CHAPTER 391

FORMERLY

SENATE BILL NO. 228

AS AMENDED BY SENATE AMENDMENT NO. 1

AN ACT TO AMEND CHAPTER 81, TITLE 10, DELAWARE CODE RELATING TO ACTIONS INVOLVING PUBLIC PETITION AND PARTICIPATION.

WHEREAS, the General Assembly declares it to be the policy of the State that the rights of citizens to participate freely in the public process must be safeguarded with great diligence. The laws of the state must provide the utmost protection for the free exercise of speech, petition and association rights, particularly where such rights are exercised in a public forum with respect to issues of public concern.

WHEREAS, the General Assembly finds that the threat of personal damages and litigation costs can be and have been used as a means of harassing, intimidating or punishing individuals, unincorporated associations, nonprofit organizations, and others who have involved themselves in public affairs.

NOW THEREFORE:

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE:

Section 1. Amend Chapter 81, Title 10 of the Delaware Code by adding the following new sections to read as follows:

18136. Actions involving public petition and participation.

(a) For purposes of this section, the following terms shall have the

meaning ascribed herein:

An "action involving public petition and participation" is an
action, claim, cross—claim or counterclaim for damages that is brought by a public applicant or permittee, and is materially related to any efforts of the defendant to report on, rule on, challenge or oppose such application or permission.

"Public applicant or permittee" shall mean any person who has
applied for or obtained a permit, zoning change, lease, license, certificate or other entitlement for use or permission to act from any government body, or any person with an interest, connection or affiliation with such person that is materially related to such application or permission.

"Communication" shall mean any statement, claim or allegation in a proceeding, decision, protest, writing, argument, contention or other expression.

'Government body' shall mean the State and any county, city, town, village or any other political subdivision of the State; any public improvement or special district, public authority, commission, agency or public benefit corporation; any other separate corporate
instrumentality or unit of State or local government; or the federal government.

(b) In an action involving public petition and participation, damages may only be recovered if the plaintiff, in addition to all other necessary elements, shall have established by clear and convincing evidence that any communication which gives rise to the action was made with knowledge of its falsity or with reckless disregard of whether it was false, where the truth or falsity of such communication is material to the cause of action at issue.

(c) Nothing in this section shall be construed to limit any

constitutional, statutory or common law protection of defendants to actions involving public petition and participation.

§8137. Standards for motion to dismiss and summary judgment in certain cases involving public petition and participation.

A motion to dismiss in which the moving party has demonstrated that the action, claim, cross-claim or counterclaim subject to the motion is an action involving public petition and participation as defined in
§8136(a)(1) of this chapter shall be granted unless the party responding to the motion demonstrates that the cause of action has a substantial basis in law or is supported by a substantial argument for an extension, modification or reversal of existing law. The court shall grant preference in the hearing of such motion.

A motion for summary judgment in which the moving party has
demonstrated that the action, claim, cross-claim or counterclaim subject to the action is an action involving public petition and participation as defined in §8136(a)(1) of this chapter shall be granted unless the party responding to the motion demonstrates that the cause of action has a substantial basis in fact and law or is supported by a substantial argument for an extension, modification or reversal of existing law. The court
shall grant preference in the hearing of such motion.

§8138. Recovery of damages in actions involving public petition and

participation.

(a) A defendant in an action involving public petition and participation, as defined in §8136(a)(1) of this chapter, may maintain an action, claim, cross-claim or counter-claim to recover damages, including costs and attorney's fees, from any person who commenced or continued such action; provided that:

costs, attorney's fees and other compensatory damages may be
recovered upon a demonstration that the action involving public petition and participation was commenced or continued without a substantial basis in fact and law and could not be supported by a substantial argument for the extension, modification or reversal of existing law; and

punitive damages may only be recovered upon an additional

demonstration that the action involving public petition and participation was commenced or continued for the purpose of harassing, intimidating, punishing or otherwise maliciously inhibiting the free exercise of speech, petition or association rights.

(b) The right to bring an action under this section can be waived only if it is waived specifically.

(c) Nothing in this section shall affect or preclude the right of any

party to any recovery otherwise authorized by law."

Approved July 16, 1992.