Requires awarding of costs and attorney fees in frivolous action involving public petition and participation; expands application of actions involving public petition and participation.
NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A856
SPONSOR: Weinstein TITLE OF BILL: An act to amend the civil rights law, in relation to
actions involving public petition and participation
PURPOSE OF BILL: The purpose of this bill is to extend the protection
of New York's current law regarding Strategic Lawsuits Against Public
Participation ("SLAPP suits"). The amendment will protect citizens' from
frivolous litigation that is intended to silence their exercise of the
rights of free speech and petition about matters of public concern.
SUMMARY OF PROVISIONS OF BILL:
Section 1 of the bill would amend section 76-a of the Civil Rights Law
to define an "action involving public petition and participation" to
include a claim related to:
i. Any communication in a place open to the public or a public forum in
connection with an issue of public concern; or
ii.Any other lawful 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.
Section 2 of the bill would amend section 70-a of the Civil Rights Laws
to provide that costs and attorney's fees "shall be recovered upon a
demonstration that
a SLAP? suit was commenced or continued without a
substantial basis in fact or law and could not be supported by a
substantial argument for the extension, modification, or reversal of
existing law."
JUSTIFICATION:
Section 76-a of the Civil Rights Law was originally enacted by the
Legislature to provide "the utmost protection for the free exercise or
speech, petition, and association rights, particularly where such rights
are exercised in a public forum with respect to issues of public
concern." L. 1992 Ch. 767. -However, as drafted, and as narrowly inter-
preted by the courts, the application of Section 76-a has failed to
accomplish that objective. In practice, the current statute has been
strictly limited to cases initiated by persons or business entities that
are embroiled in controversies over a public application or permit,
usually in a real estate development situation. Meanwhile, many frivo-
lous lawsuits are filed each year that are calculated solely to silence
free speech and public participation, which do not specifically arise in
the context of the public "permit" process. By revising the definition
of an "action involving public petition and participation," this amend-
ment to Section 76-a will better advance the purposes that the Legisla-
ture originally identified in enacting New York's anti-SLAPP law.
Additionally, the principal remedy currently provided to victims of
SLAPP suits in New York is almost never actually imposed. The courts
have failed to use their discretionary power to award costs and attor-
ney's fees to a defendant found to have been victimized by a frivolous
lawsuit intended only to chill free speech. By an award of costs and
fees, the Legislature had originally intended to address "threat of
personal damages and litigation costs ... as a means of harassing,
intimidating, or punishing individuals, unincorporated associations,
not-for-profit corporations and others who have involved themselves in
public affairs." L. 1992 Ch. 767. This amendment to Section 70-A of the
Civil Rights Law makes clear that a court "shall" impose an award of
costs and fees, but only if the court finds that the case has been
initiated or pursued in bad faith. Together, the two amendments will
protect citizens against the threat -- and financial reality -- of
abusive litigation, but will not discourage meritorious litigation.
LEGISLATIVE HISTORY: 2012: A.10594 A. Judi
FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS: None.
EFFECTIVE DATE: Immediately.
STATE OF NEW YORK
________________________________________________________________________
856
2013-2014 Regular Sessions
IN ASSEMBLY(Prefiled)
January 9, 2013
___________
Introduced by M. of A. WEINSTEIN -- read once and referred to the
Committee on Judiciary
AN ACT to amend the civil rights law, in relation to actions involving
public petition and participation
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Paragraph (a) of subdivision 1 of section 70-a of the civil
2 rights law, as added by chapter 767 of the laws of 1992, is amended to
3 read as follows:
4 (a) costs and attorney's fees [may] shall be recovered upon a demon-
5 stration, including an adjudication pursuant to subdivision (g) of rule
6 thirty-two hundred eleven or subdivision (h) of rule thirty-two hundred
7 twelve of the civil practice law and rules, that the action involving
8 public petition and participation was commenced or continued without a
9 substantial basis in fact and law and could not be supported by a
10 substantial argument for the extension, modification or reversal of
11 existing law;
12 § 2. Subdivision 1 of section 76-a of the civil rights law, as added
13 by chapter 767 of the laws of 1992, is amended to read as follows:
14 1. For purposes of this section:
15 (a) An "action involving public petition and participation" is [an
16 action,] a claim[, cross claim or counterclaim for damages that is
17 brought by a public applicant or permittee, and is materially related to
18 any efforts of the defendant to report on, comment on, rule on, chal-
19 lenge or oppose such application or permission] based upon:
20 (1) any communication in a place open to the public or a public forum
21 in connection with an issue of public concern; or
22 (2) any other lawful conduct in furtherance of the exercise of the
23 constitutional right of free speech in connection with an issue of
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD03691-01-3
A. 856 2
1 public concern, or in furtherance of the exercise of the constitutional
2 right of petition.
3 (b) ["Public applicant or permittee" shall mean any person who has
4 applied for or obtained a permit, zoning change, lease, license, certif-
5 icate or other entitlement for use or permission to act from any govern-
6 ment body, or any person with an interest, connection or affiliation
7 with such person that is materially related to such application or
8 permission] "Claim" includes any lawsuit, cause of action, cross-claim,
9 counterclaim, or other judicial pleading or filing requesting relief.
10 (c) "Communication" shall mean any statement, claim, allegation in a
11 proceeding, decision, protest, writing, argument, contention or other
12 expression.
13 [(d) "Government body" shall mean any municipality, the state, any
14 other political subdivision or agency of such, the federal government,
15 any public benefit corporation, or any public authority, board, or
16 commission.]
17 § 3. This act shall take effect immediately and shall apply to actions
18 commenced on or after such date.
