Report Title:

Anti-SLAPP

Description:

Provides the means to expedite the dismissal of a lawsuit against a person for exercising the right to petition, including informing, seeking relief, or otherwise participating in the process of government. (HB741 HD1)

HOUSE OF REPRESENTATIVES

H.B. NO.

741

TWENTY-FIRST LEGISLATURE, 2001

H.D. 1

STATE OF HAWAII

 


 

A BILL FOR AN ACT

 

relATING TO CIVIL LIABILITY.

 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

SECTION 1. The legislature finds 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 article I, section 4 of the state constitution;

(2) Communication, 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, 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 thirty years;

(6) SLAPPs are an abuse of the judicial process; they are used to censor, chill, intimidate, or punish citizens, businesses, or 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 rights has not been uniform or comprehensive; and

(9) While some citizen communications to the 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.

The purpose of this Act is to:

(1) Protect and encourage citizen participation in government to the maximum extent permitted by law;

(2) 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) Support the operations of and assure the continuation of representative government in America, including the protection and regulation of public heath, safety, and welfare by protecting public participation in government programs, public policy decisions, and other actions;

(4) Establish a balanced, uniform, and comprehensive process for speedy adjudication of SLAPPs as a major contribution to lawsuit reform; and

(5) 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 2. The Hawaii Revised Statutes is amended by adding a new chapter to be appropriately designated and to read as follows:

"CHAPTER

CITIZEN PARTICIPATION IN GOVERNMENT ACT

§ -1 Definitions. As used in this chapter, unless the context otherwise requires:

"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.

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

"Motion" includes any motion to dismiss, for summary judgment, for judgment on the pleadings or to strike, a demurrer, or any other judicial pleading filed to dispose of a judicial claim.

"Moving party" means any person on whose behalf the motion described in section -3 is filed seeking dismissal of the judicial claim.

"Person" includes any individual, corporation, association, organization, partnership, two or more persons having a joint or common interest, or other legal entity.

"Responding party" means any person against whom the motion described in section -3 is filed.

§ -2 Immunized acts. Any act by a person in furtherance of the constitutional right to petition under the United States or state constitution, including seeking relief, influencing action, informing, communicating, and otherwise participating in the process 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.

§ -3 Required procedures; motion. Notwithstanding any law to the contrary, including rules of court, upon the filing of 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 in section -2:

(1) The motion shall be treated as a motion for judgment on the pleadings, and the court shall expedite the hearing of the motion;

(2) The moving party shall have a right of expedited appeal from the court order denying the motion or from a court's failure to rule on the motion in an expedited fashion;

(3) Discovery shall be suspended, pending decision on the motion and appeals;

(4) The responding party shall:

(A) Without leave of court, have seven days with which to amend its pleadings to be pled with specificity, and shall include such supporting particulars as are peculiarly within the supporting pleader's knowledge; and

(B) Have the burden of proof and persuasion on the motion;

(5) The court shall make its determination based upon the allegations contained in the pleadings and affidavits filed;

(6) The court shall grant the motion and dismiss the judicial claim, unless the responding party has proven by a preponderance of the evidence that the acts of the moving party are not immunized by section

-2;

(7) Any government body to which the moving party's acts were directed or the state attorney general in the case of a state government body, or the county attorney or corporation counsel in the case of a county government body may intervene to defend or otherwise support the moving party in the lawsuit;

(8) The court shall award a moving party who prevails on the motion, without regard to any limits under state law:

(A) Costs of suit, including reasonable attorneys' and expert witness fees, incurred in connection with the motion;

(B) If the court finds the claim is frivolous, actual damages or $5,000, whichever is greater; and

(C) Such additional sanctions upon the responding party, its attorneys, or law firms as the court determines shall be sufficient to deter repetition of such conduct and comparable conduct by others similarly situated;

and

(9) Any person damaged or injured by reason of a claim filed in violation of their rights under section -2 may seek relief in the form of a claim for actual or compensatory damages, as well as punitive damages, attorneys' fees, and costs, from the person responsible.

§ -4 Relationship to other laws. Nothing in this chapter shall limit or preclude any rights the moving party may have under any other constitutional, statutory, case or common law, or rule provisions.

§ -5 Rule of construction. This chapter shall be construed liberally to fully effectuate its purposes and intent."

SECTION 3. If any provision of this chapter, or the application thereof to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of the chapter, which can be given effect without the invalid provision or application, and to this end the provisions of this chapter are severable.

SECTION 4. This Act shall take effect upon its approval.