Requires awarding of costs and attorney fees in frivolous action involving public petition and participation; expands application of actions involving public petition and participation.
TITLE OF BILL: An act to amend the civil rights law, in relation to actions involving public petition and participation
PURPOSE OF BILL: The purpose of this bill is to extend the protection of New York's current law regarding Strategic Lawsuits Against Public Participation ("SLAPP suits"). The amendment will protect citizens' from frivolous litigation that is intended to silence their exercise of the rights of free speech and petition about matters of public concern.
SUMMARY OF PROVISIONS OF BILL:
Section 1 of the bill would amend section 76-a of the Civil Rights Law to define an "action involving public petition and participation" to include a claim related to:
i. Any communication in a place open to the public or a public forum in connection with an issue of public concern; or
ii.Any other lawful conduct in furtherance of the exercise of the constitutional right of free speech in connection with an issue of public concern, or in furtherance of the exercise of the constitutional right of petition.
Section 2 of the bill would amend section 70-a of the Civil Rights Laws to provide that costs and attorney's fees "shall be recovered upon a demonstration that a SLAP? suit was commenced or continued without a substantial basis in fact or law and could not be supported by a substantial argument for the extension, modification, or reversal of existing law."
Section 76-a of the Civil Rights Law was originally enacted by the Legislature to provide "the utmost protection for the free exercise or speech, petition, and association rights, particularly where such rights are exercised in a public forum with respect to issues of public concern." L. 1992 Ch. 767. However, as drafted, and as narrowly interpreted by the courts, the application of Section 76-a has failed to accomplish that objective. In practice, the current statute has been strictly limited to cases initiated by persons or business entities that are embroiled in controversies over a public application or permit, usually in a real estate development situation. Meanwhile, many frivolous lawsuits are filed each year that are calculated solely to silence free speech and public participation, which do not specifically arise in the context of the public "permit" process. By revising the definition of an "action involving public petition and participation," this amendment to Section 76-a will better advance the purposes that the Legislature originally identified in enacting New York's anti-SLAPP law.
Additionally, the principal remedy currently provided to victims of SLAPP suits in New York is almost never actually imposed. The courts have failed to use their discretionary power to award costs and attorney's fees to a defendant found to have been victimized by a
frivolous lawsuit intended only to chill free speech. By an award of costs and fees, the Legislature had originally intended to address "threat of personal damages and litigation costs ... as a means of harassing, intimidating, or punishing individuals, unincorporated associations, not-for-profit corporations and others who have involved themselves in public affairs." L. 1992 Ch. 767. This amendment to Section 70-A of the Civil Rights Law makes clear that a court "shall" impose an award of costs and fees, but only if the court finds that the case has been initiated or pursued in bad faith. Together, the two amendments will protect citizens against the threat -- and financial reality -- of abusive litigation, but will not discourage meritorious litigation.
LEGISLATIVE HISTORY: 2012: A.10594 A. Judi
FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS: None.
EFFECTIVE DATE: Immediately.
STATE OF NEW YORK ________________________________________________________________________ 7280 IN SENATE May 9, 2014 ___________Introduced by Sen. ESPAILLAT -- read twice and ordered printed, and when printed to be committed to the Committee on Codes AN ACT to amend the civil rights law, in relation to actions involving public petition and participation THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. Paragraph (a) of subdivision 1 of section 70-a of the civil rights law, as added by chapter 767 of the laws of 1992, is amended to read as follows: (a) costs and attorney's fees
[may]SHALL be recovered upon a demon- stration, INCLUDING AN ADJUDICATION PURSUANT TO SUBDIVISION (G) OF RULE THIRTY-TWO HUNDRED ELEVEN OR SUBDIVISION (H) OF RULE THIRTY-TWO HUNDRED TWELVE OF THE CIVIL PRACTICE LAW AND RULES, that the action involving public petition and participation was commenced or continued without a substantial basis in fact and law and could not be supported by a substantial argument for the extension, modification or reversal of existing law; S 2. Subdivision 1 of section 76-a of the civil rights law, as added by chapter 767 of the laws of 1992, is amended to read as follows: 1. For purposes of this section: (a) An "action involving public petition and participation" is [an action,]A claim [, cross claim or counterclaim for damages that is brought by a public applicant or permittee, and is materially related to any efforts of the defendant to report on, comment on, rule on, chal- lenge or oppose such application or permission]BASED UPON: (1) ANY COMMUNICATION IN A PLACE OPEN TO THE PUBLIC OR A PUBLIC FORUM IN CONNECTION WITH AN ISSUE OF PUBLIC CONCERN; OR (2) ANY OTHER LAWFUL CONDUCT IN FURTHERANCE OF THE EXERCISE OF THE CONSTITUTIONAL RIGHT OF FREE SPEECH IN CONNECTION WITH AN ISSUE OF PUBLIC CONCERN, OR IN FURTHERANCE OF THE EXERCISE OF THE CONSTITUTIONAL RIGHT OF PETITION. (b) ["Public applicant or permittee" shall mean any person who has applied for or obtained a permit, zoning change, lease, license, certif- icate or other entitlement for use or permission to act from any govern-"CLAIM" INCLUDES ANY LAWSUIT, CAUSE OF ACTION, CROSS-CLAIM, COUNTERCLAIM, OR OTHER JUDICIAL PLEADING OR FILING REQUESTING RELIEF. (c) "Communication" shall mean any statement, claim, allegation in a proceeding, decision, protest, writing, argument, contention or other expression.EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD03691-01-3 S. 7280 2
ment body, or any person with an interest, connection or affiliation with such person that is materially related to such application or permission]
[(d) "Government body" shall mean any municipality, the state, any other political subdivision or agency of such, the federal government, any public benefit corporation, or any public authority, board, or commission.]S 3. This act shall take effect immediately and shall apply to actions commenced on or after such date.