A year later, they are still arguing about who pays the defendant’s legal fees.  The problem is that the statute says you get fees only if the court grants your anti-SLAPP motion.  And the court didn’t have a chance to rule on the anti-SLAPP motion before the plaintiff withdrew their suit.    To quote from the decision:

In this case, the judge did not “grant” the special motion to dismiss. Instead, she properly ruled the motion moot in light of the voluntary dismissal, and thus costs and fees were not permitted under the anti-SLAPP statute.

Despite the anti-SLAPP statute’s clear language, the defendant invites us to graft language onto it in order to permit recovery of costs and fees in these circumstances. We decline to do so because “we do not ‘read into the statute a provision which the Legislature did not see fit to put there, whether the omission came from inadvertence or of set purpose. [internal citations omitted]

Alright, legislature: ball’s in your court.  Put an end to this new strategy of abusive litigation by amending the anti-SLAPP statute to include this scenario.  By filing and withdrawing, this SLAPP plaintiff is able to do exactly what the legislature sought to deter–distract some activists and divert their resources from public participation to litigation.  As soon as they file their notice of voluntary dismissal, the suit is dismissed without prejudice (they can re-sue later), and their defendants are stuck with the costs.

There’s an easy solution: amend the statute to say that if a notice of voluntary dismissal comes after an anti-SLAPP “special motion to dismiss,” the court must go on to determine whether the suit was a SLAPP suit.  If so, award fees and costs to the defense, and enter an order dismissing the suit with prejudice (meaning the plaintiff can’t re-sue later).

And that, friends is what happened today in Briscoe v. Virginia–the case that was widely feared (or hoped) to limit the reach of this summer’s decision in Melendez-Diaz v. Massachusetts.  That’s right, folks–you really really have to put the analyst on the witness stand!

And for the record, that is exactly what I predicted they were going to do when they granted cert in this case.

MR. FRIEDMAN: “I think that issue is entirely orthogonal to the issue here because…”

CHIEF JUSTICE ROBERTS: “I’m sorry.  Entirely what?

MR. FRIEDMAN: “Orthogonal.  Right-angle.  Unrelated.  Irrelevant.”

CHIEF JUSTICE ROBERTS: “Oh.”

JUSTICE SCALIA: “What was that adjective?  I like that.”

MR. FRIEDMAN: “Orthogonal.”

CHIEF JUSTICE ROBERTS.  ”Orthogonal.”

MR. FRIEDMAN: “Right, right.”

JUSTICE SCALIA: “Orthogonal, oooh.”

JUSTICE KENNEDY: “I knew this case presented us a problem.”

MR. FRIEDMAN: “I should have… I probably should have said that…”

JUSTICE SCALIA: “I think we should use that in the opinion.”

MR. FRIEDMAN: “I thought… thought I had seen it before…”

JUSTICE SCALIA: “Or the dissent.”

Judge: “Let me remind you. You raised your right hand. You swore to tell the truth. You’re telling me you’ve never had so much as a parking ticket. Would you like me to go through your entire five-page driving record?’

Driver murmers something stoogey about different kinds of tickets, and leaves the courtroom with tail between legs.

There’s always something to break the monotony of traffic court…

The next driver pled the bladder defense to speeding, and got off.

But it will be retarded if we lose this appeal.

Answer to 211 3 petition has been sent in.  Cross fingers.  Hope.