Some defamation cases are so lacking in merit that a defendant can pick and choose among multiple grounds for dismissal. Virginia’s anti-SLAPP statute, for example, is designed to provide a remedy for defendants who are sued for exercising their First Amendment rights while speaking on matters of public concern. A demurrer, on the other hand, allows a defendant to challenge the legal sufficiency of the plaintiff’s complaint in situations where the complaint fails to present a valid claim even if one assumes all the plaintiff’s allegations are true. The anti-SLAPP statute authorizes an award of attorney fees to a prevailing defendant; a successful demurrant may succeed in getting the case dismissed but will generally not be entitled to recovery of legal fees. Virginia defense lawyers often struggle with the strategic decision of which dispositive motion to file and argue first to maximize the likelihood of both a dismissal and an award of legal fees. In a decision of the Virginia Court of Appeals released earlier this week, the court offered some guidance, ruling that even if a demurrer is argued first and sustained, a pending anti-SLAPP motion will not become moot and fees may still be awarded if the statement at issue is covered by the statute.
The case is Jamie Allen Harless v. Kenneth E. Nicely and the facts are straightforward: a high school football coach was not pleased with the way his behavior was characterized by four employees of Roanoke County Public Schools who had written various reports and other statements about his conduct during a football game with a competing high school. The school principal had issued a report describing how she investigated an incident and determined that Coach Harless had called a student on the opposing team a “fucking dirty player” and uttered various other profanities. The complaint alleges she added her own commentary to the report, writing for example that “Mr. Harless acted in a racist manner unfit to coach when he intentionally targeted two WBHS players because they were Black.” The complaint also takes issue with various statements accusing him of unsportsmanlike recruiting methods that violate Virginia High School League policies.
Mr. Harless sued the school employees for defamation and defamation per se. The defendants responded to the suit with both a demurrer and a plea in bar. The demurrer argued that none of the statements at issue were sufficient to state a claim for defamation. The plea in bar raised the anti-SLAPP statute’s immunity defense. The trial court dealt with the demurrer first and sustained it in its entirety. All of the alleged statements, it found, were either contradicted by attachments to the complaint, pled with insufficient particularity, were non-actionable statements of opinion, or were covered by qualified privilege. (Normally qualified privilege wouldn’t be a sufficient basis to dismiss a case on a demurrer because a jury could find that the privilege was lost or abused, but the trial court noted that no facts were alleged that would support any such finding).
The trial court then turned to the plea in bar and denied it (along with the defendants’ request for attorney fees) on the ground that the case had already been decided on other grounds, so the immunity defense had become moot. The defendants appealed that ruling, arguing that their anti-SLAPP plea had not become moot and they should have been awarded their legal fees. The Court of Appeals agreed that the plea did not become moot and that the trial court retained discretion to award attorney fees. It affirmed the trial court’s order sustaining the demurrer but remanded the case with instructions for the trial court to determine whether to award attorney fees and, if so, the amount to be awarded.
Referring to Section 8.01-223.2 as “Virginia’s anti-SLAPP (strategic lawsuit against public participation) statute” (the first time a Virginia appellate court has done this, to my knowledge), the court held that if its terms apply to a particular legal claim, the defendant may be entitled to recover reasonable attorney fees and costs. Here, it held that the lawsuit was clearly covered by the anti-SLAPP statute. Section 8.01-223.2(A) provides that “A person shall be immune from tort liability if the tort claim is based solely on statements…regarding matters of public concern that would be protected under the First Amendment….” Each of the statements claimed to be defamatory was made by a school employee as part of their employment obligations. The statements were made “to express their concerns about another employee who could have potentially been violating the VHSL’s policies.” The coach’s behavior around student athletes is a matter of public concern, the court held, so the anti-SLAPP statute was implicated.
Unfortunately, the court didn’t really discuss the mootness issue or the language in the anti-SLAPP statute saying that fees may only be awarded if a defendant prevails “pursuant to the immunity provided by this section.” That language seems to suggest that if a case is dismissed on a demurrer, rather than as a result of the anti-SLAPP statute, fees will not be available. But this interpretation, according to the Harless decision (which is now binding precedent throughout Virginia), is wrong. The court’s holding is that a defendant sued over a statement regarding a matter of public concern protected by the First Amendment may be entitled to reasonable attorney fees regardless of whether the trial court chooses to dismiss the case on other grounds.