Wisconsin 2023-2024 Regular Session

Wisconsin Assembly Bill AB423 Compare Versions

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

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3	3	2023 - 2024 LEGISLATURE
4	4	2023 ASSEMBLY BILL 423
5	5	September 19, 2023 - Introduced by Representatives J. ANDERSON, ANDRACA,
6	6	CONLEY, CONSIDINE, DRAKE, HONG, JOERS, MOORE OMOKUNDE, OHNSTAD,
7	7	RATCLIFF, SINICKI, SNODGRASS, SHANKLAND and JACOBSON, cosponsored by
8	8	Senators AGARD, ROYS, TAYLOR, LARSON, CARPENTER, HESSELBEIN, SPREITZER,
9	9	SMITH, PFAFF and WIRCH. Referred to Committee on Judiciary.
10	10	*AUTHORS SUBJECT TO CHANGE*
11	11	AN ACT to create 802.065 of the statutes; relating to: special motions to strike
12	12	strategic lawsuits against public participation.
13	13	Analysis by the Legislative Reference Bureau
14	14	This bill allows a person to file a special motion to strike in a strategic lawsuit
15	15	against public participation which, if successful, results in dismissal of the claim
16	16	subject to the motion. Under the bill, a cause of action brought against a person
17	17	arising from that person's acts in furtherance of his or her right of petition or free
18	18	speech under the United States or Wisconsin Constitution in connection with a
19	19	public issue is subject to a special motion to strike, unless the court determines that
20	20	the plaintiff has established a probability of prevailing on the claim.
21	21	The bill provides that an act in furtherance of a person's constitutional right of
22	22	petition or free speech in connection with a public issue includes any written or oral
23	23	statement or writing made a) before a legislative, executive, or judicial proceeding,
24	24	or any other official proceeding authorized by law; b) in connection with an issue
25	25	under consideration or review by a legislative, executive, or judicial body, or any
26	26	other official proceeding authorized by law; or c) in a place open to the public or a
27	27	public forum in connection with an issue of public interest. The bill also provides that
28	28	any other conduct might also be considered to be an act in furtherance of a person's
29	29	constitutional right of petition or free speech in connection with a public issue. No
30	30	special motion to strike may be brought in any enforcement action brought in the
31	31	name of the people of Wisconsin by the attorney general, a district attorney, or a city
32	32	attorney, acting as a public prosecutor.
33	33	In making a determination on a special motion to strike, the court must
34	34	consider the pleadings and supporting and opposing affidavits stating the facts upon
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38	38	ASSEMBLY BILL 423
39	39	which the liability or defense is based. If the court determines that the plaintiff has
40	40	established a probability that the plaintiff will prevail on the claim, neither that
41	41	determination nor the fact of that determination are admissible in evidence at any
42	42	later stage of the case, or in any subsequent action, and no burden of proof or degree
43	43	of proof otherwise applicable is affected by that determination in that case or any
44	44	subsequent proceeding. Under the bill, except in certain circumstances, a defendant
45	45	who prevails on a special motion to strike is entitled to recover attorney fees and
46	46	costs. If, however, the court finds that a special motion to strike is frivolous or is
47	47	solely intended to cause unnecessary delay, the court must award costs and
48	48	reasonable attorney fees to the prevailing plaintiff. The bill allows a person to appeal
49	49	as a matter or right an order granting or denying a special motion to strike.
50	50	The bill requires that a special motion be filed within 60 days of the service of
51	51	the complaint or later if the court permits. The motion must be scheduled for a
52	52	hearing not more than 30 days after the service of the motion unless the court's
53	53	schedule does not allow for a hearing in that timeframe. Unless the court determines
54	54	otherwise, when a notice of a special motion is filed, all discovery proceedings in the
55	55	action are stayed until a ruling is made on the motion.
56	56	Any party who files a special motion to strike, and any party who files an
57	57	opposition to a special motion to strike must provide the director of state courts with
58	58	a copy of the endorsed, filed caption page of the motion or opposition, a copy of any
59	59	related notice or appeal or petition for a writ, and a conformed copy of any order
60	60	issued, including any order granting or denying a special motion to strike, discovery,
61	61	or fees. Under the bill, the director of state courts must keep a public record of the
62	62	information for at least three years.
63	63	For further information see the state fiscal estimate, which will be printed as
64	64	an appendix to this bill.
65	65	The people of the state of Wisconsin, represented in senate and assembly, do
66	66	enact as follows:
67	67	SECTION 1. 802.065 of the statutes is created to read:
68	68	802.065 Special motion to strike strategic lawsuits against public
69	69	participation. (1) In this section:
70	70	(a) “Complaint” includes a complaint, cross-complaint, or petition.
71	71	(b) “Plaintiff” includes a plaintiff, cross-complainant, or petitioner.
72	72	(c) “Defendant” includes a defendant, cross-defendant, or respondent.
73	73	(2) (a) A cause of action against a person arising from any act of that person
74	74	in furtherance of the person's right of petition or free speech under the U.S.
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85	85	SECTION 1
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87	87	Constitution or the constitution of this state in connection with a public issue shall
88	88	be subject to a special motion to strike, unless the court determines that the plaintiff
89	89	has established that there is a probability that the plaintiff will prevail on the claim.
90	90	(b) In making its determination, the court shall consider the pleadings and
91	91	supporting and opposing affidavits stating the facts upon which the liability or
92	92	defense is based.
93	93	(c) If the court determines that the plaintiff has established a probability that
94	94	the plaintiff will prevail on the claim, neither that determination nor the fact of that
95	95	determination shall be admissible in evidence at any later stage of the case, or in any
96	96	subsequent action, and no burden of proof or degree of proof otherwise applicable
97	97	shall be affected by that determination in any later stage of the case or in any
98	98	subsequent proceeding.
99	99	(3) (a) Except as provided in par. (b), in any action subject to sub. (2), a
100	100	prevailing defendant on a special motion to strike shall be entitled to recover his or
101	101	her attorney fees and costs. If the court finds that a special motion to strike is
102	102	frivolous or is solely intended to cause unnecessary delay, the court shall award costs
103	103	and reasonable attorney fees to a plaintiff prevailing on the motion.
104	104	(b) A defendant who prevails on a special motion to strike in an action subject
105	105	to par. (a) may not be awarded attorney fees under par. (a) if that cause of action is
106	106	brought under s. 19.37 or 19.97. Nothing in this paragraph shall be construed to
107	107	prevent a prevailing party from recovering attorney fees and costs under s. 19.37 or
108	108	19.97.
109	109	(4) This section does not apply to any enforcement action brought in the name
110	110	of the people of this state by the attorney general, a district attorney, or a city
111	111	attorney, acting as a public prosecutor.
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138	138	SECTION 1 ASSEMBLY BILL 423
139	139	(5) As used in this section, an act in furtherance of a person's right of petition
140	140	or free speech under the U.S. Constitution or the constitution of this state in
141	141	connection with a public issue includes any of the following:
142	142	(a) Any written or oral statement or writing made before a legislative,
143	143	executive, or judicial proceeding, or any other official proceeding authorized by law.
144	144	(b) Any written or oral statement or writing made in connection with an issue
145	145	under consideration or review by a legislative, executive, or judicial body, or any
146	146	other official proceeding authorized by law.
147	147	(c) Any written or oral statement or writing made in a place open to the public
148	148	or a public forum in connection with an issue of public interest.
149	149	(d) Any other conduct in furtherance of the exercise of the constitutional right
150	150	of petition or the constitutional right of free speech in connection with a public issue
151	151	or an issue of public interest.
152	152	(6) A special motion to strike under this section may be filed within 60 days of
153	153	the service of the complaint or, in the court's discretion, at any later time upon terms
154	154	it determines are proper. The motion shall be scheduled for a hearing not more than
155	155	30 days after the service of the motion unless the court's schedule does not allow for
156	156	a hearing within the 30-day timeframe.
157	157	(7) (a) All discovery proceedings in the action shall be stayed upon the filing
158	158	of a notice of motion made under this section. The stay of discovery shall remain in
159	159	effect until notice of entry of the order ruling on the motion.
160	160	(b) Notwithstanding par. (a), the court may, for good cause shown, order that
161	161	specified discovery be conducted.
162	162	(8) Notwithstanding s. 808.03 (1), an order granting or denying a special
163	163	motion to strike shall be appealable as a matter of right.
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191	191	SECTION 1
192	192	ASSEMBLY BILL 423
193	193	(9) (a) Any party who files a special motion to strike under this section, and any
194	194	party who files an opposition to a special motion to strike, shall, promptly upon so
195	195	filing, transmit to the director of state courts, by mail or by email, a copy of the
196	196	endorsed, filed caption page of the motion or opposition, a copy of any related notice
197	197	or appeal or petition for a writ, and a conformed copy of any order issued under this
198	198	section, including any order granting or denying a special motion to strike, discovery,
199	199	or fees.
200	200	(b) The director of state courts shall maintain a public record of information
201	201	transmitted under this paragraph for at least 3 years, and may store the information
202	202	on microfilm or other appropriate electronic media.
203	203	(10) This section shall be construed broadly.
204	204	SECTION 2.0Initial applicability.
205	205	(1) This act first applies to actions filed on the effective date of this subsection.
206	206	(END)
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