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ARIZONA HOUSE OF REPRESENTATIVESFifty-sixth Legislature First Regular Session |
Senate: GOV DPA/SE 5-3-0-0 | 3rd Read DPA 16-13-1-0 |
SB 1418: religious; political beliefs; adverse actions
S/E: politically related advocacy; retaliation; liability
Sponsor: Senator Wadsack, LD 17
Committee on Regulatory Affairs
Summary of the Strike-Everything Amendment to SB 1418
Overview
Makes various changes to Arizona's strategic lawsuits against public participation (anti-SLAPP) statute and imposes civil liability against a state actor for intentionally bringing or maintaining a legal action that is substantially motivated by a desire to deter, retaliate against or prevent any person from holding or expressing political or religious views, from free political association or from engaging in politically related advocacy.
History
Arizona's anti-SLAPP statute allows a person other than a state actor or intervenor to file a motion to dismiss or quash any legal action that involves the person's lawful exercise of the right of petition, the right of speech, the freedom of the press, the right to freely associate or the right to peaceably assemble pursuant to the United States or Arizona constitutions. A party may file a motion to dismiss or quash under this statute within sixty days after the service of the complaint or other document on which the motion is based or, in the court's discretion, at any later time on terms that the court deems proper, including a later time after there is actual notice of a party's misconduct.
The statute also outlines a process for how a court must consider and determine such a motion and delineates the parties' relative evidentiary burdens. Specifically, the moving party has the burden of establishing prima facie proof that the legal action was substantially motivated by a desire to deter, retaliate against o prevent the lawful exercise of a constitutional right. The moving party can make this showing based on evidence in the record of the matter, a sworn affidavit or other evidence that is submitted with the motion. If the court finds that the moving party has established prima facie proof as prescribed above, the court is required to grant the motion unless:
1) The responding party, if a state actor, shows that the legal action was justified by clearly established law and that the responding party did not act to deter, prevent or retaliate against the moving party's exercise of constitutional rights; or
2) The responding party, if not a state actor, shows that the legal action is justified by existing law or supported by a reasonable argument for extending or modifying existing law.
If the court grants the motion to dismiss or quash, it is permitted to award the moving party costs and reasonable attorney fees, including those incurred for the motion. If the court finds that the motion is frivolous or solely intended to delay, the court is required to award costs and reasonable attorney fees to the prevailing party.
For purposes of the anti-SLAPP statute, legal action is defined as any of the following:
1) Any civil action, claim, cross-claim or counterclaim for damages other than nominal damages;
2) Any criminal prosecution, except for a drug trafficking offense including in chapter 34 or 34.1 of the criminal code, a riot or a serious offense or violent or aggravated felony as defined in the criminal code; or
3) Any written investigative demand pursuant to A.R.S. § 38-431.06 or other compulsory legal process or any regulatory or administrative action by a state actor.
Furthermore, state actor is defined to include any of the following:
1) The state of Arizona and any Arizona county, city, town or political subdivision;
2) Any branch, department, board, bureau, commission, council or committee of an entity included above; or
3) Any officer, employee or other agent of an entity included above who is acting in the officer's, employee's or agent's official capacity (A.R.S. § 12-751).
Provisions
Anti-SLAPP Motions
1.
Expands the anti-SLAPP statute to
include any legal action
that involves a person's lawful exercise of the right to religious liberty or
which otherwise implicates a person's freedom to hold or express political or
religious views or engage in politically related advocacy without fear of
retaliation. (Sec. 1)
2. Allows a party to file a motion for summary judgment under the anti-SLAPP statute, in addition to a motion to dismiss or quash. (Sec. 1)
3. Changes the moving party's prima facie burden of proof to specify that the party must show that a substantial motivation for the legal action was a desire to deter, retaliate against or prevent any person from holding or expressing political or religious views, from free political association or from engaging in politically related advocacy without fear of retaliation. (Sec. 1)
4. Similarly modifies a responding party who is a state actor's burden of proof by requiring that the party show that the responding party did not act with a substantial motive to deter, retaliate against or prevent any person from holding or expressing political or religious views, from free political association or from engaging in politically related advocacy without fear of retaliation. (Sec. 1)
5. Removes existing language allowing a responding party who is a state actor to meet its burden of proof by establishing that the state actor has a consistent practice of pursuing similar legal actions against similarly situated persons who did not lawfully exercise constitutional rights. (Sec. 1)
6. Clarifies that a responding party who is a state actor may meet its burden of proof by producing any other evidence that the court finds sufficient to establish that the state actor did not act with a substantial motive to deter, retaliate against or prevent any person from holding or expressing political or religious views, from free political expression or from engaging in politically related advocacy without fear of retaliation. (Sec. 1)
7. Requires, rather than permits, a court to award costs and reasonable attorney fees to the moving party if the court grants the anti-SLAPP motion and the nonmoving party is a state actor. (Sec. 1)
8. Prohibits a court from awarding costs and reasonable attorney fees to a prevailing party who is a state actor if the court finds that the anti-SLAPP motion was frivolous or intended solely for delay. (Sec. 1)
Civil Liability
9. Imposes civil liability against a state actor, except for an arresting peace officer, who intentionally brings or maintains, conspires to bring or maintain or aids and abets the pursuit or maintenance of a legal action when a substantial motivation for the state actor is a desire to deter, retaliate against or prevent any person from holding or expressing political or religious views, from free political association or from engaging in politically related advocacy. (Sec. 1)
10. Requires that an action for civil liability under the above provision must be commenced within four years of the conclusion of the underlying action and provides that both parties have a right to a jury trial, if demanded. (Sec. 1)
11. Specifies that it is not a defense to civil liability under this provision that either:
a) The underlying legal action resulted in an adverse judgment, decision, opinion, verdict, ruling or other adverse action against the person whose rights were violated; or
b) An anti-SLAPP motion was not brought in the underlying legal action and, if such a motion was made and was unsuccessful, the disposition of the motion is not binding on the jury in the action for civil liability (though the court, in its discretion, may allow a jury to consider the fact that the motion was unsuccessful). (Sec. 1)
12. Entitles the prevailing party in a civil action under this provision to declaratory relief, nominal damages, compensatory damages, attorney fees and costs and vacatur and the sealing of any adverse judgments, decisions, opinions, verdicts, rulings or other dispositions in the underlying action. (Sec. 1)
13. Prohibits a person who is found liable under this provision from being indemnified by the state of Arizona, an Arizona political subdivision or the state or political subdivision's insurer. (Sec. 1)
Miscellaneous
14. States that the anti-SLAPP statute is intended to prevent the government from being used as a tool to chill the adoption or expression of, or advocacy for, unpopular political or religious beliefs or positions and requires that the statute be liberally construed to effectuate this purpose. (Sec. 1)
15. Removes language exempting a criminal prosecution for a riot from the definition of legal action. (Sec. 1)
16. Expands the definition of state actor to include:
a) The federal government, to the maximum extent permitted under the U.S. and Arizona constitutions; and
b) Any professional or occupational licensing or regulatory organization in which membership is mandatory for industry participants. (Sec. 1)
17. Includes a statement of legislative intent. (Sec. 2)
18. Includes a severability clause. (Sec. 3).
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22. SB 1418
23. Initials DC/JL Page 0 Regulatory Affairs
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