SB375: Immunity of persons; statements regarding matters of public concern or made at a public hearing.


SENATE BILL NO. 375
AMENDMENT IN THE NATURE OF A SUBSTITUTE
(Proposed by the House Committee for Courts of Justice
on February 28, 2020)
(Patron Prior to Substitute--Senator Edwards)
A BILL to amend the Code of Virginia by adding a section numbered 8.01-223.3 and to repeal § 8.01-223.2 of the Code of Virginia, relating to strategic lawsuits against public participation; special motion to dismiss; stay of discovery; fees and costs.

Be it enacted by the General Assembly of Virginia:

1. That the Code of Virginia is amended by adding a section numbered 8.01-223.3 as follows:

§ 8.01-223.3. Strategic lawsuits against public participation; procedures.

A. For the purposes of this section:

"Matter of public concern" means any oral statement made, or written statement or other document submitted, (i) in a legislative, executive, or judicial proceeding or other proceeding authorized by law; (ii) in connection with an issue or other proceeding authorized by law under consideration or review by a legislative, executive, or judicial body; (iii) in connection with a public official, public figure, or other person who has drawn public attention due to the person's official acts, fame, notoriety, or celebrity; (iv) in connection with an issue of political, social, or other significance to a local community or neighborhood; or (v) in connection with an issue related to public health, public safety, protection of survivors of violence, abuse, or exploitation, environmental protection, civil rights, civil liberties, or a government entity or election. "Matter of public concern" shall not be construed to include private interests, such as statements directed primarily toward protecting the defendant's commercial interests, rather than commenting on or sharing information about a matter of public concern.

"Strategic lawsuit against public participation" or "SLAPP" means a civil claim against a defendant based on, or in response to, the defendant's lawful exercise of the constitutional right to petition or free speech on a matter of public concern.

B. A party alleging that a claim filed against him is a SLAPP may file a special motion to dismiss. Such special motion to dismiss shall be treated as a demurrer pursuant to § 8.01-273.

Upon the filing of such a special motion, discovery proceedings related to the claim alleged to be a SLAPP shall be stayed pending the entry of an order adjudicating such a special motion to dismiss.

The court shall hold an expedited hearing on such special motion to dismiss and issue an order as soon as practicable after such hearing. If such special motion to dismiss is granted, dismissal of the SLAPP shall be with prejudice.

C. If the moving party prevails, in whole or in part, on a special motion to dismiss, the court shall award such moving party reasonable expenses related to such motion, including attorney fees and costs.

If the responding party to such special motion to dismiss prevails, and the court finds that such special motion to dismiss was filed in bad faith or solely with the intent to delay the proceedings on the underlying claim, the court may award such responding party reasonable expenses related to such motion, including attorney fees and costs.

D. The provisions of this section shall not apply to:

1. Any claim that arises out of the sale or lease of goods or services, including insurance products, between a seller and an actual or potential buyer or customer. This subdivision does not apply to:

a. Any publisher, editor, reporter, or other person connected with or employed by a newspaper, magazine, or other periodical publication, or by a press association or wire service, or any person who has been so connected or employed;

b. A radio or television news reporter or other person connected with or employed by a radio or television station, or any person who has been so connected or employed;

c. Any person engaged in the dissemination of ideas or expression in any book or academic journal while engaged in the gathering, receiving, or processing of information for communication to the public; or

d. Any action against any person or entity based upon the creation, dissemination, exhibition, advertisement, or other similar promotion of any dramatic, literary, musical, political, or artistic work, including a motion picture or television program and an article published in a newspaper or magazine of general circulation.

2. Any claim that is brought solely to enforce an important constitutional or statutory right held by the general public, or in an action seeking declaratory or injunctive relief against a governmental entity or agency.

3. Any action filed under Title 20, or an application for a protective order under Title 16.1 or Title 19.2.

4. Any claim that alleges discrimination or assault under a state or federal civil rights statute.

5. Any claim that seeks recovery for bodily injury, wrongful death, or survival.

6. Any claim that is brought by a whistleblower under a state or federal whistleblower statute.

7. An enforcement action initiated by the Attorney General or an attorney for the Commonwealth.

2. That § 8.01-223.2 of the Code of Virginia is repealed.

3. That the procedures established by the first enactment of this act shall only be available for claims filed on or after July 1, 2020.


SENATE BILL NO. 375
AMENDMENT IN THE NATURE OF A SUBSTITUTE
(Proposed by the Senate Committee on the Judiciary
on February 10, 2020)
(Patron Prior to Substitute--Senator Edwards)
A BILL to amend and reenact § 8.01-223.2 of the Code of Virginia, relating to immunity of persons; statements regarding matters of public concern or made at a public hearing; special plea to dismiss; stay of discovery.

Be it enacted by the General Assembly of Virginia:

1. That § 8.01-223.2 of the Code of Virginia is amended and reenacted as follows:

§ 8.01-223.2. Immunity of persons for statements made at public hearing or communicated to third party.

A. A person shall be immune from civil liability for a violation of § 18.2-499, a claim of tortious interference with an existing contract or a business or contractual expectancy, or a claim of defamation based solely on statements (i) regarding matters of public concern that would be protected under the First Amendment to the United States Constitution or Article I, Section 12 of the Constitution of Virginia made by that person that are communicated to a third party or (ii) made at a public hearing before the governing body of any locality or other political subdivision, or the boards, commissions, agencies and authorities thereof, and other governing bodies of any local governmental entity concerning matters properly before such body. The immunity provided by this section shall not apply to any statements made with actual or constructive knowledge that they are false or with reckless disregard for whether a high degree of awareness that they are probably false.

B. A person claiming immunity pursuant to this section may file a special plea to dismiss the underlying claim. Upon the filing of such a plea, discovery proceedings related to such underlying claim shall be stayed, except as expressly provided herein, pending the entry of an order adjudicating such a plea. After consideration of the pleadings and any other evidence, which may be developed by discovery limited to the issues raised by the plea, the court shall either deny the plea or, if the court determines that (i) the defendant meets the standard in subsection A and (ii) the plaintiff has not alleged sufficient facts or failed to provide sufficient evidence to overrule the plea, shall sustain the plea and dismiss the claim with prejudice. In any hearing addressing the special plea, the court shall review any allegations and evidence under the standard outlined for motions for summary judgment.

C. Any person who has a suit against him dismissed pursuant to the immunity provided by this section may be awarded reasonable attorney fees and costs.

SENATE BILL NO. 375

Offered January 8, 2020
Prefiled January 6, 2020
A BILL to amend and reenact § 8.01-223.2 of the Code of Virginia, relating to immunity of persons; statements regarding matters of public concern or made at a public hearing; special plea to dismiss; stay of discovery.
Patron-- Edwards

Referred to Committee for Courts of Justice

Be it enacted by the General Assembly of Virginia:

1. That § 8.01-223.2 of the Code of Virginia is amended and reenacted as follows:

§ 8.01-223.2. Immunity of persons for statements made at public hearing or communicated to third party.

A. A person shall be immune from civil liability for a violation of § 18.2-499, a claim of tortious interference with an existing contract or a business or contractual expectancy, or a claim of defamation based solely on statements (i) regarding matters of public concern that would be protected under the First Amendment to the United States Constitution made by that person that are communicated to a third party or (ii) made at a public hearing before the governing body of any locality or other political subdivision, or the boards, commissions, agencies and authorities thereof, and other governing bodies of any local governmental entity concerning matters properly before such body. The immunity provided by this section shall not apply to any statements made with actual or constructive knowledge that they are false or with reckless disregard for whether they are false.

B. A person claiming immunity pursuant to this section may file a special plea to dismiss the underlying claim. Upon the filing of such a plea, discovery proceedings related to such underlying claim shall be stayed pending the entry of an order adjudicating such a plea. An order granting or denying such a plea shall be an interlocutory order and is appealable as provided by § 8.01-670.1.

C. Any person who has a suit against him dismissed pursuant to the immunity provided by this section may shall be awarded reasonable attorney fees and costs.