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2002 FINAL STATELEGISLATIVE PROGRAM CONTROVERSIAL ISSUE ISSUE: STRATEGIC LAWSUITS AIMED AT PUBLIC SUMMARY: Proposals to grant immunity from civil liability to defendants in an action described as a strategic lawsuit aimed at public participation (SLAPP suit) were filed in the 1992 General Assembly. The stated purpose of the these bills was to protect citizens who exercise their First Amendment right of free speech from suits by developers, waste disposal companies, landlords and other organized special interests who are seeking to intimidate critics into silence. Under the provisions of these measures, citizens subjected to a SLAPP suit would be permitted to petition the court to dismiss a "suit brought for the purpose of intimidation or harassment." In opposing the SLAPP suit legislation during the 1992 session, the MSBA did not object to the stated objectives of the bills--to protect the right of free speech. The issues of concern were the absence of a clear definition of SLAPP suits in the bills and the availability of a remedy to discourage these types of actions (Rule 1-341 Bad Faith--Unjustified Proceeding). The measures were defeated, but because the goal of the bills was commendable, the MSBA Committee on Laws offered to study the issue to examine ways to make the legislation acceptable. Although hundreds of SLAPP suits have been identified in the U.S., few have resulted in appellate decisions. In 1992, a Circuit Court decision in Frederick County granted a motion for summary judgement to dismiss a SLAPP suit. In granting the motion the Court concurred with the defendants that the plaintiff's suit was intended to "harass those seeking petition to the government, one of our basic First Amendment rights." In its memorandum in support of the motion for summary judgement, counsel for the defendants identified four criteria to distinguish SLAPP suits from legitimate civil suits. The suit must: 1. Be a civil complaint or counter claim for monetary damages and/or an injunction; 2. Be filed against non-governmental individuals or groups; 3. Result from communications to a government body or official or the public; and, 4. Address an issue of some public interest or concern. In June 1993, the Court of Special Appeals affirmed the decision granting summary judgement, but found it unnecessary to deal with the SLAPP suit issue in its opinion. Among the suggestions of alternatives to legislation banning SLAPP suits have been the recommendations that the courts strengthen rules pertaining to bad faith litigation or that the legislature pass a statute enabling defendants in SLAPP suits to file a countersuit against plaintiffs to, in effect, SLAPP back. Legislation as originally submitted in the 1994 General Assembly contained a broad affirmation of the SLAPP suit principle. The MSBA worked with sponsors of the proposal to modify the bill to permit a defendant to request a stay in court proceedings to give a judge time to determine the validity of the alleged SLAPP suit. The modified bill passed the House of Delegates but did not come up for a vote in the Senate Judicial Proceedings Committee before the session ended. The bill has suffered the same fate in every session between 1995 and 1999, and was not filed in 2000 or 2001. MSBA 2002 POSITION: Support legislation on SLAPP suits as passed by the Maryland House of Delegates in the 1994 session. SAMPLE LEGISLATION:
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