Anti-SLAPP protection

Utah Code § 78B-25 adopts a version of the Universal Public Expression Protection Act to provide defendants with a “special motion for expedited relief.”

Law summary

Utah’s anti-SLAPP applies to those facing litigation based on the exercise of their rights to speech, press, petition, assembly, and association, under the federal or state constitution, “on a matter of public concern.” It also applies to communication in a governmental proceeding, as well as communication that concerns an issue under consideration in a governmental proceeding.

The party that filed the motion must first prove Utah’s anti-SLAPP statute applies. Then, the burden of proof shifts to the responding party. If the court rules in favor of the motion, the case is dismissed with prejudice.

There are exceptions to Utah’s anti-SLAPP statute, including claims filed against or by a government unit or a government employee acting in their official capacity. Another exception applies to those engaged in business in particular lawsuits.

Legal actions

Utah’s anti-SLAPP law includes four actions for those facing frivolous and malicious lawsuits.

• Special motion for expedited relief: Utah’s anti-SLAPP statute allows a case to be dismissed quickly. A defendant must file this motion 60 days after a claim is brought against them. From that point, the court must hold a hearing within 60 days of the motion being filed unless an exception is made, such as if limited discovery is allowed or for “other good cause.” The court must then issue a ruling within 60 days of the hearing.
• Stay: All discovery and other pending hearings and motions are stayed under the special motion for expedited relief, although the court can request limited discovery if necessary.
• Interlocutory appeal: After the motion is ruled on, either party can move to immediately appeal it. The stay provision continues to apply until after the appeal is decided.
• Fee recovery: The court awards court costs, attorneys’ fees and litigation expenses to the prevailing party. If the case is voluntarily dismissed without prejudice during this period, the moving party is still able to “obtain a ruling on the motion” and recover costs.

Court cases

There are not many examples of court cases involving Utah’s anti-SLAPP law due to its recency; the state’s current iteration was passed in 2023. However, several prior court cases provide insight into how Utah courts have interpreted Utah’s prior anti-SLAPP law and other cases related to frivolous lawsuits.

Jacob v. Bezzant (2009)

After a city ordinance was passed barring people with a relationship to the city from holding a seat on city council, Jacob purchased an anonymous advertisement in a local newspaper claiming that, according to the new ordinance, two candidates should not be qualified for city council due to conflicts of interest. When the newspaper (owned by Brett Bezzant) received complaints, it published an “Urgent Election Notice” that stated the ordinances did not prohibit the two men from running for city council. The notice also revealed William Jacob as the author behind the original advertisement. In response, Jacob sued Bezzant, who responded by making a motion under Utah’s anti-SLAPP law (at that time the Citizen Participation in Government Act). The trial court accepted Bezzant’s motion, stating that Jacob used litigation to punish “Bezzant’s publication of the political speech contained in the election notice.” The Court of Appeals rejected the decision. In its opinion, the court stated that Bezzant’s speech did not warrant protection under Utah’s anti-SLAPP law because it was not an example of “participation in government,” which is seen as being expressed “by exercising the right to influence legislative and executive decisions.” The opinion found that an election is “citizen decision making in the process of government as distinguished from executive and legislative decision making” and thus, does not fall under the statute. However, the Utah Supreme Court upheld the dismissal of the case, stating that Jacob’s claims were “without merit,” and awarded some attorney’s fees.

Anderson Development v. Tobias (2005)

In 1996, Anderson Development (ADC) started efforts to develop a business park near the Jordan River. Janalee Tobias and Judy Feld opposed the development, forming an organization with other South Jordan City residents. In 1998, ADC sued Tobias, Feld, and others, stating they had “intentionally interfered with ADC’s prospective economic relations and existing contractual relations.” Over the next few years, the court denied Tobias and Feld’s motions to dismiss ADC’s claims and for summary judgment. However, they were allowed to plead counterclaims, which included the SLAPP Act counterclaim. ADC moved for summary judgment on this counterclaim, “arguing that the Act did not apply retroactively to ADC’s actions,” as the act was enacted three years after the commencement of the ADC suit. The district court ruled in favor of ADC and dismissed the SLAPP act counterclaim and many of the other counterclaims. Tobias and Feld appealed the decision. In the appeal, the ADC argued against the counterclaim on several points, including that the individual sections of the statute are dependent on one another, that Tobias and Feld’s activities did not “involve the governmental process” and that the counterclaim would violate ADC’s constitutional rights. The Court of Appeals held the district court erred in granting ADC’s motion for summary judgment on the SLAPP Act counterclaim. In its opinion, the court held ADC could still be subject to liability under the SLAPP act, stating that although the ADC filed suit before the enactment of the anti-SLAPP law, it continued the lawsuit after it became effective (however, if any costs, fees and damages were awarded, they would have to be those incurred after the Act’s passage). The court also stated that Tobias and Feld’s actions were related to participation in the government process, since Tobias and Feld argue the ADC lawsuit was due to the vocal opposition before the City Council regarding ADC’s zoning application. Finally, the Court of Appeals stated that the SLAPP act violated a constitutional prohibition against unlawful bills of attainder.

Morse v. Packer (2000)

Freelance reporter Lynn Packer published an article in 1997 that alleged Clare Morse of being involved in problematic business ventures. Prior to its publication, Morse brought legal action against Packer for making “false and defamatory statements.” Packer eventually moved for summary judgment alleging Morse of “abuse of process, malicious prosecution, failure to prosecute, and failure to grant discovery.” The district court granted his request, as Morse did not respond to the motion by the required deadline. Packer also filed a Rule 11 motion against Timothy Willardson, Morse’s lawyer, claiming that Willardson had made representations of fact “without conducting a reasonable inquiry into their evidentiary basis” and made multiple misrepresentations to the court. While representing Morse, Willardson denied having seen a particular document that suggested Packer’s reporting to be truthful. The district court denied Packer’s motion for sanctions, stating that Packer did not provide evidence to support his claim that Willardson’s statements were false or provide what evidence would support his claim. Packer appealed, arguing the district court erred by postponing hearing the motion until the underlying case was resolved and by denying his motions for sanctions. In its opinion, the Utah Supreme Court stated that the district court had discretion over the time on the ruling. However, the Supreme Court stated that Packer did provide evidence, which included a copy of the document in question and a copy of Willardson’s motion to strike, which was “clearly directed” at the document. Thus, they ruled that Willardson violated Rule 11. The case was remanded to the district court to determine the type and amount of sanctions.

Legislative activity

Known as the “Citizen Participation in Government Act,” Utah’s previous anti-SLAPP law was enacted in 2001. As part of this act, a defendant had to file an affidavit detailing the defendant’s participation in government that prompted a civil action, as well as how the defendant believed that action was intended to interfere with their participation in government. Similarly to other anti-SLAPP laws, the act had sections that stayed discovery, enabled attorney fees and damages, and allowed for an interlocutory appeal. The act also expedited the hearing and decision process, although no timelines were specified.

The act was repealed in 2023 and replaced with the current version of the bill, which covered more forms of speech. The UPEPA only applies to actions filed on or after May 3, 2023.

Of note

According to the Institute for Free Speech, the UPEPA increased Utah’s previous rating of a D- to an A+.