Banks v. Hoffman

301 A.3d 685

Morgan BANKS, et al., Appellants, v. David H. HOFFMAN, et al., Appellees.

No. 20-CV-0318

District of Columbia Court of Appeals.

Argued April 20, 2022

Decided September 7, 2023

Bonny J. Forrest, of the bars of the States of New York and California, pro hac vice, by special leave of the court, with whom Kirk Jenkins, San Francisco, CA, and John B. Williams were on the brief, for appellants L. Morgan Banks, III, Debra L. Dunivin, and Larry C. James.

James C. McKay, Jr., Senior Assistant Attorney General, for appellee District of Columbia. Karl A. Racine, Attorney General for the District of Columbia at the time, Loren L. AliKhan, Solicitor General at the time, Caroline S. Van Zile, Principal Deputy Solicitor General at the time, Carl J. Schifferle, Deputy Solicitor General, and Mark S. Wigley, Assistant Attorney General, were on the brief for appellee District of Columbia.

Barbara S. Wahl, Washington, DC, with whom Randall A. Brater and Michael F. Dearington, Washington, DC, were on the brief, for appellee American Psychological Association.

Thomas G. Hentoff, Washington, DC, with whom John K. Villa, Stephen J. Fuzesi, Krystal C. Durham, Washington, DC, and Matthew J. Greer were on the brief, for appellees David H. Hoffman, Sidley Austin, LLP, and Sidley Austin (DC), LLP.

Before Blackburne-Rigsby, Chief Judge, Howard, Associate Judge, and Thompson, Senior Judge.

Thompson, Senior Judge:

This matter is an appeal from the Superior Court's dismissal of a defamation action pursuant to the special-motion-to-dismiss provisions of the District of Columbia Anti-SLAPP Act. ¹ In challenging the dismissal, plaintiffs/appellants argue inter alia that the D.C. Anti-SLAPP Act is invalid because its enactment violated the District of Columbia Home Rule Act (the "Home Rule Act"). ² For the reasons set out below, we agree that the Home Rule Act, and in particular its preservation of Title 11 of the D.C. Code, precluded the Superior Court from giving effect to the discovery-limiting aspects of the D.C. Anti-SLAPP Act's special-motion-to-dismiss provisions. Accordingly, we reverse the judgment of dismissal and remand for further proceedings consistent with this opinion. In light of the discovery limitations the Superior Court implemented, we also vacate the court's rulings on the "public official" and "republication" issues discussed below and remand as to those issues as well.

I. Introduction

A. Procedural Background

Plaintiffs/appellants are Col. (Ret.) L. Morgan Banks, III, Col. (Ret.) Debra L. Dunivin, and Col. (Ret.) Larry C. James. All three are retired military psychologists who were mentioned prominently in a report ("the Report"), published in 2015 on the American Psychological Association ("APA") website, concluding that certain APA officials colluded with the U.S. Department of Defense ("DoD") "to support the implementation by DoD of the interrogation techniques [directed at persons detained following the events of September 11, 2001] that DoD wanted to implement without substantial constraints from APA" ethical guidelines. The Report identifies each of the appellants by name as a key participant in the alleged collusion. Appellants filed the underlying action for defamation per se , defamation by implication, and false light invasion of privacy in 2017, naming as defendants the APA, which authorized and financed the Report; David H. Hoffman, the lead of a team of lawyers who conducted the underlying investigation and prepared the Report; and the law firm in which Hoffman is a partner, Sidley Austin LLP, and its affiliated entity Sidley Austin (DC) LLP (together, "Sidley"). ³

The APA, Hoffman, and Sidley filed special motions to dismiss the lawsuit pursuant to the D.C. Anti-SLAPP Act. See D.C. Code § 16-5502(a). In response, appellants moved to declare the Anti-SLAPP Act void as in contravention of the Home Rule Act, and as unconstitutional under the First Amendment right to petition for redress of grievances. The District of Columbia intervened to defend the Anti-SLAPP Act legislation. In two separate orders, the Superior Court first denied appellants’ motion to declare the Anti-SLAPP Act violative of the Home Rule Act and unconstitutional, and then granted appellees’ special motions to dismiss, finding that appellants had failed to show that they were likely to succeed on the merits of their defamation and related claims.

Appellants now seek reversal of the Superior Court's orders on five grounds: (1) enactment of the D.C. Anti-SLAPP Act violated the Home Rule Act because it is a legislative enactment with respect to Title 11 of the D.C. Code, which is beyond the authority the Home Rule Act conferred on the Council of the District of Columbia (the "Council"), and because the Act's special-motion-to-dismiss procedure squarely conflicts with the mandate Congress set out in section 946 of Title 11 ( D.C. Code § 11-946 ); (2) the D.C. Anti-SLAPP Act is unconstitutional because it impairs exercise of the First Amendment right to petition for redress of grievances; (3) the Superior Court reached its determination that appellants were not likely to succeed on the merits of their claims by erroneously treating appellants as "public officials," who can prevail on a claim of defamation only by showing that the defendants acted with actual malice; (4) even if the actual-malice standard applies, appellants came forward with evidence sufficient to permit a reasonable jury to find, by clear and convincing evidence, that appellees acted with actual malice in publishing the statements in issue; and (5) the Superior Court erred in ruling that the APA did not "republish" the Report in August 2018.

B. The D.C. Anti-SLAPP Act

The legislative history of the D.C. Anti-SLAPP Act describes a SLAPP — a strategic lawsuit against public participation — as an action " ‘filed by one side of a political or public policy debate aimed to punish or prevent the expression of opposing points of view.’ " Competitive Enter. Inst. v. Mann , 150 A.3d 1213, 1226 (D.C. 2016) (quoting Council of the District of Columbia, Report of Comm. on Pub. Safety and the Judiciary on Bill 18-893, at 1 (Nov. 18, 2010) (hereinafter, the "Report on Bill 18-893")). In enacting the D.C. Anti-SLAPP Act in 2010, the Council joined nearly 40 other jurisdictions that had already adopted or were considering the adoption of anti-SLAPP legislation. Report on Bill 18-893 at 3. In the words of the Committee on Public Safety, the Act "incorporates substantive rights with regard to a defendant's ability to fend off" SLAPPs, so as to "allow a defendant to more expeditiously, and more equitably, disp[ose] of a SLAPP." Id. at 1, 3.

The Anti-SLAPP Act's provisions at issue in this case are codified at D.C. Code §§ 16-5502 and 16-5504(a). Section 16-5502 provides that:

(a) A party may file a special motion to dismiss any claim arising from an act in furtherance of the right of advocacy on issues of public interest within 45 days after service of the claim.

(b) If a party filing a special motion to dismiss under this section makes a prima facie showing that the claim at issue arises from an act in furtherance of the right of advocacy on issues of public interest, then the motion shall be granted unless the responding party demonstrates that the claim is likely to succeed on the merits, in which case the motion shall be denied.

(c)

(1) Except as provided in paragraph (2) of this subsection, upon the filing of a special motion to dismiss, discovery proceedings on the claim shall be stayed until the motion has been disposed of.

(2) When it appears likely that targeted discovery will enable the plaintiff to defeat the motion and that the discovery will not be unduly burdensome, the court may order that specified discovery be conducted. Such an order may be conditioned upon the plaintiff paying any expenses incurred by the defendant in responding to such discovery.

(d) The court shall hold an expedited hearing on the special motion to dismiss, and issue a ruling as soon as practicable after the hearing. If the special motion to dismiss is granted, dismissal shall be with prejudice.

D.C. Code § 16-5502(a) - (d).

Construing the "likely to succeed on the merits" standard of § 16-5502(b), this court has held that it is "substantively the same" as the summary judgment standard under Rule 56 of the Federal Rules of Civil Procedure. Mann , 150 A.3d at 1238 n.32 (stating that the "likelihood of success standard ... simply mirror[s] the standards imposed by Federal Rule 56" (internal quotation marks and citation omitted)). ⁴ At the same time, "the special motion to dismiss is different from [ Rule 56 ] summary judgment in that it imposes the burden on plaintiffs and requires the court to consider the legal sufficiency of the evidence presented before discovery is completed," id. , and because, under § 16-5502(c), "the decision to grant or deny targeted discovery rests within the trial court's broad discretion," Fridman v. Orbis Bus. Intel. Ltd ., 229 A.3d 494, 513 (D.C. 2020). In addition, the Anti-SLAPP Act's "reversal of the allocation of burdens for dismissal" relieves the special-motion-to-dismiss movant from "shoulder[ing] the initial burden of showing that there are no material facts genuinely in dispute and that the movant is entitled to judgment as a matter of law on the undisputed facts." Mann , 150 A.3d at 1237.

D.C. Code § 16-5504(a) provides in relevant part that "[t]he court may award a moving party who prevails, in whole or in part, on a motion brought under § 16-5502 ... the costs of litigation, including reasonable attorney fees." Interpreting this provision, this court has recognized that "the Act imposes no requirement on a successful movant under § 16-5504(a) to show either ... improper motive (bad faith) or total lack of merit in the underlying suit ... before reasonable attorney's fees may be awarded." Doe v. Burke , 133 A.3d 569, 575 (D.C. 2016).

C. ...