PA 17-71—sSB 981

Judiciary Committee

AN ACT CONCERNING STRATEGIC LITIGATION AGAINST PUBLIC PARTICIPATION AND A SPECIAL MOTION TO DISMISS

SUMMARY: This act enables a party in a civil action to file a special motion to dismiss a claim, counterclaim, or cross claim that is based on the party, in connection with a matter of public concern, exercising the party's right (1) of free speech, (2) to petition the government, or (3) of association. With limited exceptions, the court must stay discovery upon receiving such a motion and provide an expedited hearing on it. The court must also issue a ruling as soon as practicable.

The act establishes the standard under which the court must grant the motion. The act also requires the court to award costs and reasonable attorney's fees to the (1) moving party, including costs and fees related to the filing, if it grants the motion and (2) opposing party if it denies the motion and finds it frivolous and solely intended to cause unnecessary delay.

The act does not:

1. apply to an enforcement action the attorney general brings in the name of the state or one of its subdivisions (e.g., a municipality or borough);

2. affect or limit the court's authority to award sanctions, costs, attorney's fees, or any other relief available under any statute, court rule, or other authority;

3. affect, limit, or preclude the right of the party filing the motion to any defense, remedy, immunity, or privilege otherwise authorized by law;

4. affect the substantive law governing any asserted claim;

5. create a private right of action; or

6. apply to a common law or statutory claim for bodily injury or wrongful death, except for claims (a) for emotional distress unrelated to such injury or death or that are joined with a cause of action other than for such injury or death or (b) for defamation, libel, or slander. These provisions do not prohibit a plaintiff who brings a claim for bodily injury or wrongful death from filing a special motion to dismiss a counterclaim.

EFFECTIVE DATE: January 1, 2018 and applicable to any civil action filed on or after that date.

DEFINITIONS

For the act's purposes:

1. “matters of public concern” are issues related to (a) health or safety; (b) environmental, economic, or community well-being; (c) government, zoning, and other regulatory matters; (d) a public official or figure; or (e) an audiovisual work;

2. “right of free speech” means communicating, or conduct furthering communication, in a public forum on a matter of public concern;

3. “right to petition the government” means communication (a) in connection with an issue under consideration or review by a government body, (b) that is reasonably likely to encourage consideration or review of a matter of public concern by such an entity, or (c) that is reasonably likely to enlist public participation in an effort to cause such an entity to consider an issue; and

4. “right of association” means communication among individuals who join together to collectively express, promote, pursue, or defend common interests.

SPECIAL MOTION TO DISMISS

Filing

Under the act, any party filing a special motion to dismiss must do so within 30 days of the date the complaint was returned or the counterclaim or cross claim was filed. The court may extend this deadline if the party seeking the motion shows good cause.

Discovery

The act generally requires the court to stay all discovery when the motion is filed, and the stay remains in effect until the court grants or denies the motion and any interlocutory appeal. But the court may order specified and limited discovery upon (1) its own motion or (2) a party's motion and a showing of good cause.

Expedited Hearing

The court must conduct an expedited hearing on a special motion to dismiss. The hearing must be held within 60 days after the motion is filed unless the:

1. parties agree to a later hearing date;

2. court, for good cause shown, is unable to schedule the hearing during the 60-day period; or

3. court ordered specified and limited discovery, in which case the hearing must be held within 60 days after the discovery must be completed.

Ruling

When ruling on a special motion to dismiss, the court must consider the parties' pleadings and supporting and opposing affidavits attesting to the facts upon which the liability or defense is based.

The court must grant such a motion if the moving party makes an initial showing, by a preponderance of the evidence, that the opposing party's complaint, counterclaim, or cross claim is based on the moving party exercising, in connection with a matter of public concern, its right under the state or U.S. Constitution (1) to free speech, (2) to petition the government, or (3) of association. But the court is not required to grant the motion if the opposing party (1) sets forth with particularity the circumstances that gave rise to the complaint, counterclaim, or cross claim and (2) demonstrates to the court that there is probable cause, considering all valid defenses, that such party will prevail.

Under the act, the court's findings and determinations on the motion are not admissible as evidence at any later stage of the proceeding or in a subsequent action.