SB 430

This bill allows a person to file a special motion to strike in a strategic lawsuit against public participation which, if successful, results in dismissal of the claim subject to the motion. Under the bill, a cause of action brought against a person arising from that person’s acts in furtherance of his or her right of petition or free speech under the U.S. or Wisconsin Constitution in connection with a public issue is subject to a special motion to strike, unless the court determines that the plaintiff has established a probability of prevailing on the claim.

The bill provides that an act in furtherance of a person’s constitutional right of petition or free speech in connection with a public issue includes any written or oral statement or writing made 1) before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law; 2) in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law; or 3) in a place open to the public or a public forum in connection with an issue of public interest. The bill also provides that any other conduct might also be considered to be an act in furtherance of a person’s constitutional right of petition or free speech in connection with a public issue. No special motion to strike may be brought in any enforcement action brought in the name of the people of Wisconsin by the attorney general, a district attorney, or a city attorney, acting as a public prosecutor.

In making a determination on a special motion to strike, the court must consider the pleadings and supporting and opposing affidavits stating the facts upon which the liability or defense is based. If the court determines that the plaintiff has established a probability that the plaintiff will prevail on the claim, neither that determination nor the fact of that determination are admissible in evidence at any later stage of the case, or in any subsequent action, and no burden of proof or degree of proof otherwise applicable is affected by that determination in that case or any subsequent proceeding. Under the bill, except in certain circumstances, a defendant who prevails on a special motion to strike is entitled to recover attorney fees and costs. If, however, the court finds that a special motion to strike is frivolous or is solely intended to cause unnecessary delay, the court must award costs and reasonable attorney fees to the prevailing plaintiff. The bill allows a person to appeal as a matter or right an order granting or denying a special motion to strike.

The bill requires that a special motion be filed within 60 days of the service of the complaint or later if the court permits. The motion must be scheduled for a hearing not more than 30 days after the service of the motion unless

the court’s schedule does not allow for a hearing in that timeframe. Unless the court determines otherwise, when a notice of a special motion is filed, all discovery proceedings in the action are stayed until a ruling is made on the motion.

Any party who files a special motion to strike, and any party who files an opposition to a special motion to strike, must provide the director of state courts with a copy of the endorsed, filed caption page of the motion or opposition, a copy of any related notice or appeal or petition for a writ, and a conformed copy of any order issued, including any order granting or denying a special motion to strike, discovery, or fees. Under the bill, the director of state courts must keep a public record of the information for at least three years.