UPEPA Decision Path

UPEPA07 Decision_Path [SectionDecisionPath-]

THE UPEPA DECISION PATH — THE THREE-PHASE ANALYSIS

The Uniform Public Expression Protection Act (UPEPA) provides a specialized three-phase analytical framework for courts to adjudicate "Special Motions for Expedited Relief". This process is designed to function as an early summary judgment-like procedure, moving the testing of a case's merits from the end of the litigation to the outset.

1. Scope (Phase One)

Phase One serves as the gateway to the UPEPA, determining if the Act applies to the challenged cause of action.

A. Inclusionary Scope (Burden on Movant)

The initial burden rests on the movant (typically the defendant) to demonstrate that the cause of action falls within the scope defined in Section 2(b). The movant meets this by showing the claim is based on:

Communications in a governmental proceeding: Legislative, executive, judicial, or administrative.
Communications on issues under consideration in such proceedings.
Exercise of constitutional rights: Freedom of speech, press, assembly, petition, or association on a matter of public concern.

This inquiry is fundamentally one of law, not fact. The court reviews the pleadings and any submitted evidence—such as declarations—to determine if the suit arises from protected activity. The movant's motivation for engaging in the activity is irrelevant at this stage.

B. Statutory Exemptions (Burden on Respondent)

If the movant establishes inclusion, the burden shifts to the respondent (typically the plaintiff) to prove that a "carve-out" under Section 2(c) applies. Key exclusions include:

Governmental actors: Claims against a governmental unit or its agents acting in an official capacity.
Emergency enforcement: Actions by government units to protect against imminent threats to public health or safety.
Commercial speech: Claims against persons primarily engaged in selling or leasing goods or services, where the communication relates to that commercial activity.

Note: Journalistic, dramatic, or literary works are generally "carved back" into UPEPA protection even if sold for profit.

2. Prima Facie Validity (Phase Two)

Once it is determined that the Act applies, the analysis shifts to testing whether the respondent has a factually sufficient ("prima facie") case.

This means that the court is looking to see whether the respondent has adequately plead with factual allegations each and every element of each of the respondent's challenged claims. Thus, this stage is sometimes referred to as testing "factual validity", even though (quite confusingly) the court is only looking at the allegations of the respondent's pleading and not the actual evidence which supports those allegations.

Standard: The burden is on the respondent to establish a prima facie case for each essential element of the cause of action.
Evidentiary Requirement: The respondent must produce the "minimum quantum of evidence necessary to support a rational inference that the allegation of fact is true".
Non-Weighing Principle: The court does not weigh evidence at this stage. It must take the respondent's evidence as true and determine if, credited, it would sustain a favorable judgment.
Leeway: Because this occurs at the outset without full discovery, courts may grant some leeway to the respondent in meeting this burden.

If the respondent fails to establish factual sufficiency for even one essential element, the special motion is granted, and the cause of action is dismissed with prejudice.

3. Legal Validity (Phase Three)

In the final phase, the burden shifts back to the movant to prove that the respondent's claim fails as a matter of law, regardless of its factual prima facie showing.

In this phase, the court looks to see whether each element of each of the respondent's challenged claims is supported by at least some admissible evidence or, whether the evidence shows that the moving party has a defense as a matter of law. This is sometimes referred to as "legal viability", which is every bit as confusing as "factual viability" since the court will be looking the evidence in this stage (as well as the law relating to defenses) and not purely at the applicable law.

The movant can prevail by establishing one of two prongs:

Failure to state a claim: The respondent failed to plead a cause of action upon which relief can be granted.
Entitlement to judgment as a matter of law: There is no genuine issue of material fact, often due to a definitive defense.

Common examples in Phase Three include:

Statute of Limitations: The claim was filed too late.
Defenses like Truth or Privilege: In a defamation case, the movant proves the statement was true or protected by a specific legal privilege, such as the judicial-proceedings privilege.

The court uses the standard summary judgment inquiry: whether sufficient evidence exists such that the issue could go to trial. If the movant establishes a legal bar that cannot be rebutted, the motion is granted.