A bill

 

TO AMEND THE SOUTH CAROLINA CODE OF LAWS BY ENACTING THE "SOUTH CAROLINA CITIZENS PARTICIPATION ACT" BY ADDING ARTICLE 7 TO CHAPTER 3, TITLE 15 SO AS TO ESTABLISH A PROCEDURE BY WHICH A PARTY TO A CIVIL ACTION BASED ON THAT PARTY'S EXERCISE OF THE RIGHT OF FREE SPEECH, RIGHT TO PETITION, OR RIGHT OF ASSOCIATION MAY SEEK TO HAVE THE ACTION DISMISSED.

 

Be it enacted by the General Assembly of the State of South Carolina:

 

SECTION 1.  Chapter 3, Title 15 of the S.C. Code is amended by adding:

 

Article 7

 

South Carolina Citizens Participation Act

 

    Section 15-3-900.  This article may be sited as the "South Carolina Citizens Participation Act."

 

    Section 15-3-910.  As used in this article:

    (1) "Communication" includes the making or submitting of a statement or document in any form or medium, including oral, visual, written, audiovisual, or electronic.

    (2) "Exercise of the right of association" means to join together to collectively express, promote, pursue, or defend common interests relating to a governmental proceeding or a matter of public concern.

    (3) "Exercise of the right of free speech" means a communication made in connection with a matter of public concern.

    (4) "Exercise of the right to petition" means any of the following:

       (a) a communication in or pertaining to:

           (i) a judicial proceeding;

           (ii) an official proceeding, other than a judicial proceeding, to administer the law;

           (iii) an executive or other proceeding before a department of the state or federal government or a subdivision of the state or federal government;

           (iv) a legislative proceeding, including a proceeding of a legislative committee;

           (v) a proceeding before an entity that requires by rule that public notice be given before proceedings of that entity;

           (vi) a proceeding in or before a managing board of an educational or eleemosynary institution supported directly or indirectly from public revenue;

           (vii) a proceeding of the governing body of any political subdivision of this State;

           (viii) a report of or debate and statements made in a proceeding described by subsubitem (iii), (iv), (v), (vi), or (vii); or

           (ix) a public meeting dealing with a public purpose, including statements and discussions at the meeting or other matters of public concern occurring at the meeting;

       (b) a communication in connection with an issue under consideration or review by a legislative, executive, judicial, or other governmental body or in another governmental or official proceeding;

       (c) a communication that is reasonably likely to encourage consideration or review of an issue by a legislative, executive, judicial, or other governmental body or in another governmental or official proceeding;

       (d) a communication reasonably likely to enlist public participation in an effort to effect consideration of an issue by a legislative, executive, judicial, or other governmental body or in another governmental or official proceeding; and

       (e) any other communication that falls within the protection of the right to petition government under the Constitution of the United States or the Constitution of this State.

    (5) "Governmental proceeding" means a proceeding, other than a judicial proceeding, by an officer, official, or body of this State or a political subdivision of this State, including a board or commission, or by an officer, official, or body of the federal government.

    (6) "Legal action" means a lawsuit, cause of action, petition, complaint, cross-claim, or counterclaim or any other judicial pleading or filing that requests legal, declaratory, or equitable relief. The term does not include:

       (a) a procedural action taken or motion made in an action that does not amend or add a claim for legal, equitable, or declaratory relief;

       (b) alternative dispute resolution proceedings; or

       (c) postjudgment enforcement actions.

    (7) "Matter of public concern" means a statement or activity regarding:

       (a) a public official, public figure, or other person who has drawn substantial public attention due to the person's official acts, fame, notoriety, or celebrity;

       (b) a matter of political, social, or other interest to the community; or

       (c) a subject of concern to the public.

    (8) "Official proceeding" means any type of administrative, executive, legislative, or judicial proceeding that may be conducted before a public servant.

    (9) "Public servant" means a person elected, selected, appointed, employed, or otherwise designated as one of the following, even if the person has not yet qualified for office or assumed the person's duties:

       (a) an officer, employee, or agent of government;

       (b) a juror;

       (c) an arbitrator, referee, or other person who is authorized by law or private written agreement to hear or determine a cause or controversy;

       (d) an attorney or notary public when participating in the performance of a governmental function; or

       (e) a person who is performing a governmental function under a claim of right but is not legally qualified to do so.

 

    Section 15-3-920.  The purpose of this article is to encourage and safeguard the constitutional rights of persons to petition, speak freely, associate freely, and otherwise participate in government to the maximum extent permitted by law and, at the same time, protect the rights of a person to file meritorious lawsuits for demonstrable injury.

 

    Section 15-3-930.  (A) If a legal action is based on or is in response to a party's exercise of the right of free speech, right to petition, or right of association or arises from any act of that party in furtherance of the party's communication or conduct described by Section 15-3-1010(B), that party may file a motion to dismiss the legal action. A party under this section does not include a government entity, agency, or an official or employee acting in an official capacity.

    (B) A motion to dismiss a legal action under this section must be filed no later than the sixtieth day after the date of service of the legal action. The parties, upon mutual agreement, may extend the time to file a motion under this section or the court may extend the time to file a motion under this section on a showing of good cause.

    (C) Except as provided by Section 15-3-960(B), on the filing of a motion under this section, all discovery in the legal action is suspended until the court has ruled on the motion to dismiss.

    (D) The moving party shall provide written notice of the date and time of the hearing pursuant to Section 15-3-940 no later than twenty-one days before the date of the hearing unless otherwise provided by agreement of the parties or an order of the court.

    (E) A party responding to the motion to dismiss shall file the response, if any, no later than seven days before the date of the hearing on the motion to dismiss unless otherwise provided by an agreement of the parties or an order of the court.

 

    Section 15-3-940.  (A) A hearing on a motion pursuant to Section 15-3-930 must be set no later than the sixtieth day after the date of service of the motion unless the docket conditions of the court require a later hearing, upon a showing of good cause, or by agreement of the parties, but in no event shall the hearing occur more than ninety days after service of the motion pursuant to Section 15-3-930, except as provided by subsection (C).

    (B) In the event that the court cannot hold a hearing in the time required by subsection (A), the court may take judicial notice that the court's docket conditions required a hearing at a later date, but in no event shall the hearing occur more than ninety days after service of the motion pursuant to Section 15-3-930, except as provided by subsection (C).

    (C) If the court allows discovery pursuant to Section 15-3-960(B), the court may extend the hearing date to allow discovery under that subsection, but in no event shall the hearing occur more than one hundred and twenty days after the service of the motion pursuant to Section 15-3-930.

 

    Section 15-3-950.  (A) The court must rule on a motion pursuant to Section 15-3-930 no later than the thirtieth day following the date the hearing on the motion concludes.

    (B) Except as provided by subsection (C), on the motion of a party pursuant to Section 15-3-930, a court shall dismiss a legal action against the moving party if the moving party demonstrates that the legal action is based on or is in response to:

       (1) the party's exercise of:

           (a) the right of free speech;

           (b) the right to petition; or

           (c) the right of association; or

       (2) the act of a party described by Section 15-3-1010(B).

    (C) The court may not dismiss a legal action under this section if the party bringing the legal action establishes by clear and specific evidence a prima facie case for each essential element of the claim in question.

    (D) Notwithstanding the provisions of subsection (C), the court shall dismiss a legal action against the moving party if the moving party establishes an affirmative defense or other grounds on which the moving party is entitled to judgment as a matter of law.

 

    Section 15-3-960.  (A) In determining whether a legal action is subject to or should be dismissed under this article, the court shall consider the pleadings, evidence a court could consider under Rule 56, South Carolina Rules of Civil Procedure, and supporting and opposing affidavits stating the facts on which the liability or defense is based.

    (B) On a motion by a party or on the court's own motion and on a showing of good cause, the court may allow specified and limited discovery relevant to the motion.

 

    Section 15-3-970.  (A) If the court awards sanctions pursuant to Section 15-3-1000(B), the court shall issue findings regarding whether the legal action was brought to deter or prevent the moving party from exercising constitutional rights and is brought for an improper purpose, including to harass or to cause unnecessary delay or to increase the cost of litigation.

    (B) The court must issue findings under subsection (A) no later than the thirtieth day after the date a request under that subsection is made.

 

    Section 15-3-980.  Neither the court's ruling on the motion nor the fact that it made such a ruling shall be admissible in evidence at any later stage of the case, and no burden of proof or degree of proof otherwise applicable shall be affected by the ruling.

 

    Section 15-3-990.  (A) If a court does not rule on a motion to dismiss pursuant to Section 15-3-930 in the time prescribed by Section 15-3-950, the motion is considered to have been denied by operation of law and the moving party may appeal.

    (B) An appellate court shall expedite an appeal or other writ, whether interlocutory or not, from a trial court order on a motion to dismiss a legal action pursuant to Section 15-3-930 or from a trial court's failure to rule on that motion in the time prescribed by Section 15-3-950.

 

    Section 15-3-1000. (A) Except as provided by subsection (C), if the court orders dismissal of a legal action under this article, the court:

       (1) shall award to the moving party court costs and reasonable attorney's fees incurred in defending against the legal action; and

       (2) may award to the moving party sanctions against the party who brought the legal action as the court determines sufficient to deter the party who brought the legal action from bringing similar actions described in this article.

    (B) If the court finds that a motion to dismiss filed under this article is frivolous or solely intended to delay, the court may award court costs and reasonable attorney's fees to the responding party.

    (C) If the court orders dismissal of a compulsory counterclaim under this article, the court may award to the moving party reasonable attorney's fees incurred in defending against the counterclaim if the court finds that the counterclaim is frivolous or solely intended for delay.

 

    Section 15-3-1010. (A) This article does not apply to:

       (1) an enforcement action that is brought in the name of this State or a political subdivision of this

State;

       (2) a legal action brought against a person primarily engaged in the business of selling or leasing goods or services, if the statement or conduct arises out of the sale or lease of goods, services, or an insurance product, insurance services, or a commercial transaction in which the intended audience is an actual or potential buyer or customer;

       (3) a legal action seeking recovery for bodily injury, wrongful death, or survival or to statements made regarding that legal action;

       (4) a legal action brought under Title 38 or arising out of an insurance contract;

       (5) a legal action arising from an officer-director, employee-employer, or independent contractor relationship that:

           (a) seeks recovery for misappropriation of trade secrets or corporate opportunities; or

           (b) seeks to enforce a nondisparagement agreement or a covenant not to compete;

       (6) a legal action filed under Title 20 or 63;

       (7) a legal action brought under Chapter 5, Title 39;

       (8) a legal action in which a moving party raises a defense of immunity from civil liability;

       (9) an eviction suit brought under Chapter 37, Title 27;

       (10) a disciplinary action or disciplinary proceeding brought under Chapter 5, Title 40, or the South Carolina Rules of Professional Conduct;

       (11) a legal action brought under Chapter 27, Title 8;

       (12) a legal action based on a common law fraud claim; or

       (13) a legal malpractice claim brought by a client or former client.

    (B) Notwithstanding subsection (A)(2), (7), and (12), this article applies to:

       (1) a legal action against a person arising from any act of that person, whether public or private, related to the gathering, receiving, posting, or processing of information for communication to the public, whether or not the information is actually communicated to the public, for the creation, dissemination, exhibition, or advertisement or other similar promotion of a dramatic, literary, musical, political, journalistic, or otherwise artistic work, including audiovisual work regardless of the means of distribution, a motion picture, a television or radio program, or an article published in a newspaper, website, magazine, or other platform, no matter the method or extent of distribution; and

       (2) a legal action against a person related to the communication, gathering, receiving, posting, or processing of consumer opinions or commentary, evaluations of consumer complaints, or reviews or ratings of businesses.

 

SECTION 2.  This act takes effect upon approval by the Governor.

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