H. B. 2527
(By Mr. Speaker, Mr. Kiss (By Request))
[Introduced March 13, 1997; referred to the
Committee on the Judiciary.]
A BILL to amend chapter fifty-five of the code of West Virginia,
one thousand nine hundred thirty-one, as amended, by adding
thereto a new article, designated article fifteen, relating
to actions against public petition and participation;
definitions; standard of proof, damages, and duty to
expedite; standard for motion to dismiss and motion for
summary judgement; action authorized for defendant in action
against public petition and participation; costs, attorney's
fees and damages authorized for defendant's action.
Be it enacted by the Legislature of West Virginia:
That chapter fifty-five of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, be amended by
adding thereto a new article, designated article fifteen, to read
as follows:
ARTICLE 15. ACTIONS AGAINST PUBLIC PETITION AND PARTICIPATION.
§55-15-1 Legislative findings and declarations.
The Legislature finds and declares that:
(a) It is the policy of the state that the constitutional
right of citizens and organizations to be involved and
participate freely in the process of government must be
encouraged and safeguarded with great diligence. The
information, reports, opinions, claims, arguments and other
expressions provided by citizens are vital to effective law
enforcement, the operation of government, the making of public
policy and decisions, and the continuation of representative
democracy. The laws, courts and other agencies of this state
must provide the utmost protection for the free exercise of these
petition, speech and association rights;
(b) Civil actions for damages have been filed against
citizens and organizations of this state as a result of the valid
exercise of their constitutional rights to petition, speech and
association. There has been a disturbing increase in such
strategic lawsuits against public participation in government;
(c) The threat of strategic lawsuits against public
participation, personal liability, and burdensome litigation
costs significantly chills and diminishes citizen participation
in government, voluntary public service and the exercise of these important constitutional rights. This abuse of the judicial
process can and has been used as a means of intimidating,
harassing, or punishing citizens and organizations for involving
themselves in public affairs; and
(d) It is in the public interest and it is the purpose of
this article to strike a balance between the rights of persons to
file lawsuits for injury and the constitutional rights of persons
to petition, speech and association, to protect and encourage
public participation in government to the maximum extent
permitted by law, to establish an efficient process for
identification and adjudication of strategic lawsuits against
public participation, and to provide for costs, attorney's fees
and actual damages.
§55-15-2. Definitions.
For purposes of this article:
(a) "Action involving public petition and participation"
means an action, claim, cross-claim, or counterclaim for damages
that is brought by a public applicant or permittee and is
materially related to any efforts of the defendant to report on,
comment on, rule on, challenge or oppose the application or
permission;
(b) "Communication" means any statement, claim, allegation
in a proceeding, decision, protest, writing, argument, contention
or other expression;
(c) "Government body" means a city, a village, a political
subdivision, a state agency, the state, the federal government,
or a public authority, board or commission; and
(d) "Public applicant or permittee" means any person who has
applied for or obtained a permit, zoning change, lease, license,
certificate or other entitlement for use or permission to act
from any government body or any person with an interest,
connection or affiliation with the person that is materially
related to such application or permission.
§55-15-3. Defendant in action involving public petition and
participation; action authorized; costs, attorney's
fees and damages; authorized; waiver; section, how construed.
(a) A defendant in an action involving public petition and
participation may maintain an action, claim, cross-claim or
counterclaim to recover damages, including costs and attorney's
fees, from any person who commenced or continued such action.
Costs and attorney's fees may be recovered upon a demonstration
that the action involving public petition and participation was
commenced or continued without a substantial basis in fact and
law and could not be supported by a substantial argument for the
extension, modification or reversal of existing law. Other
compensatory damages may only be recovered upon an additional demonstration that the action involving public petition and
participation was commenced or continued for the purpose of
harassing, intimidating, punishing or otherwise maliciously
inhibiting the free exercise of petition, speech or association
rights.
(b) The right to bring an action, claim, cross-claim or
counterclaim under this article may be waived only if it is
waived specifically.
(3) Nothing in this article effects or precludes the right
of any party to any recovery otherwise authorized by common law,s
by statute or by rule.
§55-15-4. Action involving public petition and participation;
damages; standard of proof; section, how construed.
In an action involving public petition and participation, the
plaintiff may recover damages, including costs and attorney's
fees, only if he or she, in addition to all other necessary
elements, has established by clear and convincing evidence that
any communication which gives rise to the action was made with
knowledge of its falsity or with reckless disregard of whether it
was false, if the truth or falsity of such communication is
material to the cause of action at issue. Nothing in this
section limits any constitutional, statutory or common-law
protections of defendants to actions involving public petition and participation.
§55-15-5. Action involving public petition and participation;
motion to dismiss; when granted; duty to expedite.
A motion to dismiss based on a failure to state a cause of
action shall be granted when the moving party demonstrates that
the action, claim, cross-claim, or counterclaim subject to the
motion is an action involving public petition and participation
unless the party responding to the motion demonstrates that the
cause of action has a substantial basis in law or is supported by
a substantial argument for an extension, modification or reversal
of existing law. The court shall expedite and grant preference
in the hearing of the motion.
§55-15-6. Action involving public petition and participation;
motion for summary judgment; when granted.
A motion for summary judgment shall be granted when the
moving party has demonstrated that the action, claim,
cross-claim, or counterclaim subject to the motion is an action
involving public petition and participation unless the party
responding to the motion demonstrates that the action, claim,
cross-claim, or counterclaim has a substantial basis in fact and
law or is supported by a substantial argument for an extension,
modification or reversal of existing law. The court shall grant
preference in the hearing of the motion.
NOTE: The purpose of this bill is to limit the abuse of
"strategic lawsuits against public participation" by giving the
defendant in such a lawsuit a cause of action to recover damages
from the person commencing the lawsuit. Also standards of proof,
standards for motions to dismiss and motions for summary
judgement, as well as a court duty to expedite, are set forth to
make it more difficult for a plaintiff to maintain or prevail in
such a lawsuit designed to stifle public petition and
participation.
Article fifteen is new; therefore, strike-throughs and
underscoring have been omitted.