Leishman v. Ogden Murphy Wallace, PLLC

479 P.3d 688, 196 Wash. 2d 898

Opinion

FILE THIS OPINION WAS FILED FOR RECORD AT 8 A.M. ON IN CLERK’S OFFICE JANUARY 28, 2021 SUPREME COURT, STATE OF WASHINGTON JANUARY 28, 2021 SUSAN L. CARLSON SUPREME COURT CLERK

IN THE SUPREME COURT OF THE STATE OF WASHINGTON

ROGER LEISHMAN, ) No. 97734-8 ) Respondent, ) ) v. ) EN BANC ) OGDEN MURPHY WALLACE, ) PLLC and PATRICK PEARCE, ) ) Filed :__________________ January 28, 2021 Petitioners. ) ______________________________ )

MONTOYA-LEWIS, J.—The Washington State Legislature created civil

immunity for persons who communicate information to the government.

Washington passed its anti-SLAPP statute, 1 RCW 4.24.510, in 1989 in order to

protect individuals from retaliatory lawsuits that could deter them from making vital

reports to the appropriate governmental body. RCW 4.24.500. RCW 4.24.510

provides immunity to a “person” who communicates a complaint or information to

1 The term “SLAPP” stands for strategic lawsuit against public participation and was coined by George W. Pring and Penelope Canan in the 1980s and 1990s. See GEORGE W. PRING & PENELOPE CANAN, SLAPPS: GETTING SUED FOR SPEAKING OUT (1996); George W. Pring, SLAPPs: Strategic Lawsuits Against Public Participation, 7 PACE ENVTL. L. REV. 3 (1989). Leishman v. Ogden Murphy Wallace, PLLC No. 97734-8

a federal, state, or local agency regarding a matter of reasonable concern to that

agency. This immunity applies to civil claims based on that communication. RCW

4.24.510. 2

Only a “person” can take advantage of the immunity RCW 4.24.510 affords.

In this case we must decide whether a government contractor hired to perform an

independent investigation is a “person” under the statute. We hold that they are.

Although immunities are generally construed narrowly, RCW 4.24.510’s immunity

unambiguously applies to organizations and individuals, and there is no language in

the statute limiting its application when an organization or individual communicates

under a contract with a government entity. When the plain meaning of the statute

grants immunity to individuals and organizations regardless of the content or motive

behind the communication, we cannot construe it to exclude an individual or an

organization hired to speak to a government agency. Accordingly, we reverse.

I. FACTS AND PROCEDURAL HISTORY

Roger Leishman, an openly gay man, began employment with the Washington

Attorney General’s Office (AGO) in Bellingham as chief legal advisor to Western

2 RCW 4.24.510 states: A person who communicates a complaint or information to any branch or agency of federal, state, or local government, or to any self-regulatory organization that regulates persons involved in the securities or futures business and that has been delegated authority by a federal, state, or local government agency and is subject to oversight by the delegating agency, is immune from civil liability for claims based upon the communication to the agency or organization regarding any matter reasonably of concern to that agency or organization. 2 Leishman v. Ogden Murphy Wallace, PLLC No. 97734-8

Washington University in June 2015.3 Shortly after commencing work at the AGO,

Leishman began exhibiting serious trichotillomania, anxiety, and other symptoms,

which he disclosed to his employer. In November 2015, Leishman’s physician

diagnosed him with posttraumatic stress disorder and codependency; Leishman

informed the AGO about his new diagnoses as well. In a meeting in January 2016,

Leishman learned he did not receive a $3,000 raise given to other assistant attorney

generals due to complaints his supervisor made about his conduct at work. Leishman

contends that his supervisor based her complaints on homophobic beliefs. In

February 2016, Leishman submitted a formal request for reasonable accommodation

of his disability, which the AGO subsequently denied.

In March 2016, Leishman drafted a discrimination complaint alleging that his

supervisor made homophobic statements toward him. In accordance with AGO

policy, Leishman and his supervisor met to discuss his complaint. During this

meeting, his supervisor denied wrongdoing in connection with her statements,

accused Leishman of faking his disability, and refused to support his then-pending

accommodation request. Leishman admits that during this meeting he became angry,

restless, and agitated, and he raised his voice. Leishman formally submitted his

3 The facts come from Leishman’s complaint and are substantially the same as the facts recited in the Court of Appeals opinion. Becker v. Cmty. Health Sys., Inc., 184 Wn.2d 252, 257- 58, 359 P.3d 746 (2015) (when reviewing a motion to dismiss, we take facts alleged in the complaint as true). 3 Leishman v. Ogden Murphy Wallace, PLLC No. 97734-8

discrimination complaint to the AGO. Leishman’s supervisor complained to the

AGO about Leishman’s conduct during their meeting, and the AGO placed

Leishman on home assignment, where he remained until his termination.

The AGO retained Ogden Murphy Wallace PLLC (OMW), to conduct an

independent investigation into Leishman’s discrimination complaint and his

supervisor’s allegation that Leishman was inappropriate during their meeting.

Patrick Pearce, an OMW employee, headed the investigation. OMW did not inform

Leishman that the scope of the investigation covered both his discrimination

complaint and Leishman’s workplace conduct; Leishman believed the investigation

covered only his discrimination complaint. OMW drafted a report and concluded

that “Leishman has not established support for his complaint of discrimination

against him based on sexual orientation” and that “Leishman’s conduct during the

March 1 meeting violated expected standards of conduct for his position as reflected

in his job description.” Clerk’s Papers at 214-15. The AGO terminated Leishman’s

employment effective June 1, 2016.

After his termination, Leishman brought a lawsuit against the AGO. The

parties reached a settlement agreement, and Leishman released his claims against

the State and any officers, agents, employees, agencies, or departments of the State

of Washington. Leishman subsequently sued OMW and Pearce for negligence,

violation of the Consumer Protection Act, ch. 19.86 RCW; negligent

4 Leishman v. Ogden Murphy Wallace, PLLC No. 97734-8

misrepresentation; fraud; and discrimination. In Leishman’s complaint, he alleged

that neither Pearce nor OMW was acting as the AGO’s agent, and, therefore, his

claims against OMW and Pearce are not barred by the settlement.

OMW filed a motion for judgment on the pleadings, under CR 12(c), arguing

that OMW and Pearce had immunity under RCW 4.24.510. The trial court granted

OMW’s motion, and Leishman appealed. The Court of Appeals reversed, holding

that “government contractors, when communicating to a government agency under

the scope of their contract, are not ‘persons’ entitled to protection under RCW

4.24.510.” Leishman v. Ogden Murphy Wallace PLLC, 10 Wn. App. 2d 826, 836,

451 P.3d 1101 (2019). OMW sought this court’s review. We granted review and

now reverse.

II. ANALYSIS

Growing litigation beginning in the 1970s targeted “non-governmental

individuals and groups for having communicated their views to a government body

or official on an issue of some public interest.” George W. Pring, SLAPPs: Strategic

Lawsuits Against Public Participation, 7 PACE ENVTL. L. REV. 3, 4 (1989). These

lawsuits, known as SLAPPs or SLAPP suits, “send a clear message: that there is a

‘price’ for speaking out politically.” Id. at 6. Many states responded to the increase

in these suits by creating statutory remedies aimed at defeating SLAPPs quickly.

Michael Eric Johnston, A Better SLAPP Trap: Washington State’s Enhanced

5 Leishman v. Ogden Murphy Wallace, PLLC No. 97734-8

Statutory Protection for Targets of “Strategic Lawsuits Against Public

Participation,” 38 GONZ. L. REV. 263, 275 (2002). Known as anti-SLAPP statutes,

the protections that states provide vary widely and depend on the specific statutory

language that the legislature included. Id. at 276-80.

In 1989, Washington passed RCW 4.24.510—Washington’s anti-SLAPP

statute—and provided immunity to a “person” who communicates a complaint or

information to a federal, state, or local agency for claims based on the

communication regarding any matter reasonably of concern to that agency. To

determine whether OMW and Pearce are immune from suit, we must address the

scope of Washington’s anti-SLAPP law specifically.

The question before this court is whether government contractors, who report

information to a government agency under the scope of their contract, are “persons”

under RCW 4.24.510. An individual is undisputedly a “person” under the statute.

LAWS OF 2002, ch. 232, §§ 1, 2. We have also applied this immunity to organizations.

See Right-Price Recreation, LLC v. Connells Prairie Cmty. Council, 146 Wn.2d 370,

384, 46 P.3d 789 (2002) (holding that a community council organization is immune

under the statute).4 However, we have also held that government agencies are not

4 See also Tham Thi Dang v. Ehredt, 95 Wn. App. 670, 686, 977 P.2d 29 (1999) (applying RCW 4.24.510 immunity to a bank); Harris v. City of Seattle, 302 F. Supp. 2d 1200, 1201 (W.D. Wash. 2004) (applying RCW 4.24.510 immunity to the firm hired by the city of Seattle to conduct an independent investigation of a hostile workplace allegation). 6 Leishman v. Ogden Murphy Wallace, PLLC No. 97734-8

“persons” under the statute. Segaline v. Dep’t of Labor & Indus., 169 Wn.2d 467,

470, 238 P.3d 1107 (2010) (plurality opinion). The issue here is whether an

organization and an individual—who would ordinarily have immunity under the

statute—lose their immunity when they speak to the agency as a paid government

contractor. We hold that OMW and Pearce are “persons” under RCW 4.24.510

because the plain language of the statute unambiguously encompasses individuals

and organizations, regardless of whether they report information to a government

agency under the scope of their contract.

We review a trial court’s ruling on a motion to dismiss de novo. Becker v.

Cmty. Health Sys., Inc., 184 Wn.2d 252, 257, 359 P.2d 746 (2015). Factual

allegations in the complaint are accepted as true, and if it appears beyond doubt that

Leishman can prove no set of facts consistent with the complaint that would entitle

him to relief, the motion to dismiss must be granted. Id. at 257-58. If OMW and

Pearce are “persons” under RCW 4.24.510, then they are immune from Leishman’s

suit based on their communication to the AGO, and the case must be dismissed.

We start with the language of the statute itself to determine the meaning of

“person.” Statutory interpretation is a question of law we also review de novo.

Jametsky v. Olsen, 179 Wn.2d 756, 761, 317 P.3d 1003 (2014) (citing Dep’t of

Ecology v. Campbell & Gwinn, LLC, 146 Wn.2d 1, 9, 43 P.3d 4 (2002)). The goal

of statutory interpretation “is to ascertain and carry out the legislature’s intent.” Id.

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at 762. Where possible, we “‘must give effect to [the] plain meaning [of a statute] as

an expression of legislative intent.’” Id. (alterations in original) (quoting Campbell

& Gwinn, 146 Wn.2d at 9-10). “[P]lain meaning is derived from the context of the

entire act as well as any ‘related statutes which disclose legislative intent about the

provision in question.’” Id. (quoting Campbell & Gwinn, 146 Wn.2d at 11). If the

plain language of the statute is unambiguous, our inquiry is over. Id. However, if the

statute is subject to more than one reasonable interpretation, we “‘may resort to

statutory construction, legislative history, and relevant case law for assistance in

discerning legislative intent.’” Id. (quoting Christensen v. Ellsworth, 162 Wn.2d

365, 373, 173 P.3d 228 (2007)).

The plain language of the statute makes clear that the legislature intended

“person” to include nongovernment organizations. RCW 4.24.510 states that “[a]

person who communicates a complaint or information to any branch or agency of

federal, state, or local government . . . is immune from civil liability for claims based

upon the communication to the agency or organization regarding any matter

reasonably of concern to that agency or organization.” The plain meaning of the term

“person” and the published intent of the act demonstrate that the statute

unambiguously covers OMW and Pearce.

The term “person” is not defined within RCW 4.24.510. However, “person”

is included in the general definitions under chapter 1.16 RCW. In RCW 1.16.080,

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the legislature used the term “may” to suggest possible constructions of “person”—

including an organization and an individual—rather than providing a definitive

definition. RCW 1.16.080(1) (“The term ‘person’ may be construed to include . . .

any public or private corporation or limited liability company, as well as an

individual.”); Segaline, 169 Wn.2d at 474.

While RCW 1.16.080(1)’s definition of “person” may be ambiguous in

general, the plain language of RCW 4.24.510 unambiguously covers communication

from individuals and organizations. In a 2002 amendment, the legislature published

its intent regarding RCW 4.24.510:

Strategic lawsuits against public participation, or SLAPP suits, involve communications made to influence a government action or outcome which results in a civil complaint or counterclaim filed against individuals or organizations on a substantive issue of some public interest or social significance. SLAPP suits are designed to intimidate the exercise of First Amendment rights and rights under Article I, section 5 of the Washington state Constitution.

LAWS OF 2002, ch. 232, §1 (emphasis added). The published intent of this

amendment makes clear that SLAPP suits threaten the First Amendment and article

I, section 5 rights of individuals and organizations. Thus, the immunity applies to

individuals and organizations. This interpretation comports with our prior case law

where we have held that an organization has immunity under the statute. See Right-

Price Recreation, 146 Wn.2d at 384.

9 Leishman v. Ogden Murphy Wallace, PLLC No. 97734-8

We must then ask if we should exclude an otherwise covered individual or

organization from immunity because they are paid under a contract with the

government. However, we “‘must not add words where the legislature has chosen

not to include them.’” Porter v. Kirkendoll, 194 Wn.2d 194, 212, 449 P.3d 627

(2019) (quoting Rest. Dev., Inc. v. Cananwill, Inc., 150 Wn.2d 674, 682, 80 P.3d

598 (2003)). There is no language in the statute suggesting that a contract is relevant

to whether an individual or organization is a “person.” In fact, the same intent section

of the 2002 amendment states that the change is meant to recognize that advocacy

to government is protected “regardless of content or motive, so long as it is designed

to have some effect on government decision making.” LAWS OF 2002, ch. 232, §1

(emphasis added). Even if a contract motivated the individual or organization to

communicate with the government agency, the legislature directs us either to

disregard it entirely or give it no weight. Under the plain language of the statute,

whether the communication is motivated by a contract is not relevant. The dissent

argues that we should construe RCW 4.24.510 narrowly to apply only when it is

necessary to remove the threat of litigation that would otherwise intimidate a person

from exercising their constitutional rights to free speech and to petition the

government for redress. U.S. CONST. amend. I; WASH. CONST. art. I, § 12. While the

dissent is correct to note that we generally construe statutory immunities narrowly,

Michaels v. CH2M Hill, Inc., 171 Wn.2d 587, 600, 257 P.3d 532 (2011), when the

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plain meaning is unambiguous, statutory construction is inappropriate. Campbell &

Gwinn, 146 Wn.2d at 11-12 (citing Cockle v. Dept. of Labor & Indus., 142 Wn.2d

801, 808, 16 P.3d 583 (2001); Timberline Air Serv., Inc. v. Bell Helicopter-Textron,

Inc., 125 Wn.2d 305, 312, 884 P.2d 920 (1994)). The plain meaning of RCW

4.24.510 unambiguously includes organizations and individuals—regardless of

whether they are paid under a contract with the government—as among the

“persons” who are immune from suit. The legislature specifically insulated

individuals and organizations from civil liability when they communicate

information to the government. It then directed that the communication is protected

regardless of content or motive. The legislature’s intent is clear from the plain

meaning of the statute, so we need not consider outside sources to interpret this

unambiguous term. Jametsky, 179 Wn.2d at 762. Leishman’s complaint must be

dismissed under the immunity afforded to OMW and Pearce by RCW 4.24.510.

OMW and Pearce, an organization and an individual, are “persons” under the statute.

Although legislative history is not necessary to interpret this unambiguous

term, the history of Washington’s anti-SLAPP statute is instructive on this point.

The dissent correctly recognizes the legislature’s concern about lawsuits being used

to intimidate citizens from exercising their constitutional rights to free speech and to

petition the government. But it overlooks how the legislature grappled to strike the

right balance between protecting SLAPP targets from litigation intended to

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intimidate and requiring them to litigate in order to prove that they deserve this

protection. The history of RCW 4.24.510 demonstrates the dilemma of crafting an

under- or overinclusive immunity and the legislature’s ultimate conclusion that the

immunity must be broad in order to be effectual.

Former RCW 4.24.510 (LAWS OF 1989, ch. 234, § 2) limited the immunity to

claims based on good faith communications to the government. As originally passed,

the statute did not provide an efficient remedy to those who were targets of SLAPP

suits because the good faith requirement had to be resolved before the suit could be

dismissed. The good faith requirement increased the need for factual inquiry and led

to costly and protracted litigation, defeating the protection and immunity that the

statute was meant to provide. Tom Wyrwich, A Cure for a “Public Concern”:

Washington’s New Anti-SLAPP Law, 86 WASH. L. REV. 663, 669-70 (2011); see,

e.g., Right-Price Recreation, 146 Wn.2d at 374 (resolving the good faith issue more

than three years after the suit was commenced); Gilman v. MacDonald, 74 Wn. App.

733, 875 P.2d 697 (1994) (same).

In 2002, the legislature eliminated the good faith requirement for the

immunity but added statutory damages of $10,000 for a person prevailing on this

defense, which may be denied if the court finds that the complaint or information

was communicated in bad faith. LAWS OF 2002, ch. 232, §§ 1, 2. These changes

broadened the protections of the immunity in order to make RCW 4.24.510 a more

12 Leishman v. Ogden Murphy Wallace, PLLC No. 97734-8

effective remedy for a SLAPP target. See Johnston, supra, at 285-86. This

amendment struck a delicate balance. The immunity applies to any person who

communicates a complaint or information to the government—not only those good

faith speakers genuinely exercising their right to free speech or to petition the

government but also those who make their communications in bad faith. Those who

make their communications in bad faith may not receive statutory damages, but they

will be immune from the suit based on the communication. Thus, RCW 4.24.510

tolerates some degree of overinclusiveness: in order for the immunity to protect

against the burden of litigation that would deter people from reporting information

to the government, any person who communicates information reasonably of

concern to the government must be immune to suit based on the communication.

We must refrain from adding words where the legislature has chosen not to

include them. Porter, 194 Wn.2d at 211-12 (quoting Rest. Dev., Inc., 150 Wn.2d at

682). The plain language of RCW 4.24.510 includes no limitation regarding the

purpose of the communication, the published intent of the statute states that

communications are protected “regardless of content or motive,” and the legislative

history demonstrates that the legislature deliberately removed the good faith

requirement. The legislature could hardly have made it any clearer that this is an

immunity with broad application. The dissent’s contention that the immunity should

not apply in this case because it does not resemble a “typical” SLAPP suit simply

13 Leishman v. Ogden Murphy Wallace, PLLC No. 97734-8

does not square with the legislature’s actions to broaden the scope of this immunity.

Dissent at 7. If the legislature decides that this immunity should apply more narrowly

to exclude individuals and organizations who communicate to the government for

business purposes, the legislature has the power to amend the statute. It is not for

this court to narrowly construe an unambiguously broad statute in order to make it

comport with our vision of who anti-SLAPP statutes should protect.

The dissent analogizes government contractors to a government agency,

which we held is not immune under RCW 4.24.510 in Segaline, 169 Wn.2d 467. But

none of the rationales offered by the plurality or concurrence in Segaline apply here.

In that case, the lead opinion concluded that a government agency is not a “person”

under the statute because the “purpose of the statute is to protect the exercise of

individuals’ First Amendment rights under the United States Constitution and rights

under article I, section 5 of the Washington State Constitution,” and a “government

agency does not have free speech rights.” Id. at 473. The concurrence agreed that a

government agency is not a “person” under the statute but reasoned that the purpose

of “the immunity, as well as for the attorney fees, costs, and statutory damages, is to

remove the threat and burden of civil litigation that would otherwise deter the

speaker from communicating,” and the “intimidation factor does not . . . affect

government agencies in the way that it does private individuals and organizations.”

Id. at 482. The concurrence also compared RCW 4.24.510 to a Massachusetts anti-

14 Leishman v. Ogden Murphy Wallace, PLLC No. 97734-8

SLAPP law, which the Massachusetts Supreme Court concluded was “limited to

‘those defendants who petition the government on their own behalf.’” Id. at 482-83

(quoting Kobrin v. Gastfriend, 443 Mass. 327, 332, 821 N.E.2d 60 (2005)).

However, a nongovernmental organization or corporation undisputedly has

free speech rights, as does an independent contractor working for the government.

Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 339-41, 130 S. Ct. 876, 175

L. Ed. 2d 753 (2010); see also Bd. of County Comm’rs v. Umbehr, 518 U.S. 668,

678-81, 116 S. Ct. 2342, 135 L. Ed. 2d 843 (1996). Further, the “intimidation factor”

discussed by the concurrence could affect a nongovernmental organization paid to

complete an independent investigation: the threat of civil liability for its reports

could deter an outside organization from taking part in an investigation or from fully

reporting information it uncovers that is of reasonable concern to the agency. Finally,

Washington’s anti-SLAPP statute is not limited to protecting claims based on the

right to petition like the Massachusetts law at issue in Kobrin; RCW 4.24.510

protects both the right to petition and freedom of speech. Compare LAWS OF 2002,

ch. 232, § 1 (referencing “First Amendment rights and rights under Article I, section

5 of the Washington state Constitution”), with MASS. GEN. LAWS ch. 231, § 59H

(referencing the “right to petition under the constitution of the United States or of

the commonwealth”). The features of government agencies that the Segaline

plurality and concurrence found dispositive do not extend to nongovernmental

15 Leishman v. Ogden Murphy Wallace, PLLC No. 97734-8

organizations or individuals who communicate with the government pursuant to

contracts. As we have stated, RCW 4.24.510 does not permit us to inquire whether

a person’s motive in communicating to the government is to conduct business or to

exercise their constitutional rights. Dissent at 7. The fact that individuals and

organizations have these constitutional rights distinguishes them from a government

agency for purposes of this broad immunity. 5 Finally, Leishman argues that his

claims are not “based upon” OMW or Pearce’s communication to the government

but, instead, address the manner in which they handled the investigation. However,

“based upon” refers to the starting point or foundation of the claim and includes

conduct of the investigation leading to the communication. Tham Thi Dang v.

Ehredt, 95 Wn. App. 670, 682-84, 977 P.2d 29 (1999). Leishman’s claims regarding

OMW’s conduct during the investigation are the starting point or foundation of the

communication to the government agency, and his damages all stem from that final

5 The dissent argues that OMW was not speaking for itself; that by virtue of its contract with the AGO, OMW was not speaking to the government through a true independent investigation but, instead, was speaking for the government. Dissent at 6. However, Leishman concedes that OMW and Pearce are not agents of the government, and Leishman has released all claims against the State’s agents. Unless Leishman alleges that OMW or Pearce’s conduct changes their legal status, OMW and Pearce—as an organization and an individual—are “persons” under the statute. Without alleging a change in status, all we are asked to do is look at the motive behind the communication, which the statute does not permit. Whether an agency relationship would eliminate immunity is a question for another day. 16 Leishman v. Ogden Murphy Wallace, PLLC No. 97734-8

communication. Thus, his complaint is “based upon” OMW and Pearce’s report, or

communication, to the agency

We hold that a government contractor is covered by the immunity provided in

RCW 4.24.510 because the plain language of the term “person” unambiguously

includes individuals and organizations, regardless of their contracts with

government. We reverse the Court of Appeals and reinstate the trial court’s grant of

judgment on the pleadings.

OMW and Pearce request reasonable attorney fees and costs, which they are

entitled to. RCW 4.24.510 (“A person prevailing upon the defense provided for in

this section is entitled to recover expenses and reasonable attorneys’ fees incurred in

establishing the defense and in addition shall receive statutory damages of ten

thousand dollars.”); RAP 18.1(a).6

III. CONCLUSION

We hold that a government contractor hired to speak to a government agency

is a “person” under the statute. RCW 4.24.510’s immunity unambiguously applies

to organizations and individuals, and there is no language in the statute limiting its

application when an organization or individual communicates under a contract with

a government entity. We reverse the Court of Appeals and find that OMW and

6 OMW and Pearce do not request an award of statutory damages. Thus, we do not address that matter. 17 Leishman v. Ogden Murphy Wallace, PLLC No. 97734-8

Pearce are entitled to a reinstatement of the trial court’s grant of reasonable attorney

fees and costs, as well as attorney fees and costs for their appeal. This case is

remanded to the trial court for further proceedings in accordance with this opinion.

WE CONCUR:

18 Leishman v. Ogden Murphy Wallace, PLLC, No. 97734-8

No. 97734-8

GORDON McCLOUD, J. (concurring)—Roger Leishman filed a complaint

alleging that neither defendant was acting as an agent of the Attorney General’s

Office when they committed their allegedly tortious acts.

That allegation was soundly based on the facts: the defendants were the law

firm Ogden Murphy Wallace PLLC and its lead lawyer on this case, Patrick

Pearce; the law firm and the lawyer were hired as outside counsel to conduct an

independent internal investigation; and they performed that job as attorneys should

by doing their own background investigation and interviews and coming to their

own independent conclusions.

When outside counsel perform such an internal investigation for the client,

they do not become the client. They remain outside counsel. Their conclusions

and advice rendered as a result of a thorough, ethical, internal investigation is a

report that speaks to the client, not for the client.

1 Leishman v. Ogden Murphy Wallace, PLLC, No. 97734-8 (Gordon McCloud, J., concurring)

For that reason, I agree with the majority that each of the government

contractors in this case was a “person” under the anti-SLAPP 1 statute, RCW

4.24.510. But I do not think that all government contractors are. Specifically, I do

not agree that all “organization[s] or individual[s] [who] communicate[] under a

contract with a government entity,” majority at 2, fit within the definition of a

person. It is only the ones who are not acting as agents of the government.

According to the facts alleged in the complaint, these defendant lawyers

were not acting as agents of the government. Instead, they were acting as outside

counsel, conducting their own independent outside investigation and providing

their own professional legal conclusions. Lawyers who are hired to do such legal

work and provide such advice to the client do not become agents of that client for

all purposes. Specifically, in this case, they did not become agents of the

government for purposes of the SLAPP statute.

I therefore respectfully concur.

________________________________

1 SLAPP stands for strategic lawsuit against public participation.

2 Leishman v. Ogden Murphy Wallace PLLC

MADSEN, J. (dissenting)—The majority is correct that the resolution of this case

turns on the meaning of the term “person” in RCW 4.24.510. Majority at 2, 7. I disagree

with the majority’s decision to give a broad meaning to the term “person” and extend

protection to a government contractor that is neither exercising its First Amendment

rights nor petitioning the government for redress of grievances.

Precedent has established that immunities are to be narrowly construed. This is

particularly significant because giving a broad meaning to the anti-SLAPP 1 statute at

issue has the potential to deprive citizens of their constitutional right to seek redress in

court for injuries.

In my view, the legislature plainly did not intend for government contractors

fulfilling their contractual obligations to be “persons” entitled to immunity for the

purposes of Washington anti-SLAPP statutes. I respectfully dissent.

1 SLAPP refers to strategic lawsuits against public participation. No. 97734-8 Madsen, J., dissenting

Discussion

This case arises from a lawsuit brought by Roger Leishman against Ogden

Murphy Wallace (OMW). Leishman had worked for the Attorney General’s Office

(AGO) as the chief legal advisor for Western Washington University. He was fired from

this position after OMW investigated a discrimination claim Leishman filed against his

supervisor for allegedly homophobic comments, as well as Leishman’s workplace

behavior. Leishman later sued OMW based on its investigation, claiming, among other

things, negligence, fraud, and discrimination. OMW successfully moved to dismiss the

suit, arguing it was immune under Washington’s anti-SLAPP statutes, chapter 4.24

RCW.

In bringing a civil action against OMW, Leishman was exercising his

constitutional and common law rights. U.S. CONST. amend. I (protecting the right to

petition the government by filing suit in a court of law). “The people have a right of

access to courts; indeed, it is ‘the bedrock foundation upon which rest all the people’s

rights and obligations.’” Putman v. Wenatchee Valley Med. Ctr., PS, 166 Wn.2d 974,

979, 216 P.3d 374 (2009) (quoting John Doe v. Puget Sound Blood Ctr., 117 Wn.2d 772,

780, 819 P.2d 370 (1991)); Borough of Duryea v. Guarnieri, 564 U.S. 379, 387, 131 S.

Ct. 2488, 180 L. Ed. 2d 408 (2011) (“‘[T]he right of access to courts for redress of

wrongs is an aspect of the First Amendment right to petition the government.’” (alteration

in original) (quoting Sure-Tan, Inc. v. Nat’l Labor Relations Bd., 467 U.S. 883, 896-97,

104 S. Ct. 2803, 81 L. Ed. 2d 732 (1984))).

2 No. 97734-8 Madsen, J., dissenting

Leishman’s negligence, fraud, and misrepresentation claims are rooted in common

law. E.g., Mathis v. Ammons, 84 Wn. App. 411, 415-16, 928 P.2d 431 (1996) (listing the

common law elements of negligence); Sigman v. Stevens-Norton, Inc., 70 Wn.2d 915,

920, 425 P.2d 891 (1967) (quoting Webster v. L. Romano Eng’r Corp., 178 Wash. 118,

120, 34 P.2d 428 (1934) (setting out the elements of common law fraud)); Guarino v.

Interactive Objects, Inc., 122 Wn. App. 95, 129-30, 86 P.3d 1175 (2004) (noting the

elements of negligent misrepresentation). Our state constitution fiercely protects the

rights of Washington citizens to bring claims such as these in state court. WASH. CONST.

art. I, § 4; Schroeder v. Weighall, 179 Wn.2d 566, 573, 316 P.3d 482 (2014) (“[A]t least

where a cause of action derives from the common law, the ability to pursue it is a

privilege of state citizenship” under article I, § 12.).

OMW contends that it constitutes a “person” under RCW 4.24.510 and is therefore

entitled to immunity from suit. We review questions of statutory interpretation de novo.

Dep’t of Ecology v. Campbell & Gwinn, LLC, 146 Wn.2d 1, 9, 43 P.3d 4 (2002). Our

fundamental objective is to ascertain and carry out the legislature’s intent, and if a

statute’s meaning is plain on its face, then we must give effect to that plain meaning. Id.

at 9-10. Plain meaning is derived “from all that the Legislature has said in the statute and

related statutes which disclose legislative intent about the provision in question.” Id. at

11 (emphasis added). Meaning is gleaned not just from the “words alone but from ‘all

the terms and provisions of the act in relation to the subject of the legislation, the nature

of the act, [and] the general object to be accomplished.’” Burns v. City of Seattle, 161

3 No. 97734-8 Madsen, J., dissenting

Wn.2d 129, 146, 164 P.3d 475 (2007) (internal quotation marks omitted) (quoting State v.

Krall, 125 Wn.2d 146, 148, 881 P.2d 1040 (1994)).

Statutory grants of immunity in derogation of the common law are strictly

construed. Michaels v. CH2M Hill, Inc., 171 Wn.2d 587, 600, 257 P.3d 532 (2011)

(citing Plano v. City of Renton, 103 Wn. App. 910, 911-12, 14 P.3d 871 (2000)). RCW

4.24.510 provides immunity to a “person” who communicates a complaint or information

to a branch or agency of the federal, state, or local government from civil liability.

Lawmakers enacted chapter 4.24 RCW to address 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. LAWS OF 2002, ch. 232, § 1; RCW

4.24.500, .510.

As originally enacted, the anti-SLAPP statutes did not mention constitutional

rights such as petitioning state and local governments for redress. WASH. CONST. art. I, §

4 (“The right of petition and of the people peaceably to assemble for the common good

shall never be abridged.”); U.S. CONST. amend. I (“Congress shall make no law . . .

abridging the freedom of speech, or of the press; or the right of the people peaceably to

assemble, and to petition the government for a redress of grievances.”); see also WASH.

CONST. art. I, § 12 (protecting the privilege of Washington citizens to bring claims in

state court).

In 2002, lawmakers amended RCW 4.24.510, stating

Although Washington state adopted the first modern anti-SLAPP law in 1989, that law has, in practice, failed to set forth clear rules for early 4 No. 97734-8 Madsen, J., dissenting

dismissal review. Since that time, the United States supreme court has made it clear that, as long as the petitioning is aimed at procuring favorable government action, result, product, or outcome, it is protected and the case should be dismissed. This bill amends Washington law to bring it in line with these court decisions which recognizes that the United States Constitution protects advocacy to government, regardless of content or motive, so long as it is designed to have some effect on government decision making.

LAWS OF 2002, ch. 232, § 1. The legislature also added the award of statutory damages,

attorney fees and costs for defending against SLAPP suits. The reason for immunity as

well as fees, costs, and statutory damages is to remove the threat and burden of civil

litigation that would otherwise intimidate a speaker from communicating information.

Segaline v. Dep’t of Labor & Indus., 169 Wn.2d 467, 482, 238 P.3d 1107 (2010) (citing

RCW 4.24.500, .510; LAWS OF 2002, ch. 232, § 1).

RCW 4.24.510 does not contemplate the type of conduct OMW engaged in here.

When the legislature amended the anti-SLAPP statutes in 2002, lawmakers expressly

noted the type of petitioning they intended to protect: procuring favorable government

action, result, product, or outcome. LAWS OF 2002, ch. 232, § 1. While this amendment

appears to preclude consideration of the content or motive of “advocacy to government,”

petitioning must be “designed to have some effect on government decision making.” Id.

The information OMW transmitted to the AGO may have had some effect on decision

making, but OMW’s communication was not “designed” to have an effect on

government. OMW had no interest in the outcome of its communication, whether it

vindicated or indicted Mr. Leishman. It did not engage in “advocacy,” rather it was

fulfilling a contractual obligation to investigate and report, regardless of the outcome. 5 No. 97734-8 Madsen, J., dissenting

Nor did OMW petition for redress of grievances—advocacy protected by the First

Amendment. U.S. CONST. amend. I (providing that Congress “shall make no law . . .

abridging . . . the right . . . to petition the government for a redress of grievances”).

Rather, the communication was sought and contracted by the government. Had the AGO

conducted the investigation itself instead of outsourcing to a private entity, the agency

would not have the benefit of immunity. In this instance, OMW was acting as the

government and not in a personal capacity. Simply put, OMW did not exercise the right

to petition sought to be protected by our anti-SLAPP statutes.

OMW’s manner of communication, under a contract with the government, is also

not what the legislature intended to protect. Where an interest group or individual

communicating information is doing so voluntarily, a government contractor is required

to communicate information or risk violating its contract. See Michael Eric Johnston, A

Better SLAPP Trap: Washington State’s Enhanced Statutory Protection for Targets of

“Strategic Lawsuits Against Public Participation,” 38 GONZ. L. REV. 263, 264 (2002)

(noting the usual SLAPP suit is a private business entity suing a public interest group or

individual making critical comments to the government about the entity).

As recognized in Segaline, the term “person” is ambiguous and its meaning varies

within the RCW. 169 Wn.2d at 473. The definition may include government agencies,

corporations, or only human beings. Id. Though Segaline was a plurality decision, both

the lead opinion and my concurrence agreed in result that a government agency is not a

person. Id. at 479 (Madsen J., concurring). Similarly, both opinions looked to the

6 No. 97734-8 Madsen, J., dissenting

purpose of RCW 4.24.510 when construing the term “person.” Id. at 473 (“The purpose

of [RCW 4.24.510] is to protect the exercise of individuals’ First Amendment rights

under the United States Constitution and rights under article I, section 5 of the

Washington State Constitution.”); id. at 482 (“The reason for [anti-SLAPP] immunity, as

well as for the attorney fees, costs, and statutory damages, is to remove the threat and

burden of civil litigation that would otherwise deter the speaker from communicating.”).

As in Segaline, we must also consider the purpose of Washington’s anti-SLAPP statutes

to determine whether an organization such as OMW, which is being paid under contract

to the government to provide information, constitutes a person. Here, the contractor,

OMW, was engaged in business, not in an exercise of its constitutional rights. Given its

financial interest in its communication, a government contractor is highly motivated to

communicate to the government and does not require that the threat of civil litigation be

removed to do so. Indeed, the very fact of offering services for hire makes civil litigation

a likely risk.

Similar to Segaline, the intimidation factor of retaliatory litigation does not affect

government contractors as it does private individuals and organizations. See id. An

organization hired by the government to conduct an investigation and report findings is

operating pursuant to a contract. Some risk of litigation to contractors may exist, but the

intimidation factor of that litigation is significantly less than in typical SLAPP suits and

an unlikely deterrence. Moreover, as occurred here, the risk of litigation can be

7 No. 97734-8 Madsen, J., dissenting

addressed through the transactional contract and insurance. See Br. of Amicus Curiae

Am. Civil Liberties Union of Wash. at 14.

The majority incorrectly construes the plain language of RCW 4.24.510 in holding

that government contractors are persons. Majority at 7-13. Its interpretation improperly

relies on the rights of other entities—organizations and individuals. Id. at 9. We have

previously held that an organization is a person under the statute, see Right-Price

Recreation, LLC v. Connells Prairie Cmty. Council, 146 Wn.2d 370, 384, 46 P.3d 789

(2002), and an individual is plainly a person. But a government contractor is not

analogous to the organizations involved in Right-Price. In that case, two nonprofit

citizen groups opposed Right-Price’s proposed residential subdivisions and after

members spoke against the development before the county council, Right-Price sued the

groups, the named officers, and their spouses, among others. Id. at 374-75. Here, OMW

was contracted by the AGO to collect and report information, unlike the nonprofit citizen

groups independently advocating against residential development in Right-Price.

The majority’s reading also overlooks the language and purpose of RCW

4.24.510. As discussed above, OMW did not engage in the type of advocacy

contemplated by the anti-SLAPP statutes. As the nonprofits in Right-Price demonstrate,

advocacy to the government for redress of grievances is entitled to immunity.

Information contracted by and for the government, however, is not an exercise of rights

under the First Amendment and article I, section 5 of the Washington Constitution.

OMW was not engaged in advocacy nor did it seek redress of grievances.

8 No. 97734-8 Madsen, J., dissenting

Ultimately, OMW seeks immunity from tort liability. It is long settled that

statutory grants of immunity in derogation of the common law are strictly construed.

Michaels, 171 Wn.2d at 600. Neither OMW nor the majority offers a reason for

departing from this established precedent under which OMW plainly fails to satisfy RCW

4.24.510. Instead, the majority misapplies our rules of statutory interpretation and

erroneously broadens the definition of person. I disagree.

Instead, I would adhere to the strict rule of construction for grants of immunity in

derogation of the common law and hold that a government contractor communicating the

results of an investigation to a government agency does not constitute a person under

RCW 4.24.510. Accordingly, OMW is not entitled to immunity. I respectfully dissent.

___________________________________ Madsen, J.

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