Wisconsin 2023-2024 Regular Session

Wisconsin Senate Bill SB414 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 SENATE BILL 414
5	5	September 8, 2023 - Introduced by Senators AGARD, ROYS, TAYLOR, LARSON,
6	6	CARPENTER, HESSELBEIN, SPREITZER, SMITH, PFAFF and WIRCH, cosponsored by
7	7	Representatives J. ANDERSON, ANDRACA, CONLEY, CONSIDINE, DRAKE, HONG,
8	8	JOERS, MOORE OMOKUNDE, OHNSTAD, RATCLIFF, SINICKI, SNODGRASS and
9	9	SHANKLAND. Referred to Committee on Judiciary and Public Safety.
10	10	AN ACT to create 802.065 of the statutes; relating to: special motions to strike
11	11	strategic lawsuits against public participation.
12	12	Analysis by the Legislative Reference Bureau
13	13	This bill allows a person to file a special motion to strike in a strategic lawsuit
14	14	against public participation which, if successful, results in dismissal of the claim
15	15	subject to the motion. Under the bill, a cause of action brought against a person
16	16	arising from that person's acts in furtherance of his or her right of petition or free
17	17	speech under the United States or Wisconsin Constitution in connection with a
18	18	public issue is subject to a special motion to strike, unless the court determines that
19	19	the plaintiff has established a probability of prevailing on the claim.
20	20	The bill provides that an act in furtherance of a person's constitutional right of
21	21	petition or free speech in connection with a public issue includes any written or oral
22	22	statement or writing made a) before a legislative, executive, or judicial proceeding,
23	23	or any other official proceeding authorized by law; b) in connection with an issue
24	24	under consideration or review by a legislative, executive, or judicial body, or any
25	25	other official proceeding authorized by law; or c) in a place open to the public or a
26	26	public forum in connection with an issue of public interest. The bill also provides that
27	27	any other conduct might also be considered to be an act in furtherance of a person's
28	28	constitutional right of petition or free speech in connection with a public issue. No
29	29	special motion to strike may be brought in any enforcement action brought in the
30	30	name of the people of Wisconsin by the attorney general, a district attorney, or a city
31	31	attorney, acting as a public prosecutor.
32	32	In making a determination on a special motion to strike, the court must
33	33	consider the pleadings and supporting and opposing affidavits stating the facts upon
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37	37	SENATE BILL 414
38	38	which the liability or defense is based. If the court determines that the plaintiff has
39	39	established a probability that the plaintiff will prevail on the claim, neither that
40	40	determination nor the fact of that determination are admissible in evidence at any
41	41	later stage of the case, or in any subsequent action, and no burden of proof or degree
42	42	of proof otherwise applicable is affected by that determination in that case or any
43	43	subsequent proceeding. Under the bill, except in certain circumstances, a defendant
44	44	who prevails on a special motion to strike is entitled to recover attorney fees and
45	45	costs. If, however, the court finds that a special motion to strike is frivolous or is
46	46	solely intended to cause unnecessary delay, the court must award costs and
47	47	reasonable attorney fees to the prevailing plaintiff. The bill allows a person to appeal
48	48	as a matter or right an order granting or denying a special motion to strike.
49	49	The bill requires that a special motion be filed within 60 days of the service of
50	50	the complaint or later if the court permits. The motion must be scheduled for a
51	51	hearing not more than 30 days after the service of the motion unless the court's
52	52	schedule does not allow for a hearing in that timeframe. Unless the court determines
53	53	otherwise, when a notice of a special motion is filed, all discovery proceedings in the
54	54	action are stayed until a ruling is made on the motion.
55	55	Any party who files a special motion to strike, and any party who files an
56	56	opposition to a special motion to strike must provide the director of state courts with
57	57	a copy of the endorsed, filed caption page of the motion or opposition, a copy of any
58	58	related notice or appeal or petition for a writ, and a conformed copy of any order
59	59	issued, including any order granting or denying a special motion to strike, discovery,
60	60	or fees. Under the bill, the director of state courts must keep a public record of the
61	61	information for at least three years.
62	62	For further information see the state fiscal estimate, which will be printed as
63	63	an appendix to this bill.
64	64	The people of the state of Wisconsin, represented in senate and assembly, do
65	65	enact as follows:
66	66	SECTION 1. 802.065 of the statutes is created to read:
67	67	802.065 Special motion to strike strategic lawsuits against public
68	68	participation. (1) In this section:
69	69	(a) “Complaint” includes a complaint, cross-complaint, or petition.
70	70	(b) “Plaintiff” includes a plaintiff, cross-complainant, or petitioner.
71	71	(c) “Defendant” includes a defendant, cross-defendant, or respondent.
72	72	(2) (a) A cause of action against a person arising from any act of that person
73	73	in furtherance of the person's right of petition or free speech under the U.S.
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84	84	SECTION 1
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86	86	Constitution or the constitution of this state in connection with a public issue shall
87	87	be subject to a special motion to strike, unless the court determines that the plaintiff
88	88	has established that there is a probability that the plaintiff will prevail on the claim.
89	89	(b) In making its determination, the court shall consider the pleadings and
90	90	supporting and opposing affidavits stating the facts upon which the liability or
91	91	defense is based.
92	92	(c) If the court determines that the plaintiff has established a probability that
93	93	the plaintiff will prevail on the claim, neither that determination nor the fact of that
94	94	determination shall be admissible in evidence at any later stage of the case, or in any
95	95	subsequent action, and no burden of proof or degree of proof otherwise applicable
96	96	shall be affected by that determination in any later stage of the case or in any
97	97	subsequent proceeding.
98	98	(3) (a) Except as provided in par. (b), in any action subject to sub. (2), a
99	99	prevailing defendant on a special motion to strike shall be entitled to recover his or
100	100	her attorney fees and costs. If the court finds that a special motion to strike is
101	101	frivolous or is solely intended to cause unnecessary delay, the court shall award costs
102	102	and reasonable attorney fees to a plaintiff prevailing on the motion.
103	103	(b) A defendant who prevails on a special motion to strike in an action subject
104	104	to par. (a) may not be awarded attorney fees under par. (a) if that cause of action is
105	105	brought under s. 19.37 or 19.97. Nothing in this paragraph shall be construed to
106	106	prevent a prevailing party from recovering attorney fees and costs under s. 19.37 or
107	107	19.97.
108	108	(4) This section does not apply to any enforcement action brought in the name
109	109	of the people of this state by the attorney general, a district attorney, or a city
110	110	attorney, acting as a public prosecutor.
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137	137	SECTION 1 SENATE BILL 414
138	138	(5) As used in this section, an act in furtherance of a person's right of petition
139	139	or free speech under the U.S. Constitution or the constitution of this state in
140	140	connection with a public issue includes any of the following:
141	141	(a) Any written or oral statement or writing made before a legislative,
142	142	executive, or judicial proceeding, or any other official proceeding authorized by law.
143	143	(b) Any written or oral statement or writing made in connection with an issue
144	144	under consideration or review by a legislative, executive, or judicial body, or any
145	145	other official proceeding authorized by law.
146	146	(c) Any written or oral statement or writing made in a place open to the public
147	147	or a public forum in connection with an issue of public interest.
148	148	(d) Any other conduct in furtherance of the exercise of the constitutional right
149	149	of petition or the constitutional right of free speech in connection with a public issue
150	150	or an issue of public interest.
151	151	(6) A special motion to strike under this section may be filed within 60 days of
152	152	the service of the complaint or, in the court's discretion, at any later time upon terms
153	153	it determines are proper. The motion shall be scheduled for a hearing not more than
154	154	30 days after the service of the motion unless the court's schedule does not allow for
155	155	a hearing within the 30-day timeframe.
156	156	(7) (a) All discovery proceedings in the action shall be stayed upon the filing
157	157	of a notice of motion made under this section. The stay of discovery shall remain in
158	158	effect until notice of entry of the order ruling on the motion.
159	159	(b) Notwithstanding par. (a), the court may, for good cause shown, order that
160	160	specified discovery be conducted.
161	161	(8) Notwithstanding s. 808.03 (1), an order granting or denying a special
162	162	motion to strike shall be appealable as a matter of right.
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190	190	SECTION 1
191	191	SENATE BILL 414
192	192	(9) (a) Any party who files a special motion to strike under this section, and any
193	193	party who files an opposition to a special motion to strike, shall, promptly upon so
194	194	filing, transmit to the director of state courts, by mail or by email, a copy of the
195	195	endorsed, filed caption page of the motion or opposition, a copy of any related notice
196	196	or appeal or petition for a writ, and a conformed copy of any order issued under this
197	197	section, including any order granting or denying a special motion to strike, discovery,
198	198	or fees.
199	199	(b) The director of state courts shall maintain a public record of information
200	200	transmitted under this paragraph for at least 3 years, and may store the information
201	201	on microfilm or other appropriate electronic media.
202	202	(10) This section shall be construed broadly.
203	203	SECTION 2.0Initial applicability.
204	204	(1) This act first applies to actions filed on the effective date of this subsection.
205	205	(END)
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