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S.103

Introduced by   Senator Campbell of Windsor District and Senator Dunne of Windsor District

Referred to Committee on

Date:

Subject:  Court procedure; special motion to strike; suit arising from freedom of speech or petition of government for redress of grievances   

Statement of purpose:  This bill proposes to permit a defendant to file a special motion to strike in an action arising from his or her exercise of the right to freedom of speech or to petition the government for redress of grievances.  The court is required to grant the motion and award costs and attorney’s fees to the defendant if the court finds the plaintiff has failed to establish a probability of success on the merits of the claim.  The motion must be denied if the court finds the plaintiff has established a probability of success on the merits.  Costs and attorney’s fees must be awarded to the plaintiff if the motion is frivolous or intended solely to cause unnecessary delay.

AN ACT RELATING TO LAWSUITS ARISING FROM EXERCISE OF RIGHT TO FREEDOM OF SPEECH OR TO PETITION GOVERNMENT FOR REDRESS OF GRIEVANCES

It is hereby enacted by the General Assembly of the State of Vermont:

Sec. 1.  FINDINGS

The General Assembly finds:

(1)  There has been a disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and freedom to petition government for the redress of grievances.

(2)  It is in the public interest to encourage continued participation in matters of public significance, and this participation should not be chilled through abuse of the judicial process. 

Sec. 2.  12  V.S.A. § 1040 is added to read:

§ 1040.  EXERCISE OF RIGHTS TO FREE SPEECH AND TO PETITION                                     GOVERNMENT FOR REDRESS OF GRIEVANCES; SPECIAL                                 MOTION TO STRIKE

(a)  A defendant in an action arising from the defendant’s exercise, in connection with a public issue, of the right to freedom of speech or to petition the government for redress of grievances under the United States or Vermont Constitution may file a special motion to strike under this section.

(b)  A special motion to strike under this section shall be filed with the court and served on all parties not more than 60 days after the filing of the complaint.  A party may file a response to the motion not more than 15 days after the motion is served on the party.  The court may extend the time limits of this subsection for good cause shown.

(c)(1)  The filing of a special motion to strike under this section shall stay all discovery proceedings in the action.  Except as provided in subdivision (2) of this subsection, the stay of discovery shall remain in effect until the court rules on the special motion to strike.

(2)  The court, on motion and for good cause shown, may order that limited discovery be conducted for the purpose of assisting its decision on the special motion to strike.

(d)  The court shall hold a hearing on a special motion to strike not more than 30 days after service of the motion unless good cause exists for an extension.

(e)(1)  The court shall grant the special motion to strike and dismiss the action if it finds the plaintiff has failed to establish a probability that he or she will prevail on the merits of the claim.

(2)  If the court grants the special motion to strike, the court shall award costs and reasonable attorney’s fees to the defendant.

(f)(1)  The court shall deny the special motion to strike if it finds the plaintiff has established a probability that he or she will prevail on the merits of the claim.

(2)  If the court denies the special motion to strike and finds the motion is frivolous or is intended solely to cause unnecessary delay, the court shall award costs and reasonable attorney's fees to the plaintiff.

(3)  Neither the court’s ruling on the special motion to strike nor the fact that it made such a ruling shall be admissible in evidence at any later stage of the case, and no burden of proof or degree of proof otherwise applicable shall be affected by the ruling.

(g)  An order granting or denying a special motion to strike shall be appealable as an interlocutory order under Rule 5 of the Vermont Rules of Appellate Procedure.

(h)  This section shall not apply to any enforcement action brought by the state of Vermont or any political subdivision thereof.

(i)  As used in this section, “the exercise, in connection with a public issue, of the right to freedom of speech or to petition the government for redress of grievances under the United States or Vermont Constitution” includes:

(1)  any written or oral statement made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law;

(2)  any written or oral statement made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law;

(3)  any written or oral statement concerning an issue of public interest made in a public forum or a place open to the public; or

(4)  any other statement or conduct concerning a public issue or an issue of public interest which furthers the exercise of the constitutional right of freedom of speech or the constitutional right to petition the government for redress of grievances.

Sec. 3.  REPORT

On or before July 1, 2007, the court administrator shall report to the general assembly on the frequency and outcomes of special motions to strike made pursuant to this act.



Published by:

The Vermont General Assembly
115 State Street
Montpelier, Vermont


www.leg.state.vt.us