Senate Bill No. 698
(By Senator Unger)
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[Introduced February 19, 2007; referred to the Committee on the
Judiciary.]
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A BILL to amend the Code of West Virginia, 1931, as amended, by
adding thereto a new article, designated §55-7E-1 and 55-7E-2,
all relating to actions taken in contravention to strategic
lawsuits against public participation, known as anti-SLAPP
actions; providing for a motion to strike under an anti-SLAPP
action; providing for the stay of discovery pending a special
motion to strike under an anti-SLAPP action; and awarding
attorneys fees under certain circumstances.
Be it enacted by the Legislature of West Virginia:
That the Code of West Virginia, 1931, as amended, be amended
by adding thereto a new section, designated §55-7E-1 and 55-7E-2,
all to read as follows:
ARTICLE 7E. ANTI-SLAPP ACTIONS.
§55-7E-1. Short Title.
This article shall be known as the Anti-SLAPP Actions Act.
For purposes of this article "Anti-SLAPP" means strategic lawsuit
against the public interest.
§55-7E-2. Anti-SLAPP actions; motion to strike; discovery;
remedies.
(a) The Legislature finds and declares that 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. The Legislature finds
and declares that it is in the public interest to encourage
continued participation in matters of public significance, and that
this participation should not be chilled through abuse of the
judicial process. To this end, this section shall be construed
broadly.
(b) (1) A cause of action against a person arising from any
act of that person in furtherance of the person's right of petition
or free speech under the United States or West Virginia
Constitution in connection with a public issue shall be subject to
a special motion to strike, unless the court determines that the
plaintiff has established that there is a probability that the
plaintiff will prevail on the claim.
(2) 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.
(3) 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, or in any
subsequent action, and no burden of proof or degree of proof otherwise applicable shall be affected by that determination in any
later state of the case in any subsequent proceeding.
(c) In any action subject to subdivision (b), a prevailing
defendant on a special motion to strike shall be entitled to
recover his or her attorney's fees and costs. If the court finds
that a special motion to strike is frivolous or is solely intended
to cause unnecessary delay, the court shall award costs and
reasonable attorney's fees to a plaintiff prevailing on the motion.
(d) This section does not apply to any enforcement action
brought in the name of the State of West Virginia by the Attorney
General.
(e) As used in this section, "act in furtherance of a person's
right of petition or free speech under the United States or West
Virginia Constitution in connection with a public issue" includes:
(1) Any written or oral statement or writing made before a
legislative, executive, or judicial proceeding, or any other
official proceeding authorized by law; (2) any written or oral
statement or writing made before a legislative, executive, or
judicial proceeding, or any other official proceeding authorized by
law; (2) any written or oral statement or writing 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 or
writing made in a place open to the public forum in connection with
an issue of public interest; (4) or any other conduct in
furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a
public issue or an issue of public interest.
(f) The special motion may be filed within sixty days of the
service of the complaint or, in the court's discretion, at any
later time upon terms it deems proper. The motion shall be
scheduled by court for a hearing not more than thirty days after
the service of the motion unless the docket conditions of the court
require a hearing not more than thirty days after the service of
the motion unless the docket conditions of the court require a
later hearing.
(g) All discovery proceedings in the action shall be stayed
upon the filing of a notice of motion made pursuant to this
section. The stay of discovery shall remain in effect until notice
of entry of the order ruling on the motion. The court, on notice
of motion and for good cause shown, may order that discovery be
conducted notwithstanding this subsection.
(h) For purposes of this section, "complaint" includes "cross-
complaint" and "petition," "plaintiff" includes "cross-complainant"
and "petitioner," "defendant" includes "cross-defendant" and
"respondent."
(i) An order granting or denying a special motion to strike
shall be considered a final order for purposes of appeal.
NOTE:
The purpose of this bill is to provide a procedural
mechanism in which to confront and defeat strategic lawsuits which
are brought to stymie public participation to be known as "Anti-SLAPP" actions. The bill provides for a motion to strike
under an anti-SLAPP action and for the stay of discovery pending a
special motion to strike under an anti-SLAPP action. The bill
also provides for the awarding of attorneys fees under certain
circumstances.
This article is new; therefore, strike-throughs and
underscoring have been omitted.
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