Requires awarding of costs and attorney fees in frivolous actions 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: A5991A
SPONSOR: Weinstein TITLE OF BILL:
An act to amend the civil rights law, in relation to actions involving
public petition and participation; and to amend the civil practice law
and rules, in relation to stay of proceedings
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 interest.
SUMMARY OF PROVISIONS OF BILL:
Section 1 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 I
demonstration that -la SLAPP 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."
Section 2 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 interest; 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 interest, or in furtherance of the exercise of the constitutional
right of petition.
The bill also specifies that "public interest" should be broadly
construed.
Section 3 of the bill contains a stay of discovery and pending hearings
or motions once a motion to dismiss a SLAPP action has been made pursu-
ant to CPLR 3211 (a) (7).
Section 4 specifies that the act shall take effect immediately.
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Section 76-a of the Civil Rights Law was originally enacted by the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. This
is done by broadly widening the ambit of the law to include matters of
"public interest", which is to be broadly construed, e.g. anything other
than a "purely private matter".
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 fords 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.
Further, a mandatory award of attorney's fees is necessary to discourage
SLAPP lawsuits - which attempt to chill free speech by definition - from
being instituted.
A stay of the SLAPP action is necessary while a motion to dismiss is
pending in order to prevent other means in which the SLAP? plaintiff
attempts to cause harm or injury to the SLAPP defendant. For example,
this is often done by attempting to tie the defendant up in litigation,
including discovery, and/or by forcing the defendant to have to advance
legal fees and costs to their counsel for otherwise unnecessary
proceedings.
LEGISLATIVE HISTORY:
2018:A.1413/S.68- A.Judi(ECS)/S.Codes
2018:Similar to:A.5292/S.2183- A.Cal/S.Codes
2017:Similar to:A.5292/S.2183- PA /S.Codes
2015-16: A.258/5.1638 -PA/S. Codes
2014: A.856/S.7280 - PA/S. Rules
2013: A.856 - PA
2012: A.10594 - A. Judi
FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS: None.
EFFECTIVE DATE:
Immediately.
STATE OF NEW YORK
________________________________________________________________________
5991--A
Cal. No. 226
2019-2020 Regular Sessions
IN ASSEMBLY
February 26, 2019
___________
Introduced by M. of A. WEINSTEIN, SEAWRIGHT, ABINANTI, LUPARDO, SIMOTAS,
TAYLOR, STECK -- read once and referred to the Committee on Judiciary
-- ordered to a third reading, amended and ordered reprinted, retain-
ing its place on the order of third reading
AN ACT to amend the civil rights law, in relation to actions involving
public petition and participation; and to amend the civil practice law
and rules, in relation to stay of proceedings
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 interest; 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
24 public interest, or in furtherance of the exercise of the constitutional
25 right of petition.
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD04075-05-0
A. 5991--A 2
1 (b) ["Public applicant or permittee" shall mean any person who has
2 applied for or obtained a permit, zoning change, lease, license, certif-
3 icate or other entitlement for use or permission to act from any govern-
4 ment body, or any person with an interest, connection or affiliation
5 with such person that is materially related to such application or
6 permission] "Claim" includes any lawsuit, cause of action, cross-claim,
7 counterclaim, or other judicial pleading or filing requesting relief.
8 (c) "Communication" shall mean any statement, claim, allegation in a
9 proceeding, decision, protest, writing, argument, contention or other
10 expression.
11 [(d) "Government body" shall mean any municipality, the state, any
12 other political subdivision or agency of such, the federal government,
13 any public benefit corporation, or any public authority, board, or
14 commission.] (d) "Public interest" shall be construed broadly, and shall
15 mean any subject other than a purely private matter.
16 § 3. Subdivision (g) of rule 3211 of the civil practice law and rules,
17 as added by chapter 767 of the laws of 1992, is amended to read as
18 follows:
19 (g) [Standards] Stay of proceedings and standards for motions to
20 dismiss in certain cases involving public petition and participation. 1.
21 A motion to dismiss based on paragraph seven of subdivision (a) of this
22 section, in which the moving party has demonstrated that the action,
23 claim, cross claim or counterclaim subject to the motion is an action
24 involving public petition and participation as defined in paragraph (a)
25 of subdivision one of section seventy-six-a of the civil rights law,
26 shall be granted unless the party responding to the motion demonstrates
27 that the cause of action has a substantial basis in law or is supported
28 by a substantial argument for an extension, modification or reversal of
29 existing law. The court shall grant preference in the hearing of such
30 motion.
31 2. In making its determination on a motion to dismiss made pursuant to
32 paragraph one of this subdivision, the court shall consider the plead-
33 ings, and supporting and opposing affidavits stating the facts upon
34 which the action or defense is based. No determination made by the court
35 on a motion to dismiss brought under this section, nor the fact of that
36 determination, shall be admissible in evidence at any later stage of the
37 case, or in any subsequent action, and no burden of proof or degree of
38 proof otherwise applicable shall be affected by that determination in
39 any later stage of the case or in any subsequent proceeding.
40 3. All discovery, pending hearings, and motions in the action shall be
41 stayed upon the filing of a motion made pursuant to this section. The
42 stay shall remain in effect until notice of entry of the order ruling on
43 the motion. The court, on noticed motion and upon a showing by the
44 nonmoving party, by affidavit or declaration under penalty of perjury
45 that, for specified reasons, it cannot present facts essential to justi-
46 fy its opposition, may order that specified discovery be conducted
47 notwithstanding this subdivision. Such discovery, if granted, shall be
48 limited to the issues raised in the motion to dismiss.
49 4. For purposes of this section, "complaint" includes "cross-comp-
50 laint" and "petition", "plaintiff" includes "cross-complainant" and
51 "petitioner", and "defendant" includes "cross-defendant" and "respond-
52 ent."
53 § 4. This act shall take effect immediately.
