VERSION: Introduced February 26, 1998 Schluter

An Act concerning claims arising from a defendant's valid exercise of certain constitutional rights and supplementing Title 2A of the New Jersey Statutes.

Lawsuits have been filed in increasing numbers against individuals and groups who speak out to public officials and in public forums about public issues. Nicknamed "SLAPPs" (Strategic Lawsuits Against Public Participation) by consumer advocates, these lawsuits are brought for the purpose of deterring the valid exercise of constitutional rights through abuse of the judicial process. Even though most of these suits are legally baseless and are eventually dismissed by the courts, the defendants often incur substantial legal expenses, such as court costs and attorney fees, in defending themselves.

This bill attempts to remedy this situation by providing for a prompt judicial assessment of these actions prior to incurring substantial legal fees. With the assistance and cooperation of the courts in establishing appropriate court rules, a motion to dismiss would be authorized in a cause of action arising from a defendant's valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances. All discovery would be stayed pending a ruling on the motion which would be determined on the pleadings and supporting affidavits. A prevailing defendant on the motion to dismiss would be entitled to recover attorney's fees and costs. If the court finds that a motion to dismiss is frivolous or is solely intended to cause unnecessary delay, the court could award reasonable attorney's fees and costs to the plaintiff prevailing on the motion.

Be It Enacted by the Senate and General Assembly of the State of New Jersey:

1. The Legislature finds and declares that:

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

b. The threat of a civil action for damages in these situations and the costs associated with defending such suits can be severely burdensome and deter individuals and entities from fully exercising their constitutional rights to speak out on public issues;

c. It is in the public interest for citizens to participate in matters of public concern and provide information to public entities and other citizens on public issues that affect them without fear of reprisal through abuse of the judicial process;

d. An expedited judicial review would avoid the potential for abuse in these cases. Since the practice and procedure in the courts is constitutionally committed to the Supreme Court's rule making authority, these cases provide an opportunity for a cooperative effort between the branches of government.

2. As used in this act:

a. "Valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances" includes, but is not limited to, any written or oral statement or writing made before a public entity; any written or oral statement or writing made in connection with an issue under consideration or review by a public entity; any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest; or any other conduct in furtherance of the constitutional right of petition or free speech in connection with an issue of public interest.

b. "Public entity" means the federal government, the State, a municipality, a county, a school district or charter school board and any agency, board, body or authority thereof and any other public body in this State.

3. In accordance with such New Jersey Court Rules as may be promulgated, a cause of action arising primarily to deter a defendant's valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances shall be subject to a motion to dismiss, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim. In making its determination, the court shall consider the pleadings and supporting and opposing affidavits stating the facts upon which the liability or defense is based. Except as may otherwise be provided by the court, all discovery proceedings in the action shall be stayed upon the filing of a motion to dismiss pursuant to this section and shall remain stayed until notice of entry of the order ruling on the motion. If the court determines that the plaintiff has established a probability that he or she will prevail on the claim, neither that determination nor the fact of that determination 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 that determination.

4. In any cause of action subject to a motion to dismiss pursuant to this act, a prevailing defendant shall be entitled to recover attorney's fees and costs. If the court in a separate finding determines that a motion to dismiss brought pursuant to this act is frivolous or is solely intended to cause unnecessary delay, the court may award reasonable attorney's fees and costs to the plaintiff prevailing on the motion.

5. This act shall not apply to any enforcement action brought by a public entity.

6. This act shall take effect immediately.