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.