because the action challenged by the lawsuit was in essence a communicative one, meant to express the Board's and/or the Cooperative's position regarding Israel. Presumably that position was political, rather than, e.g., concern about the physical safety of Israeli products.

  4. Shelby says

    Tried to edit my comment but was too slow. Pages 6 and 7 of the decision lay this out. The Board had established a written "Boycott Policy" (apparently Washington is self-parodying) that requires staff consensus for a national boycott. They didn't seek staff consensus. The Board claims inherent authority for its action under the general bylaws, but I assume the trial court never reached that issue because the anti-SLAPP motion suspended discovery and substantive action in the case. I guess that will be the subject of a motion for summary judgment, if the thing doesn't settle.

  5. says

    Re: the issue of the Board's power to disregard the policy, in the court's decision, at page 7: "Defendants responded that the board's inherent authority to govern the Cooperative under its bylaws and the Washington Nonprofit Corporation Act, RCW 24.03.095, authorized the adoption of the boycott without staff consensus, notwithstanding the boycott policy. "

    There's a bit more on this in footnote 2 on page 11: "The Court of Appeals below reasoned that this [whether BDS is a "national movement"] is an immaterial fact, on the theory that the Cooperative's board is not bound by its adopted policies because its inherent authority to manage the affairs of the corporation includes the authority to disregard its adopted policies. Davis, 180 Wn. App. at 532-36. "

    That finding by the Court of Appeals was not reversed by the WA Supreme Court, but rather mooted by its holding. Whether it might become law of the case if the WA legislature swiftly acts to bring the burden of proof in its anti-SLAPP statute in line with the decision is a topic I won't explore, but note that the statute as it reads gives the trial court discretion to consider an anti-SLAPP motion filed after the complaint is answered.

    On the issue of whether this is a contract issue: I've been following this dispute since well before the complaint was filed. It grows out of earlier events. Olympia, WA is home to The Evergreen State College. A former Evergreen student and U.S. citizen, Rachel Corrie, was killed by an Israeli Defense Force soldier who ran over her with a Caterpillar bulldozer after she put herself between the bulldozer and a Palestinean home that was in the process of being destroyed to make way for yet another Israeli settlement in Palestine.

    Whether her death was accidental or a deliberate killing remains controversial, notwithstanding an Israel Supreme Court ruling that her parents could have no remedy. But Corrie's martyrdom became a rallying point among the Palestinian Boycott, Divestment, and Sanctions ("BDS") movement, particularly within the U.S. Caterpiller Corp. became one of the BDS targets. The Evergreen State College student body overwhelmingly passed a resolution calling on the college and others to divest any investments it held in Caterpillar and other targeted companies and to boycott goods originating from the Occupied Palestine Territory. The Olympia Food Co-op board voted to honor the boycott call and to cease stocking goods subject to the boycott.

    The BDS movement is far along the path pioneered by the South African BSD movement and is particularly strong in Europe, which accounts for some 30% of Israel's export market. Many large companies have been forced to abandon products manufactured in the Occupied Territories or to cease contractor work for the Israeli government within those territories, etc. BDS has also been making inroads in the U.S., with many university/college student bodies adopting similar resolutions, a couple of major religious organizations such as the Presbyterian Church, etc.

    All of the above runs directly counter to a mainstay of Israeli politics, annexation of lands seized in its 1967 Six-Day War and their continued colonization to the detriment of their Palestinian owners. The U.N., the U.S., and most other nations on the planet have condemned the colonization as violative of various U.N. Security Council resolutions and Convention (IV) Relative to the Protection of Civilian Persons in Time of War (4th Geneva Convention), most notably the flat prohibition against colonization of occupied territories and the right of refugees to return to their homes, promptly after the cessation of hostilities, a right that is inalienable via any deal between Israel and the Palestine Authority or State of Palestine. Id., Articles 7, 8, 47, and 49.

    BDS is becoming such a serious threat to the Israeli economy that the Israeli Defense Force has declared it a national security threat. The Israeli government devotes tremendous effort to fight BDS "deligitimization" efforts, largely through front organizations. See e.g., this leaked U.S. State Dept. cable recounting an interview with the head of the Israel Law Center Shurat Hadin ("'The [Israeli] National Security Council (NSC) legal office saw the use of civil courts as a way to do things that they are not authorized to do,' claimed Leitner").

    There is every appearance that the Olympia Food Co-op case is one such case, where the plaintiffs had significant contact with an pro-Israeli anti BDS group prior to filing suit and met with the Consulate General of Israel to the Pacific Northwest, which became public knowledge prior to suit being commenced. There is more background on the plaintiffs and their attorneys at Mondoweiss.

    I think there is little if any question that the plaintiffs seek the aid of the courts in chilling rights protected by the First Amendment. In my opinion the courts should not stand for their process being so abused. But I cannot fault the grounds stated by the WA Supreme Court for invalidating the anti-SLAPP statute in this case. The legislature invaded the jurisdiction of the civil jury. I can only hope that the legislature quickly repairs the statute.

  6. PonyAdvocate says

    I did just a quick scan of section I.B "Procedural Background" in the decision, so maybe I missed something, but I'm confused: How does a SLAPP statute apply at all? Even though the board's boycott was over a political matter, the co-op members' suit against the co-op board seems to be over corporate governance, not speech. If you throw a rock at me and break my leg, and I sue you, you don't get to try to evade my suit through a SLAPP claim (at least, I hope you don't). Even if I file a frivolous suit against you (when the wind is just right, a faint aroma from the roses in your garden wafts through my attic, in which I never spend any time, anyway), you don't get to evade my suit through a SLAPP claim (at least, I hope you don't, although you certainly might argue for dismissal on other grounds). Why does the co-op board here have a SLAPP claim in the first place?

  7. says

    Based on the briefs, available here, the court agreed that the Co-op instituting the boycott was a political statement on a matter of public interest. It was an issue on appeal, though the court didn't reach it.

  8. says

    Israel is a foreign country – any private entity has the legal right to choose not to do business with a foreign country – this legal right trumps any other laws – these Judges were paid off or threatened by wealthy Israel lobbies and should be fully investigated

  9. says

    @Kevin: both the plantiffs and the defendants were part of the *same* private entity. If you're going to ignore that, you could just as easily say that the plantiffs have the legal right to continue to do business with Israel, and that the defendants are violating those rights.

    Really, though, it comes down to the question of whether the decision was made according to the rules or not. I'd have thought it wasn't, since the boycott has the potential to damage the co-operative financially, and presumably the Board has an obligation to not do that. (Also, the misuse of SLAPP rather suggests that the Board is not keen to have their decision tested in court, which may imply that they know they're on dodgy ground – although it might just have been an attempt to save money, I suppose.)

  10. OFC Member says

    I've been a member of the Olympic Food Co-op (OFC) since before the boycott was approved and have followed the matter closely. I'd like to make several points.

    1) Ken White writes: "The cooperative filed an anti-SLAPP motion, and won." This is incorrect as the OFC has never been a party to the lawsuit brought by Davis et al.

    2) For what it's worth, one of the cooperating attorneys for defendants is Bruce E.H. Johnson, who drafted the anti-SLAPP statute invalidated by the WA Sup Ct.

    3) Far from financially damaging the OFC, the boycott has helped it or been neutral, at worst. The OFC is well-managed and very good at providing quarterly financial reports with a breakdown for each of its two storefronts to its members. I reviewed every report in the first two to three years after adoption of the boycott and, as I recall, gross and net revenues increased at both stores every quarter or very nearly so.

    4) The boycott still enjoys strong community and OFC member support and since the lawsuit was filed OFC members have repeatedly elected a pro-boycott majority of directors in annual elections.

    5) My memory is a bit hazy on the details now five years on but I don't believe the board actually violated the staff consensus policy. I am certain they did not violate the OFC bylaws. In any case, I have served on the boards of a couple of other WA non-profits and state law is very clear that the authority and responsibility for running a non-profit lies with the board of directors. The OFC board was under no obligation to approve the boycott of Israeli boycotts but it did act within its authority and I am confident that the board members named as defendants will prevail.

    6) Although this lawsuit has all the hallmarks of a SLAPP suit, I think the Wa Sup Ct ruled correctly in invalidating RCW 4.24.525 and remanding the case.

  11. Rich Rostrom says

    Refuting all of the lies and distortions in Mr. Merrell's extended threadjacking would take more time than I want to spend. I will just point out his most blatant lie.

    "Rachel Corrie was killed by an Israeli Defense Force soldier who ran over her with a Caterpillar bulldozer after she put herself between the bulldozer and a Palestinean home that was in the process of being destroyed to make way for yet another Israeli settlement in Palestine. "

    The house in question was demolished as part of IDF's effort to locate and destroy tunnels used by Hamas to smuggle arms into the Gaza Strip. This is universally admitted, even by Hamas and its sympathizers.

    No Israeli settlement was ever built there; and in fact all Israeli settlements in the Gaza Strip were evacuated in 2004-2005.

    This is a lawblog. I invoke the legal principle falsus in uno, falsus in omnibus.

  12. says

    @ Rich Rostrom:

    I apologize for my error on that point. I made the mistake of assuming that the purpose of the destruction of Palestinian homes in that instance was the same as the usual IDF reason for destroying Palestinian homes, clearing the way for illegal Israeli settlement construction. I should have researched the particular point first. I assure you that I had no intent to write a falsity.

    If you are aware of any other errors in what I wrote, I will appreciate you letting me know either here or at marbux maple @ gmail. pine com (subtract the trees). As a retired lawyer, I attempt to set a very high standard for accuracy in my writings, hence largely confine my writings to subjects I have studied thoroughly. But that didn't save me from error on a detail here. Again, my apologies.

  13. Rich Rostrom says

    "I assure you that I had no intent to write a falsity. "

    Right. You claim to be familiar with the issue, and yet asserted a blatant falsehood which anyone even peripherally aware of it would know. Then you double down:

    "the usual IDF reason for destroying Palestinian homes, clearing the way for illegal Israeli settlement construction…"

    Very few (if any) Palestinians have been displaced by Israeli settlements. Nearly all the settlements have been built in vacant areas, on waste land that was owned by the Jordanian state before 1967. When Jordan renounced its sovereignty over the West Bank in 1988, Israel claimed civil authority as military occupier to dispose of this land. (It is arguably an abuse of Israel's occupation authority for Israel to transfer this land to its citizens. Also, the land was vacant due to lack of water on site. Israeli settlements overcome this by aggressive use of groundwater resources at the expense of Palestinian villages.)

    IDF demolitions have been for entirely different reasons; usually, because of terrorist acts by a member of the household. This form of "collective responsibility" is decried under international law. However, since the families of "shahids" get large rewards from Palestinian groups, Israel considers them complicit in the crimes.

    Israel's record may be legitimately criticized, but not with the claims you make. But then, you get your "facts" from the likes of Mondoweiss.

  14. says

    @ Rich Rostrom: I disagree with your statement that very few Palestinians have been displaced by Israeli settlements. One can begin with the some 700,000 Palestinians who fled or were driven from their homes during the 1948 takeover of what became Israel and were never allowed to return then add the multitude whose homes have been destroyed since the Six Day War in 1967, to make way for Israeli settlements proper and to create security zones around the settlements, and for other reasons.

    Around 2004, there was a surge in IDF home destruction on the Egyptian border in Gaza as part of a tunnel clearing project, but most homes destroyed in the West Bank and the Negev were removed because of settlements, either to make way for them and to establish security zones around them, or to build transportation corridors to them. In occupied East Jerusalem, the predominant reason for destroying Palestinian homes (or simply expropriating them) in the last few years has been ethnic cleansing.

    One might also point to the ongoing Prawer Plan's forced transfer of some 30-40,000 Bedouin tribesmen from their homes in the Negev into urban areas, with destruction of their former homes as they are forced to leave a fundamental part of that plan well under way.

    The retaliatory destruction of homes because an occupant wound up being labeled a "terrorist" gets a lot of press because of its collective punishment aspect that the Israeli right wing seems to love, but from what I have seen comes nowhere close to the frequency with which Palestinian homes are destroyed for Israeli colonization purposes.

    But in short, one does not arrive at an UNRWA figure of roughly 5 million officially registered Palestinian refugees (2012) by supposing that their familial homes are still standing empty, anxiously awaiting their exercise of their right of return secured by the 4th Geneva Convention.

    By the way, I am not a regular reader of Mondoweiss, so have no general impression of its reliability. I found the article I linked using a web search for pages that link to this page. At the time, it was the only page found that did so. That may have changed by now.

  15. Eggo says

    I need to get out of this crazy state with its crazy hippies and halfwit legislators. At least our SCOWS is half decent.
    Merrell, nobody cares. Ken summarized the entire court case in fewer words than your TL;DR nitpick, and the less you write, the fewer chances to have to tell a lie.

  16. says

    @ Eggo: TL:DR nitpick

    If you had read what I wrote, you would have realized that I was not nit-picking Ken's article; I was attempting to answer questions raised in comments on why the appellate case was an anti-SLAPP qualified speech issue rather than a simple contract issue, an issue not addressed in Ken's excellent article.

  17. says

    @Paul: it's a question that still hasn't been answered, or at least not in a way this layman can understand.

    If the Board ordering co-op members not to deal with Israel is First Amendment free speech, why wouldn't it also be First Amendment free speech if, oh, I don't know, a CEO orders a bikini-only dress code for female employees?

    In both cases I would assume it was the (mis)use of authority rather than the speech itself that was being challenged. To clarify the distinction I'm drawing, under that theory the First Amendment would apply if the CEO made a public statement that female employees *should* wear bikinis – without actually ordering them to do so – though I still wouldn't recommended it. :-)

  18. says

    @ Harry: The key lies in the phrase in the following definition under the now void Washington anti-SLAPP statute RCW 4.24.525, et seq., "any claim, however characterized," which directs the court to examine the essence of the action rather than focusing on its formal legal theory. So in this case, it did not matter that the claim was formally directed only at an alleged violation of the Board's policy. The requested relief would have reqired the court to void the Board's boycott decision; hence it was an anti-boycott suit and a violation of the right of public participation protected by the anti-SLAPP statute.

    As a defense to your hypothetical "bikini" statement, it would probably be regarded as protected speech under the Washington anti-SLAPP law only if you could persuade a judge that it fits under subsection (d) as a statement made "in a place open to the public or a public forum in connection with an issue of public concern." But good luck with that in a hostile workplace environment lawsuit.

    RCW 4.24.525:

    (2) This section applies to any claim, however characterized, that is based on an action involving public participation and petition. As used in this section, an "action involving public participation and petition" includes:

    (a) Any oral statement made, or written statement or other document submitted, in a legislative, executive, or judicial proceeding or other governmental proceeding authorized by law;

    (b) Any oral statement made, or written statement or other document submitted, in connection with an issue under consideration or review by a legislative, executive, or judicial proceeding or other governmental proceeding authorized by law;

    (c) Any oral statement made, or written statement or other document submitted, that is reasonably likely to encourage or to enlist public participation in an effort to effect consideration or review of an issue in a legislative, executive, or judicial proceeding or other governmental proceeding authorized by law;

    (d) Any oral statement made, or written statement or other document submitted, in a place open to the public or a public forum in connection with an issue of public concern; or

    (e) Any 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 constitutional right of petition.

    You can pick up on defense counsel's argument of this point before the Washington Supreme Court at about 28:00 in this video:

    All major legal filings in the case can be found on the Center for Constitutional Rights web site at

  19. says

    @Harry Johnston: The co-op board of directors did not order "co-op members" to do or refrain from doing anything and the plaintiffs have not asserted otherwise in the complaint. The 1st Amendment issue was raised by defendants in their special motion to strike; it is not an element of the plaintiffs' case. Incidentally, as I wrote before, the co-op itself is not a party to the lawsuit.

    The defendants' argument is that the adoption by the co-op of a policy to neither buy nor sell Israeli goods is constitutionally-protected expressive conduct and that plaintiffs' lawsuit is an attempt to chill and punish the exercise of free speech. The Wa Sup Ct did not rule on the merits of the case, their ruling only addresses the unconstitutionality of the anti-SLAPP statute.

  20. says

    @ OFC Member:

    OFC is a party to the case, as a plaintiff in what is styled as a derivative action. Complaint para. 1. ("Plaintiff OFC is a non-profit cooperative association … ").

    Moreover, the first three causes of action all seek relief against OFC's Board of Directors as a body as opposed to the Board members' individual capacities: Count 1, invalidation of Board decision to honor the boycott; Count 2, same, as declaratory relief; Count 3: "permanently enjoin the OFC Board from enforcing or otherwise abiding by the Israel Boycott and Divestment policies and order the Board to follow OFC's governing rules, principles, and procedures in the future."

  21. says

    @Paul E. "Marbux" Merrell I was wondering when someone would challenge me on whether the OFC is a party. I confess I am not thoroughly conversant with Washington law on that point and may be mistaken. I know what the complaint says but my reading of the Washington rules of civil procedure, especially rules 17 and 23.1, is that the OFC is not made a party to the derivative action merely because one has been "filed on its behalf". There is a long and interesting section in the special motion to strike that addresses whether the plaintiffs have standing to bring a derivative action but I don't recall it addressing whether or not the OFC is technically a party. So, I'm sticking to my position for the time being but I'm open to reconsidering.

    Re: "Moreover, the first three causes of action all seek relief against OFC's Board of Directors …" That section is really quite a hash, I think. In any case, the plaintiffs plead their causes of action on behalf of the OFC not against it and neither the OFC board nor the OFC itself are named as defendants in section I of the complaint.

  22. says

    @OFC Member: first question; why the scare quotes around "co-op members"? Second question: if the policy does not order co-op members, or employees, or whatever, to refrain from buying Israeli goods, what *does* it do?

    @Paul: I don't see that the Board policy was made "in a place open to the public or a public forum". Perhaps they could claim under (e), but my hypothetical CEO could claim (e) too.

    Also, surely the policy would only have to be revoked until such time as the Board reconsidered it, following the (alleged) rules this time? Couldn't the court even allow the policy to stay in place in the interim? (I'm assuming, for the sake of argument, that the basis of the complaint was in fact sound, which seems unlikely at this stage.)

    It just seems odd to be able to break a contractual agreement with impunity if you can characterize it as a boycott.

  23. says

    To (hopefully) clarify what I'm saying: speaking in ethical rather than legal terms, it is the co-operative as a whole that is boycotting Israel, not the Board as individuals. Hypothetically, if the Board's decision wasn't supported by the members of the co-operative (it is owned collectively, right?) and if the Board broke the rules of the co-operative in making the decision, then the members should have legal recourse.

    Even if the majority of members approve of the boycott, IMO the Board should still have followed the rules as a matter of principle. If necessary, they could change the rules. The principle of rule of law is not something we should give away easily, even if we approve of the outcome.

    (Again: I have no particular reason to think the Board did in fact break the rules, but I do think the court should have addressed that question.)

  24. says

    @ OFC Member and Harry:

    I'll need to make this my last post for a few weeks. I'm scheduled for some minor surgery tomorrow that will result in my left arm being in a cast for 3 weeks and doctor's orders not to type with my left hand. So please take under consideration the fact that I am flying low in this post and did little research to back up what I say this time.

    I have no direct experience in defending or prosecuting derivative actions. But OFC Member, my understanding of the rules of procedure (all state rules of procedure these days are modeled on the Federal Rules of Civil Procedure with varying degrees of tweaking by individual states) is that all it takes to make a person or entity a party to a case is for them to be named as such by a formal pleading (in case the complaint) and effecting proper service of process on the party within the time limits allotted. That is an issue separate from whether they are lawfully named as a party. OFC might, for example, have retained counsel and filed a motion to end their party status. I'm assuming that process was properly served. Therefore, because OFC was named as a party, it is a party.

    The standing argument is interesting because it was a separate basis for dismissal raised by the defendants in their special motion to dismiss pursuant to Rule 12(b)(6). But in checking the decisions at all three court levels, it looks like it was never addressed by the courts. My whiff is that the trial court bypassed the issue because of the statutory language requiring that the anti-SLAPP issue be decided on an expedited basis. So defendants might be able to resurrect the standing issue on remand.

    On the three causes of action that sought relief against OFC, the Court of Appeals ruled in its first paragraph that the relief sought could be and was determinative under the anti-SLAPP statute. That's common in interpreting anti-SLAPP statutes in other states.

    Harry, the OFC is not a cooperative; it's a non-profit corporation that had included "cooperative" in its name before Washington adopted its statute governing cooperatives. One provision of that law authorized non-profits that had "cooperative" in their names prior to enactment of the cooperatives statute to continue using their names notwithstanding that they were not in fact cooperatives. You'll find that issue briefed in the defendants' reply brief on the special motion to strike. So "membership" does not constitute ownership on this issue. That is probably the major reason the lawsuit was begun as a derivative action. But the fact that the plaintiffs have no ownership interest goes a long way to cut the legs out from under their standing to maintain the action.

    Harry, the contested action was a Board decision to cease selling products that originated in Israel, according to the court decisions. I am wondering whether those were mischaracterizations because the boycott part of the BDS campaign is directed at Israeli goods originating in the Occupied Palestinian Territory rather than goods originating from Israel proper. (It's also aimed at companies and institutions outside Palestine that participate in or profit from the Israeli occupation activities.)

    Harry: it's not a contractual dispute. It's an issue of whether the Board had authority to order the end to sale of Israeli goods. At its essence, in my opinion the case turns on the merits on the issue of whether the Board retains the authority to order that itself despite guidance issued to staff that allows staff to decide to honor a given boycott, subject to Board oversight. That is an issue that the plaintiffs lost at both the trial court and court of appeals levels. Reading the briefs, I thought that the plaintiffs' arguments on this issue bordered on the frivolous. But the lower court decisions were rendered moot by the Supreme Court's ruling that the statute itself violated the state Constitution.

    At this point, I see no way that this case will go to trial on the merits. It turns on the issue of board powers as defined by Washington law and the OFC corporate bylaws. Even the plaintiffs' argument that the board's discretion is limited by a board policy for *staff* turns on facts that are not genuinely in dispute, the meaning of a particular written document. All of those are issues that can be resolved as a matter of law on a motion for summary judgment. So unless the plaintiffs can come up with better arguments than they've shown thus far, I see an upstream swim for them on remand, given that the trial court and court of appeals already ruled against them on the same issues in the anti-SLAPP context. The issue is whether the board policy for staff limits what the same board that issued the policy is somehow thereby prevented from deciding a boycott issue itself. That just does not compute for me.

    Also for Harry, I checked and the defendants did claim under subsection (e). I agree that your "bikini guy" could too. But at least in a hostile workplace environment suit, I just don't see much likelihood that a court would find his speech protected by the freedom of speech because that recognized cause of action will usually depend on verbal statements that created the hostile environment. His speech ranks way down the scale of protected speech whereas boycotts on issues of public policy rank near the top. I just don't foresee judges tearing down sexual harrassment law to protect the harrasser's right to harrass, particularly in a state like Washington where judges are elected rather than appointed for life. That would be a quick way to lose a re-election campaign!

  25. says

    @Paul: thanks. The fact that the plaintiffs have no ownership interest was the missing piece of the puzzle for me. Given that, everything else more or less makes sense.

  26. says

    @ Paul: I hope your surgery went well and you heal quickly.

    I guess we'll just have agree to disagree about whether the OFC is a party or was named as a party

    You are mistaken that "the BDS campaign is directed at Israeli goods originating in the Occupied Palestinian Territory rather than goods originating from Israel". The 2005 BDS call, which initiated the campaign says: "We, representatives of Palestinian civil society, call upon international civil society organizations and people of conscience all over the world to impose broad boycotts and implement divestment initiatives against Israel …" (see The OFC's web site says: "The Olympia Food Co-op joined the boycott of Israeli products in support of Palestinian human rights in 2010" and elsewhere cites the 2005 call (see

    I agree with you that this case will not go to trial.

    @Harry: Those aren't "scare quotes around 'co-op members' ". I was quoting you directly. I would encourage you to review the pleadings at the CCR link Paul, especially the complaint and special motion to strike. I think these documents will answer most of your remaining questions.

  27. says

    how would this have played out in fed court? Despite the constitutionat right to a jury after 20 bucks……it seems these parties still had diversity. Just wondering how a fed court then….who doesn't really care about the fed consti right to a jury would have applied the 'state's laws'…does this create a forum shoppoing issue?

  28. Bill Poser says

    Mr. Merrell claims that 700,000 Arabs were expelled by Israel at the time of its foundation. This is false. It is very well documented, with evidence ranging from Israeli archival material to the statements of the Arab leaders of the time themselves, that the Arabs who left did so in order to clear the way for the invasion of Arab forces or in order to escape the fighting once it started. In some cases, Arab villages were evacuated by Israeli forces for the safety of their civilian residents, but the Israeli forces did not expel them from Israel. Indeed, if Israel had had a policy of expelling Arabs it is difficult to see why, on achieving an unexpected victory, Israel made no effort to remove the large number of Arabs who remained, whose descendants today constitute 20% of Israel's population.

    With regard to settlements in Judea and Samaria, it is important to be aware that many of them are in areas that only recently were ethnically cleansed by the Arabs. Jewish "settlement" in the Old City of Jerusalem is regarded by Arab propagandists as Jewish settlement on Arab land, but the Old City, the core of Jewish civilization, has had a Jewish majority since at least 1860 and had a Jewish majority in 1948. It only became "Arab" in 1948 when the Arab Legion killed or expelled every Jew. The return of Jews to the Old City since its liberation in 1967 represents the return of the indigenous population, not colonialist settlement. The same is true of many other Israeli settlements, especially those in the Etzion Bloc. It is surprising that a lawyer like Mr. Maxwell would fail to recognize that under the relevant law (the Mandate since the Arabs rejected the establishment of a State of Palestine in 1948) Jews are entitled to live anywhere in Judea and Samaria, and that as a putative progressive he would support the "Palestinian" policy of apartheid, according to which no Jew will be permitted to live in "Palestine".