Public Media Lab, Inc. & Manifold Productions, Inc. v. District of Columbia

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DISTRICT OF COLUMBIA COURT OF APPEALS
Nos. 21-CV-389 & 21-CV-475
PUBLIC MEDIA LAB, INC. & MANIFOLD PRODUCTIONS, INC., APPELLANTS,
V.
DISTRICT OF COLUMBIA, APPELLEE.
Appeals from the Superior Court
of the District of Columbia
(CAB-17-21)
(Hon. Shana Frost Matini, Trial Judge)
(Argued January 18, 2022 Decided June 9, 2022)
Jason B. Torchinsky, with whom Jonathan P. Lienhard, Edward Wenger,
and Dennis W. Polio, were on the brief for appellant Public Media Lab, Inc.
Edward D. Greim, with whom Matthew R. Mueller, and Christopher T.
Craig, were on the brief, for appellant Manifold Productions, Inc.
Thais-Lyn Trayer, Assistant Attorney General, with whom Karl A. Racine,
Attorney General for the District of Columbia, and Loren L. AliKhan, Solicitor
General at the time, Caroline S. Van Zile, Principal Deputy Solicitor General, and
Carl J. Schifferle, Deputy Solicitor General, were on the brief, for appellee.
Before EASTERLY and DEAHL, Associate Judges, and THOMPSON, * Senior
Judge.
*
Senior Judge Thompson was an Associate Judge of the court at the time of
argument. On October 4, 2021, she was appointed as a Senior Judge but she
continued to serve as an Associate Judge until February 17, 2022. See D.C. Code §
(continued…)
2
THOMPSON, Senior Judge: The District of Columbia (the “District”),
through its Attorney General, brought suit against appellants Public Media Lab,
Inc. (“PML”) and Manifold Productions, Inc. (“Manifold”), alleging violations by
PML of the District of Columbia Nonprofit Corporations Act (“NCA”) 1 and
PML’s failure to comply with various corporate-governance requirements, and
seeking judicial dissolution of PML and imposition of a constructive trust over
non-profit funds awarded to Manifold by PML. Appellants, who partner together
to produce documentary films about various historical and political figures,
brought a special motion to dismiss pursuant to the District of Columbia Anti-
Strategic Lawsuits Against Public Participation (“Anti-SLAPP”) Act. 2 The trial
court denied appellants’ motion, ruling that the District’s suit could proceed, and
appellants timely appealed that ruling. While this appeal was pending, the Council
of the District of Columbia (the “Council”) amended the Anti-SLAPP Act, initially
through emergency legislation, exempting suits brought by the District of
Columbia from its coverage and applying the new legislation to all pending cases.
(…continued)
11-1502 & 1504(b)(3) (2012 Repl.). On February 18, 2022, she began her service
as a Senior Judge. See D.C. Code § 11-1504.
1
See D.C. Code § 29-401 et seq. (2013 Repl.).
2
See D.C. Code § 16-5501 et seq. (2021 Supp.).
3
The District argues that this intervening legislation moots the appeal, while
appellants contend that the amendment is invalid as applied to this case. We
conclude that the new legislation is valid and deprives this court of the ability to
grant the relief appellants seek. We therefore dismiss the appeal as moot (thereby
leaving to stand the trial court’s denial of appellants’ special motion to dismiss)
and remand for further proceedings.
I. Factual & Procedural Background
PML is a nonprofit, 501(c)(3) corporation that was organized in 2007 under
the laws of the District of Columbia to receive and award grant funding for the
creation of educational documentary films and to engage in other charitable and
educational activities. Manifold is a for-profit media production company that has
received funding from PML to produce documentary films. The two entities have
the same business address. At all relevant times, Michael Pack was the President,
CEO, and a member of the Board of PML and the sole owner of Manifold.
4
On January 5, 2021, the Attorney General of the District of Columbia filed a
lawsuit against PML and Manifold in the Superior Court, pursuant to its authority
under common law and the NCA, alleging that PML had “fail[ed] to comply with
District law, its corporate requirements, and its nonprofit purposes . . . .” The
complaint alleges a series of transactions between PML and Manifold that violate
the prohibition against private inurement. According to the complaint, all but one
of the grants PML has awarded went to Manifold; more specifically, the complaint
alleges that the grants to Manifold totaled more than $4 million and represent
99.3% of the total grant-funding PML has issued and 94.8% of its total revenues.
The complaint asserts that the awards to Manifold violated D.C. Code § 29-
404.40(a), which prohibits a nonprofit organization from distributing “any part of
its assets, income, or profits to its . . . directors . . . or officers,” and as well
contravened PML’s articles of incorporation, which prohibit private inurement.
Additionally, the complaint alleges that in making grant awards to Manifold, PML
failed to comply with D.C. Code § 29-406.70(a) and PML’s own governing rules
that establish disclosure and board-authorization requirements for conflicting-
interest transactions. The complaint further alleges that from 2008 to 2016, PML
did not disclose the awards as transactions with interested persons, as it was
required to do on its annual IRS Form 990.
5
The complaint also alleges corporate-governance violations related to
PML’s managing structure. It asserts first that PML’s board of directors has not
held any official meetings or maintained records of actions taken by the board
since 2008, in violation of D.C. Code § 29-406.01, which requires a nonprofit to
have a board of directors to oversee its activities and affairs; D.C. Code § 29-
413.01, which sets record-keeping requirements; and PML’s by-laws, which
provide for board management and annual board meetings. Second, the complaint
alleges that for each year from 2008 through 2018, PML either listed only Mr.
Pack as an officer in its tax reporting or did not list any officers, in violation of
D.C. Code § 29-406.40(a), which requires nonprofit organizations to have at least
two officers to divide responsibility for managing the corporation and its financial
affairs. Similarly, PML’s governing documents provide for six officer positions to
be elected at each annual meeting.
Finally, the complaint alleges that PML has acted contrary to its nonprofit
purpose, see D.C. Code § 29-403.01(a), by failing to conduct its grant-making
program in the manner detailed in its application to the IRS seeking nonprofit
status. Specifically, the complaint states that “PML projected it would issue
grants, averaging between $100,000 and $200,000 per grant, with about ‘six or
seven small grants’ its first year,” and gradually increasing to twenty to twenty-five
6
grants per year. PML also described a “comprehensive and competitive grant
application and selection process, as well as disclosure and accounting
requirements on grant recipients,” which included, among other things, “an open
solicitation basis and formal review process,” issuing requests for proposals, and
“[r]equiring recipients to provide PML with accountings for the uses of such grants
. . . .” The complaint alleges that PML did not execute any of these activities.
Instead, according to the complaint, PML’s only disclosed expenses have been
“grants to Manifold and infrequent nominal banking, legal, and accounting fees,”
and thus it has functioned “only as a funding mechanism for Manifold and Pack,
not for a nonprofit purpose.”
Citing all the foregoing acts and omissions, the complaint alleges that “PML
acted as a conduit to raise tax-exempt funds for the sole and primary benefit of
Manifold” and “serves no purpose other than to illegally pass along tax-exempt
funds to Manifold, a for-profit entity.” The complaint further asserts that PML’s
alleged failure “to safeguard [its] nonprofit assets” and “meet its fiduciary duties in
ensuring that nonprofit funds are spent in ways that benefit the public, avoid
waste[,] and are in accordance with PML’s charitable purposes,” in addition to
entailing violations of the NCA and PML’s own governance requirements, also
“violated the responsibilities of a charitable corporation under common law.” The
7
Attorney General seeks judicial dissolution of PML and imposition of a
constructive trust over funds Manifold received from PML on the grounds that, in
awarding those funds, PML “exceeded or abused . . . the authority conferred upon
it by law” and “continued to act contrary to its nonprofit purposes . . . .” D.C.
Code § 29-412.20(1)(1)(B)-(C).
In response to the complaint, PML and Manifold filed a Special Motion to
Dismiss under the Anti-SLAPP Act. See D.C. Code § 16-5502(a). The trial court
denied the motion in a written order dated June 7, 2021, finding that appellants had
failed to make the required prima facie showing that the Anti-SLAPP Act applied.
Id. § 16-5502(b). While appellants’ appeal of the trial court’s denial of the special
motion to dismiss was pending, the Council passed legislation — through a series
of emergency and temporary amendments — that exempts actions brought by the
District from the Anti-SLAPP Act. 3 Appellants challenge the validity of this
3
To date, three separate pieces of legislation have been enacted: the Anti-
SLAPP Emergency Amendment Act of 2021, D.C. Act 24-208, 68 D.C. Reg.
12193 (Nov. 19, 2021) (effective November 8, 2021, until February 6, 2022); the
Anti-SLAPP Congressional Review Emergency Amendment Act of 2022, D.C.
Act 24-309, 69 D.C. Reg. 643 (Jan. 28, 2022) (filling gap between expiration of
first emergency act and completion of congressional review period of temporary
act); and the Anti-SLAPP Temporary Amendment Act of 2021, D.C. Act 24-274,
69 D.C. Reg. 209 (Jan. 14, 2022) (now D.C. Law 24-80, 69 D.C. Reg. 2024 (Mar.
18, 2022) (effective February 24, 2022, until October 7, 2022). The District of
(continued…)
8
legislation on several grounds and maintain that the trial court erred in holding that
the Anti-SLAPP Act does not apply.
II. The Anti-SLAPP Act and the
Emergency and Temporary Amendments
The Anti-SLAPP Act, D.C. Code § 16-5501 et seq. (2021 Supp.) (the
“Act”), protects the targets of meritless litigation that is “aimed to punish or
prevent the expression of opposing points of view” by creating certain procedural
tools, including a special motion to dismiss. Saudi Am. Pub. Rels. Affs. Comm. v.
Inst. for Gulf Affs., 242 A.3d 602, 605 (D.C. 2020) (quoting Competitive Enter.
Inst. v. Mann, 150 A.3d 1213, 1226-27 (D.C. 2016)). Under the Act, the party
seeking dismissal (usually the defendant) must “make[] a prima facie showing that
(…continued)
Columbia Home Rule Act authorizes the Council to pass emergency legislation,
which takes effect immediately upon enactment without congressional review and
lasts up to ninety days, “[i]f the Council determines, by a vote of two-thirds of the
members, that emergency circumstances make it necessary . . . .” D.C. Code § 1-
204.12(a) (2016 Repl.). When the Council approves emergency legislation, its
Rules also authorize the Council to consider substantially similar temporary
legislation that bypasses committee referral and is valid for 225 days after
congressional review. Rules of Organization and Procedure for the Council of the
District of Columbia, Council Period 24, Rule 413, 68 D.C. Reg. 228, 292 (Jan. 8,
2021).
9
the claim at issue arises from an act in furtherance of the right of advocacy on
issues of public interest . . . .” D.C. Code § 16-5502(b). If defendants succeed in
making this showing, the burden then shifts to the plaintiff to “demonstrate[] that
the claim is likely to succeed on the merits” in order to avoid dismissal. Id. The
filing of a special motion to dismiss under the Anti-SLAPP act stays discovery
(other than “targeted discovery” that “will enable the plaintiff to defeat the
motion”), and the court must hold an expedited hearing on the motion. D.C. Code
§ 16-5502(c)-(d).
As noted above, while this appeal was pending — and after the trial court
had ruled on appellants’ special motion to dismiss — the Council passed
emergency and temporary legislation amending D.C. Code § 16-5505 to exempt
actions brought by the District of Columbia from the Anti-SLAPP Act. Permanent
legislation was also introduced along with the initial emergency and temporary acts
and is currently under review by the Committee on Judiciary and Public Safety.
Anti-SLAPP Amendment Act of 2021, D.C. Bill 24-493, 68 D.C. Reg. 11702(Nov. 5, 2021). The amendments expressly apply to claims pending as of
November 8, 2021, the effective date of the first emergency act. Anti-SLAPP
Temporary Amendment Act of 2021 § 2(b). In concert with this legislation, the
Council also passed the Anti-SLAPP Emergency Declaration Resolution of 2021,
10
stating that “the Council did not intend for [the Anti-SLAPP Act] to be used
against actions brought by the District.” D.C. Resolution 24-287 § 2(b), 68 D.C.
Reg. 11960 (Nov. 12, 2021). In justifying emergency action, the Council observed
that “[r]ecently, defendants that have been the subject of lawsuits by the Attorney
General have indicated that they plan to use the Anti-SLAPP Act to frustrate and
delay actions brought on behalf of the District,” which “is only expected to
increase as these matters continue to gain publicity.” Id. § 2(c). The Council thus
declared that “[a]n amendment to the Anti-SLAPP Act is necessary to clarify the
Council’s original intent in the Anti-SLAPP Act, and prevent significant delays in
cases of serious public import brought by the District.” Id. § 2(d).
III. The Parties’ Arguments
The District argues that this appeal should be dismissed as moot since
actions brought by the District are now exempt from the Anti-SLAPP Act, “there is
no longer any basis to reverse the Superior Court’s denial of
defendants’ special motion to dismiss under the Anti-SLAPP Act,” and “the newly
enacted emergency legislation has eliminated any basis for reversing the Superior
11
Court and granting the dismissal that defendants seek under the Anti-SLAPP Act.”
The District cites this court’s recognition that “[w]hen a new law makes clear that
it is retroactive, an appellate court must apply that law in reviewing judgments still
on appeal that were rendered before the law was enacted,” as is the case here.
District of Columbia v. Beretta U.S.A. Corp., 940 A.2d 163, 176 (D.C. 2008)
(internal quotations omitted). The District further cites our case law that “an event
that renders relief impossible or unnecessary also renders that appeal moot.”
Thorn v. Walker, 912 A.2d 1192, 1195 (D.C. 2006) (internal quotations omitted). 4
It notes that we have previously held a case to be moot based on intervening
legislation that “deprived the trial court of the ability to grant” the relief sought.
District of Columbia v. Am. Univ., 2 A.3d 175, 181 (D.C. 2010).
Appellants counter that the emergency amendment exceeded the Council’s
authority under the District of Columbia Home Rule Act; that dismissing the
appeal on the basis of the amendment would contravene Due Process; and that the
emergency amendment amounts to an unconstitutional bill of attainder and violates
the Ex Post Facto Clause. We address each of these points in turn.
4
Though we are “not bound strictly by the ‘case or controversy’
requirements of Article III of the U.S. Constitution, this court does not normally
decide moot cases” in which “the legal issues presented are no longer ‘live’ or
when the parties lack a legally cognizable interest in the outcome.” Cropp v.
Williams, 841 A.2d 328, 330 (D.C. 2004).
12
A. District of Columbia Home Rule Act
We address first appellants’ contention that the Council exceeded its
authority under the Home Rule Act in passing the legislation in question as
“emergency” legislation. 5 While the Home Rule Act itself does not define
“emergency circumstances,” the Council Rules define an “emergency” as “a
situation that adversely affects the health, safety, welfare, or economic well-being
of the District, its residents, [or] its businesses,” such that delay resulting from the
ordinary legislative process “would adversely affect the circumstances which the
legislation is intended to protect.” Rules of Organization and Procedure for the
Council of the District of Columbia, Council Period 24, Rule 412(b), 68 D.C. Reg.
228, 291 (Jan. 8, 2021). Our court has recognized that, when reviewing emergency
legislation, we owe “substantial deference” to the Council’s determination that
5
In another pending appeal, Banks v. Hoffman, No. 20-CV-318, the court
has been presented with a different Home Rule Act challenge to the Anti-SLAPP
Act. Specifically, the court has been asked to decide whether the Council’s
creation of the Act’s special motion to dismiss violated the Home Rule Act since,
the plaintiffs/appellants assert, it contravenes the Home Rule Act provision
codified at D.C. Code § 11-946 (2012 Repl.), that generally requires the Superior
Court to “conduct its business according to the Federal Rules of Civil Procedure,”
which recognize no such motion or accompanying discovery limitations or burden-
shifting. We do not consider that issue here or imply anything about its eventual
resolution, but conceivably it could be dispositive of this case as well. It was not,
however, briefed by the parties.
13
emergency circumstances exist, and “seek only to assure ourselves that the act is
facially valid, i.e., consistent with Council legislative authority in partnership with
Congress.” Am. Fed’n of Gov’t Emps. v. Barry, 459 A.2d 1045, 1051 (D.C. 1983).
Appellants cite a number of cases in which this court has upheld emergency
legislation and appear to imply that, by comparison, the circumstances here do not
justify the Council’s determination of an emergency. See, e.g., Atchison v. District
of Columbia, 585 A.2d 150, 152 (D.C. 1991) (concluding that interpretation of
Overnight Shelter Act as requiring government to provide shelter regardless of
budget constraints, thus exposing the District to civil contempt liability and fines
for failure to do so, warranted clarification of Council’s intent in face of budget
crisis); United States v. Alston, 580 A.2d 587, 596-97 (D.C. 1990) (increase in
homicides warranted emergency legislation authorizing preventative pretrial
detention and enhanced penalties); Am. Fed’n of Gov’t Emps., 459 A.2d at 1049-
51, 1050 n.9 (law requiring pay increase that could be construed to apply to
District employees and would result in budget shortfall warranted emergency
legislation; “emergency” need not follow from “unforeseen circumstances”).
The budgetary and public-safety circumstances that occasioned the
emergency legislation discussed in foregoing cases arguably were of a more typical
14
emergent nature than the circumstance that caused the Council to act here.
However, given the Council’s expressed concern about some defendants’ plan to
use the Anti-SLAPP Act “to frustrate and delay actions brought on behalf of the
District,” and about the need to avert “frivolous and malicious” misuse of the Act
and thus “prevent significant delays in cases of serious public import brought by
the District,” Anti-SLAPP Emergency Declaration Resolution of 2021 §2(c)-(d),
we cannot say that the Council’s declared emergency fails to pass the “facially
valid” test. 6 Appellants have not pointed us to a single case, nor have we found
one, where we have invalidated emergency legislation on this type of challenge.
Instead, we have consistently reiterated our deferential approach, particularly
where the emergency legislation is (as it was here) accompanied by proposed
temporary legislation (that was submitted for congressional review on January 11,
2022) and permanent legislation and thus covers only the period necessary for
more permanent legislation to make its way through the legislative process and the
congressional review period. See Atchison, 585 A.2d at 157. Indeed, the
temporary act has already completed congressional review and is law, see D.C.
Law 24-80, 69 D.C. Reg. 2024 (Mar. 18, 2022), and the permanent legislation has
6
We note that the legislative history contains references to nationwide use
of such tactics to thwart enforcement actions. See Request to Agendize Measures
for November 2, 2021 Legislative Meeting, Memorandum from Councilmember
Charles Allen (citing “large oil companies[’] attempt[] to use the anti-SLAPP laws
to stop state enforcement cases across the country”).
15
been submitted for Committee review. Therefore, we have no basis for second-
guessing the Council’s “emergency” determination on the ground that it was in
reality “an attempt by the Council to avoid congressional review . . . ,” Alston, 580
A.2d at 595, or “a dodge to avoid the more onerous procedural requirements for
enacting permanent legislation.” Atchison, 585 A.2d at 153.
B. Constitutional Challenges
Appellants also unpersuasively challenge the emergency legislation on
several constitutional grounds. First, they argue that retroactive application of the
amendment — which on its face applies to “any claims pending” — presents due
process concerns. 7 We have recognized that “retroactive civil legislation is subject
to only ‘modest’ constitutional limits.” Holzsager v. District of Columbia
Alcoholic Beverage Control Bd., 979 A.2d 52, 57 n.5 (D.C. 2009) (quoting
Beretta, 940 A.2d at 179)). Retroactivity often serves legitimate purposes,
including “‘to respond to emergencies, to correct mistakes, to prevent
7
It is true that statutes “will not be construed to have retroactive effect
unless their language requires [that] result,” but a clear legislative intent to apply a
new law to pending cases governs over any “presumption against retroactive
legislation.” Landgraf v. USI Film Prod., 511 U.S. 244, 264-65, 273 (1994)).
16
circumvention of a new statute in the interval immediately preceding its passage,
or simply to give comprehensive effect to a new law [the legislature] considers
salutary,’ and should be given its intended scope absent constitutional restrictions.”
Nixon v. District of Columbia Dep’t of Emp’t Servs., 954 A.2d 1016, 1022 n.5
(D.C. 2008) (brackets in original) (quoting Landgraf v. USI Film Prod., 511 U.S.
244, 267-78 (1994)). Here, retroactive application of the Anti-SLAPP Amendment
Act “is supported by a legitimate legislative purpose furthered by rational means,”
Beretta, 940 A.2d at 174 (quoting Pension Benefit Guar. Corp. v. R.A. Gray & Co.,
467 U.S. 717, 729 (1984)), namely to “prevent significant delays in cases of
serious public import brought by the District.” Anti-SLAPP Emergency
Declaration Resolution of 2021 § 2(d).
Furthermore, contrary to appellants’ assertion, the amendment does not
contravene due process by “randomly deny[ing] potential litigants use of
established adjudicatory procedures.” Beretta, 940 A.2d at 175 (internal
quotations and brackets omitted) (discussing Logan v. Zimmerman Brush Co., 455
U.S. 422, 427-29 (1982)). The Council has the “authority to make substantive
changes affecting claims or causes of action,” including “‘creat[ing] substantive
defenses or immunities for use in adjudication—or to eliminate its statutorily
created causes of action altogether’” after a cause of action has accrued. Id.
17
(quoting Logan, 455 U.S. at 432); see also id. at 176 (explaining that “the correct
constitutional distinction is . . . between causes of action that have reached final,
unreviewable judgment—and in that sense have vested—and all others, pending
and future, which may be modified by rationally grounded retroactive legislation”).
It therefore follows that the Council could remove the ability to use a defensive
procedural mechanism without depriving appellants of their due process rights. So
long as an action has not “reached final, unreviewable judgment,” “the legislative
determination provides all the process that is due.” Holzsager, 979 A.2d at 57 n.5
(quoting Beretta, 940 A.2d at 175-76).
Appellants next challenge the legislation as an unconstitutional bill of
attainder. Even if we assume without deciding that the constitutional prohibition
on bills of attainder applies to corporations (following the lead of the United States
Court of Appeals for the D.C. Circuit), appellants would need to show that the
amendment “(1) applies with specificity, and (2) imposes punishment.” Kaspersky
Lab, Inc. v. United States Dep’t of Homeland Sec., 909 F.3d 446, 453-54 (D.C. Cir.
2018) (internal quotations omitted). Addressing the specificity prong, appellants
argue that the amendment in effect singles them out based on the legislation’s
enactment at the request of the Attorney General while this appeal was pending.
See Letter from Attorney General Karl A. Racine to Council Chairman Phil
18
Mendelson (Oct. 28, 2021). What they have entirely failed to do is show that the
amendment is punitive. See Foretich v. United States, 351 F.3d 1198, 1218 (D.C.
Cir. 2003) (noting that because “‘virtually all legislation operates by identifying
the characteristics of the class to be benefitted or burdened . . . it is not clear that
the specificity requirement retains any real bite,’” and explaining that “the
principal touchstone of a bill of attainder is punishment”) (quoting BellSouth Corp.
v. F.C.C., 144 F.3d 58, 63 (D.C. Cir. 1998)).
The Supreme Court has articulated three tests for determining whether a law
inflicts punishment as a potential bill of attainder: “(1) whether the challenged
statute falls within the historical meaning of legislative punishment; (2) whether
the statute, ‘viewed in terms of the type and severity of burdens imposed,
reasonably can be said to further nonpunitive legislative purposes’; and (3) whether
the legislative record ‘evinces a congressional intent to punish.’” Selective Serv.
Sys. v. Minn. Pub. Int. Rsch. Grp., 468 U.S. 841, 852 (1984) (quoting Nixon v.
Adm’r of Gen. Servs., 433 U.S. 425, 475-76, 478 (1977)). None of these tests
supports appellants’ argument. First, removing an expedited dismissal mechanism
does not fall within the “ready checklist of deprivations and disabilities” that have
historically been considered punishment, such as banishment, “punitive
confiscation of property,” and an “enactment barring designated individuals or
19
groups from participation in specified employments or vocations . . . .” Nixon, 433
U.S. at 473-74. Nor is the amendment punitive under the functional test, which
considers whether the “type and severity of burdens imposed” by the challenged
law “reasonably can be said to further nonpunitive legislative purposes.” Id. at
775-76. Here, the burden imposed is to continue defending against the lawsuit in
the normal course of litigation. While we recognize that this burden is not
insignificant and indeed is what the Anti-SLAPP Act was intended to mitigate, we
are satisfied that the legislation reasonably advances the non-punitive purpose of
ensuring that the Anti-SLAPP Act is applied according to Council intent and not
used to inhibit government enforcement actions. Finally, despite appellants’
contention that their “singling-out” in the midst of other legitimate emergencies
“can only point to an inference of punitive purpose,” we discern no basis for
drawing such an inference. See Kaspersky Lab, 909 F.3d at 463-64 (Senator’s
comments referring to national security vulnerability created by the defendant
company’s products did not reflect a punitive intent because it “expressed a desire
to take action” to advance “a nonpunitive objective” of protecting national
security); cf. Am. Bar Ass’n v. F.T.C., 636 F.3d 641, 649 (D.C. Cir. 2011) (noting
“presumption of integrity that attaches to legislative action” and observing that
legislation that moots an appeal may just mean that a pending lawsuit “convinced
[the legislature] that the existing law is flawed” (internal quotations omitted)).
20
For similar reasons, we are also unpersuaded by appellants’ argument that
applying the amendment to this case would violate the Ex Post Facto Clause,
which “prohibits retroactive application of penal legislation.” Landgraf, 511 U.S.
at 266. The Ex Post Facto Clause is implicated by any law that imposes
punishment for an act that was innocent when committed, imposes a more
burdensome punishment than would have applied when the act was committed, or
“deprives one charged with [a] crime of any defense available according to [the]
law at the time when the act was committed . . . .” Collins v. Youngblood, 497
U.S. 37, 41, 42 (1990) (internal quotations omitted). “Although the prohibition
generally applies to criminal statutes, it may also be applied in civil cases where
the civil disabilities disguise criminal penalties.” Louis Vuitton S.A. v. Spencer
Handbags Corp., 765 F.2d 966, 972 (2d Cir. 1985); see also Landgraf, 511 U.S. at
281 (“Retroactive imposition of punitive damages would raise a serious
constitutional question.”). 8 Appellants argue that the emergency amendment itself
8
When confronted with a civil regulatory regime, as here, we consider
whether the Council nevertheless intended the statute to impose punishment and, if
not, “whether the statutory scheme is ‘so punitive either in purpose or effect as to
negate [the Council’s] intention to deem it civil,’” which requires “the clearest
proof . . . .” In re W.M., 851 A.2d 431, 440 (D.C. 2004) (quoting Kansas v.
Hendricks, 521 U.S. 346, 361 (1997) and Hudson v. United States, 522 U.S. 93,
100 (1997). Several factors guide this analysis, many of which overlap with the
bill-of-attainder analysis, including considering the historical notions and
(continued…)
21
constitutes punishment and also removes a defense from punitive liability. But the
test for determining whether a civil regulatory regime is punitive largely overlaps
with the bill of attainder analysis, and appellants, who rely on the same arguments
for both their bill-of-attainder argument and their Ex Post Facto argument, again
have failed to convince us that exempting suits brought by the District from the
Anti-SLAPP Act’s protections constitutes punishment.
As to whether the amendment violates the Ex Post Facto clause by removing
a defense to punitive liability, we are satisfied that it does not. That is because the
Anti-SLAPP Act has never provided a complete defense, such that depriving
appellants of its protections in this lawsuit would “change[] the legal consequences
of acts completed before its effective date.” Nixon, 954 A.2d at 1022 (quoting
Landgraf, 511 U.S. at 269 n.23). Rather than altering a defendant’s ultimate
liability for the underlying conduct, the Anti-SLAPP Act creates a procedural
mechanism that allows for expedited dismissal of meritless SLAPP suits. A
plaintiff to a lawsuit can overcome an Anti-SLAPP motion to dismiss by
(…continued)
traditional aims of punishment, whether the regulation imposes an affirmative
disability or restraint, and whether it rationally and non-excessively advances a
non-punitive purpose. Id. at 444-45 (holding sex offender registration and
notification system did not impose criminal penalty for purposes of Ex Post Facto
prohibition on retroactivity).
22
demonstrating that the plaintiff is likely to succeed on the merits of its claim(s), see
D.C. Code § 16-5502(b), i.e., that “the evidence [is] legally sufficient to permit a
jury properly instructed on the applicable [law] to reasonably find in the plaintiff’s
favor.” Competitive Enter. Inst., 150 A.3d at 1221. Thus, retroactively removing
the availability of the Anti-SLAPP special motion to dismiss does not run afoul of
the Ex Post Facto clause by eliminating what otherwise would have been a
sufficient defense.
***
In sum, for the reasons discussed above, appellants have failed to persuade
us that the emergency amendment to the Anti-SLAPP Act rendering it inapplicable
to actions by the District violates the Home Rule Act, or that the emergency and
temporary amendments to the act violate constitutional protections. We agree with
the District that the legislation renders this appeal moot by removing any statutory
basis for the relief appellants seek: reversal of the trial court’s denial of their Anti-
SLAPP Act special motion to dismiss. Accordingly, the appeal is hereby
Dismissed as moot, and the matter is remanded to
the trial court for further proceedings.