FILE THIS OPINION WAS FILED FOR RECORD AT 8 A.M. ON JANUARY 30, 2025
IN CLERK’S OFFICE SUPREME COURT, STATE OF WASHINGTON SARAH R. PENDLETON JANUARY 30, 2025 ACTING SUPREME COURT CLERK
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
JEFFERY THURMAN, No. 102791-5
Petitioner, En Banc
v.
COWLES COMPANY, Filed: January 30, 2025
Respondent.
WHITENER, J. — Washington State designed the Uniform Public Expression
Protection Act (UPEPA), its anti-SLAPP (strategic lawsuit against public
participation) law, to protect important public speech from frivolous litigation by
providing a procedural scheme that disposes of such cases early and swiftly in the
litigation life cycle. Ch. 4.105 RCW. Under the UPEPA, parties who are served with
a pleading asserting a covered cause of action can file a “special motion for
expedited relief.” RCW 4.105.020. A “covered cause of action” is an action brought
against a party based on the person’s exercise of the constitutional right of freedom
of speech or of the press on a matter of public concern. RCW 4.105.010(2)(c). If the
UPEPA applies, then the opposing party has 60 days after being served with the Thurman v. Cowles Co., No. 102791-5
covered action to file a “special motion for expedited relief.” RCW 4.105.020(1). In
this case, we are asked to determine whether the UPEPA applies to claims filed
before the UPEPA’s effective date of July 25, 2021 and then subsequently amended
after the effective date. We hold that Thurman’s amended defamation claim relates
back to the defamation claim he asserted in his original complaint and, therefore, is
not subject to the UPEPA. We reverse the Court of Appeals and remand for further
proceedings.
FACTS AND PROCEDURAL HISTORY
Former Spokane police officer Jeffery Thurman was the subject of a June 13,
2019 article published in the Spokesman-Review newspaper. Clerk’s Papers (CP) at
514-17. The article headline stated that “Spokane County sheriff’s sergeant fired for
racial slur, sexual harassment, talk of killing black people.” Id. The Spokesman-
Review is owned by Cowles Co. CP at 300-01. On June 14, 2021, about two years
after the publication, Thurman filed a civil action against Cowles Co., alleging a
defamation cause of action. CP at 4-18. Shortly thereafter, on July 25, 2021, the
UPEPA took effect. Ch. 4.105 RCW. On December 3, 2021, Thurman filed his first
amended complaint. CP at 394-415. Thurman’s amended complaint (hereinafter
referred to as “December 3, 2021 amended complaint”) included newly identified
course of conduct information about Cowles, leading to the alleged defamatory
2 Thurman v. Cowles Co., No. 102791-5
publications raised in his June 14, 2021 complaint, and it also included for the first
time a claim under the Consumer Protection Act (CPA), ch. 19.86 RCW. Id.
On December 29, 2021, Cowles e-mailed Thurman’s counsel and advised
them of its intent to seek a “special motion for expedited relief” pursuant to the
UPEPA. CP at 570-71. On January 21, 2022, Cowles filed its special motion for
expedited relief under the UPEPA. CP at 484-500.
The trial court partially granted Cowles’ special motion for expedited relief.
CP at 922-27. It granted Cowles’ motion to dismiss Thurman’s CPA claim because
it found that claim was not based on acts that occurred in trade or commerce and that
were barred by the First Amendment to the United States Constitution. CP at 923-
25. The court denied Cowles’ motion to dismiss the defamation claim and found that
it was not subject to the UPEPA. CP at 924. The court reasoned that “[w]hile the
Plaintiff has added additional information to and allegations of defamation to his
defamation claim, the Court finds that these are all part of a single defamation claim
which was first asserted in his original Complaint.” Id. The trial court also rejected
Thurman’s constitutional challenge to the UPEPA, finding that the application of the
CR 12 and 56 standards were constitutional pursuant to Davis v. Cox, 183 Wn.2d
269, 351 P.3d 862 (2015), abrogated on other grounds by Maytown Sand & Gravel,
LLC v. Thurston County, 191 Wn.2d 392, 440 n. 15, 423 P.3d 223 (2018). Id. Cowles
appealed the portion of the decision denying expedited relief of Thurman’s 3 Thurman v. Cowles Co., No. 102791-5
defamation claim, and Thurman cross appealed for the portion of the decision
dismissing his CPA claim. CP at 928, 937. 1
The Court of Appeals affirmed in part and reversed in part. The majority held
that the UPEPA applied to both Thurman’s defamation claim and his CPA claim.
Thurman v. Cowles Co., 29 Wn. App. 2d 230, 541 P.3d 403 (2024). The majority
reasoned that Thurman’s defamation claim in the June 14, 2021 complaint was
“asserted” on a continuing basis on the UPEPA’s effective date. Id. at 240. The
dissent disagreed, stating the defamation claim in the June 14, 2021 complaint was
not “asserted” on or after July 25, 2021, the UPEPA’s effective date, and therefore
the UPEPA did not apply to Thurman’s December 3, 2021 defamation claim. Id. at
250 (Staab, J., dissenting).
The Court of Appeals declined to reach the question of whether the UPEPA’s
discovery stay was unconstitutional because Thurman did not actually ask the trial
court to permit discovery. Id. at 244-45. The Court of Appeals also upheld the
constitutionality of the UPEPA; however, it did opine that the presumption of a
discovery stay violates the broad discovery rights under CR 26. Id. at 245-46.
1 RCW 4.105.080 grants a moving party who is denied expedited relief, in whole or in part, the right of direct appeal “as a matter of right.”
4 Thurman v. Cowles Co., No. 102791-5
The Court of Appeals affirmed the dismissal of Thurman’s CPA claim and
directed the trial court to award fees and expenses to Cowles for the defense and
appeal of the CPA claim. Id. at 249. The Court also remanded for reconsideration of
the defamation claim under the UPEPA’s special motion procedure and directed the
trial court to award fees and expenses to Cowles if it prevails on the defamation
claim. Id. We granted the petition for review.
ISSUES
(1) Whether Thurman’s defamation claim against Cowles is subject to the
UPEPA and its special motion for expedited relief.
(2) Whether the UPEPA intended to include claims that were pleaded
prior to the transitional provision’s effective date of July 25, 2021 and
later amended after the effective date is a matter of statutory
interpretation of RCW 4.105.903.
STANDARD OF REVIEW
Statutory interpretation is a question of law that this court reviews de novo.
State v. Armendariz, 160 Wn.2d 106, 110, 156 P.3d 201 (2007). The goal of statutory
interpretation is to discern and implement the legislature’s intent. Id. In interpreting
a statute, this court looks first to its plain language. Id. We determine that intent by
examining the plain language of the statutory provision in question; but we also 5 Thurman v. Cowles Co., No. 102791-5
consider the meaning of that language in the context of the whole statute and related
statutes. State v. Thomason, 199 Wn.2d 780, 787, 512 P.3d 882 (2022). If the plain
language of the statute is unambiguous, then this court’s inquiry is at an end.
Armendariz, 160 Wn.2d at 110. The statute is to be enforced in accordance with its
plain meaning. Id. In interpreting statutory language, “[this court] presume[s] the
legislature does not intend absurd results.” State v. Ervin, 169 Wn.2d 815, 823-24,
239 P.3d 354 (2010).
ANALYSIS
BACKGROUND ON THE UNIFORM PUBLIC EXPRESSION ACT
The UPEPA is a type of anti-SLAPP law, designed to combat the problem of
strategic lawsuits against public participation. A SLAPP may come in any form;
however, common formulations include defamation, invasion of privacy, and
nuisance claims. George W. Pring, SLAPPs: Strategic Lawsuits against Public
Participation, 7 PACE ENV’T L. REV. 3, 4, 9 (1989). These lawsuits are brought with
the intent to deter the defendant from public participation by subjecting them to
costly and extensive litigation. Id. at 3-6; see also Michael Eric Johnston, A Better
SLAPP Trap: Washington Stateʼs Enhanced Statutory Protection for Targets of
“Strategic Lawsuits against Public Participation”, 38 GONZ. L. REV. 263, 275, 279-
80 (2002) (anti-SLAPP law procedures are designed to allow a defendant to bring
6 Thurman v. Cowles Co., No. 102791-5
the potentially frivolous lawsuit to a speedy resolution through a motion for
expedited relief).
Washington’s 2010 anti-SLAPP law (former RCW 4.24.525 repealed by
LAWS OF 2021, ch. 259, § 15), was declared unconstitutional by this court in 2015.
Davis, 183 Wn.2d 269. Davis held that RCW 4.24.525(4)(b) unconstitutionally
deprived a claimant’s right to trial by jury. Id. at 295-96. The statute at issue in Davis
required the trial judge to rule on motions using a “clear and convincing” evidence
standard, 2 thereby invading the jury’s province of resolving disputed facts and
resulting in the dismissal of nonfrivolous claims without a trial. Id. at 289, 293-94.
The entire statute was invalidated because the subsection was the law’s impetus and
could not be severed from its remaining provisions. Id. at 294-95.
On July 25, 2021, Washington State was the first in the nation to enact the
UPEPA. The UPEPA has since been enacted in Hawaii, Kentucky, Maine,
Minnesota, New Jersey, Oregon (substantially similar), Pennsylvania, and Utah. The
purpose of the UPEPA is to safeguard first amendment rights and to deter and
prevent nonmeritorious lawsuits targeted at discouraging individuals from speaking
publicly or petitioning the government. RCW 4.105.010.
2 Davis held that “‘[w]hen there is no genuine issue of material fact, … summary judgment proceedings do not infringe upon a litigant’s constitutional right to a jury trial.’” Id. at 289 (alterations in original) (quoting La Mon v. Butler, 112 Wn.2d 193, 200 n. 5, 770 P.2d 1027 (1989)). In ruling on the motion for expedited relief, the UPEPA adopts a summary judgment motion standard.
7 Thurman v. Cowles Co., No. 102791-5
The UPEPA envisions a procedure that allows for the speedy and early
resolution of SLAPP lawsuits. RCW 4.105.010. The specific timeline of events
under a UPEPA challenge are as follows: First, it applies only to a cause of action
against a party based on the person’s exercise of the constitutional right of freedom
of speech or of the press on a matter of public concern. RCW 4.105.010 (2)(c). If the
UPEPA applies, the opposing party, after being served with the complaint, cross-
claim, or other pleading asserting a claim that is subject to the act, has 60 days to file
a “special motion for expedited relief” to dismiss the cause of action. RCW
4.105.020(2). Upon giving notice of intent to file a motion under RCW 4.105.020(1),
all proceedings between the moving and responding parties, including discovery and
pending motions, are stayed. RCW 4.105.030. In ruling on a motion under RCW
4.105.020, the court shall consider the pleadings, the motion, any reply or response
to the motion, and any evidence that could be considered in ruling on a motion for
summary judgment under CR 56. RCW 4.105.050. The responding party can survive
the motion by either (1) establishing a prima facie case as to each element of their
cause of action or (2) establishing that there is a genuine issue as to any material
fact. RCW 4.105.060. A moving party may appeal as a matter of right from an order
denying a motion under RCW 4.105.020. On motion, there is a mandatory fee
shifting provision for the movant. The respondent can also recover fees, if the court
8 Thurman v. Cowles Co., No. 102791-5
finds that the motion was not substantially justified or was brought solely to delay
the proceeding. RCW 4.105.090.
IS THURMAN’S DEFAMATION CLAIM SUBJECT TO THE UPEPA?
In resolving this issue, three dates are significant. On June 14, 2021, Thurman
filed a civil action against Cowles, alleging a defamation cause of action. CP at 4-
17. On July 25, 2021, Washington State’s UPEPA was passed. On December 3,
2021, Thurman filed an amended complaint where he amended his defamation claim
against Cowles. CP at 394-415.
The issue of whether Thurman’s defamation claim against Cowles is subject
to the UPEPA turns on the statutory construction of the UPEPA’s transitional
provision. The provision reads:
This chapter applies to a civil action filed or cause of action asserted in
a civil action on or after July 25, 2021.
RCW 4.105.903.
Thurman’s June 14, 2021 complaint, which included a defamation cause of
action, was filed about a month prior to when the UPEPA took effect on July 25,
2021. Thurman’s December 3, 2021 amended complaint was filed after the UPEPA
took effect. This complaint amended Thurman’s defamation claim against Cowles
to include new course of conduct allegations. CP at 394-415. On December 29, 2021,
9 Thurman v. Cowles Co., No. 102791-5
Cowles invoked the UPEPA’s “special motion for expedited relief” and provided
Thurman with the statutorily required 14-day notice. CP at 570-71. On January 21,
2022, Cowles filed its special motion for expedited relief, seeking to dismiss the suit
under the UPEPA. CP at 484-500.
The trial court found that the UPEPA did not apply to Thurman’s December
3, 2021 amended complaint because that claim was part of the single defamation
claim he asserted in his June 14, 2021 complaint. CP at 924. However, the Court of
Appeals majority held that the defamation claim asserted in Thurman’s June 14,
2021 complaint was reasserted in his December 3, 2021 amended complaint, which
made it subject to the UPEPA. Thurman, 29 Wn. App. 2d at 240-41. The majority
reasoned that absent clear legislative intent to the contrary, the word “or” in a statute
is disjunctive. Id. (citing Gray v. Suttell & Assocs., 181 Wn.2d 329, 339, 334 P.3d
14 (2014)). Construing “or” disjunctively, RCW 4.105.903 makes the chapter
applicable to (1) a “civil action filed . . . on or after July 25, 2021” or (2) a “cause of
action asserted in a civil action on or after July 25, 2021.” The majority stated that
“with respect to the first disjunctive phrase, Mr. Thurman’s civil action was not filed
on or after July 25, 2021. But with respect to the second disjunctive phrase, Mr.
Thurman’s original and amended defamation causes of action were asserted on or
after July 25, 2021. More plainly, although originally filed before July 25, the
10 Thurman v. Cowles Co., No. 102791-5
original causes of action continued to be asserted until amended, so they were
asserted on or after July 25, 2021.” Thurman, 29 Wn. App. 2d at 240.
The dissent interpreted the word “asserted” to be a static event that refers to a
singular date, the date Thurman’s defamation claim was first asserted in the
pleadings. Id. at 250-51 (Staab, J., dissenting). June 14, 2021, the date of his
complaint is the date he first asserted his defamation cause of action. Id. at 252-53.
The dissent reasoned that such an interpretation comports with (1) a plain reading of
the word “asserted” and (2) the CR 15(c) “relate back rule,” which states that
amended pleadings that assert claims that arise out of the same transaction,
occurrence, or conduct set forth in the original pleading, relate back to the date of
the original pleading. Id.
We adopt the dissent’s reasoned interpretation of the statute.
A. Conflicting interpretations of the word “asserted”
Under the majority’s plain reading of Washington’s UPEPA, in particular its
reading of the second disjunctive phrase of RCW 4.105.903, the UPEPA applies
when there is a “cause of action asserted” on or after July 25, 2021, regardless of
whether that cause of action was first asserted in a pleading prior to the effective
date of the UPEPA. Id. at 240. The majority reasons that the defamation claim in
Thurman’s June 14, 2021 complaint was also “asserted” in the December 3, 2021
11 Thurman v. Cowles Co., No. 102791-5
amended complaint. Therefore, Thurman’s claim was continually asserted from the
date of the June 14, 2021 complaint until it was amended.
The majority’s broad interpretation of the word “asserted” to suggest that
causes of action continue to be asserted even after they are originally filed is
problematic. First, if causes of actions are continuously “asserted,” then Cowles
could have brought a UPEPA motion absent Thurman’s filing of an amended
complaint. By the majority’s logic, Thurman did not have to file his December 3,
2021 amended complaint in order to “assert” his defamation claim because his
defamation claim was continuously being asserted. However, as the dissent points
out “the statute does not read that UPEPA applies to causes of action pending on or
after July 25, 2021. Instead, the [UPEPA] uses the more specific verb ‘asserted.’”
Id. at 252 (Staab, J., dissenting).
Another issue that arises under the majority’s interpretation of the word
“asserted” is that if causes of actions are continuously “asserted” throughout the life
of a case, then it would make the 60-day deadline imposed under the UPEPA
meaningless. This is because the word “assert” is also used in the UPEPA to indicate
the triggering event that starts the 60-day deadline for the opposing party to file a
special motion for expedited relief when a cause of action is asserted. RCW
4.105.020(2). While the legislature may have intended to grant defendants this broad
right, the majority’s interpretation would contradict the primary goal of anti-SLAPP 12 Thurman v. Cowles Co., No. 102791-5
laws, to dispose of frivolous lawsuits early in the litigation life cycle. Pring, supra,
at 17; see also NAT’L CONF. OF COMM’RS OF UNIFORM STATE L., UNIFORM PUBLIC
EXPRESSION PROTECTION ACT 2 (stating that a primary goal of anti-SLAPP statutes
is to “dismiss or strike [SLAPP lawsuits] early in the litigation process”),
https://medialaw.org/wp-content/uploads/2022/05/UPEPA-with-comments.pdf
[https://perma.cc/C2LA-WYHF].
The majority claims that the dissent reads the statute by transposing the word
“filed,” which is present in the first disjunctive phrase, to the second disjunctive
phrase. Thurman, 29 Wn. App. 2d at 240. However, the difference in interpretation
lies not in the insertion of the word “filed” but rather in the majority’s and dissent’s
diverging interpretation of the word “asserted.” According to the dissent, Thurman’s
defamation claim was asserted once, in a singular static event, the date he filed his
June 14, 2021 complaint. Id. at 250-51 (Staab, J., dissenting). The second disjunctive
phrase does not apply to Thurman’s defamation claim because he had asserted it in
his June 14, 2021 complaint, before July 25, 2021, and amended those assertions in
his December 3, 2021 amended complaint. Id.
The UPEPA was enacted to be construed broadly to protect the exercise of
freedom of speech and of the press. RCW 4.105.901. Thurman’s narrow
interpretation of the UPEPA’s transitional provision offers fewer protections to those
fighting SLAPP lawsuits. While a court should consider the legislature’s call for the 13 Thurman v. Cowles Co., No. 102791-5
statute to be broadly construed, there is also a strong presumption that statutes apply
only prospectively unless the legislature explicitly states otherwise. 1000 Va. Ltd.
Pʼship v. Vertecs Corp., 158 Wn.2d 566, 146 P.3d 423 (2006) (recognizing that
statutes are presumed to run prospectively). A statute may apply retroactively if there
is legislative intent or if the statute is curative or remedial. McGee Guest Home, Inc.
v. Depʼt of Soc. & Health Servs., 142 Wn.2d 316, 324, 12 P.3d 144 (2000). There is
an absence of legislative intent in the language of the UPEPA that it should apply
retroactively. The inclusion of an effective date in the act’s transitional provision
suggests that the legislature did not intend for the act to capture claims pleaded prior
to its effective date.3
The UPEPA cannot apply to Thurman’s amended defamation claim because
the word “asserted” in the UPEPA transitional provision refers to a singular rather
than a continuous event.
3 Thurman’s petition for review and supplemental brief also contend that the Court of Appeals’ decision results in the removal of his “vested rights” by allowing for the retroactive application of the UPEPA to his defamation claim—a “vested right.” Thurman argues that statutes that affect vested rights are to be construed prospectively only. Pet. for Discr. Rev. at 19 (quoting 1000 Va. Ltd. Pʼship, 158 Wn.2d at 587). “An ‘accrued cause of action is a vested right when it springs from contract or from the principles of the common law.’” Id. (internal quotation marks omitted) (quoting 1000 Va. Ltd. P’ship, 158 Wn.2d at 587) Cowles did not address this argument. As this court finds that the UPEPA does not apply on statutory grounds, we do not reach the constitutional question of whether Thurman has or does not have a “vested right” in his defamation claim.
14 Thurman v. Cowles Co., No. 102791-5
B. Under CR 15(c), Thurman’s amended defamation claim relates
back to his June 14, 2021 complaint
Thurman contends that the Court of Appeals majority’s statutory construction
of the UPEPA’s transitional provision conflicts with CR 15. Suppl. Br. of Pet’r
Jeffrey Thurman at 24-26. Under CR 15(c), Thurman contends that his amended
defamation claim contained in his December 3, 2021 amended complaint “relat[es]
back” to the defamation claim filed in his June 14, 2021 complaint. Id. Washington’s
CR 15 governs amended and supplemental pleadings. “Whenever the claim or
defense asserted in the amended pleading arose out of the conduct, transaction, or
occurrence set forth or attempted to be set forth in the original pleading, the
amendment relates back to the date of the original pleading.” CR 15(c).
Thurman’s December 3, 2021 amended complaint included additional factual
allegations related to the defamation claim he filed in his June 14, 2021 complaint.
CP at 394-415. However, Cowles has not addressed why CR 15(c)’s relate back rule
is inapplicable to Thurman’s defamation claim, as to do so would require Cowles to
concede that the two claims arose from distinct transactions and occurrences. This
argument would be incongruous with Cowles’ primary contention that Thurman’s
original and amended defamation claim form a singular defamation claim subject to
the UPEPA.
15 Thurman v. Cowles Co., No. 102791-5
CR 15, the relate back rule, largely focuses on its purpose in preserving
claimant’s time-barred claims. The relate back rule allows claimants to preserve the
statute of limitations for their claims by allowing for additional potentially untimely
claims asserted in amended pleadings to relate back to the date of the original related
claim. DeSantis v. Angelo Merlino & Sons, Inc., 71 Wn. 2d 222, 427 P.2d 728 (1967)
(holding that when amended claims or defenses arise out of the same events set forth
in the original pleading, the amended pleadings relate back to the date of the original
pleading). The requirement that the amended claim arises out of the same transaction
and occurrence as the original claim is central. An amendment stating a time-barred
new cause of action is not allowed where the amendment involves an unrelated event
occurring at a different time. Herron v. KING Broad. Co., 109 Wn.2d 514, 746 P.2d
295 (1987); Campbell v. King County, 38 Wn. App. 474, 685 P.2d 659 (1984)
(holding that relation back of amendments in a complaint is proper even when the
case presents a new cause of action or legal theory as long as the cause of action
arose out of the same conduct, transaction, or occurrence and the defendant receives
adequate notice of the amendment).
In addition, CR 15(c) outlines some important policy interests the drafters
instructed courts to consider in granting leave to amend. These considerations are,
however, more specific to motions for leave to amend to change a party against
whom a claim asserted relates back. CR 15(c). The rule states that the party against
16 Thurman v. Cowles Co., No. 102791-5
whom the claim is being brought either should have been aware of the possibility of
suit or should have received notice of the action and not be prejudiced in maintaining
their own defense on the merits. Id. Even if these considerations were necessary for
the court to weigh in granting leave to amend, there are no issues of notice or
prejudice. Here, Cowles is already on notice of the defamation claims asserted
against it and it is not prejudiced in defending against the amended claim.
The relate back rule states that amended claims that arise out of the same
transaction or occurrence as those pleaded in the original pleading relate back to the
date of the original pleading. Id. Thurman’s December 3, 2021 amended complaint
arises from the same transactions, occurrences, and conduct set forth in his June 14,
2021 complaint. Thurman’s amended defamation claim includes course of conduct
information such as additional factual allegations that support the elements of the
same alleged defamatory statements asserted in his June 14, 2021 complaint.
Thurman does not introduce new defamatory statements in his December 3, 2021
amended complaint. For example, in the June 14, 2021 complaint, Thurman alleges
defamatory statements in articles published on June 13, 2019 at 3:14 p.m., June 13,
2019 at 10:51 p.m., June 14, 2019, June 18, 2019, July 2, 2019, June 21, 2020, and
August 5, 2020. CP at 4-17. The December 3, 2021 amended complaint simply adds
factual details to the elements underlying the aforementioned alleged defamation
publications. CP at 394-414.
17 Thurman v. Cowles Co., No. 102791-5
The trial court was correct in finding that Thurman’s amended defamation
claim was part of the single defamation claim he first asserted in his June 14, 2021
complaint. CP at 924. The reasoning of the Court of Appeals dissent is correct.
Thurman’s amended defamation claim relates back to the date of his original
complaint. Thurman, 29 Wn. App. 2d at 252 (Staab, J., dissenting).
CONCLUSION
Chapter 4.105 RCW does not apply to claims filed before its effective date,
and, therefore, amended claims relating back to those claims are not subject to the
UPEPA. Thurman’s amended defamation claim was part of the single defamation
claim he asserted in his June 14, 2021 complaint and therefore not subject to the
UPEPA. We decide this case on statutory grounds. Therefore, we decline to reach
Thurman’s constitutional arguments. State v. Houston-Sconiers, 188 Wn.2d 1, 18
n.3, 391 P.3d 409 (2017). Accordingly, we reverse the Court of Appeals and remand
for further proceedings.
18 Thurman v. Cowles Co., No. 102791-5
WE CONCUR.
Lewis, J.P.T.