Thursday, July 9, 2015

Take It From The Top

In a relatively stunning turn of events, the Washington Supreme Court struck down the state's anti-SLAPP statute on May 28, 2015. The decision came in the matter of Davis v. Cox and was largely due, as I read it (and according to other analyses I've read) to Washington's law's attempt to offer even more robust protection against SLAPP's than other states have.

Interestingly, the part of the statute that was most troubling to the court is one that played very little part in my case. Specifically, the court did not particularly like that RCW 4.24.525 required the respondent to the motion—in my case, Johnson—to prove "by clear and convincing evidence a probability of prevailing on the claim," holding that this unconstitutionally requires the lower court judge to actually weigh evidence, thereby thwarting a plaintiff's right to a jury trial. Other state's anti-SLAPP laws impose a lesser burden and seem to be on firmer ground.

In my case, even the lower threshold would have been easily met, as Johnson did not produce a scintilla of evidence proving the falsity of the allegedly defamatory statements [because no such evidence exists]. Unfortunately, the court found this aspect of the statute to be unseverable from the rest and thus invalidated the whole thing.

I have not been paying the attorney bills, so I have the luxury of finding the ruling disappointing, but not earth shattering.

And so the end result is really just a reset, back to square one, as if the anti-SLAPP motion had never been filed in the first place, which means we're about to go back to the future, litigating this as if it isn't years old. Subpoenas will fly, depositions will be taken...unless of course that can all be avoided by people ready to put the past in the past.

I can't say much more than that at the moment, but I will at some point soon. In the meantime, please watch the NSFW video below in it's entirety. (Seriously, don't even start it if you don't have sixteen minutes and forty-nine seconds to spare.)

Monday, April 20, 2015

Next Stop: The Washington Supreme Court

PLEASE NOTE: This is obviously NOT the official site of Spokane Civic Theatre. That can be found at This site is here for the purposes of commentary and criticism. There is nothing for sale on this site, nor is the site itself for sale. If you would like to purchase tickets for Fiddler on the Roof, Dr. Jekyll & Mr. Hyde, The Women, A Christmas Carol, The Servant of Two Masters, Orphans, Nunsensations!, Clue: The Musical, Sherlock Holmes and the Curse of the Sign of Four, Sylvia, The Music Man or any other event at Spokane Civic Theatre, please visit THIS LINK to Spokane Civic Theatre's ticketing page. 

If you're new to Civic Doody, you can catch up on things HERE.

Well, as I hinted might happen, we have decided to appeal the appellate court's recent decision to the Washington Supreme Court. This was not a foregone conclusion. It is important to remember that I am largely at the mercy of my insurance company—so this isn't just a matter of me wanting to fight needlessly on (as is the case with some people). This is a matter of my attorney feeling that this is the best course of action. That having been said, I also believe that this is the right thing to do. 

I'll explain this in greater detail soon, but for the time being let me briefly explain the possible outcomes of this petition for review. First, the WA Supreme Court must decide whether to hear the case. They have a number of anti-SLAPP cases pending before them and they'll have to decide if this case gives them an opportunity to provide clarity about how Washington's courts should interpret the SLAPP statute. So, the Court might well decline to hear the case, in which case we're right back to where we started: litigating Yvonne A.K. Johnson's baseless case against me back here in Spokane. We obviously think that there is a very strong chance they'll take up my case. 

If they do take it up...well, we're probably looking at another two years (from right now), give or take, before a decision is rendered. The possible outcomes are pretty obvious. In a nutshell, they could affirm or reverse the Court of appeals ruling. If they affirm, we're back again to litigating Johnson's baseless case in the Superior Court. If they reverse, the anti-SLAPP ruling would be reinstated and Johnson would owe me $10,000 again. (They could also affirm in part and reverse in part, which would be the equivalent of an affirmation for all intents and purposes, putting us back to square one in the Superior Court.) 

What's most amazing about the whole thing—and I'm sure I've said this before, but since when has that ever stopped me?—is that there is no scenario in which Civic Doody ever gets shut down by any of these courts. There just isn't. Even if Johnson runs the table from here on out (a scenario which is mind-bogglingly fantastical), the absolute most she stands to gain is some money from my insurance company and a couple of sentences removed from the blog. The cost-benefit analysis is just an epic nightmare on her side of this whole mess, particularly given what we all know—namely, that her suit was originally intended to shut down this blog.

Also, I must reiterate that Spokane Civic Theatre remains complicit in the endless dragging on of this ordeal, regardless of whatever positive changes/developments have occurred there—though I'm led to believe there has been only continuing dysfunction. Johnson's suit was originally funded (at least in part) by the theater's board of directors under Larry Wooley. It continues because the current board of directors, under Julie Watts, has done nothing to repair the situation. As of this writing, Civic's website lists the following board members:

  • President : Julie Watts 
  • Vice President : Barry Jones
  • Secretary : Kathie Doyle-Lipe
  • Treasurer : Ron Rector
  • Honorary Life Member : Margot Ogden 
  • Board Members:
    • Janice Abramson
    • Jason Coleman-Heppler
    • JP Diener
    • Bob Francis
    • Ted Redman

Monday, March 30, 2015

Someone Else's Thoughts (for a change)

First, let me just point this little detail out for anyone who has missed it—at this point, two judges have ruled in my favor and two have ruled against me on the matter of the anti-SLAPP motion. Yes, that still comes out to a loss. Actually, let me be more precise about this. It doesn't actually add up to a loss. Rather, it is the reversal of a defeat for Johnson. That's really not the same thing as a victory for her. More on that another time...

So, as you can imagine, I'm going to have to keep my mouth more-or-less shut for a short while, but I can certainly let others speak for me. In this case, I would like to direct your attention to a piece by Venkat Balasubramani on Eric Goldman's Technology & Marketing Law Blog. (Goldman is a Professor at Santa Clara University School of Law and Co-Director of the High Tech Law Institute.) I recommend that you read the whole piece, but allow me to quote a few key sections (with some added emphasis in the middle):
The dissent rightly faults the majority for focusing on Ryan’s motivations for his blogging. It notes that the theater held itself out in the public eye, as did Johnson (who maintained her own website). The fact of Johnson’s hiring received press coverage, and the fact of Ryan’s firing was justified by the theater on the basis that Ryan’s actions would affect the theater’s perception in the public. The organization affected a large number of the public, ranging from volunteers to patrons to visitors. The parties had extensive legal wranglings (a wrongful termination claim; unemployment claim; a UDRP proceeding) and the overwhelming majority of Ryan’s posts were about this dispute and Johnson’s role in the dispute. Ryan attacked Johnson’s character, but Johnson herself testified that her character and integrity were “of utmost importance to her position as executive director”...
Given a seeming split in Washington courts, this case is a possible candidate for review by the Washington State Supreme Court. It has several anti-SLAPP cases pending already. A ruling that adopts a narrow view of “public concern” would dramatically lessen the effectiveness of the statute, which makes this case one to watch. (And a good candidate for amicus participation.) 
A few things stood out about the dispute: (1) as the dissent notes, the theater as well as the director are in the public eye through their own efforts; (2) the majority of Ryan’s statements are about his legal tussles with the theater and with Johnson; (3) Johnson does not actually identify what statements are false; and (4) Johnson’s lawyers accuse Ryan of being a “cyberbully”. The dispute is reminiscent of Ellis v. Chan, the Georgia case where a plaintiff who was criticized for her copyright enforcement tactics accused a message board operator of stalking. 
It’s tough to conclude that many of Ryan’s statements were not a matter of public concern, unless one were to adopt the most cramped definition of that term. A 2013 Spokesman Review article noted that Johnson had been fired, and further that “[the] Ryan situation clearly divided the artistic community.” (See “Civic Theatre board fires Artistic Director Yvonne Johnson“.) The “public concern” test from employment cases is a poor fit for the reasons stated by the dissent. “Valuing” speech and finding that only “high value” speech falls under the anti-SLAPP statute is probably not something we want courts doing, even though they do so from time-to-time. 
It would have been good for the court to sift through the statements and determine which were capable of being defamatory. Setting aside any factual disputes, does Johnson have a case in the first place? The court’s failure to focus in on any even arguably false statement makes me think she didn’t have a viable case on the merits. To the extent Johnson is trying to assert a tortious interference claim based on true statements, I don’t know if Washington cases have specifically address this issue, but that also raises First Amendment concerns (See, e.g., “$60,000 Verdict for Blogging the Truth About A Person Intending to Get Him Fired — Reversed”.) 
And my favorite excerpt: 
Ultimately, Johnson comes across as thin skinned, painfully oblivious to the Streisand Effect, and not much of a First Amendment stalwart. I may be wrong, but those don’t seem like particularly good traits for someone in charge of a community theater. 

Thursday, March 19, 2015

Court of Appeals Decision

Well, as more-or-less expected, the Court of Appeals decision was not in my favor. I’ll have much more to say about this at a later date, but for the time being let me just give a quick refresher on what this means:

First and foremost, it does not mean that Yvonne A.K. Johnson has won her defamation and tortious interference suit against me. All that the court said today, in a 2-1 published decision with three separate opinions spanning 80 pages, is that they don’t believe the SLAPP statue was appropriately applied in this case. The opinion rests largely on the question of whether my writing was on a matter of “public concern.” This rests largely on questions of legislative interpretation, not on whether Johnson’s case has any merit whatsoever. 

In other words, Johnson could (and does) have an utterly baseless case and still prevail in this narrow matter. One must also note that this ruling does not even remotely imply wrongdoing on my part—it just says that my speech was not covered by the SLAPP statute. 

The best case scenario for Johnson now is that we go right back to where we were before the SLAPP ruling and proceed with discovery in advance of a trial in the Superior Court. The other possibility is that I appeal the ruling to the Washington State Supreme Court. Given the rather robust dissent in the decision, it seems likely that the court would take this case up. We have thirty days to decide.

Either way, this is far from over. Like, we're talking years. And I can't help but remind you that this was all set in motion with seed money from Spokane Civic Theatre's Board of Directors.

If you do decide to wade through this immense opinion, do not skip the dissent, which begins on the 45th page of the pdf (the document page numbers begin anew with each justice’s opinion).

Sunday, February 22, 2015

Is Spokane Civic Theatre Broke?

That's what I'm hearing. I obviously can't vouch for the extent to which this is the case. That could be minor or major hyperbole, but all indicators point to the situation being dire.

I heard several days ago that Larry Wooley and Bob Mielbrecht were no longer on the Board of Directors. I confirmed this on Civic's website, but I didn't know why. After some digging around, I was informed that Wooley was "kicked off" the board. I'm told he spent over $200,000 in five months and signed a four-year lease on the new costume shop with no exit clause, leaving Civic with virtually no cash on hand. I was told that Jason Heppler, Wooley's right-hand man, was removed from the board as well, but his name continues to appear on the theater's website.

As for the new costume shop at 125 S. Cowley (apparently now known as the Little Shop of Rentals), I'm told it is already being vacated and relocated back to Spokane Civic Theatre, despite the lack of an exit clause from the four-year lease. The facility opened just this past October.

Gosh, I sure hate to be the type of person to say "I told you so," but if this is all true — and I have no reason to believe it's not — I don't really see any way around it. I've been warning for years of behind-the-scenes shenanigans that could only lead to continued disfunction and decline, but everyone was too busy ooh-ing and aah-ing and patting themselves on the back over the ousting of Yvonne A.K. Johnson that they didn't want to hear it. Everybody just wanted to get back to their regularly scheduled programming without acknowledging or addressing the underlying rot.

One could be forgiven for thinking that I am suggesting that this might not all be going so poorly if Civic had just done the right thing with regards to my grievance. I am not. I do, however, think it is self-evident that an organization doing things the right way would have done just that. In other words, Civic's failure to address this situation even after Johnson's departure was a good indicator of how it would operate on any number of levels.

Civic has been plagued for too long by people who are spineless and/or completely self-obsessed. No one wanted to make hard decisions or sacrifices. And nature abhors a vacuum. When problems are not addressed head-on, with integrity and courage, one of two things happens: either they fester (as Civic's problems did while Yvonne A.K. Johnson ruled with impunity for years) or opportunists swoop in and use the situation to their advantage (as Wooley & Co. did back in 2013).

Neither has had optimal results.

Ah, well...I tried. And obviously it is too early to have any idea how this will turn out. But it will be a real shame if more people are put out of work and a community asset is lost to the abject failure of so many sad, little people. And just think how delighted Yvonne A.K. Johnson would be to hear that Civic floundered and foundered without her...

Anyway, I'll keep you posted if I learn anything new. One last thing: I noticed as today that Civic Doody had just ticked past 88,000 page views: