ASSEMBLY, No. 4393

STATE OF NEW JERSEY

220th LEGISLATURE

 

INTRODUCED JUNE 27, 2022

 


 

Sponsored by:

Assemblyman  RAJ MUKHERJI

District 33 (Hudson)

 

 

 

 

SYNOPSIS

     “Uniform Public Expression Protection Act”; provides for expedited motion and process for dismissal of “Strategic Lawsuit Against Public Participation” (“SLAPP”).

 

CURRENT VERSION OF TEXT

     As introduced.

  


An Act concerning certain actions and supplementing Title 2A of the New Jersey Statutes. 

 

     Be It Enacted by the Senate and General Assembly of the State of New Jersey:

 

     1.    This act shall be known and may be cited as the “Uniform Public Expression Protection Act.”

 

     2.    Scope.

     a.     In this section:

     (1) “Goods or services” does not include the creation, dissemination, exhibition, or advertisement or similar promotion of a dramatic, literary, musical, political, journalistic, or artistic work.

     (2) “Governmental unit” means a public corporation or government or governmental subdivision, agency, or instrumentality.

     (3) “Person” means an individual, estate, trust, partnership, business or nonprofit entity, governmental unit, or other legal entity.

     b.    Except as otherwise provided in subsection c., this act applies to a cause of action asserted in a civil action against a person based on the person’s:

     (1) communication in a legislative, executive, judicial, administrative, or other governmental proceeding;

     (2) communication on an issue under consideration or review in a legislative, executive, judicial, administrative, or other governmental proceeding; or

     (3) exercise of the right of freedom of speech or of the press, the right to assembly or petition, or the right of association, guaranteed by the United State Constitution or the New Jersey Constitution, on a matter of public concern.

      c.    This act does not apply to a cause of action asserted:

     (1) against a governmental unit or an employee or agent of a governmental unit acting or purporting to act in an official capacity;

     (2) by a governmental unit or an employee or agent of a governmental unit acting in an official capacity to enforce a law to protect against an imminent threat to public health or safety; or

     (3) against a person primarily engaged in the business of selling or leasing goods or services if the cause of action arises out of a communication related to the person’s sale or lease of the goods or services. 

 

     3.    Special Motion for Expedited Relief.

     Not later than 60 days after a party is served with a petition or complaint, crossclaim, counterclaim, third-party claim, or other pleading that asserts a cause of action to which this act applies or at a later time on a showing of good cause, the party may file a special motion for expedited relief to dismiss the cause of action or part of the cause of action.

 

     4.    Stay.

     a.     Except as otherwise provided in subsections d. through g., on the filing of a motion under section 3 of P.L.    , c.   (C.        )(pending before the Legislature as this bill):

     (1) all other proceedings between the moving party and responding party, including discovery and a pending hearing or motion are stayed; and

     (2) on motion by the moving party, the court may stay a hearing or motion involving another party, or discovery by another party, if the hearing or ruling on the motion would adjudicate, or the discovery would relate to, an issue material to the motion under section 3 of P.L.  , c.   (C.   )(pending before the Legislature as this bill).

     b.    A stay under subsection a. remains in effect until entry of an order ruling on the motion under section 3 of P.L.  , c.   (C.   )(pending before the Legislature as this bill) and expiration of the time under section 9 of P.L.    , c.   (C.        )(pending before the Legislature as this bill) for the moving party to appeal the order.

     c.     Except as otherwise provided in subsections e., f. and g., if a party appeals from an order ruling on a motion under section 3 of P.L.    , c.   (C.        )(pending before the Legislature as this bill), all proceedings between all parties in the action are stayed.  The stay remains in effect until the conclusion of the appeal. 

     d.  During a stay under subsection a., the court may allow limited discovery if a party shows that specific information is necessary to establish whether a party has satisfied or failed to satisfy a burden under subsection a. of section 7 of P.L.    , c.   (C.        )(pending before the Legislature as this bill) and the information is not reasonably available unless discovery is allowed.

     e.  A motion under section 10 of P.L.    , c.   (C.        )(pending before the Legislature as this bill) for costs, attorney’s fees, and expenses is not subject to a stay under this section. 

     f.  A stay under this section does not affect a party’s ability voluntarily to dismiss a cause of action or party of a cause of action or move to sever a cause of action.

     g.    During a stay under this section, the court for good cause may hear and rule on:           

     (1) a motion unrelated to the motion under section 3 of P.L.    , c.   (C.        )(pending before the Legislature as this bill); and

     (2) a motion seeking a special or preliminary injunction to protect against an imminent threat to public health or safety. 

 

     5.    Hearing.

     a.     The court shall hear a motion under section 3 of P.L.    , c.   (C.        )(pending before the Legislature as this bill) not later than 60 days after filing of the motion, unless the court orders a later hearing;

     (1) to allow discovery under subsection d. of section 4 of P.L.    , c.   (C.        )(pending before the Legislature as this bill); or

     (2) for other good cause.

     b.  If the Court orders a later hearing under paragraph (1) of subsection a., the court shall hear the motion under section 3 of P.L.    , c.   (C.        )(pending before the Legislature as this bill) not later than 60 days after the court order allowing the discovery, unless the court orders a later hearing under paragraph (2) of subsection a.

 

     6.    Proof.

     In ruling on a motion under section 3 of P.L.    , c.   (C.        )(pending before the Legislature as this bill), the court shall consider the pleadings, the motion, any reply or response to the motion, and any evidence that could be considered in ruling on a motion for summary judgment. 

 

     7.    Dismissal of cause of action in whole or part.

     a.     In ruling on a motion under section 3 of P.L.    , c.   (C.        )(pending before the Legislature as this bill), the court shall dismiss with prejudice a cause of action, or part of a cause of action, if:

     (1) the moving party established under subsection b. of section 2 of P.L.    , c.   (C.        )(pending before the Legislature as this bill) that this act applies;

     (2) the responding party fails to establish under subsection c. of section 2 of P.L.    , c.   (C.        )(pending before the Legislature as this bill) that this act does not apply; and

     (3) either:

     (a) the responding party fails to establish a prima facie case as to each essential element of the cause of action; or

     (b) the moving party establishes that:

     (i) the responding party failed to state a cause of action upon which relief can be granted; or

     (ii) there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law on the cause of action or part of the cause of action. 

     b.    A voluntary dismissal without prejudice of a responding party’s cause of action, or part of a cause of action, that is the subject of a motion under section 3 of P.L.    , c.   (C.        )(pending before the Legislature as this bill) does not affect a moving party’s right to obtain a ruling on the motion and seek costs, attorney’s fees, and expenses under section 10 of P.L.    , c.   (C.        )(pending before the Legislature as this bill)

     c.  A voluntary dismissal with prejudice of a responding’s party cause of action, or part of a cause of action, that is the subject of a motion under section 3 of P.L.    , c.   (C.        )(pending before the Legislature as this bill) establishes for the purpose of section 10 of P.L.    , c.   (C.        )(pending before the Legislature as this bill) that the moving party prevailed on the motion. 

 

     8.    Ruling.

     The court shall rule on a motion under section 3 of P.L.    , c.   (C.        )(pending before the Legislature as this bill) not later than 60 days after a hearing under section 5 of P.L.    , c.   (C.        )(pending before the Legislature as this bill).

 

     9.    Appeal.

     A moving party may appeal as a matter of right from an order denying, in whole or in part, a motion under section 3 of P.L.    , c.   (C.        )(pending before the Legislature as this bill). The appeal must be filed not later than 20 days after entry of the order. 

 

     10.  Costs, Attorney’s Fees, and Expenses.

     On a motion under section 3 of P.L.    , c.   (C.        )(pending before the Legislature as this bill), the court shall award court costs, reasonable attorney’s fees, and reasonable litigation expenses related to the motion:

     (1) to the moving party if the moving party prevails on the motion; or

     (2) to the responding party if the responding party prevails on the motion and the court finds that the motion was frivolous or filed solely with intent to delay the proceeding. 

 

     11.  Construction.

     This act shall be broadly construed and applied to protect the exercise of the right of freedom of speech and of the press, the right to assembly and petition, and the right of association, guaranteed by the United State Constitution or the New Jersey Constitution.

 

     12.  Uniformity of Application and Construction.

     In applying and construing this uniform act, consideration must be given to the need to promote uniformity of the law with respect to its subject matter among states that enact it.

    

     13.  Severability.

     If any provision of this act or its application to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of this act which can be given effect with the invalid provision or application, and to this end the provisions of this act are severable. 

     14. This act shall take effect on the 30th day after enactment and shall apply to a civil action filed or cause of action asserted in a civil action on or after the effective date.   

 

 

STATEMENT

 

     This bill, titled the “Uniform Public Expression Protection Act,” would provide an expedited motion and process to dismiss a “Strategic Lawsuit Against Public Participation” (“SLAPP”).  The bill is based on the 2020 uniform act drafted and approved by the Uniform Law Commission (also known as the National Conference of Commissioners on Uniform State Laws). 

     Section 1 provides that the act may be cited as the “Uniform Public Expression Protection Act.”

     Section 2 defines terms and the causes of action asserted in civil actions that fall under the act.  This act applies to a civil cause of action asserted against a person based on the person’s:

     (1) communication in a legislative, executive, judicial, administrative, or other governmental proceeding;

     (2) communication on an issue under consideration or review in a legislative, executive, judicial, administrative, or other governmental proceeding; or

     (3) exercise of the right of freedom of speech or of the press, the right to assembly or petition, or the right of association, guaranteed by the United State Constitution or the New Jersey Constitution, on a matter of public concern.

     Subsection c. of this section provides that the bill would not be applicable to the following causes of action:

     (1) against a governmental unit or an employee or agent of a governmental unit acting or purporting to act in an official capacity;

     (2) by a governmental unit or an employee or agent of a governmental unit acting in an official capacity to enforce a law to protect against an imminent threat to public health or safety; or

     (3) against a person primarily engaged in the business of selling or leasing goods or services if the cause of action arises out of a communication related to the person’s sale or lease of the goods or services.

     Section 3 permits a party to file a special motion for expedited relief to dismiss the cause of action or part thereof.  A party may file this special motion for expedited relief within 60 days after a party is served with a petition or complaint, crossclaim, counterclaim, third-party claim, or other pleading that asserts a cause of action that falls under the act, or at a later time on a showing of good cause. 

     Section 4 provides that on the filing of a motion under section 3:

     (1) all other proceedings between the moving party and responding party, including discovery and a pending hearing or motion are stayed; and

     (2) on motion by the moving party, the court may stay a hearing or motion involving another party, or discovery by another party, if the hearing or ruling on the motion would adjudicate, or the discovery would relate to, an issue material to the motion under section 3.

     The stay would remain in effect until the entry of an order ruling on the motion under section 3 and expiration of the time under section 9 for the moving party to appeal the order. 

     Except as provided in subsections e., f., and g., a party appeals from an order ruling on a motion under section 3, all proceedings between all parties in the action are stayed until the conclusion of the appeal.  The court may permit limited discovery during a stay if a party shows that specific information is necessary to establish whether a party has satisfied or failed to satisfy a burden under subsection a. of section 7 and the information is not reasonably available unless discovery is allowed.

Section 5 permits the court to hear a motion under section 3 within 60 days after filing the motion, unless the court orders a later hearing to allow discovery under subsection d. of section 4 or for other good cause. 

Section 6 provides that in ruling on a motion under section 3, the court would consider the pleadings, the motion, any reply or response to the motion, and any evidence that could be considered in ruling on a motion for summary judgment. 

Section 7 provides that in ruling on a motion under section 3, the court would dismiss with prejudice a cause of action, or part thereof, if:

     (1) the moving party established under subsection b. of section 2 that this act applies;

     (2) the responding party fails to establish under subsection c. of section 2 that this act does not apply; and

     (3) either:

     (a) the responding party fails to establish a prima facie case as to each essential element of the cause of action; or

     (b) the moving party establishes that:

     (i) the responding party failed to state a cause of action upon which relief can be granted; or

     (ii) there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law on the cause of action or part thereof. 

       A voluntary dismissal without prejudice of a responding party’s cause of action, or part thereof that is the subject of a motion under section 3 does not affect a moving party’s right to obtain a ruling on the motion and seek costs, attorney’s fees, and expenses under section 10A voluntary dismissal with prejudice of a responding’s party cause of action, or part of a cause of action, that is the subject of a motion under section 3 establishes for the purpose of section 10 that the moving party prevailed on the motion. 

Section 8 would provide that the court would rule on a motion under section 3 within 60 days after a hearing under section 5.

Section 9 provides that a moving party may appeal as a matter of right from an order denying, in whole or in part, a motion under section 3 within 20 days after entry of the order consistent with R. 2:5-6(a) of the Rules of Court. 

Section 10 provides that on a motion under section 3, the court would award court costs, reasonable attorney’s fees, and reasonable litigation expenses related to the motion:

     (1) to the moving party if the moving party prevails on the motion; or

     (2) to the responding party if the responding party prevails on the motion and the court finds that the motion was frivolous or filed solely with intent to delay the proceeding. 

Section 11 provides that this act would be broadly construed and applied to protect the exercise of the right of freedom of speech and of the press, the right to assembly and petition, and the right of association, guaranteed by the United States Constitution or the New Jersey Constitution.

Section 12 provides that considerations must be given to the need to promote uniformity of the law with respect to its subject matter among states that enact it, in applying and construing this uniform act.

Section 13 provides that if any provision of this act or its application to any person or circumstance is held invalid, the invalidity would not affect other provisions or applications of this act which can be given effect with the invalid provision or application, and to this end the provisions of this act are severable.