UPEPA05 Hearing HearingExpeditedPublicExpressionProtectionAntiSLAPP
SECTION 5. HEARING.
(Without Commentary — With Commentary Interlineated Is Below)
(a) The court shall hear a motion under Section 3 not later than [60] days after filing of the motion, unless the court orders a later hearing:
(1) to allow discovery under Section 4(d); or
(2) for other good cause.
(b) If the court orders a later hearing under subsection (a)(1), the court shall hear the motion under Section 3 not later than [60] days after the court order allowing the discovery, unless the court orders a later hearing under subsection (a)(2).
SECTION 5. HEARING.
(With Commentary Interlineated)
(a) The court shall hear a motion under Section 3 not later than [60] days after filing of the motion, unless the court orders a later hearing:
(1) to allow discovery under Section 4(d); or
(2) for other good cause.
§ 5 comment 1.
Section 5 should not be construed to prevent the parties from agreeing to a later hearing date and presenting that agreement to the court with a request to find "other good cause" for a later hearing.
Nevertheless, the court, and not the parties, is responsible for controlling the pace of litigation, and the court should affirmatively find that good cause does exist independent of a mere agreement by the parties to a later hearing date.
§ 5 comment 2.
The question of whether the Act requires a live hearing or whether a court may consider the motion on written submission should be governed by the local customs of the jurisdiction.
§ 5 comment 3.
State law and local customs of the jurisdiction should dictate the consequences for a court failing to comply with the timelines set forth in this section.
(b) If the court orders a later hearing under subsection (a)(1), the court shall hear the motion under Section 3 not later than [60] days after the court order allowing the discovery, unless the court orders a later hearing under subsection (a)(2).
JayNote:
Since the overarching goal of UPEPA is to prevent persons from having abusive litigation hanging over their heads, it makes sense that the hearing on a special motion be heard expeditiously so that the movant can rid themselves of that litigation. By like token, the responding facing the special motion and the automatic stay of the litigation may desire that the motion be resolved expeditiously so that, in the event of an unfounded special motion, they can get on with their case.
Nonetheless, the overriding of a court's natural and inherent control over its own docket by mandating that a special motion be given a priority status is not something that the drafting committee decided upon lightly, and in fact there was a great deal of discussion as to whether any particular time deadline should be stated at all, what that deadline should be if one was mandated, and what leeway should be given the court in particular circumstances.
Section 5 attempts to reach a reasonable balancing of all those interests. As to giving the special motion a priority status, the drafting committee recognized that the protection of the movant from abusive litigation and the protection of the respondent from the delay consequent to the automatic stay both militated in favor of such priority status. The question then became how to accord the special motion such priority, and the answer was found in many of the existing anti-SLAPP laws that set specific deadlines by which the special motion was to be heard. To this end, the drafting committee considered deadlines as short as 30 days and as long as 120 days, before finally settling upon 60 days as a reasonable period for the parties to adequately brief the motion and for the court to find a hole in its docket to hear the matter (however, since 60 is bracket, a state may change this as it desires). As to exceptions, the drafting committee settled on a slightly enlarged deadline where one or both parties made a (rare) case for discovery, but a potentially longer period where "good cause" exists -- with "good cause" being committed to the sound discretion of the trial court.
A closer examination of the operative clauses of § 5 reveals how all this should normally work.
(a) The court shall hear a motion under Section 3
There are two concepts that are baked into this clause. First, the court is statutorily mandated to having to "hear a motion", which is meant to also imply that the court will also resolve the motion by ruling on it. But here there is some leeway given to the court, since a court may conduct a hearing on the motion but then take the matter under submission and issue a written opinion at a later date (but note that § 8 sets a mandatory and non-discretionary deadline of 60 days from the date of the hearing for the court to make a ruling). What a court cannot do is to treat the special motion as an ordinary motion and cast it into the regular stream of dispositive motions, i.e., onto a demurrer or summary judgment docket that might be holding hearings six months out.
But what if a judge decides for whatever reason to throw the special motion onto the back burner? Comment 3 to § 5 states that in such a circumstance, "State law and local customs of the jurisdiction should dictate the consequences for a court failing to comply with the timelines set forth in this section." In other words, the party seeking to have the special motion heard expeditiously might variously have to go the chief judge of the district or perhaps even file an extraordinarily writ, etc., to get the special motion back on track. Suffice it to say that such events are not anticipated and should be extremely rare.
Second, the phrase "hear a motion" is intentionally left vague as to the exact procedure by which a court resolves a special motion, and leaves that procedure to the local practice of the court. For instance, a court might "hear a motion" by a hearing in open court with argument of counsel or privately in chambers simply upon the briefing and evidentiary submissions of the party. Comment 2 to § 5 recognizes this: "The question of whether the Act requires a live hearing or whether a court may consider the motion on written submission should be governed by the local customs of the jurisdiction."
not later than [60] days after filing of the motion
This clause sets the default deadline of 60 days, or whatever deadline the state legislature decides upon if other than 60 days. It is anticipated -- and desired -- that the vast majority of hearings on special motions will take place within this default deadlines, and the use of exceptions will be unusual and extraordinary.
unless the court orders a later hearing
This clause authorizes a court to utilize the two exceptions found in § 5(a)(1) and (2), which are considered next.
(1) to allow discovery under Section 4(d); or
As discussed in relation to § 4(d), discovery is allowed for a special motion to strike only in rare cases where a party can make a showing of reasonable necessity as to specific information that it needs to prosecute or defend a special motion. Because the information sought to be discovery must be specific, thus ruling out generalized fishing expeditions, it is not anticipated that such discovery should cause any substantial delay in the hearing of a special motion. Nonetheless, in those rare circumstances, the court is empowered to enlarge the hearing deadline so as to allow for such discovery, subject to the limitations of § 5(b) which will be discussed below.
(2) for other good cause.
As previously mentioned, the drafting committee realized that causing a court to hold an expedited hearing within a certain number of days was inherently problematic since circumstances may arise where a court must exercise considerable discretion in the management of its docket. Stated otherwise, the drafting committee -- comprised of nearly all long-experienced litigators and a couple of judges -- was quite aware that in the judicial environment "stuff happens" such that setting an intractable hearing deadline would be an inherently bad idea. A common example discussed during committee meetings, for instance, was that of a court which became seriously backed up with its criminal docket, with the criminal defendants there having constitutional and other statutory rights to priority that would be even greater than that of a special motion. While such circumstances were anticipated to be very rare, it was decided nonetheless to give judges facing special motions the discretion to set those motions out past the hearing deadline for "good cause".
Additionally, it was also recognized that sometimes the litigants themselves may have valid reasons for continuing the hearing on the special motion, and the "good cause" exception deals with this situation as well. But, as Comment 1 to § 5 explains, "Section 5 should not be construed to prevent the parties from agreeing to a later hearing date and presenting that agreement to the court with a request to find "other good cause" for a later hearing. Nevertheless, the court, and not the parties, is responsible for controlling the pace of litigation, and the court should affirmatively find that good cause does exist independent of a mere agreement by the parties to a later hearing date." In this connection, "good cause" does not mean that a court has anything like carte blanche to hold the hearing beyond the default deadline for just any old reason, but rather the court must be utilizing its discretion in a valid manner commensurate with the purpose of § 5 to prioritize the hearings on special motions on its docket and hold those hearings as expeditiously as possible.
(b) If the court orders a later hearing under subsection (a)(1)
This clause makes clear that § 5(b) is implicated if and only if the court has allowed discovery under § 4(d).
"the court shall hear the motion under Section 3 not later than [60] days after the court order allowing the discovery"
The import of this clause if that if the court does allow discovery pursuant to § 4(d), then the court should set the hearing on the special motion within 60 days of the date that the court enters the order which allows that discovery. By implication, this limits the "discovery period" on a special motion to no more than 60 days -- and, in practice, much shorter than that since the parties will have to submit their various briefs (incorporating that discovery) prior to the hearing date.
unless the court orders a later hearing under subsection (a)(2)
This clause entrusts the court to exercise its discretion for "good cause" to set a hearing date past the 60 days from the date of the discovery order, although such instances should likewise be quite rare.
ARTICLES
- 2021.06.19 ... The Uniform Public Expression Protection Act: The Hearing And Ruling
HEARING OPINIONS