SB 287--
Session of 1997
By Senator Clark

9 AN ACT concerning civil procedure and civil actions; relating to expe- 10 dited determination of strategic lawsuits against public participation 11 actions; providing for assessment of attorney fees, costs and damages 12 in certain situations. 13 14 Be it enacted by the Legislature of the State of Kansas: 15 Section 1. This act may be cited as the citizen participation in gov- 16 ernment act of 1997. 17 Sec. 2. (a) The Legislature finds and declares that: 18 (1) The framers of our constitutions, recognizing citizen's participa- 19 tion in government as an inalienable right essential to the survival of 20 democracy, secured its protection through the right to petition the gov- 21 ernment for redress of grievances in the first amendment to the United 22 States constitution and section three of the bill of rights of the state of 23 Kansas; 24 (2) the communications, information, opinions, reports, testimony, 25 claims and arguments provided by citizens to their government are es- 26 sential to wise government decisions and public policy, the public health, 27 safety and welfare, effective law enforcement, the efficient operation of 28 government programs, the credibility and trust afforded the government 29 and the continuation of America's republican form of government 30 through representative democracy; 31 (3) civil lawsuits and counterclaims, often claiming millions of dollars, 32 have been and are being filed against thousands of citizens, businesses 33 and organizations based on their valid exercise of their right to petition, 34 including seeking relief, influencing action, informing, communicating 35 and otherwise participating with government bodies, officials or employ- 36 ees or the electorate; 37 (4) such lawsuits, called ``strategic lawsuits against public participa- 38 tion'' or ``SLAPPS,'' are typically dismissed as unconstitutional, but often 39 not before the defendants are put to great expense, harassment and in- 40 terruption of their productive activities; 41 (5) the number of SLAPPS has increased significantly over the past 42 30 years; 43 (6) SLAPPS are an abuse of the judicial process; they are used to SB 287

 1  censor, chill, intimidate or punish citizens, businesses and organizations
 2  for involving themselves in public affairs and controlling SLAPPS will
 3  make a major contribution to lawsuit reform;
 4    (7)  the threat of financial liability, litigation costs, destruction of one's
 5  business, loss of one's home and other personal losses from groundless
 6  lawsuits seriously affects government, commerce and individual rights by
 7  significantly diminishing public participation in government, in public is-
 8  sues and in voluntary service;
 9    (8)  while courts have recognized and discouraged SLAPPS, protec-
10  tion of these important rights has not been uniform or comprehensive;
11  and
12    (9)  while some citizen communications to government inevitably will
13  be incorrect, unsound, self-interested or not in good faith, it is essential
14  in our democracy that the constitutional rights of citizens to participate
15  fully in the process of government be uniformly, consistently and com-
16  prehensively protected and encouraged.
17    (b)  The purposes of this act are:
18    (1)  To protect and encourage citizen participation in government to
19  the maximum extent permitted by law;
20    (2)  to create a more equitable balance between the rights of persons
21  to file lawsuits and to trial by jury and the rights of persons to petition,
22  speak out, associate and otherwise participate in their governments;
23    (3)  to support the operations of and assure the continuation of rep-
24  resentative government in America, including the protection and regu-
25  lation of public health, safety and welfare by protecting public partici-
26  pation in government programs, public policy decision and other actions;
27    (4)  to establish a balanced, uniform, comprehensive process for
28  speedy adjudication of SLAPPS as a major contribution to lawsuit reform;
29  and
30    (5)  to provide for attorney fees, costs and damages for persons whose
31  citizen participation rights have been violated by the filing of a SLAPP
32  against them.
33    Sec. 3.  Acts in furtherance of the constitutional right to petition, in-
34  cluding seeking relief, influencing action, informing, communicating and
35  otherwise participating in the processes of government, shall be immune
36  from civil liability, regardless of intent or purpose, except where not
37  aimed at procuring any government or electoral action, result or outcome.
38    Sec. 4.  This act applies to any motion to dispose of a claim in a ju-
39  dicial proceeding on the grounds that the claim in based on, relates to,
40  or is in response to any act of the moving party in furtherance of the
41  moving party's right as described in section 3.
42    Sec. 5.  On the filing of any motion as described in section 4:
43    (a)  The motion shall be treated as one for summary judgment:
SB 287

 1    (1)  The trial court shall use a time period appropriate to preferred
 2  or expedited motions; and
 3    (2)  the moving party shall have a right of expedited appeal from a
 4  trial court order denying such a motion or from a trial court failure to
 5  rule on such a motion in expedited fashion;
 6    (b)  discovery shall be suspended, pending decision on the motion and
 7  appeals;
 8    (c)  the responding party shall have the burden of proof, of going
 9  forward with the evidence and of persuasion on the motion;
10    (d)  the court shall make its determination based upon the facts con-
11  tained in the pleadings and affidavits filed;
12    (e)  the court shall grant the motion and dismiss the judicial claim,
13  unless the responding party has produced clear and convincing evidence
14  that the acts of the moving party are not immunized from liability by the
15  provisions of section 3;
16    (f)  any government body to which the moving party's acts were di-
17  rected or the attorney general may intervene to defend or otherwise sup-
18  port the moving party in the SLAPP;
19    (g)  the court shall award a moving party who is dismissed, without
20  regard to any limits under state law:
21    (1)  Costs of litigation, including reasonable attorney and expert wit-
22  ness fees, incurred in connection with the motion; and
23    (2)  such additional sanctions upon the responding party, its attorneys
24  or law firms as it determines will be sufficient to deter repetition of such
25  conduct and comparable conduct by other similarly situated; and
26    (h)  a person damaged or injured by reason of a claim filed in violation
27  of their rights under the provisions of section 3 may seek relief in the
28  form of a claim for actual or compensatory damages, as well as punitive
29  damages, attorney fees and costs, from the person or persons responsible
30  and their attorneys or law firms, which may be asserted in the SLAPP
31  action or in an independent action. The award of actual damage shall not
32  be a prerequisite for allowance of punitive damages.
33    Sec. 6.  As used in this act:
34    (a)  ``Government'' includes a branch, department, agency, instru-
35  mentality, official, employee, agent or other person acting under color of
36  law of the United States, a state or subdivision of a state or other public
37  authority, including the electorate;
38    (b)  ``state'' includes the District of Columbia, the Commonwealth of
39  Puerto Rico and each territory and possession of the United States;
40    (c)  ``person'' includes any individual, corporation, association, organ-
41  ization, partnership, two or more persons having a joint or common in-
42  terest or other legal entity;
43    (d)  ``judicial claim'' or ``claim'' includes any lawsuit, cause of action,
SB 287

 1  claim, cross-claim, counterclaim or other judicial pleading or filing re-
 2  questing relief;
 3    (e)  ``motion'' includes any motion to dismiss, for summary judgment,
 4  for judgment on the pleading, to strike, demurrer or any other judicial
 5  pleading filed to dispose of a judicial claim;
 6    (f)  ``moving party'' means any person on whose behalf the motion
 7  described in section 4 is filed seeking dismissal of the judicial claim; and
 8    (g)  ``responding party'' means any person against whom the motion
 9  described in section 4 is filed.
10    Sec. 7.  (a) Nothing in this act shall limit or preclude any rights the
11  moving party may have under any other constitution, statutory, case or
12  common law or rule provisions.
13    (b)  This act shall be construed liberally to effectuate its purposes and
14  intent fully.
15    (c)  If any provision of the act or the application of any provision of
16  this act to any person or circumstance is held invalid, the application of
17  such provision to other persons or circumstances and the remainder of
18  the act shall not be affected thereby.
19    Sec. 8.  This act shall take effect and be in force from and after its
20  publication in the Kansas register.