Massachusetts 2023-2024 Regular Session

Massachusetts Senate Bill S1132 Compare Versions

Only one version of the bill is available at this time.

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2	2	SENATE DOCKET, NO. 2094 FILED ON: 1/20/2023
3	3	SENATE . . . . . . . . . . . . . . No. 1132
4	4	The Commonwealth of Massachusetts
5	5	_________________
6	6	PRESENTED BY:
7	7	Bruce E. Tarr
8	8	_________________
9	9	To the Honorable Senate and House of Representatives of the Commonwealth of Massachusetts in General
10	10	Court assembled:
11	11	The undersigned legislators and/or citizens respectfully petition for the adoption of the accompanying bill:
12	12	An Act relative to strategic litigation against public participation.
13	13	_______________
14	14	PETITION OF:
15	15	NAME:DISTRICT/ADDRESS :Bruce E. TarrFirst Essex and Middlesex 1 of 10
16	16	SENATE DOCKET, NO. 2094 FILED ON: 1/20/2023
17	17	SENATE . . . . . . . . . . . . . . No. 1132
18	18	By Mr. Tarr, a petition (accompanied by bill, Senate, No. 1132) of Bruce E. Tarr for legislation
19	19	relative to strategic litigation against public participation. The Judiciary.
20	20	The Commonwealth of Massachusetts
21	21	_______________
22	22	In the One Hundred and Ninety-Third General Court
23	23	(2023-2024)
24	24	_______________
25	25	An Act relative to strategic litigation against public participation.
26	26	Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority
27	27	of the same, as follows:
28	28	1 SECTION 1. Section 59H of Chapter 231 of the General Laws, as appearing in the 2020
29	29	2Official Edition, is hereby amended by striking the section in its entirety and inserting in place
30	30	3there of the following new section:-
31	31	4 A. Substantive Immunity
32	32	5 The purpose of this statute is to ensure full participation by citizens and organizations in
33	33	6the robust discussion of issues in furtherance of the right of petition, and of the rights of freedom
34	34	7of speech and of expression in connection with any matter of public concern. Because there has
35	35	8been a disturbing increase in lawsuits brought primarily to chill the valid exercise of First
36	36	9Amendment rights to speak on public issues, this statute recognizes that such litigation is
37	37	10disfavored and should be resolved quickly with minimum cost to those exercising their rights
38	38	11protected by the First Amendment to the U.S. Constitution or Article 16 of the Massachusetts
39	39	12Declaration of Rights. In furtherance of this purpose, in any case in which a party asserts that the 2 of 10
40	40	13civil claims, counterclaims, cross claims or pre-suit discovery against said party are based, either
41	41	14in whole or in part, on said party’s exercise of its right of petition, or of its rights of freedom of
42	42	15speech or freedom of expression in connection with any matter of public concern under the
43	43	16Constitution of the United States or of the Commonwealth, said party may bring a special motion
44	44	17to dismiss.
45	45	18 1. All laws of this commonwealth shall be construed to afford a qualified immunity from
46	46	19suits and proceedings and from liability for any defendant or counter-defendant in any action,
47	47	20case, claim, arbitration, or administrative proceeding, that impacts their First Amendment rights.
48	48	21This immunity shall be broadly construed to protect all First Amendment rights.
49	49	22 2. This immunity may be invoked by a defendant or counter-defendant at any time, but it
50	50	23can be waived if the defendant or counter-defendant substantially litigates the case beyond a
51	51	24jurisdictional challenge before raising the immunity, unless facts later develop demonstrating the
52	52	25immunity should apply, and such facts were not available to the defendant prior.
53	53	26 3. This immunity may be invoked by making a showing that a claim or counterclaim is
54	54	27based upon the defendant or counter-defendant's use of the rights afforded under the First
55	55	28Amendment to the U.S. Constitution or the free speech provision of the Massachusetts
56	56	29Constitution, see art. 16 of the Declaration of Rights, as amended by art. 77 of the Amendments
57	57	30to the Massachusetts Constitution.
58	58	31 4. This immunity may be invoked so long as a claim or counter-claim is based upon at
59	59	32least one act in furtherance of these rights, even if the claim or counter-claim is also based on
60	60	33acts not in furtherance of these rights. 3 of 10
61	61	34 5. This immunity may only be overcome by a showing by the plaintiff or counter-plaintiff
62	62	35that the claim or counterclaim is of sufficient merit, with prima facie evidence, there is a
63	63	36probability of prevailing on the claim or counterclaim. If invoked in federal court or in a court
64	64	37outside the Commonwealth, the plaintiff must show that the claim can survive a motion to
65	65	38dismiss or a motion for summary judgment, or analogous motion, as applicable.
66	66	39 6. Given that this is a substantive immunity from suit, not just liability, any denial of a
67	67	40motion invoking this immunity shall be appealable on an interlocutory basis in the state courts of
68	68	41Massachusetts and, to the fullest extent permissible, in the jurisdiction in which the matter is
69	69	42pending.
70	70	43 7. If a defendant or counter-defendant successfully invokes this immunity, that defendant
71	71	44or counter-defendant shall be entitled to all actual costs, disbursements and reasonable attorneys'
72	72	45fees expended in the defense of the case as well as all actual costs, disbursements and reasonable
73	73	46attorneys' fees expended in any successful appeal. The rights and remedies of this statute apply
74	74	47to claims brought by the Commonwealth or its subdivisions against any person or entity and, to
75	75	48the fullest extent possible, sovereign immunity for the recovery by such defendant of fees, costs,
76	76	49and damages provided in this statute is hereby waived. The provisions of this statute shall not
77	77	50apply to a cause of action asserted against a governmental unit or an employee or agent of a
78	78	51governmental unit acting or purporting to act in an official capacity.
79	79	52 8. If a defendant or counter-defendant successfully disposes of all claims or counter-
80	80	53claims by a party brought against it under this Section, the defendant or counter-defendant may
81	81	54recover all actual costs, disbursements, and reasonable attorneys’ fees incurred in defending 4 of 10
82	82	55itself from the claims or counter-claims, regardless of whether such costs, disbursements, or
83	83	56attorneys’ fees are related to a motion under this Section.
84	84	57 9. If fewer than all claims or counterclaims are disposed of under this Section, the
85	85	58defendant or counter-defendant may only recover those costs, disbursements, and attorneys’ fees
86	86	59incurred in connection with a motion under this Section.
87	87	60 10. This immunity may be exercised either by a motion to dismiss invoking the
88	88	61immunity, a motion for judgment on the pleadings, or an early motion for summary judgment
89	89	62invoking the immunity. The party invoking this immunity may also bring a counterclaim for
90	90	63violation of the Anti-SLAPP law.
91	91	64 B. Special Motion to Dismiss Procedure
92	92	65 The purpose of this section is to provide procedures through which Section A will apply
93	93	66in all courts in this Commonwealth.
94	94	67 1. In federal courts and in foreign jurisdictions, these procedural rules are severable from
95	95	68the anti-SLAPP substantive immunity established in the foregoing section. In Massachusetts
96	96	69state courts, and wherever these rules are not in conflict with those of the tribunal, if an action is
97	97	70brought against a person in violation of the Substantive Immunity from anti-SLAPP litigation,
98	98	71the person against whom the action is brought may bring a special motion to dismiss or an Anti-
99	99	72SLAPP counterclaim, or both.
100	100	73 2. A special motion to dismiss may be filed 7 days after notice of an intent to bring an
101	101	74Anti-SLAPP motion is served upon the plaintiff (or other authority bringing the claim)
102	102	75 3. If a special motion to dismiss is filed, the court shall: 5 of 10
103	103	76 (a) Determine whether the moving party has established by a preponderance of the
104	104	77evidence that the claim fits within the substantive immunity protections;
105	105	78 (b) If the court determines that the moving party has met the burden pursuant to sub-
106	106	79paragraph (a), determine whether the non-moving party has demonstrated with prima facie
107	107	80evidence a probability of prevailing on the claim;
108	108	81 (c) If the court determines that the non-moving party has established a probability of
109	109	82prevailing on the claim pursuant to paragraph (b), ensure that such determination will not:
110	110	83 (1) Be admitted into evidence at any later stage of the underlying action or subsequent
111	111	84proceeding; or
112	112	85 (2) Affect the burden of proof that is applied in the underlying action or subsequent
113	113	86proceeding;
114	114	87 (d) Consider such evidence, written or oral, by witnesses or affidavits, as may be
115	115	88material in making a determination pursuant to paragraphs (a) and (b);
116	116	89 (e) Except as otherwise provided in subsection 4, stay all other portions of the case,
117	117	90including discovery and motion practice pending:
118	118	91 (1) A ruling by the court on the motion; and,
119	119	92 (2) The disposition of any appeal from the ruling on the motion; and,
120	120	93 (f) Rule on the motion within 30 judicial days after the motion is served upon the
121	121	94plaintiff, with such time to be extended by good cause shown or as the court’s schedule requires. 6 of 10
122	122	95 4. Upon a showing by a party that information necessary to meet or oppose the burden
123	123	96pursuant to paragraph (3) is in the possession of another party or a third party and is not
124	124	97reasonably available without discovery, the court shall allow limited discovery for the purpose of
125	125	98ascertaining such information.
126	126	99 (a) This showing must be demonstrated by separate motion, and must be accompanied by
127	127	100an affidavit, signed under penalty of perjury, by the moving party and the moving party’s
128	128	101attorney,
129	129	102 (b) This motion must lay out, with specificity, the discovery requested, the reason it the
130	130	103specific discovery is necessary, and why it cannot be gathered in any other way.
131	131	104 (c) If the motion lacks such specificity, it must be denied and the reasonable attorneys’
132	132	105fees incurred in opposing it must be awarded to the non-moving party.
133	133	106 (d) Before bringing such discovery motion, the prospective moving party must meet and
134	134	107confer with the non-moving party in order to resolve the matter without a motion. If the non-
135	135	108moving party has unreasonably declined to agree to the discovery, the moving party shall be
136	136	109entitled to the reasonable attorneys’ fees incurred in bringing the motion.
137	137	110 5. If the court dismisses the action pursuant to a special motion to dismiss, the dismissal
138	138	111operates as an adjudication upon the merits.
139	139	112 6. If the plaintiff or counter-plaintiff notices dismissal or moves to voluntarily dismiss the
140	140	113action, or seeks to amend the complaint, after a special motion to dismiss is filed,
141	141	114 (a) Such notice of dismissal or motion to dismiss shall function as an admission that the
142	142	115special motion was meritorious, and thus the court must grant the motion. 7 of 10
143	143	116 (b) Such motion to amend shall function as an admission that the special motion was
144	144	117meritorious as to any claims that the amendment would remove,
145	145	118 7. The court may modify any deadlines pursuant to this section or any other deadlines
146	146	119relating to a complaint filed pursuant to this section if such modification would serve the
147	147	120interests of justice.
148	148	121 C. The SLAPP Back Statute:
149	149	122 The purpose of this section is to provide a positive cause of action for persons who have
150	150	123been aggrieved by a SLAPP suit, but require additional remedies to be made whole.
151	151	124 1. If any claim, action, administrative proceeding, or any action of any kind is brought
152	152	125against a party, and that party wishes to invoke the anti-SLAPP law by way of separate action,
153	153	126they may do so.
154	154	127 2. If an action is brought, and a party successfully invokes the anti-SLAPP statute, that
155	155	128person may bring a separate action to recover any damages, costs and fees that could not be
156	156	129recovered in the trial court.
157	157	130 3. The elements of this claim are:
158	158	131 a. claim was filed,
159	159	132 b. there was an anti-SLAPP motion filed (or an equivalent in federal court)
160	160	133 c. The motion was successful. The motion shall be considered “successful” if a court
161	161	134rules it so or if the Plaintiff in the prior action withdraws its claim(s) after the motion is filed, but
162	162	135before the court can adjudicate it. 8 of 10
163	163	136 d. if the claim is successful, the court shall:
164	164	137 1) Award statutory damages of no less than $10,000
165	165	138 2) Award other compensatory damages
166	166	139 3) Award the prevailing plaintiff attorneys fees and costs.
167	167	140 4) Award compensatory damages;
168	168	141 5) Award the prevailing plaintiff attorneys fees and costs.
169	169	142 4. If any citizen of this Commonwealth is sued in another jurisdiction, and that citizen
170	170	143raises the anti-SLAPP protections in Chapter 231 § 59H, but the other jurisdiction declines to
171	171	144apply Chapter 231 § 59H, and that citizen ultimately prevails in the action, then that citizen shall
172	172	145have a cause of action against the plaintiff or counter-plaintiff in the foreign action if a-f, below,
173	173	146are proven:
174	174	147 a. The claim would have been subject to Chapter 231 § 59H, if it had been brought in the
175	175	148state courts in Massachusetts;
176	176	149 b. The defendant or counter-defendant in the foreign action invoked Chapter 231 § 59H;
177	177	150 c. The foreign court declined to apply Chapter 231 § 59H;
178	178	151 d. The Massachusetts defendant prevailed in that foreign action - including obtaining a
179	179	152dismissal without prejudice or a dismissal for a lack of personal jurisdiction; and, 9 of 10
180	180	153 e. The Massachusetts defendant in the foreign action gave the plaintiff in the foreign
181	181	154action notice, in writing, that if the Massachusetts defendant in the foreign action prevailed, the
182	182	155Massachusetts defendant in the foreign action would bring a claim under this section,
183	183	156 f. If these five elements are proven by a preponderance of the evidence, then the plaintiff
184	184	157in this action shall be entitled to:
185	185	158 1. Statutory damages of between $10,000 and $100,000;
186	186	159 2. Damages in an amount equal to the actual costs, disbursements and reasonable
187	187	160attorneys’ fees expended in the foreign action, which were incurred after the giving of notice;
188	188	161 3. All actual costs, disbursements and reasonable attorneys' fees expended in bringing the
189	189	162Massachusetts action; and
190	190	163 4. Punitive damages.
191	191	164 D. Retroactivity
192	192	165 The provisions of this law shall apply to all actions pending in the Commonwealth at the
193	193	166time of its passage and, to the fullest extent permissible, to actions pending in federal courts and
194	194	167foreign jurisdictions.
195	195	168 E. Codification of New York Times v. Sullivan
196	196	169 The purpose of this section is to ensure that if the Supreme Court of the United States
197	197	170overturns New York Times v. Sullivan, the rule laid down by that decision remains in effect in
198	198	171this Commonwealth. 10 of 10
199	199	172 In this Commonwealth, no party shall be liable for speech about a public official, no
200	200	173matter the cause of action styled, unless the plaintiff proves that the statement was knowingly
201	201	174false or made with reckless disregard for the truth.
202	202	175 A Defamation Plaintiff may meet this standard if the Plaintiff shows that the Defendant
203	203	176willfully ignored contrary facts or failed to engage in a reasonable investigation into the facts.
204	204	177Reasonableness shall be determined from a point of view of a reasonable person under the
205	205	178circumstances of the particular case.