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Bill Text
George W. Pring and Penelope Canan, in their 1996 book SLAPPs: Getting
Sued for Speaking Out, cite the following as essential for inclusion in
a good anti-SLAPP bill:
1. Communications: It must cover all public advocacy and communications
to government, whether direct or indirect and whether in the form of testimony,
letters, reports of crime, peaceful demonstrations, or petitions.
2. Forums: It must cover all government bodies and agents, whether federal,
state, or local, and whether legislative, executive, judicial, or the electorate.
3. Prevention and cure: It must set out an effective early review for
filed SLAPPs, shifting the burden of proof to the filer and, in so doing,
serving a clear warning against the future filing of such suits.”
In specific legal terms, a bill should contain:
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An expedited process for a motion to dismiss
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A motion to stay all discovery until a resolution of the anti-SLAPP motion
or a stay which could be modified by a show of good cause for seeking discovery
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An attorney fee provision for the prevailing defendant
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In the case of a denial of an anti-SLAPP motion, the right to an immediate
appeal
The following language was developed by George W. Pring and Penelope Canan
(both professors at the University of Denver) and the Institute they founded,
the University of Denver Political Litigation Project. It uses the elements
of the California, New York, and Minnesota bills and incorporates federal
law and a Supreme Court decision.
[Reprinted from SLAPPs: Getting Sued for Speaking Out
(1996)]
SECTION 1. SHORT TITLE.
This Act may be cited as the “Citizen Participation in Government Act
of 200_.”
SECTION 2. LEGISLATIVE FINDINGS AND DECLARATION OF PURPOSES.
(a) FINDINGS. The Legislature finds and declares that
(1) the framers of our Constitutions, recognizing citizen participation
in government as an inalienable right essential to the survival of democracy,
secured its protection through the right to petition the government for
redress of grievances in the First Amendment to the U.S. Constitution and
Section __ of the Constitution of the State;
(2) the communications, information, opinions, reports, testimony,
claims, and arguments provided by citizens to their government are essential
to wise government decisions and public policy, the public health, safety,
and welfare, effective law enforcement, the efficient operation of government
programs, the credibility and trust afforded government, and the continuation
of America’s republican form of government through representative democracy;
(3) civil lawsuits and counterclaims, often claiming millions of dollars,
have been and are being filed against thousands of citizens, businesses,
and organizations based on their valid exercise of their right to petition,
including seeking relief, influencing action, informing, communicating,
and otherwise participating with government bodies, officials, or employees
or the electorate;
(4) such lawsuits, called “Strategic Lawsuits Against Public Participation”
or “SLAPPs,” are typically dismissed as unconstitutional, but often not
before the defendants are put to great expense, harassment, and interruption
of their productive activities;
(5) the number of SLAPPs has increased significantly over the past
30 years;
(6) SLAPPs are an abuse of the judicial process; they are used to censor,
chill, intimidate, or punish citizens, businesses, and organizations for
involving themselves in public affairs, and controlling SLAPPs will make
a major contribution to lawsuit reform;
(7) the threat of financial liability, litigation costs, destruction
of one’s business, loss of one’s home, and other personal losses from groundless
lawsuits seriously affects government, commerce, and individual rights
by significantly diminishing public participation in government, in public
issues, and in voluntary service;
(8) while courts have recognized and discouraged SLAPPs, protection
of these important has not been uniform or comprehensive;
(9) while some citizen communications to government inevitably will
be incorrect, unsound, self-interested, or not in good faith, it is essential
in our democracy that the constitutional rights of citizens to participate
fully in the process of government be uniformly, consistently and comprehensively
protected and encouraged.
(b) PURPOSES. The purpose of this Act are
(1) to protect and encourage citizen participation in government to
the maximum extent permitted by law;
(2) to create a more equitable balance between the rights of persons
to file lawsuits and to trial by jury and the rights of persons to petition,
speak out, associate, and otherwise participate in their governments;
(3) to support the operations of and assure the continuation of representative
government in America, including the protection and regulation of public
health, safety, and welfare by protecting public participation in government
programs, public policy decisions, and other actions;
(4) to establish a balanced, uniform, comprehensive process for speedy
adjudication of SLAPPs as a major contribution to lawsuit reform;
(5) to provide for attorney fees, costs, and damages for persons whose
citizen participation rights have been violated by the filing of a SLAPP
against them.
SECTION 3. IMMUNITY.
Acts in furtherance of the constitutional right to petition,
including seeking relief, influencing action, informing, communicating,
and otherwise participating in the processes of government, shall be immune
from civil liability, regardless of intent or purpose, except where not
aimed at procuring any governmental or electoral action, result, or outcome.
SECTION 4. APPLICABILITY.
This Act applies to any motion to dispose of a claim in a judicial
proceeding on the grounds that the claim is based on, relates to, or is
in response to any act of the moving party in furtherance of the moving
party’s rights as described in Section 3.
SECTION 5. REQUIRED PROCEDURES.
On the filing of any motion as described in Section 4
(a) the motion shall be treated as one for summary judgment:
(1) the trial court shall use a time period appropriate to preferred
or expedited motions; and
(2) the moving party shall have a right expedited appeal form a trial
court order denying such a motion or from a trial court failure to rule
on such a motion in expedited fashion;
(b) discovery shall be suspended, pending decision on the motion and
appeals;
(c) the responding party shall have the burden of proof, of going forward
with the evidence, and of persuasion on the motion;
(d) the court shall make its determination based upon the facts contained
in the pleadings and affidavits filed;
(e) the court shall grant the motion and dismiss the judicial claim,
unless the responding party has produced clear and convincing evidence
that the acts of the moving party are not immunized from liability by Section
3;
(f) any government body to which the moving party’s acts were directed
or the Attorney General may intervene to defend or otherwise support the
moving party in the SLAPP;
(g) the court shall award a moving party who is dismissed, without
regard to any limits under state law:
(1) costs of litigation (including reasonable attorney and expert witness
fees) incurred in connection with the motion; and
(2) such additional sanctions upon the responding party, its attorneys,
or law firms as it determines will be sufficient to deter repetition of
such conduct and comparable conduct by others similarly situated;
(h) a person damaged or injured by reason of a claim filed in violation
of their rights under Section 3 may seek relief in the form of a claim
for actual or compensatory damages, as well as punitive damages, attorney
fees, and costs, from the person or persons responsible.
SECTION 6. DEFINITIONS.
As used in this Act
(a) “government” includes a branch, department, agency, instrumentality,
official, employee, agent, or other person acting under color of law of
the United States, a state, or subdivision of a state or other public authority,
including the electorate;
(b) “state” includes the District of Columbia, the Commonwealth of
Puerto Rico, and each territory and possession of the United States;
(c) “person” includes any individual, corporation, association, organization,
partnership, two or more persons having a joint or common interest, or
other legal entity;
(d) “judicial claim” or “claim” includes any lawsuit, cause of action,
claim, cross-claim, counterclaim, or other judicial pleading or filing
requesting relief;
(e) “motion” includes any motion to dismiss, for summary judgment,
for judgment on the pleadings, to strike, demurrer, or any other judicial
pleading filed to dispose of a judicial claim;
(f) “moving party” means any person on whose behalf the motion described
in Section 4 is filed seeking dismissal of the judicial claim; and
(g) “responding party” means any person against whom the motion described
in Section 4 is filed.
SECTION 7. GENERAL PROVISIONS.
(a) RELATIONSHIP TO OTHER LAWS. Nothing in this Act shall limit or
preclude any rights the moving party may have under any other constitutional,
statutory, case or common law, or rule provisions.
(b) RULE OF CONSTRUCTION. This Act shall be construed liberally to
effectuate its purposes and intent fully.
(c) SEVERABILITY OF PROVISIONS. If any provision of this Act or the
application of any provision of this Act to any person or circumstance
is held invalid, the application of such provision to other persons or
circumstances and the remainder of this act shall not be affected thereby.
(d) EFFECTIVE DATE. This Act shall take effect immediately.
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