Assigned to JUD AS PASSED BY COMMITTEE
ARIZONA STATE SENATE
Fifty-Fifth Legislature, Second Regular Session
REVISED
AMENDED
FACT SHEET FOR H.B. 2722
strategic actions; public participation
Purpose
Expands the applicability of motions to dismiss strategic actions against public
participation and allows a court to quash, rather than only dismiss, a strategic action against public
participation.
Background
A defending party may file a motion to dismiss a legal action involving a party's exercise
of the right to petition. The court must grant the motion unless the non-moving party can show that
the moving party's exercise of the right to petition did not contain any reasonable factual support
or arguable basis in law, and that the moving party's acts caused actual compensable injury to the
responding party. At the request of the moving party, the court must determine whether the lawsuit
was brought to deter or prevent the moving party from exercising constitutional rights, and thereby
brought for an improper purpose, such as causing unnecessary delay or needless increase in the
cost of litigation. The moving party must be awarded reasonable attorney fees if the motion to
dismiss is granted.
Statute governing the ability of a party to file a motion to dismiss an action brought in this
manner does not: 1) affect, limit or preclude the right of the moving party to any remedy otherwise
authorized by law; 2) apply to an enforcement action that is brought in the name of this state or a
political subdivision of this state; 3) create any privileges or immunities or otherwise affect, limit
or preclude any privileges or immunities authorized by law; or 4) limit or preclude a legislative or
executive body or a public agency from enforcing the rules of procedure and rules of order of the
body or agency (A.R.S. § 12-752).
Exercise of the right to petition means any written or oral statement that falls within the
constitutional protection of free speech and that is made as part of an initiative, referendum or
recall effort or that is all of the following: 1) made before or submitted to a legislative or executive
body or any other governmental proceeding; 2) made in connection with an issue that is under
consideration or review by a legislative or executive body or any other governmental proceeding;
and 3) made for the purpose of influencing a governmental action, decision or result (A.R.S.
§ 12-751).
There is no anticipated fiscal impact to the state General Fund associated with this
legislation. FACT SHEET – Amended/Revised
H.B. 2722
Page 2
Provisions
1. Repeals statute defining exercise of the right to petition, governmental proceeding and legal
action.
2. Allows a person other than a state actor or intervenor to file a motion to dismiss or quash,
rather than only dismiss, an action that involves, in addition to the person's lawful right to
petition, the person's constitutional right of speech, freedom of the press, right to freely
associate or right to peaceably assemble.
3. Stipulates that the person who files a motion to dismiss or quash has the burden of establishing
prima facie proof that the legal action was substantially motivated by a desire to deter, retaliate
against or prevent the lawful exercise of a constitutional right.
4. Allows the moving person to submit evidence based on the record, a sworn affidavit or other
evidence that is submitted with the motion to dismiss or quash.
5. Specifies that a party is not required to file a response to a motion to dismiss or quash unless
the court finds that the moving party has established the prima facie proof and orders the party
to file a response.
6. Requires the court to grant the motion to dismiss or quash unless:
a) if the responding party is a state actor, the responding party shows that the legal action in
question is justified by clearly established law and that the responding party did not act in
order to deter, prevent or retaliate against the moving party's exercise of constitutional
rights; or
b) if the responding party is not a state actor, the responding party shows that the legal action
in question is justified by existing law or supported by reasonable argument for extending
or modifying existing law.
7. Allows a state actor to demonstrate that a legal action is justified by:
a) establishing that the person who initiated and conducted an investigation that resulted in
the legal action and that made the decision to pursue the legal action was unaware of the
movant's lawful exercise of the constitutional right;
b) establishing that the state actor or intervenor has a consistent practice of pursuing similar
legal actions against similarly situated persons who did not lawfully exercise constitutional
rights; or
c) producing any other evidence that the court finds sufficient.
8. Requires a court to either considering pleadings and supporting and opposing affidavits or
conduct an evidentiary hearing in making a determination on a motion to dismiss or quash.
9. Removes the existing exception to a court being required to grant a motion to dismiss based
on a finding that the moving party's exercise of the right to petition did not contain any
reasonable factual support or any arguable basis in law.
10. Removes the requirement that the court, at the request of the moving party, determine whether
an action was brought to deter or prevent the moving party from exercising constitutional rights
and is thereby brought for an improper purpose. FACT SHEET – Amended/Revised
H.B. 2722
Page 3
11. Reduces, from 90 days to 60 days, the time period within which a motion to dismiss or quash
may be filed after the service of the complaint or other document on which the motion is based.
12. Allows a motion to be filed at a later time after there is actual notice of a party's misconduct,
at the court's discretion.
13. Requires the court, if the court finds that prima facie proof has been established, to conduct an
expedited hearing on the motion, if possible.
14. Removes the requirement that the court, when possible, give calendar preference to strategic
actions and conduct an expedited hearing after a motion to dismiss has been filed.
15. Requires all discovery proceedings in an action to be stayed on a finding of prima facie proof,
unless a court rule specifically provides otherwise.
16. Requires the stay of discovery to remain in effect until notice of entry of the order ruling on
the motion.
17. Allows the court to order that specified discovery be conducted on noticed motion and for good
cause shown.
18. Allows, rather than requires, a court that grants a motion to dismiss or quash to award the
moving party costs and reasonable attorney fees.
19. Specifies that costs include costs incurred that are not in connection with the specific motion
to dismiss or quash.
20. States that, if the court denies a motion to dismiss or quash, the denial and the court's supporting
findings are not admissible in evidence at any later stage of the case or in any subsequent
action.
21. States that the burden of proof or degree of proof that is otherwise applicable is not affected
by the findings in any later stage of the case or in any subsequent proceeding.
22. States that an order granting or denying a motion to dismiss or quash is appealable, if the court
determines that the moving party has established prima facie proof.
23. Includes the limited ability to appeal a motion to dismiss or quash in actions brought in the
superior court, and requires the superior court to expedite an appeal unless the court finds for
good cause that an expedited review is not feasible under the circumstances or a court rule
specifically provides otherwise.
24. Requires the Court of Appeals to expedite any appeal unless the court, for good cause shown,
finds that expedited review is not feasible under the circumstances, or a court rule specifically
provides otherwise.
25. Expands the applicability of statute relating to strategic actions against public participation to
enforcement actions brought by the state or its political subdivisions. FACT SHEET – Amended/Revised
H.B. 2722
Page 4
26. Defines legal action as:
a) any civil action, claim, cross-claim or counterclaim for damages other than nominal
damages;
b) any criminal prosecution, except for drug trafficking offenses, a riot or a serious offense or
violent or aggravated felony; and
c) any written investigative demand of a public meeting or proceeding or other compulsory
legal process or any regulatory or administrative action by a state actor.
27. States that a legal action does not include a motion to dismiss or quash a strategic action against
public participation.
28. Defines state actor as:
a) the state and any of its political subdivisions;
b) any branch, department, board, bureau, commission, council or committee of an entity of
the state or its political subdivisions; and
c) any officer, employee or other agent of the state or its political subdivisions who is acting
in the officer's, employee's or agent's official capacity.
29. Contains a severability clause.
30. Makes technical and conforming changes.
31. Becomes effective on the general effective date.
Amendments Adopted by Committee
1. Specifies that a motion to dismiss or quash applies to strategic actions against public
participation involving a person's lawful exercise of the right to petition, as well as the freedom
of the press.
2. Stipulates that the person who files a motion to dismiss or quash has the burden of establishing
prima facie proof that the legal action was substantially motivated by a desire to deter, retaliate
against or prevent the lawful exercise of a constitutional right.
3. Allows the moving person to submit evidence based on the record, a sworn affidavit or other
evidence that is submitted with the motion to dismiss or quash.
4. Specifies that a party is not required to file a response to a motion to dismiss or quash unless
the court finds that the moving party has established the prima facie proof and orders the party
to file a response.
5. Modifies criteria for determining when a court is not required to grant a motion to dismiss or
quash when a responding party is a state actor.
6. Allows a state actor to demonstrate that a legal action is justified by:
a) establishing that the person who initiated and conducted an investigation that resulted in
the legal action and that made the decision to pursue the legal action was unaware of the
movant's lawful exercise of the constitutional right;
b) establishing that the state actor or intervenor has a consistent practice of pursuing similar
legal actions against similarly situated persons who did not lawfully exercise constitutional
rights; or
c) producing any other evidence that the court finds sufficient. FACT SHEET – Amended/Revised
H.B. 2722
Page 5
7. Requires a court to either considering pleadings and supporting and opposing affidavits or
conduct an evidentiary hearing in making a determination on a motion to dismiss or quash.
8. Removes the stipulation that a moving party is encouraged to pursue additional damages, in
addition to additional sanctions, if a court finds that an action was brought to deter, prevent or
retaliate against the exercise of constitutional rights or is otherwise brought for an improper
purpose.
9. Allows a motion to be filed at a later time after there is actual notice of a party's misconduct,
at the court's discretion.
10. Requires the court, if the court finds that prima facie proof has been established, to conduct an
expedited hearing on the motion, if possible.
11. Replaces the requirement that the court must schedule a hearing on a motion to dismiss or
quash within 30 days after service of the motion with the requirement that the court must
conduct an expedited hearing on the motion, if possible and if the court finds that prima facie
proof is established.
12. Requires all discovery proceedings in an action to be stayed on a finding of prima facie proof,
rather than on filing of a notice of a motion to dismiss or quash, unless a court rule specifically
provides otherwise.
13. Allows, rather than requires, a court that grants a motion to dismiss or quash to award the
moving party costs and reasonable attorney fees.
14. Specifies that costs include costs incurred that are not in connection with the specific motion
to dismiss or quash.
15. Specifies that an order granting or denying an order to dismiss or quash is appealable only if
the court determines that the moving party has established prima facie proof.
16. Includes the limited ability to appeal a motion to dismiss or quash in actions brought in the
superior court, and requires the superior court to expedite an appeal unless the court finds for
good cause that an expedited review is not feasible under the circumstances or a court rule
specifically provides otherwise.
17. Modifies the definition of legal action to exclude certain criminal proceedings.
Revisions
1. Corrects provisions to reflect that a court is not required to grant a motion to dismiss or quash
if the responding party is a state actor and can demonstrate that the party did not act, rather
than did act, to deter the moving party's exercise of constitutional rights.
2. Corrects provisions relating to when the court must schedule a hearing on a motion to dismiss
or quash to reflect the committee amendment. FACT SHEET – Amended/Revised
H.B. 2722
Page 6
House Action Senate Action
JUD 2/16/22 DPA 5-3-0-2 JUD 3/24/22 DPA 6-1-1
3
rd
Read 2/22/22 40-19-1
Prepared by Senate Research
June 30, 2022
ZD/sr