SD33 - Report of the SLAPP (Strategic Lawsuits Against Political Participation) Study Committee of the Virginia Bar Association

  • Published: 1993
  • Author: Study Committee of Virginia Bar Association
  • Enabling Authority: Senate Joint Resolution 245 (Regular Session, 1991)

Executive Summary:
On June 17, 1991, Allen C. Goolsby, President of the Virginia Bar Association appointed the following committee to study strategic lawsuits against public participation ("SLAPP suits").

Mary P. Devine, an attorney with the Division of Legislative Services, was asked to assist the committee and was an invaluable resource.

A SLAPP suit is generally defined as litigation aimed at deterring or preventing citizens from exercising their political rights. Typically, they arise when one party approaches a governmental body about a matter that affects some other party -- for example, a Civic Association opposes a developer's proposed rezoning. The other party then sues the first party usually alleging defamation or a conspiracy to injure the party in its trade or business. The underlying motivation of a true SLAPP suit appears to be the intimidation of citizens.

The committee met on August 17, 1991, and again on November 12, 1991. The committee reviewed the academic literature on SLAPP suits particularly Professor George W. Pring's law review articles. The committee also reviewed the proposed New York SLAPP suit law, the proposed New Jersey SLAPP suit law, and the legislative materials produces in connection with those proposals. The leading case dealing with SLAPP suits, Protect Our Mountain Environment (POME), Inc. v. District Court, 677 P.2d 1361, Colorado (1984), was also useful in helping to formulate an appropriate response to the SLAPP suit phenomenon. In POME, the court recognized that SLAPP suits filed against citizens for prior administrative or judicial activities can have a significant chilling effect on the exercise of their first amendment rights. The Court also noted that persons can be damaged as a result of activities instigated under the pretext of legitimate petitioning activity. In an attempt to balance these concerns, the Colorado Court developed a procedure whereby the Court believed SLAPP suits could be distinguished from legitimate litigation. The tests developed by the Colorado Court were used by the SLAPP suit committee in its attempt to develop a draft of proposed anti-SLAPP suit legislation.

Prior to the November meeting of the committee, Ms. Devine circulated a draft which reflected the POME procedures. The committee discussed this draft and suggested that the advice of Dean Randall P. Bezanson, Dean and Professor of Law, Washington & Lee University School of Law, might be helpful. Ms. Devine redrafted the proposed legislation incorporating the general recommendations of the committee and forwarded that draft to Dean Bezanson for his comments. Dean Bezanson replied on November 19th, and Ms. Devine developed a second draft which incorporated Dean Bezanson's comments. This material (copy attached) was circulated to the committee and the committee was polled by the Chairman. The results of that telephone poll were as follows:

1. The majority of the committee agreed with Dean Bezanson that the privilege created by the proposed legislation swept too broadly and might have unintended consequences;

2. The majority of the committee concluded that narrow legislation that only hit the SLAPP suit target would be difficult to draft;

3. The majority of the committee concluded that the procedures set out by the draft proposal might result in a protracted hearing which might be as time-consuming and complex as an actual trial on the merits; and

4. The majority of the committee concluded that the sanctions available under the Virginia Code § 8.01-271.1 provide a sufficient deterrent as it expressly prohibits litigation "interposed for any improper purpose, such as to harass ...."

Senator Gartlan, on the other hand, believes that the rights protected by the proposed draft are important enough that the proposed draft legislation would be appropriate. His dissenting comments are attached to this report.

Because of the concerns and conclusions set forth above, the majority of the committee believes that neither of the drafts attached to this report would be appropriate legislation.