JOHN DOE NO. 1, APPELLANT,
SUSAN L. BURKE, APPELLEE
January 14, 2016
from the Superior Court of the District of Columbia.
(CAB-7525-12). (Hon. Maurice A. Ross, Trial Judge).
Reversed and remanded.
E. Rosman, with whom Christopher J. Hajec was on the brief,
T. O'Neil for appellee.
B. Spitzer, American Civil Liberties Union of the
Nation's Capital, and Bruce D. Brown and Gregg P. Leslie,
The Reporters Committee for Freedom of the Press, filed a
brief amicus curiae on behalf of appellant.
EASTERLY and McLEESE, Associate Judges, and FARRELL, Senior
case came to be heard on the transcript of record, the briefs
filed, and was argued by counsel. On consideration whereof,
and as set forth in the opinion filed this date, it is now
and ADJUDGED that the judgment on appeal is reversed, and the
case is remanded to the trial judge to evaluate the
reasonableness of the award requested.
W. Farrell, J.
anonymous civil defendant who files and prevails on a special
motion to quash a subpoena for identifying information under
D.C. Code § 16-5503 (2012 Repl.), part of the
District's Anti-SLAPP Act (the Act), be awarded
attorney's fees under D.C. Code § 16-5504 (a)
without showing that the suit prompting the subpoena was
frivolous or improperly motivated? We answer that question
yes. We further hold, after considering the language and
legislative history of the Act, that a successful movant
under § 16-5503 is entitled to reasonable attorney's
fees in the ordinary course -- i.e., presumptively
-- unless special circumstances in the case make a fee award
unjust. Because no such circumstances exist on the record of
this case, we reverse the order of the trial court denying
altogether the defendant/movant's request for
attorney's fees, and remand the case solely for the court
to consider the reasonableness of the amount of fees
Anti-SLAPP Act, as explained in our earlier opinion, Doe
No. 1 v. Burke, 91 A.3d 1031 (D.C. 2014) ( Doe
I ), was enacted by the D.C. Council to " protect
the targets of . . . suits" intended " as a weapon
to chill or silence speech." Id. at
1033. One way the Act does so, "
recognizing the importance of anonymous speech on matters of
public interest," id. at 1036, is to enable an
individual " 'whose personal identifying information
is sought' to safeguard his identity by filing a
'special motion to quash' a subpoena,"
id. (quoting D.C. Code § 16-5503 (a)), and, if
successful, " avoid being named in a suit and served
with a complaint." Id. To succeed on a special
motion to quash,
the moving party must " make a prima facie
showing that the underlying claim arises from an act in
furtherance of the right of advocacy on issues of public
interest." D.C. Code § 16-5502 (b); see
also D.C. Code § 16-5503 (b). Upon such a showing,
the motion will be granted unless the opposing party
demonstrates a likelihood of success on the merits of his or
her underlying claim. Id.
Doe I, 91 A.3d at 1036 (brackets in
case, appellee Susan L. Burke, an attorney, sued multiple
anonymous defendants (" John Does 1-10" ) alleging
defamation and other torts arising from edits made to a
Wikipedia webpage established in Ms. Burke's name. John
Doe 1 had allegedly added information to the page using the
name Zujua. After Ms. Burke caused a subpoena to be issued to
obtain Wikipedia's user data and thereby learn
Zujua's (and others') identity, Zujua filed a special
motion to quash the subpoena. The trial court denied the
motion, but this court reversed. We held as a matter of law
that Zujua had shown " that his speech is of the sort
that the statute is designed to protect," id.
at 1036, 1043-44, and that Ms. Burke, who was thus
" required to show malice on Zujua's part . . . to
succeed" in rebuttal, had failed to show a "
likelihood of success on [her] underlying claims."
Id. at 1045.
remand, Zujua moved to be awarded attorney's fees under
D.C. Code § 16-5504 (a), which provides that "
[t]he court may award a moving party who prevails, in whole
or in part, on a motion brought under . . . § 16-5503
the costs of litigation, including reasonable attorney
fees." In response, attorney Burke argued mainly that
the trial court in its discretion (" [t]he court
may award . . . attorney fees" ) should award
no fees in the circumstances of the case. The trial judge
agreed and denied the fee request entirely. He concluded
first that attorney's fees were unjustified because Ms.
Burke had not filed " a classic SLAPP suit" against
Zujua, one " within the meaning of the D.C. [Anti-SLAPP]
statute." Citing legislative history corresponding to
this court's recognition in Doe I that SLAPP
suits " masquerade as ordinary lawsuits" but in
reality are used " as a weapon to chill or silence
speech," Doe I, 91 A.3d at 1033 (citation and
internal quotation marks omitted), the judge found the
plaintiff's suit to have none of the earmarks of such an
action: It " was not based on flimsy speculation and was
not intended to inflict costly litigation fees . . . as a
means to stifle speech" ; it could " hardly be seen
as frivolous" because it " set forth a plausible
argument" for believing that Zujua had acted
maliciously; and " it is not unreasonable to surmise
that plaintiff filed what she believed to be a meritorious
suit to recover for the harm caused by the false statements
made via anonymous Wikipedia edits."
judge reasoned further that, " even if an action is
construed as a SLAPP suit, attorneys' fees and costs are
not automatic and may be recovered only upon a showing that a
frivolous claim has been made against defendants."
Exercising the discretion he understood to be afforded him by
the fee provision's " permissive language," he
determined that because the plaintiff's suit, although
unsuccessful, had not been filed " with [the] intent to
inflict costly litigation fees, bring a frivolous suit, or .
. . stifle speech," attorney's fees were unjustified
in light of " the equities" of the case, " the
aims of the D.C. Anti-SLAPP Act and the purpose for awarding
fees," and the findings of merit (or non-frivolousness)
and proper motivation the court had made regarding the
trial judge, it is apparent, " a moving party who
prevails" on a motion to quash under § 16-5504 may
not be awarded attorney's fees, presumptively or
otherwise, without consideration by the court of the merits
of, and motive behind, the underlying lawsuit. Only if the
suit, besides having failed the test of § 16-5503 (b)
(" likely to succeed on the merits" ), has been
determined to be frivolous or intended to stifle speech by
causing undue litigation costs is it one within the "
meaning" of the Act -- a " classic SLAPP suit"
-- so as to justify the statutory shift of the obligation to
pay costs including attorney's fees to the plaintiff.
threshold defect in this statutory reading is that nowhere
does the Act refer to or define a " classic" SLAPP
suit, as distinct from one against which the defendant may
invoke the statute's protections after a threshold
prima facie showing. As explained above, the burden
of maintaining the suit shifts to the plaintiff once the
defendant has made " a prima facie showing that the
underlying claim arises from an act in furtherance of the
right of advocacy on issues of public interest . . . ."
D.C. Code § 16-5503 (b). A " claim" is defined
as " any civil lawsuit, claim, complaint, cause
of action . . . or other civil judicial pleading. . . ."
Id. § 16-5501 (2) (emphasis added). Nothing in
this language, or in the words of the attorney's fee
provision, § 16-5504 (a), implies that to qualify for
fees the anonymous defendant successful in quashing a
subpoena must have resisted a SLAPP claim "
classic" or exemplary in nature, rather than one arising
-- solely but pivotally -- from the defendant's exercise
of a special form of speech or advocacy. The protections of
the Act, in short, apply to lawsuits which the D.C. Council
has deemed to be SLAPPs, and this court's ruling in
Doe I that Zujua was entitled to those protections
settled the question of whether attorney Burke's suit fit
within the statutory meaning.
important, however, than this illusory distinction the trial
judge saw between " classic" SLAPP suits and others
is that the Act, by its terms, impliedly but clearly rejects
the additional showing of frivolousness or wrongful
motivation the judge required before a party who files a
special motion to quash and prevails may recover
attorney's fees. The costs provision, D.C. Code §
16-5504, provides in full:
(a) The court may award a moving party who prevails, in whole
or in part, on a motion brought under §
16-5502 or § 16-5503 the costs of
litigation, including reasonable attorney fees.
(b) The court may award reasonable attorney fees and costs to
the responding party only if the court finds that a motion
brought under § 16-5502 or § 16-5503 is frivolous
or is solely intended to cause unnecessary delay.
distinction could hardly be clearer between when, to qualify
for attorney's fees, a party must show frivolousness or
improper motive in the opponent's action, and when not.
Unlike the " moving party who prevails . . . on a
motion," " the responding party" -- the
original plaintiff -- may be awarded fees only if the court
finds a complete lack of merit or improper motivation in the
special motion to quash. This distinction between what the
Council required in one of two companion provisions but not
the other must be assumed to be deliberate:
When the legislature uses a term or phrase in one . . .
provision but excludes it from another, courts do not imply
an intent to include the missing term in [the] . . .
provision where the term or phrase is excluded. Instead,
omission of the same provision from a similar section is
significant to show different legislative intent for the two
2A Norman Singer & Shambie Singer, Sutherland
Statutes and Statutory Construction § 46.6 (7th ed.
2015). In the same vein, ...