Many people in this country try to protect themselves and their communities by participating in local hearings. This could be town hall meetings, planning board meetings, environmental commission meetings, and just about anything else in which the public has a right to attend and participate.

Often public debates turn into David vs. Goliath struggles where David is represented by the everyday person and Goliath consists of some big business developer or applicant. Obviously, there are differences in spending ability, including the ability to hire attorneys for the exclusive purpose of harassing those persons who are doing nothing more then attempting to exercise their rights to be heard.

Harassive lawsuits such as these, designed simply to deter citizens from being heard, are called SLAPP suits. This stands for Strategic Lawsuits Against Public Participation. In essence, they are designed to SLAPP down the opposition.

Most SLAPP suits are baseless and legally empty but they do have their intended affect because people are afraid of being sued. Even a lawsuit that is ultimately unsuccessful can scare citizens away from exercising their rights or performing their duty to participate in democracy.

In response, States are enacting anti-SLAPP suit legislation. The first of these laws originated in the State of Washington when a woman reported a developer who had failed to pay $350,000.00 in taxes. As a result, she was sued by the developer in what was reported to be a frivolous lawsuit.

The State developed its SLAPP suit law in 1989 in response to public outcry that followed this high profile lawsuit. California, Rhode Island and Massachusetts followed in the early 1990s with similar kinds of anti SLAPP laws and New York passed a slightly different kind of SLAPP law in 1992.

New Mexico passed its anti-SLAPP suit legislation in 1991. Section 1 of the Statute provides "The Legislature declares that it is the public policy of New Mexico to protect the rights of its citizens to participate in quasi-judicial proceedings before local and State governmental tribunals. Baseless civil lawsuits seeking or claiming millions of dollars have been filed against persons for exercising their right to petition and to participate in quasi-judicial proceedings before governmental tribunals. Such lawsuits can be an abuse of legal process and impose an undue financial burden on those having to respond to and defend such lawsuits and punish participation in public affairs and institutions of democratic governments. These lawsuits should be subject to prompt dismissal or judgment to prevent the abuse of the legal process and avoid the burden imposed by such baseless lawsuits."

Bravo! New Mexico understands the problem and has reacted in a meaningful manner. Under the New Mexico law any lawsuit seeking money damages against a person for conduct or speech which is undertaken during a public hearing, such as a planning board or a town hall meeting, is subject to expedited consideration. This means, if citizens are unfairly sued, they can end the case very quickly without having to spend all kinds of money fending off frivolous litigation.

And if the Court finds that indeed the case is frivolous, the citizen can be awarded attorneys fees and costs. In addition, any other right allowed by statute or administrative law or common law remains in place including rights to sue for defamation or malicious abuse of process.

This is a wonderful law and well needed law. Every State that does not already have this kind of law needs to adopt a similar piece of legislation. This is how we can level the playing field for David in his never ending fight against Goliath.

Published: January 9, 2003

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Stuart Lieberman, Esq. writes about environmental issues. He was a New Jersey Deputy Attorney General assigned to the State Department of Environmental Protection from 1986 to 1990. Currently he is a shareholder in the environmental law firm of Lieberman & Blecher, P.C., located in Princeton, New Jersey. Stuart can be reached at slieberman@liebermanblecher.com.