Strategic litigation against public participation.

WORKING DRAFT
2007
STATE OF
WYOMING
07LSO-0190

HOUSE BILL
NO.
HB0033

Strategic litigation against public participation.

Sponsored by:
Representative(s) Gingery

A BILL

for

AN ACT relating to the code of civil procedure; providing protection against strategic litigation against public participation; providing for a special motion to strike strategic litigation against public participation; providing for attorneys fees and costs; and providing for an effective date.

Be It Enacted by the Legislature of the State of
Wyoming
:

Section 1.

W.S. 1
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201 through 1
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208 are created to read:

ARTICLE 2
UNIFORM ACT LIMITING STRATEGIC LITIGATION AGAINST PUBLIC PARTICIPATION

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201.

Short title.

This act may be cited as the "Uniform Act Limiting Strategic Litigation Against Public Participation".

1-1-202.

Definitions.

(a)

As used in this act:

(i)

"Claim" includes any lawsuit, cause of action, claim, cross-claim, counterclaim or other judicial pleading or filing requesting relief;

(ii)

"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;

(iii)

"Moving party" means a person on whose behalf the motion described in W.S. 1
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204 is filed seeking dismissal of a claim;

(iv)

"Person" means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture or any other legal or commercial entity;

(v)

"Responding party" means a person against whom the motion described in W.S. 1
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204 is filed;

(vi)

"This act" means W.S. 1
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201 through 1
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208.

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203.

Scope; exclusion.

(a)

This act applies to any claim, however characterized, that is based on an action involving public participation and petition. As used in this act, an "action involving public participation and petition" includes:

(i)

Any oral statement made, or written statement or other document submitted, in a legislative, executive or judicial proceeding or other proceeding authorized by law;

(ii)

Any oral statement made, or written statement or other document submitted, in connection with an issue under consideration or review by a legislative, executive or judicial proceeding or other proceeding authorized by law;

(iii)

Any oral statement made, or written statement or other document submitted, that is reasonably likely to encourage, or to enlist public participation in an effort to effect consideration or review of an issue in a legislative, executive or judicial proceeding or other proceeding authorized by law;

(iv)

Any oral statement made, or written statement or other document submitted, in a place open to the public or a public forum in connection with an issue or public concern; or

(v)

Any other conduct in furtherance of the exercise of the constitutional right of free speech in connection with an issue of public concern, or in furtherance of the exercise of the constitutional right of petition.

(b)

This act shall not apply to any action brought by the attorney general, district attorney or city attorney, acting as a public prosecutor, to enforce laws aimed at public protection.

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204.

Special motion to strike; burden of proof.

(a)

A party may bring a special motion to strike any claim that is based on an action involving public participation and petition, as defined in W.S. 1
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203.

(b)

A party bringing a special motion to strike under this act has the initial burden of making a prima facie showing that the claim against which the motion is made is based on an action involving public participation and petition. If the moving party meets this burden, the burden shifts to the responding party to establish a probability of prevailing on the claim by presenting substantial evidence to support a prima facie case. If the responding party meets this burden the court shall deny the motion.

(c)

In making a determination under subsection (b) of this section, the court shall consider pleadings and supporting and opposing affidavits stating the facts upon which the liability or defense is based.

(d)

If the court determines that the responding party has established a probability of prevailing on the claim:

(i)

The fact that the determination has been made and the substance of the determination may not be admitted into evidence at any later stage of the case; and

(ii)

The determination does not affect the burden of proof or standard of proof that is applied in the proceeding.

(e)

The attorney general's office or any government body to which the moving party's acts were directed may intervene to defend or otherwise support the moving party.

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205.

Required procedures.

(a)

The special motion to strike may be filed within sixty (60) days of the service of the most recent complaint or, in the court's discretion, at any later time upon terms it deems proper. A hearing shall be held on the motion not more than thirty (30) days after the service of the motion unless the docket conditions of the court require a later hearing.

(b)

All discovery and any pending hearings or motion in the action shall be stayed upon the filing of a special motion to strike under W.S. 1
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204. The stay of discovery shall remain in effect until the entry of the order ruling on the motion. Notwithstanding the stay imposed by this subsection, the court, on motion and for good cause shown, may order that specified discovery or other hearings or motions be conducted.

(c)

Any party shall have a right of expedited appeal from a trial court order on the special motion or from a trial court's failure to rule on the motion in a timely fashion.

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206.

Attorney's fees; costs; and other relief.

(a)

The court shall award a moving party who prevails on a special motion to strike made under W.S. 1
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204, without regard to any limits under state law:

(i)

Costs of litigation and any reasonable attorney's fees incurred in connection with the motion; and

(ii)

Such additional relief, including sanctions upon the responding party and its attorneys or law firms, as the court determines shall be necessary to deter repetition of the conduct and comparable conduct by others similarly situated.

(b)

If the court finds that the special motion to strike is frivolous or is solely intended to cause unnecessary delay, the court shall award reasonable attorney's fees and costs to the responding party.

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207.

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.

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208.

Uniformity of application and construction.

This act shall be applied and construed liberally to effectuate its general purpose to make uniform the law with respect to the subject of this act among states enacting it.

Section 2.
This act is effective July 1, 2007.

(END)

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HB0033