Senate Bill 0272c1

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    Florida Senate - 1998                            CS for SB 272

    By the Committee on Judiciary and Senator Grant





    308-1711-98

  1                      A bill to be entitled

  2         An act relating to government; creating the

  3         "Citizen Participation in Government Act" and

  4         providing for its purposes; providing

  5         procedures for the judiciary in responding to

  6         lawsuits relating to the constitutional right

  7         to petition the government for redress of

  8         grievances; defining terms; providing an

  9         effective date.

10

11         WHEREAS, the framers of our constitutions, recognizing

12  citizen participation in government as an inalienable right

13  essential to the survival of democracy, secured its protection

14  through the right to petition the government for redress of

15  grievances in the First Amendment to the U.S. Constitution and

16  Section 5 of Article I of the State Constitution, and

17         WHEREAS, the communications, information, opinions,

18  reports, testimony, claims, and arguments provided by citizens

19  to their government are essential to wise government decisions

20  and public policy in protecting the public health, safety, and

21  welfare, in providing effective law enforcement, and in

22  ensuring the efficient operation of government programs, and

23  are essential to the credibility and trust afforded government

24  and the preservation of our republican form of government

25  through representative democracy, and

26         WHEREAS, civil lawsuits and counterclaims, often

27  involving millions of dollars, have been and are being filed

28  against countless citizens, businesses, and organizations

29  because of their valid exercise of their right to petition,

30  including seeking relief, influencing action, informing,

31

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    Florida Senate - 1998                            CS for SB 272
    308-1711-98




  1  communicating, and otherwise participating with government

  2  bodies, officials, or employees or the electorate, and

  3         WHEREAS, such lawsuits, called "Strategic Lawsuits

  4  Against Public Participation" or "SLAPPs," are typically

  5  dismissed as unconstitutional, but often not before the

  6  defendants are put to great expense, harassment, and

  7  interruption of their duties, and

  8         WHEREAS, the number of such lawsuits has increased

  9  significantly over the past 30 years, and

10         WHEREAS, these lawsuits are an abuse of the judicial

11  process and are used to censor, intimidate, or punish

12  citizens, businesses, and organizations for involving

13  themselves in public affairs, and

14         WHEREAS, controlling these lawsuits will make a major

15  contribution to lawsuit reform, and

16         WHEREAS, the threat of financial liability, litigation

17  costs, destruction of one's business, loss of one's home, and

18  other personal losses from groundless lawsuits seriously

19  affects government, commerce, and individual rights by

20  significantly diminishing public participation in government,

21  in public discourse, and in voluntary public service, and

22         WHEREAS, while courts have recognized the harm from

23  such lawsuits and have discouraged them, protection of these

24  fundamental rights has been inadequate, and

25         WHEREAS, while some citizen communications to

26  government inevitably will be false or unsound or made out of

27  self interest or in bad faith, it is essential in our

28  democracy that the constitutional rights of citizens to

29  participate fully in the process of government be uniformly,

30  consistently, and comprehensively protected and encouraged,

31  NOW, THEREFORE,

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    Florida Senate - 1998                            CS for SB 272
    308-1711-98




  1  Be It Enacted by the Legislature of the State of Florida:

  2

  3         Section 1.  Short title.--This act may be cited as the

  4  "Citizen Participation in Government Act."

  5         Section 2.  Declaration of purposes.--The purposes of

  6  this act are to:

  7         (1)  Protect and encourage citizen participation in

  8  government to the maximum extent permitted by law;

  9         (2)  Create a more equitable balance between the rights

10  of persons to file lawsuits and to trial by jury and the

11  rights of persons to petition, speak out, associate, and

12  otherwise participate in their governments;

13         (3)  Support the operations of and assure the

14  continuation of representative government in this country for

15  the protection and regulation of public health, safety, and

16  welfare by protecting public participation in government

17  programs and public policy decisions;

18         (4)  Establish a balanced, uniform, comprehensive

19  process for speedy adjudication of "Strategic Lawsuits Against

20  Public Participation" as a major contribution to lawsuit

21  reform; and

22         (5)  Provide for attorney's fees, costs, and damages

23  for persons whose citizen participation rights have been

24  violated by the filing of a "Strategic Lawsuit Against Public

25  Participation" against them.

26         Section 3.  Definitions.--As used in this act, the

27  term:

28         (1)  "Government" means a branch, department, agency,

29  instrumentality, official, employee, agent, or other person

30  acting under color of law of the United States, a state, or

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    Florida Senate - 1998                            CS for SB 272
    308-1711-98




  1  subdivision of a state or other public authority, including

  2  the electorate.

  3         (2)  "State" means a state, the District of Columbia,

  4  the Commonwealth of Puerto Rico, and each territory and

  5  possession of the United States.

  6         (3)  "Judicial claim" or "claim" means any lawsuit,

  7  cause of action, claim, cross-claim, counterclaim, or other

  8  judicial pleading or filing requesting relief.

  9         (4)  "Motion" means any motion to dismiss, for summary

10  judgment, for judgment on the pleadings, to strike, demurrer,

11  or any other judicial pleading filed to dispose of a judicial

12  claim.

13         (5)  "Moving party" means any person on whose behalf

14  the motion provided in section 4 is filed seeking dismissal of

15  the judicial claim.

16         (6)  "Petitioning Activity" means the lawful exercise

17  of the constitutional right to petition, including seeking

18  relief, influencing action, informing, communicating, and

19  otherwise participating in the processes of government.

20         (7)  "Responding party" means any person against whom

21  the motion provided in section 4 is filed.

22         Section 4.  In any judicial proceeding, a party may

23  file a motion to dispose of a claim brought by any

24  governmental entity on the grounds that the claim is based on,

25  relates to, or is in response to the moving party's lawful

26  petitioning activity. On the filing of such a motion:

27         (1)  The motion must be treated as one for summary

28  judgment in which:

29         (a)  The trial court uses a time period appropriate to

30  preferred or expedited motions; and

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    Florida Senate - 1998                            CS for SB 272
    308-1711-98




  1         (b)  The moving party has a right of expedited appeal

  2  from a trial court order denying such a motion or from a trial

  3  court's failure to rule on such a motion in expedited fashion;

  4         (2)  Discovery is suspended, pending decision on the

  5  motion and appeals;

  6         (3)  The responding party has the burden of proof, of

  7  going forward with the evidence, and of persuasion on the

  8  motion;

  9         (4)  The court must make its determination based upon

10  the facts contained in the pleadings and affidavits filed;

11         (5)  The court must grant the motion and dismiss the

12  judicial claim, unless the responding party has produced clear

13  and convincing evidence that: 

14         (a)  The claims made in the petitioning activity were

15  devoid of reasonable factual support or lacked a cognizable

16  basis in law;

17         (b)  The primary purpose of the petitioning activity

18  was to harass the responding party or for some other improper

19  purpose; and

20         (c)  The petitioning activity caused actual injury to

21  the responding party;

22         (6)  Any government body to which the moving party's

23  acts were directed or the Attorney General may intervene to

24  defend or otherwise support the moving party in the suit;

25         (7)  If the court grants any motion under this section,

26  the court must award to the moving party, without regard to

27  any limits under state law:

28         (a)  Costs of litigation, including reasonable

29  attorney's fees and expert witness fees incurred in connection

30  with the motion; and

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    Florida Senate - 1998                            CS for SB 272
    308-1711-98




  1         (b)  Such additional sanctions upon the responding

  2  party, its attorneys, or law firms as it finds will be

  3  sufficient to deter repetition of such conduct and comparable

  4  conduct by others similarly situated; and

  5         (8)  A person damaged or injured by reason of a claim

  6  filed in violation of his or her rights to engage in

  7  petitioning activity may seek relief in the form of a claim

  8  for actual or compensatory damages, as well as punitive

  9  damages, attorney's fees, and costs from the person or persons

10  responsible.

11         Section 5.  This act shall take effect upon becoming a

12  law.

13

14          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
15                         Senate Bill 272

16

17  The Committee Substitute for Senate Bill 272:

18  -    limits application of the bill to actions brought by any
         governmental entity;
19
    -    deletes the provision for immunity for an act in
20       furtherance of the constitutional right to petition;

21  -    substitutes for this immunity a standard for use by a
         court in determining whether to grant a motion to dismiss
22       a claim; and

23  -    makes technical changes to re-arrange some sections of
         the bill and to define "petitioning activity."
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