The Uniform Public Expression Protection Act: The Automatic Stay
This is my fifth installment of a series of articles that will explore the Uniform Public Expression Protection Act, or “UPEPA”. I must again give the caveat that while I served as an American Bar Association adviser to the drafting committee of the UPEPA, the comments and viewpoints herein are mine and mine alone, and are not those of either the Uniform Law Commission or the American Bar Association; further, others on the drafting committee might well disagree (perhaps vehemently) on certain points.
For movants, one of the greatest benefits for a UPEPA special motion is the so-called “automatic stay” of § 4. Under this section, the mere filing of a special motion causes the litigation between the movant and the respondent to crash to an immediate halt, with the sole exception of the litigation over the special motion itself. The very purpose of § 4 is to keep the movant from being further harassed by the respondent, whether by depositions or other discovery or whatever, until the special motion has been resolved. As Comment 1 to § 4 explains:
“Section 4 furthers the purpose of the Act by protecting a moving party from the burdens of litigation — which include not only discovery, but responding to motions and other potentially abusive tactics — until the court adjudicates the motion and the moving party’s appellate rights with respect to the motion are exhausted.”
There is an underlying principle at play here which permeates the UPEPA generally: If a party is going to file a pleading that touches upon a protected area as defined in § 2, then that party and its counsel should be very careful in the first place in both making sure that they have a cause of action that will survive the special motion and in narrowly crafting their pleading of that cause of action. A special motion thus penalizes not only the abusive litigant, but also those who careless or sloppy in their pleadings, or are simply ignorant of the law of protected speech and conduct.
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Let’s now examine the text of § 4, starting with the general rule of § 4(a)(1):
“(a) Except as otherwise provided in subsections (d) through (g), on the filing of a motion under Section 3:
(1) all other proceedings between the moving party and responding party, including discovery and a pending hearing or motion, are stayed; and”
That is the General Rule: Upon the mere filing of a special motion, everything going on between the plaintiff/respondent and the defendant/movant except the special motion itself is automatically stayed. To better understand this rule, let’s now focus on the particular operative clauses in § 4(a)(1).
“Except as otherwise provided in subsections (d) through (g)”
All but the dimmest law students discover in about two weeks the first and most important corollary to the General Rule, which is that: “General rules are generally inapplicable.” Thus, while section 4(a)(1) provides the general rule regarding the stay, subsections (d) through (g), and arguably § 4(a)(2), provide the exceptions. The stay, as we will see, is like Swiss Cheese in being full of holes. We will come to those exceptions shortly.
“on the filing of a motion under Section 3”
The import of this clause is that the stay is “automatic” in the sense that the stay goes into effect immediately upon the filing of a special motion without any further action necessary by either the movant or the court. The § 4 stay may thus quite accurately be referred to as an “automatic stay” that is closely analogous to the “automatic stay” that occurs upon the commencement of a bankruptcy case.
“all other proceedings … including discovery and a pending hearing or motion, are stayed”
Upon the filing of a special motion, everything going in the litigation between the movant and the respondent — including other causes of action having utterly nothing to do with protected speech or conduct, comes to an immediate halt until the special motion has been resolved.
It should be observed that § 4 does not set forth any express penalty for a party that violates the stay; like the bankruptcy automatic stay, the unstated penalty is contempt. If either the movant or respondent thereafter take any actions against the other, such as by serving discovery, they risk sanctions unless their actions have been specifically pre-authorized by the court after the filing of the special motion.
This stay also operates, very importantly, as a restriction upon the court such that pending deadlines for matters unrelated to the special motion are also stayed. The stay does not terminate existing motions, but rather creates what amounts to a hole in time while the stay is in effect. For instance, assume that a court rule requires the filing of a motion for sanctions to be made within 21 days, if at all, after the abusive filing. Within 10 days after an abusive pleading is filed, the movant files a special motion and the automatic stay goes into effect. Later, when the stay is lifted, the movant should still have 11 days remaining to file its motion for sanctions, unless the court sets a different deadline.
“between the moving party and responding party”
A critical limitation of the § 4 stay is that it only operates between the movant and the respondent, and will not automatically affect the litigation by and between other parties, subject to § 4(a)(2). See also § 4 comment 2 ¶ 1.
Moving on to § 4(a)(2), we find that the stay can be enlarged as follows.
“(2) on motion by the moving party, the court may stay a hearing or motion involving another party, or discovery by another party, if the hearing or ruling on the motion would adjudicate, or the discovery would relate to, an issue material to the motion under Section 3.”
In multi-party litigation, when a part of the case is stayed between two litigants that may have a significant impact upon the remaining parties. For instance, a party may not want to conduct depositions or see depositions conducted by others because the depositions might later have to be retaken (or risk being useless) because one or the other of the parties to the special motion were not present. Thus, under § 4(a)(2), if a special motion is filed between any two parties, either those parties or any of the other parties to the litigation may move for an enlargement of the stay.
Section § 4(a)(2) recognizes the default result of the stay in multi-party litigation, i.e., the stay only applies to the parties to the special motion and the litigation between them only. This default result can be modified by the motion of any party to the litigation, whether also a party to the special motion or not. The Drafting Committee spent a great deal of time discussing the effect of the stay in multi-party litigation, and considered the most obvious alternative: The stay would be a universal stay that applied to all parties and all litigation, but any party could move to essentially decrease the breadth of the stay, i.e., lift the stay except as between the parties to the special motion. Both this alternative approach and the one taken had their respective benefits and disadvantages, but the approach embodied in § 4(a)(2) won by a nose.
Comment 2 to § 4(a) explains that “[s]ection 4(a)(2) allows the moving party to seek a stay of proceedings and discovery between other parties if there are legal or factual issues at play in those proceedings that are material to the party’s motion. Otherwise stated, if a defendant moves to dismiss a plaintiff’s cause of action, that motion should not stay proceedings or discovery between the plaintiff and other defendants—or between other defendants themselves—unless those proceedings involve legal or factual issues that are material to the motion, or the discovery is relevant to the motion.”
The Comment then gives the following examples:
“By way of illustration, a candidate for political office sues two defendants — his opponent, for defamation over comments made about the plaintiff during the campaign, and his opponent’s campaign manager, for hacking into the plaintiff’s campaign’s computer files and erasing valuable donor lists and other data. Only the plaintiff’s opponent moves to dismiss under the Act; the campaign manager does not. In that case, the plaintiff could still proceed with discovery and dispositive motions against the campaign manager, because the claim concerning the hacking is entirely unrelated to the defamation claim. The moving defendant has no interest that would be affected by the hacking claim.”
“But under slightly altered facts, a different outcome might exist: The plaintiff alleges that (1) the opposing campaign manager violated the plaintiff’s privacy rights by stealing sensitive personal information in the hacking incident; and (2) the opposing candidate violated the plaintiff’s privacy rights by disclosing that sensitive personal information in a speech. Again, the opposing candidate moves to dismiss under the Act; the campaign manager does not. In that case, the causes of action are so interrelated that the moving defendant would not be able to protect his interests without participating in the case against his co-defendant—something he would not have to do if he prevails on the motion. In such an example, the court should grant a request to stay the proceedings as between the plaintiff and non-moving defendant, because the moving defendant would have no way of protecting his interests without participating in the case.”
Now let’s examine the operative clauses of § 4(a)(2).
“on motion by the moving party”
This clause sets a significant limitation upon § 4(a)(2) which is that only the movant may bring a motion to extend the stay to other parties to the litigations, and neither the respondent nor any other party may bring that motion under § 4(a)(2). While unsaid in § 4(a)(2), a court might, however, either sua sponte or upon the motion of another party, utilize its (overlapping) discretionary general administrative powers over litigation to extend the stay to other parties or the litigation as a whole.
Another consequence of this clause is that the enlargement of the stay under § 4(a)(2) may only be made upon the motion of a party, and not by the court acting sua sponte, although as noted a court might in extraordinary circumstances exercise its general administrative powers in managing its docket and in managing the litigation generally to enlarge the stay as necessary.
“the court may stay a hearing or motion involving another party, or discovery by another party”
This clause authorizes the court to extend the stay to other parties, albeit limited to a “hearing” or “motion” or “discovery” under this clause. The decision whether to enlarge the stay is committed to the sound discretion of the trial court. Again, the court might utilize its discretionary general administrative powers in extraordinary circumstances for a larger stay as necessary.
“if the hearing or ruling on the motion would adjudicate, or the discovery would relate to, an issue material to the motion under Section 3”
Another limitation to enlarging the stay to other parties is that the stay should be limited to an issue “material to” the special motion. The examples given in the Comments above illustrate how this should normally be applied.
“(b) A stay under subsection (a) remains in effect until entry of an order ruling on the motion under Section 3 and expiration of the time under Section 9 for the moving party to appeal the order.”
If the movant loses the special motion, the stay of § 4(a)(1) effectively lasts until the time expires for the movant to appeal that denial of the special motion, which is 21 days per § 9. Note that only the movant has an appeal of right under § 9. This subsection should be read in context with subsection (c) which immediately follows.
“(c) Except as otherwise provided in subsections (e), (f), and (g), if a party appeals from an order ruling on a motion under Section 3, all proceedings between all parties in the action are stayed. The stay remains in effect until the conclusion of the appeal.”
A movant who loses a special motion may launch an appeal of right under § 9, while a losing respondent must attempt an interlocutory appeal through some special mechanism such as an appellate writ. In either event, the general rule is that the stay of § 4(a)(1) will remain in place until that appeal is concluded.
Comment 3 to § 4(c) explains that “[s]ection 4(c) provides that all proceedings between all parties in the case are stayed if a party appeals an order under the Act. This subsection protects a moving party from having to battle related claims — some of which might be subject to a motion under the Act and some which are not—at the same time in two different courts. For example, if two plaintiffs file causes of action against a single defendant, and the defendant only moves to dismiss against one plaintiff but not the other, the defendant should be able to appeal a denial of that motion without also having to simultaneously defend related causes of action (albeit ones not subject to the Act) in the trial court brought by the other plaintiff.”
The Comment then gives the following example: “By way of illustration, multiple plaintiffs — all contestants on a reality TV show contest — sue one defendant — the TV producer — in a single case for their negative treatment on the show. Each plaintiff’s claim is distinct and centers on separate statements. The defendant files a motion to dismiss under the Act against only one plaintiff. The motion is denied; the defendant appeals under Section 9. At that point, all the proceedings are stayed, because the defendant should not be required to try claims in the trial court while appealing other claims from the same case in the appellate court.”
That the court should interface UPEPA’s stay provisions its general administrative powers to manage the litigation is further illustrated by the possibility that if the stay is particularly onerous to other parties, the court may effect a severance of the respondent’s causes of action such that the particular cause subject to the special motion is either treated independently within the case, or independently in a new companion case. This result is suggested by Comment 3 to § 4: “To the extent any party not subject to the motion desires to move forward in the trial court on what it believes are unrelated causes of action while the appeal of the motion’s order is pending, it retains the right under Section 4(f) to request a severance of those causes of action.”
Now to consider the particular operative clauses in more detail.
“Except as otherwise provided in subsections (e), (f), and (g)”
This is easy, which is that the general rule of the automatic stay is subject to the exceptions enumerated in subsections (e), (f), and (g).
“if a party appeals from an order ruling on a motion under Section 3, all proceedings between all parties in the action are stayed”
This sets forth the general rule, and it applies to either a movant appealing as a matter of right or a respondent who is successful in obtaining an interlocutory appeal by whatever appellate mechanism.
“The stay remains in effect until the conclusion of the appeal”
The clause “until the conclusion of the appeal” is intentionally vague, and will be determined by the appellate rules of a particular jurisdiction, i.e., it may be when the appellate opinion is issued, or it may be when mandate is returned to the trial court, etc.
Moving on now to § 4(d).
“(d) During a stay under subsection (a), the court may allow limited discovery if a party shows that specific information is necessary to establish whether a party has satisfied or failed to satisfy a burden under Section 7(a) and the information is not reasonably available unless discovery is allowed.”
Few things discussed by the Drafting Committee occupied as much time as that of whether to allow the responding party to conduct limited discovery after the special motion has been filed. After all, one of the primary purposes of UPEPA in general and the stay provision in particular is to protect the movant from the expense and harassment of discovery until the special motion has been decided. On the other hand, the UPEPA could not be allowed to interfere with the right to jury trial enshrined in the U.S. and state constitutions, and generally in civil procedure there is a doctrine whereby a party is allowed to plead something that is strongly suspected but still unknown, with the idea that the party can confirm the fact through discovery. Also, if the respondent was to be given the right to limited discovery, then the movant should have the same reciprocal right. The careful drafting of § 4(d) reflects a balancing of those interests so that either the respondent or the movant can obtain discovery only in a tightly proscribed circumstance (where that discovery is “necessary”) within the sound discretion of the trial court.
Very importantly, the use of the term “may allow” indicates that a party seeking discovery does not have anything like a right to that discovery, but rather the court must exercise its discretion, and considering that the goal of the special motion is to prevent the movant from being burdened by litigation, this discretionary power should be sparingly used by the court — and the court should approach requests for such discovery with a deep skepticism. Nonetheless, such discovery should be permissible in rare circumstances.
Comment 4 elaborates: “Section 4(d) provides the court with discretion to permit a party to conduct specified, limited discovery aimed at the sole purpose of collecting enough evidence to meet its burden or burdens under Section 7(a) of the Act. This provision recognizes that a party may not have the evidence it needs — for example, evidence of another individual’s state of mind in a defamation action — prior to filing or responding to a motion. The provision allows the party to attempt to obtain that evidence without opening the case up to full-scale discovery and incurring those burdens and costs.”
An examination of the particular operative clauses of § 4(d) further enlightens.
“During a stay under subsection (a), “the court may allow limited discovery”
This clause empowers the court to allow discovery while the stay is in effect, but “limited discovery” only — a lifting of the stay to allow general discovery is not permissible.
The discovery need not be directed to the other party to the special motion, but may be directed to third-parties. Indeed, serious consideration was given by the drafting committee to prohibiting outright all discovery against the movant, but finally recognized that in certain rare cases such discovery against the movant might be required. Because of the potential for harassment or burdening the movant, however, a court should be even more skeptical of requests by the respondent to direct discovery against the movant, and such should be allowed in only the most extreme of circumstances.
Implied within the phrase “limited discovery” is an entreaty to the court to strictly limit whatever discovery is allowed to only that “necessary” as more fully described below. To this end, a court should keep in mind the purpose of the special motion to prevent a movant from being subjected to harassment or burdensome litigation, and thus seek to narrowly tailor whatever discovery is allowed to that which is the least intrusive to the movant or third-parties, e.g., interrogatories are less intrusive than document requests, and written discovery is less intrusive than depositions. The discovery allowed should similarly be tightly restricted to only and exclusively those facts which are strictly “necessary” as discussed below, e.g., fishing expeditions that might be allowed outside the special motion context are plainly prohibited within it. To use a medical analogy, “limited discovery” means an x-ray tightly focused upon only the specific “necessary” organ, and not a full or regional body scan. To this end, any discovery order which is finally issued should embody the inquiry of the court, “What is the absolute least that I can do allow the party seeking discovery to get what it needs?”
“if a party shows”
There are two implications to these four words. First, either party may seek discovery. Second, the burdens of proving and persuading the court of the need for the discovery sought is upon the party seeking it.
“that specific information is necessary to establish whether a party has satisfied or failed to satisfy a burden under Section 7(a)”
This is the first element that must be met to justify limited discovery, being that the discovery sought must directly relate to a burden identified in § 7(a). The term “specific information” means that the party requesting discovery must identify with particularity the precise information that it needs, or else the request is a non-starter. Similarly, the term “necessary” might has well be read as if it were written “absolutely necessary”. If there are doubts as to whether the specific information sought is indeed “necessary”, then the request should not be approved.
For example, the respondent seeks discovery of the extent of the damages suffered by the respondent for an allegedly libelous statement of the movant; since the extent of damages is irrelevant to the burdens of § 7(a), the discovery should be denied.
“and the information is not reasonably available unless discovery is allowed”
This is the second element that must be met to justify limited discovery, being that the party seeking the discovery must prove that the information sought cannot reasonably be obtained from any other source. The issue of whether the information sought is “reasonable available” is vested within the sound discretion of the trial court based on the totality of the circumstances before it; it does not mean “impossible” nor does it mean that the party seeking the discovery can assert a superficial reason why the information cannot be otherwise obtained. Rather, the effective standard here is that the requesting party can show that it has tried to obtain the information without the sought discovery, but those efforts have proven to be futile — a party who has halfheartedly “mailed in” its attempt to get the information sought has not met this burden.
This brings us to the exception of § 4(e).
“(e) A motion under Section 10 for costs, attorney’s fees, and expenses is not subject to a stay under this section.”
Even if the stay continues in effect pending an appeal by either party, the stay does not apply to a motion under § 10 which seeks to tax the losing party with costs, attorney’s fees, and expenses, i.e., that motion should be heard in due course without regard to any appeal filed the losing party.
“A motion under Section 10 for costs, attorney’s fees, and expenses”
This clause strictly proscribes the § 4(e) exception to a motion under § 10.
“is not subject to a stay under this section”
The result of this clause is that the trial court does not have discretion in this matter, but rather the stay does not apply to motions under § 10 as a matter of law.
That brings us to the § 4(f) exception to the general rule.
“(f) A stay under this section does not affect a party’s ability voluntarily to [dismiss] [nonsuit] a [cause of action] or part of a [cause of action] or move to [sever] a [cause of action].”
This is another issue that took up a great deal of the drafting committee’s time, and there was a discernable and substantial split within the members of the drafting committee as to whether the respondent should be allowed to avoid a special motion by either simply dismissing its complaint outright or amend the pleading to excise the offensive portion. This was one of those issues which attracted substantial discussion at literally every meeting of the drafting committee, with members sometimes switching sides depending on how proposed language was drafted, and, quite frankly, there was not even a final consensus within the committee as to this issue, although the committee reached nearly a complete consensus, with varying degrees of enthusiasm, on pretty much everything else. Suffice it to say, however, that by the final draft there was a very substantial majority in favor of the position ultimately reached and which represents § 4(f) as stated.
There were basically three alternatives which were available to the drafting committee: (1) Disallow the respondent from dismissing or amending its pleading once the special motion had been filed, (2) Allow the respondent to dismiss or amend its pleadings, and thus avoid the hearing on the special motion altogether, or (3) Allow the respondent to dismiss or amend its pleadings, but continue with the hearing on the special motion. The merits and demerits of each of these positions are as follows:
(1) Disallow the respondent from dismissing or amending its pleading once the special motion had been filed. This approach appeared to the drafting committee to be the majority rule amongst the existing state Anti-SLAPP statutes, and it is largely grounded in the idea the mere filing of an abusive pleading by itself can cause harm to the movant, and thus it is important that the movant have a right to a final resolution by way of the special motion. While this is certainly true in the circumstance of an intentionally abusive pleading (the classic SLAPP case meant to harass and intimidate the movant), the idea loses steam when one considers the so-called “innocent violative pleading” where the respondent has simply stumbled by laziness or ignorance of the law into pleading something that technically falls within the scope of § 2 without any specific intent to harass or burden the plaintiff. The concern was that the innocent filer of a technically-violative pleading should not be subject to the costs, attorney’s fees, and expenses of § 10. On the other hand, the drafting committee generally resolved not to test the respondent’s intent out of the concern that doing so would only further extend the litigation and thus exacerbate the movant’s litigation burden.
(2) Allow the respondent to dismiss or amend the its pleadings, and thus avoid the hearing on the special motion altogether. This approach is grounded in the idea that a respondent who files a “innocent violative pleading” should not be subject to the full panoply of the remedies ancillary to a special motion, i.e., the stay and awards of costs, attorney’s fees and interest. The problem with this approach is that it would potentially allow a respondent with abusive intentions to use the mere filing of its pleading to harass the movant, i.e., file a lawsuit claiming billions in damages, hold a press conference announcing the litigation, and then quietly withdraw the pleading the night before the hearing on the special motion. Another significant concern involved a respondent who forced the movant to incur the costs, attorney’s fees, and expenses to prepare and file the special motion, but then avoided responsibility for those things by simply dismissing or amending its pleading the night before the hearing on the special motion.
(3) Allow the respondent to dismiss or amend its pleadings, but continue with the hearing on the special motion. This approach is the one that was finally adopted by the drafting committee, and it represents middle ground between the first two approaches. The idea here is that if an “innocent violative pleading” has been filed, then the respondent can withdraw or amend the pleading and thus attempt to avoid the continuance of the stay (if the pleading was amended) and to partially mitigate the costs, attorney’s fees, and interest that might be awarded in connection with special motion. This also creates a non-binding incentive on the one hand for the movant to avoid the work of a special motion by simply pointing out the error to the respondent, and a non-binding incentive on the other hand for the respondent to simply withdraw or amend the pleading before the special motion is filed.
Notably, to the extent that there remained dissent at the end of the drafting committee’s process to the present working of § 4(e), that dissent was in favor of mandating that some sort of notice to first be given to the respondent that a special motion would be prepared unless the respondent immediately withdrew or amended the pleading. While this may sound reasonable in the context of the “innocent violative pleading,” it makes little sense in the classic abusive SLAPP case where the respondent knows what they are doing is wrong but simply doesn’t care. Here again we also find that important undercurrent of UPEPA at play: If a party is going to file a pleading in the area of protected speech or conduct, then it had better be very careful in the drafting of the pleading so that it does not fall within the scope of the Act under § 2, and in the drafting of pleadings it will not be forgiven if the pleading resulted from laziness, inadvertence, or ignorance of the law of protect speech and conduct. Stated otherwise, any “warning” should derive from the mere fact that one is drafting a pleading that has the potential to touch upon the area of protected speech and conduct.
The brings us to the last exception to the stay as embodied in § 4(g).
“(g) During a stay under this section, the court for good cause may hear and rule on:
“(1) a motion unrelated to the motion under Section 3; and
(2) a motion seeking a special or preliminary injunction to protect against an imminent threat to public health or safety.”
This subsection is explained by Comment 5: “Section 4(g) serves the ultimate purpose of the Act: to allow a party to avoid the expense and burden of frivolous litigation until the court can determine that the claims are not frivolous. In that connection, a court should be free to hear any motion that does not affect the moving party’s right to be free from an abusive cause of action, including a motion to conduct discovery on causes of action unrelated to the cause of action being challenged under the Act, and motions for preliminary injunctive relief seeking to protect against an imminent threat to public health or safety.”
The particular operative provisions of § 4(g) state how this exception (or the two of them) works.
“During a stay under this section, the court for good cause may hear and rule on”
The use of the phrase “good cause” is meant to convey a relatively light standard — but a standard nonetheless — where under the totality of the circumstances it makes sense for the court to hear and rule on the two enumerated types of motions. The party seeking to have the hearing and ruling bears the burden of showing good cause.
Importantly, the phrase “may hear and rule on” does not authorize a court to allow the filing of a new motion, only to resolve a motion that was pending at the time that the special motion was filed.
For example, the respondent files a lawsuit for something and contemporaneously files a motion for a temporary restraining order. The movant immediately files a special motion before the hearing on the TRO can be heard, and the automatic stay goes into effect. Upon a showing of good cause, the court may rule on the motion for TRO. By contrast, if the respondent filed their pleading first, the movant files their special motion, and the respondent then seeks to file a motion for a TRO, that motion should be denied because it was not on file at the time that the special motion was filed. The practical upshot is of course that a respondent who files a pleading that is subject to a special motion had better ask for all of its sought relief up-front, since the filing of a special motion will cut off the respondent’s ability to get that relief.
“a motion unrelated to the motion under Section 3”
This clause states the first category of permissive exceptions to the stay (subject to “good cause” being shown and the motion already being pending when the special motion was filed), which is that the motion be unrelated to the special motion.
For example, the respondent files a lawsuit for something, and the movant files an answer and counterclaim. The respondent then moves to dismiss the counterclaim for lack of subject-matter jurisdiction. Next, the movant files a special motion directed against the respondent’s lawsuit. The court may hear the respondent’s motion to dismiss for lack of subject-matter jurisdiction if good cause is shown, since that motion does not relate to the special motion.
“a motion seeking a special or preliminary injunction to protect against an imminent threat to public health or safety”
This clause states the second category of permissive exceptions to the stay, which is that the motion seeks injunctive relief to protect the health or safety of the public. The purpose of this category is to address the situation where the government needs to immediately act for some reason, but an attempt is made to stop the governmental action by way of a special motion.
For example, there has been an accident at a nuclear power plant and the government immediately needs to get additional resources to the plant so as to prevent a meltdown that would risk the widespread dispersion of radioactive products. However, the path to the plant is blocked by ant-nuclear protesters. The government seeks an injunction to move the protesters. The protesters file a special motion in response. Upon a showing of good cause, the court may hear the government’s motion for an injunction.
Suffice it to say that this exception should be implicated about as often as a walrus is spotted swimming in the Great Salt Lake. Governmental entities should not be allowed to claim the public health or safety exception in just any plain bread case, and such motions should be met with the very greatest of judicial skepticism.
In my next installment, we will consider when the special motion must be heard by the court as required by UPEPA § 5.