2009-2010 Bill 3587: Citizens Participation in Government Act of 2009 - South Carolina

1 South Carolina General Assembly 2 118th Session, 2009-2010 3 4 H. 3587 5 6 STATUS INFORMATION 7 8 General Bill 9 Sponsors: Rep. J.E. Smith 10 Document Path: l:\council\bills\ms\7191zw09.docx 11 12 Introduced in the House on February 19, 2009 13 Currently residing in the House Committee on Judiciary 14 15 Summary: Citizens Participation in Government Act of 2009 16 17 18 HISTORY OF LEGISLATIVE ACTIONS 19 20 Date Body Action Description with journal page number 21 2/19/2009 House Introduced and read first time HJ8 22 2/19/2009 House Referred to Committee on Judiciary HJ8 23 24 25 VERSIONS OF THIS BILL 26 27 2/19/2009 28 1 2 3 4 5 6 7 8 9 A BILL 10 11 TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 12 1976, BY ADDING ARTICLE 2 TO CHAPTER 36, TITLE 15 13 SO AS TO ENACT THE “CITIZENS PARTICIPATION IN 14 GOVERNMENT ACT OF 2009” AND TO PROVIDE THAT 15 ACTS IN FURTHERANCE OF THE CONSTITUTIONAL 16 RIGHT TO PETITION ARE IMMUNE FROM CIVIL 17 LIABILITY EXCEPT WHEN THE ACTS ARE NOT AIMED AT 18 PROCURING A GOVERNMENTAL OR ELECTORAL 19 ACTION, RESULT, OR OUTCOME, TO PROVIDE 20 EXPEDITED PROCEDURES FOR HEARING MOTIONS IN 21 ACTIONS BROUGHT IN OPPOSITION TO A CITIZEN’S 22 RIGHT TO PETITION THE GOVERNMENT, TO PROVIDE 23 FOR ATTORNEY’S FEES AND COSTS TO THE PREVAILING 24 PARTY; AND TO DESIGNATE SECTIONS 153610 THROUGH 25 1536100 AS ARTICLE 1, CHAPTER 36 ENTITLED “SOUTH 26 CAROLINA FRIVOLOUS CIVIL PROCEEDINGS SANCTIONS 27 ACT” AND TO REDESIGNATE CHAPTER 36 AS 28 “SANCTIONS”. 29 30 Be it enacted by the General Assembly of the State of South 31 Carolina: 32 33 SECTION 1. The General Assembly finds that: 34 (1)(a) the framers of our Constitutions, recognizing citizen 35 participation in government as an inalienable right essential to the 36 survival of democracy, secured its protection through the right to 37 petition the government for redress of grievances in the First 38 Amendment to the United States Constitution and Article I, 39 Section 2 of the South Carolina Constitution, 1895; 40 (b) the communications, information, opinions, reports, 41 testimony, claims, and arguments provided by citizens to their 42 government are essential to wise government decisions and public

[3587] 2 1 policy, the public health, safety, and welfare, effective law 2 enforcement, the efficient operation of government programs, the 3 credibility and trust afforded government, and the continuation of 4 this nation’s republican form of government through representative 5 democracy; 6 (c) civil lawsuits and counterclaims, often claiming millions 7 of dollars, have been and are being filed against thousands of 8 citizens, businesses, and organizations based on their valid 9 exercise of their right to petition, including seeking relief, 10 influencing action, informing, communicating, and otherwise 11 participating with government bodies, officials, or employees or 12 the electorate; 13 (d) such lawsuits, called “Strategic Lawsuits Against Public 14 Participation” or “SLAPP”, are typically dismissed as 15 unconstitutional, but often not before the defendants are put to 16 great expense, harassment, and interruption of their productive 17 activities; 18 (e) the number of SLAPPs has increased significantly over 19 the past thirty years; 20 (f) SLAPPs are an abuse of the judicial process; they are 21 used to censor, chill, intimidate, or punish citizens, businesses, and 22 organizations for involving themselves in public affairs, and 23 controlling SLAPPs will make a major contribution to lawsuit 24 reform; 25 (g) the threat of financial liability, litigation costs, 26 destruction of one’s business, loss of one’s home, and other 27 personal losses from groundless lawsuits seriously affects 28 government, commerce, and individual rights by significantly 29 diminishing public participation in government, in public issues, 30 and in voluntary service; 31 (h) while courts have recognized and discouraged SLAPPs, 32 protection of these important rights has not been uniform or 33 comprehensive; and 34 (i) while some citizen communications to government 35 inevitably will be incorrect, unsound, selfinterested, or not in good 36 faith, it is essential in our democracy that the constitutional rights 37 of citizens to participate fully in the process of government be 38 uniformly, consistently, and comprehensively protected and 39 encouraged. 40 (2) The purposes of this article are to: 41 (a) protect and encourage citizen participation in 42 government to the maximum extent permitted by law;

[3587] 3 1 (b) create a more equitable balance between the rights of 2 persons to file lawsuits and to trial by jury, and the rights of 3 persons to petition, speak out, associate, and otherwise participate 4 in their governments; 5 (c) support the operations of and assure the continuation of 6 representative government in this nation, including the protection 7 and regulation of public health, safety, and welfare by protecting 8 public participation in government programs, public policy 9 decisions, and other actions; 10 (d) establish a balanced, uniform, comprehensive process for 11 speedy adjudication of SLAPPs as a major contribution to lawsuit 12 reform; and 13 (e) provide for attorney’s fees, costs, and damages for 14 persons whose citizen participation rights have been violated by 15 the filing of a SLAPP against them. 16 17 SECTION 2. Chapter 36, Title 15 of the 1976 Code is amended 18 by adding: 19 20 “Article 2 21 22 Citizen Participation in Government 23 24 Section 1536200. This article may be cited as the ‘Citizen 25 Participation in Government Act of 2009’. 26 27 Section 1536210. As used in this article: 28 (1) ‘Government’ includes a branch, department, agency, 29 instrumentality, official, employee, agent, or another person acting 30 under color of law of the United States, the State of South 31 Carolina, or other state or subdivision of a state or other public 32 authority, including the electorate. 33 (2) ‘Judicial claim’ or ‘claim’ includes any lawsuit, cause of 34 action, claim, crossclaim, counterclaim, or other judicial pleading 35 or filing requesting relief. 36 (3) ‘Motion’ includes any motion to dismiss, for summary 37 judgment, for judgment on the pleadings, to strike, or any other 38 judicial pleading filed to dispose of a judicial claim. 39 (4) ‘Moving party’ means a person on whose behalf the motion 40 described in Section 1536230 is filed seeking dismissal of the 41 judicial claim.

[3587] 4 1 (5) ‘Person’ includes an individual, corporation, association, 2 organization, partnership, two or more persons having a joint or 3 common interest, or another legal entity. 4 (6) ‘Responding party’ means a person against whom the 5 motion described in Section 1536230 is filed. 6 (7) ‘SLAPP’ means a ‘Strategic Lawsuit Against Public 7 Participation’ or a lawsuit filed to intimidate or chill a citizen’s 8 involvement in public affairs. 9 (8) ‘State’ includes the District of Columbia, the 10 Commonwealth of Puerto Rico, and each territory and possession 11 of the United States. 12 13 Section 1536220. Acts in furtherance of the constitutional 14 right to petition, including seeking relief, influencing action, 15 informing, communicating, and otherwise participating in the 16 processes of government, are immune from civil liability in this 17 State, regardless of intent or purpose, except when the acts are not 18 aimed at procuring a governmental or electoral action, result, or 19 outcome. 20 21 Section 1536230. This article applies to a motion to dispose 22 of a claim in a judicial proceeding on the grounds that the claim is 23 based on, relates to, or is in response to an act of the moving party 24 in furtherance of the moving party’s rights as described in Section 25 1536220. 26 27 Section 1536240. Upon the filing of a motion as described 28 in Section 1536230: 29 (1) the motion must be treated as one for summary judgment 30 for which the: 31 (a) trial court must use a time period appropriate for 32 preferred or expedited motions; and 33 (b) moving party has a right of expedited appeal from a trial 34 court’s order denying the motion or from a trial court’s failure to 35 rule on the motion in expedited fashion; 36 (2) discovery must be suspended, pending a decision on the 37 motion and appeals; 38 (3) the responding party has the burden of proof, of going 39 forward with the evidence, and of persuasion on the motion; 40 (4) the court must make its determination based upon the facts 41 contained in the pleadings and affidavits filed; 42 (5) the court must grant the motion and dismiss the judicial 43 claim, unless the responding party has produced clear and

[3587] 5 1 convincing evidence that the acts of the moving party are not 2 immunized from liability as provided in Section 1536220; 3 (6) any government body to which the moving party’s acts 4 were directed or the Attorney General may intervene to defend or 5 otherwise support the moving party in the SLAPP; 6 (7) the court may award a moving party who is dismissed, 7 without regard to any limits under state law: 8 (a) costs of litigation, including reasonable attorney and 9 expert witness fees, incurred in connection with the motion; and 10 (b) additional sanctions upon the responding party and its 11 attorneys as it determines sufficient to deter repetition of the 12 conduct and comparable conduct by others similarly situated; and 13 (8) a person damaged or injured by reason of a claim filed in 14 violation of his rights under Section 1536220 may seek relief in 15 the form of a claim for actual or compensatory damages, as well as 16 punitive damages, attorney’s fees, and costs, from the person 17 responsible. 18 19 Section 1536250. (A) Nothing in this article limits or 20 precludes rights the moving party may have under other 21 constitutional, statutory, case or common law, or rule provisions. 22 (B) This article must be construed liberally to effectuate its 23 purpose and intent fully. 24 (C) If a provision of this article or the application of a provision 25 of this article to a person or circumstance is held invalid, the 26 application of the provision to other persons or circumstances and 27 the remainder of this article are not affected.” 28 29 SECTION 3. A.Sections 153610 through 1536100 of the 1976 30 Code are designated as Article 1 and entitled “South Carolina 31 Frivolous Civil Proceedings Sanctions Act”. 32 33 B.Chapter 36, Title 15 of the 1976 Code is redesignated as 34 “Sanctions”. 35 36 SECTION 4. This act takes effect upon approval by the 37 Governor. 38 XX 39

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