Bill Summary – FastDemocracy

Enrolled Copy                                                                           S.B. 18
                        PUBLIC EXPRESSION PROTECTION ACT
                                      2023 GENERAL SESSION
                                           STATE OF UTAH
                               Chief Sponsor: Curtis S. Bramble
                                 House Sponsor: A. Cory Maloy
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 LONG TITLE
 General Description:
        This bill enacts the Uniform Public Expression Protection Act.
 Highlighted Provisions:
        This bill:
        < defines terms;
        < creates a process for a claim asserted against a person for:
            C    communication in, or on an issue under consideration in, certain governmental
 proceedings; or
            C    exercising certain rights under the United States Constitution or Utah
 Constitution;
        < requires a court to award costs, attorney fees, and other litigation expenses under
 certain circumstances;
        < includes a severability clause; and
        < repeals the Citizenship Participation in Government Act.
 Money Appropriated in this Bill:
        None
 Other Special Clauses:
        None
 Utah Code Sections Affected:
 ENACTS:
        78B-25-101, Utah Code Annotated 1953
        78B-25-102, Utah Code Annotated 1953
       S.B. 18                                                                    Enrolled Copy
        78B-25-103, Utah Code Annotated 1953
        78B-25-104, Utah Code Annotated 1953
        78B-25-105, Utah Code Annotated 1953
        78B-25-106, Utah Code Annotated 1953
        78B-25-107, Utah Code Annotated 1953
        78B-25-108, Utah Code Annotated 1953
        78B-25-109, Utah Code Annotated 1953
        78B-25-110, Utah Code Annotated 1953
        78B-25-111, Utah Code Annotated 1953
        78B-25-112, Utah Code Annotated 1953
        78B-25-113, Utah Code Annotated 1953
        78B-25-114, Utah Code Annotated 1953
        78B-25-115, Utah Code Annotated 1953
 REPEALS:
        78B-6-1401, as renumbered and amended by Laws of Utah 2008, Chapter 3
        78B-6-1402, as last amended by Laws of Utah 2010, Chapter 254
        78B-6-1403, as renumbered and amended by Laws of Utah 2008, Chapter 3
        78B-6-1404, as renumbered and amended by Laws of Utah 2008, Chapter 3
        78B-6-1405, as renumbered and amended by Laws of Utah 2008, Chapter 3
49
 Be it enacted by the Legislature of the state of Utah:
        Section 1. Section 78B-25-101 is enacted to read:
             CHAPTER 25. UNIFORM PUBLIC EXPRESSION PROTECTION ACT
        78B-25-101. Title.
        This chapter may be cited as the "Uniform Public Expression Protection Act."
        Section 2. Section 78B-25-102 is enacted to read:
        78B-25-102. Scope.
        (1) As used in this section:
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       Enrolled Copy                                                                               S.B. 18
         (a) "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.
         (b) "Governmental unit" means a public corporation or government or governmental
 subdivision, agency, or instrumentality.
         (c) "Person" means an individual, estate, trust, partnership, business or nonprofit entity,
 governmental unit, or other legal entity.
         (2) Except as provided in Subsection (3), this chapter applies to a cause of action
 asserted in a civil action against a person based on the person's:
         (a) communication in a legislative, executive, judicial, administrative, or other
 governmental proceeding;
         (b) communication on an issue under consideration or review in a legislative,
 executive, judicial, administrative, or other governmental proceeding; or
         (c) exercise of the right of freedom of speech or of the press, the right to assemble or
 petition, or the right of association, guaranteed by the United States Constitution or Utah
 Constitution, on a matter of public concern.
         (3) This chapter does not apply to a cause of action asserted:
         (a) against a governmental unit or an employee or agent of a governmental unit acting
 or purporting to act in an official capacity;
         (b) 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
         (c) 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. Section 78B-25-103 is enacted to read:
         78B-25-103. Special motion for expedited relief.
         Not later than 60 days after the day on which a party is served with a complaint,
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        S.B. 18                                                                         Enrolled Copy
 crossclaim, counterclaim, third-party claim, or other pleading that asserts a cause of action to
 which this chapter 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.
        Section 4. Section 78B-25-104 is enacted to read:
        78B-25-104. Stay.
        (1) Except as provided in Subsections (4) through (7), on the filing of a motion under
 Section 78B-25-103:
        (a) all other proceedings between the moving party and responding party, including
 discovery and a pending hearing or motion, are stayed; and
        (b) 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
 78B-25-103.
        (2) A stay under Subsection (1) remains in effect until the day on which an order ruling
 on the motion under Section 78B-25-103 is entered and expiration of the time under Utah
 Rules of Appellate Procedure, Rule 4, for the moving party to appeal the order.
        (3) (a) Except as provided in Subsections (5) through (7), if a party appeals from an
 order ruling on a motion under Section 78B-25-103, all proceedings between all parties in the
 action are stayed.
        (b) A stay under Subsection (3)(a) remains in effect until the day on which the appeal
 concludes.
        (4) During a stay under Subsection (1), 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 78B-25-107(1) and the information is not reasonably
 available unless discovery is allowed.
        (5) A motion under Section 78B-25-110 for costs, attorney fees, and expenses is not
 subject to a stay under this section.
        (6) A stay under this section does not affect a party's ability to voluntarily dismiss a
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        Enrolled Copy                                                                             S.B. 18
 cause of action or part of a cause of action or move to sever a cause of action.
         (7) During a stay under this section, the court for good cause may hear and rule on:
         (a) a motion unrelated to the motion under Section 78B-25-103; and
         (b) a motion seeking a special or preliminary injunction to protect against an imminent
 threat to public health or safety.
         Section 5. Section 78B-25-105 is enacted to read:
         78B-25-105. Hearing.
         (1) The court shall hear a motion under Section 78B-25-103 not later than 60 days after
 the day on which the motion is filed, unless the court orders a later hearing:
         (a) to allow discovery under Subsection 78B-25-104(4); or
         (b) for other good cause.
         (2) If the court orders a later hearing under Subsection (1)(a), the court shall hear the
 motion under Section 78B-25-103 not later than 60 days after the day on which the court issues
 an order allowing the discovery, unless the court orders a later hearing under Subsection (1)(b).
         Section 6. Section 78B-25-106 is enacted to read:
         78B-25-106. Proof.
         In ruling on a motion under Section 78B-25-103, 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 under Utah Rules of Civil Procedure, Rule 56.
         Section 7. Section 78B-25-107 is enacted to read:
         78B-25-107. Dismissal of cause of action in whole or part.
         (1) In ruling on a motion under Section 78B-25-103, the court shall dismiss with
 prejudice a cause of action, or part of a cause of action, if:
         (a) the moving party establishes under Subsection 78B-25-102(2) that this chapter
 applies;
         (b) the responding party fails to establish under Subsection 78B-25-102(3) that this
 chapter does not apply; and
         (c) either:
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        S.B. 18                                                                           Enrolled Copy
           (i) the responding party fails to establish a prima facie case as to each essential element
 of the cause of action; or
           (ii) the moving party establishes that:
           (A) the responding party failed to state a cause of action upon which relief can be
 granted; or
           (B) 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.
           (2) 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 78B-25-103 does not
 affect a moving party's right to obtain a ruling on the motion and seek costs, attorney fees, and
 expenses under Section 78B-25-110.
           (3) A voluntary dismissal with 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 78B-25-103 establishes for
 the purpose of Section 78B-25-110 that the moving party prevailed on the motion.
           Section 8. Section 78B-25-108 is enacted to read:
           78B-25-108. Ruling.
           The court shall rule on a motion under Section 78B-25-103 not later than 60 days after
 the day on which a hearing is held under Section 78B-25-105.
           Section 9. Section 78B-25-109 is enacted to read:
           78B-25-109. Appeal.
           (1) A moving party may appeal as a matter of right from an order denying, in whole or
 in part, a motion under Section 78B-25-103.
           (2) The appeal shall be filed in accordance with Utah Rules of Appellate Procedure,
 Rule 4.
           Section 10. Section 78B-25-110 is enacted to read:
           78B-25-110. Costs, attorney fees, and expenses.
           On a motion under Section 78B-25-103, the court shall award court costs, reasonable
 attorney fees, and reasonable litigation expenses related to the motion:
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        Enrolled Copy                                                                               S.B. 18
        (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. Section 78B-25-111 is enacted to read:
        78B-25-111. Construction.
        This chapter shall be broadly construed and applied to protect the exercise of the right
 of freedom of speech and of the press, the right to assemble and petition, and the right of
 association, guaranteed by the United States Constitution or the Utah Constitution.
        Section 12. Section 78B-25-112 is enacted to read:
        78B-25-112. Uniformity of application and construction.
        In applying and construing this uniform act, consideration shall be given to the need to
 promote uniformity of the law with respect to the uniform law's subject matter among states
 that enact the uniform law.
        Section 13. Section 78B-25-113 is enacted to read:
        78B-25-113. Transitional provision.
        This chapter applies to a civil action filed or cause of action asserted in a civil action on
 or after May 3, 2023.
        Section 14. Section 78B-25-114 is enacted to read:
        78B-25-114. Savings clause.
        This chapter does not affect a cause of action asserted before May 3, 2023, in a civil
 action or a motion under Chapter 6, Part 14, Citizen Participation in Government Act,
 regarding the cause of action.
        Section 15. Section 78B-25-115 is enacted to read:
        78B-25-115. Severability.
        If any provision of this chapter or the chapter's application to any person or
 circumstance is held invalid, the invalidity does not affect other provisions or applications of
 this chapter which can be given effect without the invalid provision or application, and to this
 end the provisions of this chapter are severable.
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      S.B. 18                                                                Enrolled Copy
     Section 16. Repealer.
     This bill repeals:
     Section 78B-6-1401, Title.
     Section 78B-6-1402, Definitions.
     Section 78B-6-1403, Applicability.
     Section 78B-6-1404, Procedures.
     Section 78B-6-1405, Counter actions -- Attorney fees -- Damages.
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