SF 190 (LSB 1568XS (3) 91)

SENATE FILE 190

BY  PETERSEN, DONAHUE, BISIGNANO, TRONE GARRIOTT, TOWNSEND, STAED, QUIRMBACH, WINCKLER, WEINER, DOTZLER, BLAKE, and BENNETT

A BILL FOR

An Act establishing certain privileges for communications made regarding incidents of sexual assault, harassment, or discrimination and creating a special motion for expedited relief in such actions.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:

    Section 1.  NEW SECTION.  659B.1  Definitions.
   For the purposes of this chapter, unless the context otherwise requires:
   1.  “Communication” means factual information related to an incident of sexual assault, harassment, or discrimination experienced by the individual making the communication, including any of the following:
   a.  An act of sexual harassment, as described in section 708.7, subsection 1, paragraph “a”, subparagraph (5).
   b.  An act of workplace harassment or discrimination, failure to prevent an act of workplace harassment or discrimination, aiding, abetting, inciting, compelling, or coercing an act of workplace harassment or discrimination, or an act of retaliation against a person for reporting or opposing workplace harassment or discrimination.
   c.  An act of sexual harassment.
   d.  An act of harassment or discrimination, or an act of retaliation against a person for reporting harassment or discrimination.
   e.  An act of cyber sexual bullying. 
   2.  “Cyber sexual bullying” means the dissemination of, or the solicitation or incitement to disseminate, a sexual image by a student to another student or to school personnel by means of an electronic act that has or can be reasonably predicted to have one or more of the following effects:
   a.  Placing a reasonable student in fear of harm to that student’s person or property.
   b.  Causing a reasonable student to experience a substantially detrimental effect on the student’s physical or mental health.
   c.  Causing a reasonable student to experience substantial interference with the student’s academic performance.
   d.  Causing a reasonable student to experience substantial interference with the student’s ability to participate in or benefit from the services, activities, or privileges provided by a school.
   3.  “Sexual harassment” means unwelcome sexual advances, requests for sexual favors, and other verbal, visual, or physical conduct of a sexual nature, made by someone from or in the work or educational setting, under any of the following conditions:
   a.  Submission to the conduct is explicitly or implicitly made a term or a condition of an individual’s employment, academic status, or progress.
   b.  Submission to, or rejection of, the conduct by the individual is used as the basis of employment or academic decisions affecting the individual.
   c.  The conduct has the purpose or effect of having a negative impact upon the individual’s work or academic performance, or of creating an intimidating, hostile, or offensive work or educational environment.
   d.  Submission to, or rejection of, the conduct by the individual is used as the basis for any decision affecting the individual regarding benefits and services, honors, programs, or activities available at or through the educational institution.
    Sec. 2.  NEW SECTION.  659B.2  Incidents of sexual assault, harassment, or discrimination —— privileged communications.
   1.  A communication made by a person who has or had a reasonable basis to file a complaint of sexual assault, harassment, or discrimination regarding the communication, whether or not the complaint was filed, shall not be liable for libel or slander if the communication was made without malice.
   2.  If a defamation action is brought against a person who made such a privileged communication, the defendant may apply for expedited review pursuant to section 659B.3.
   3.  A prevailing defendant in any civil action brought pursuant to chapter 659 for making a communication that is privileged under this section is entitled to all of the following:
   a.  Reasonable attorney fees and costs.
   b.  Noneconomic damages for any harm caused to the defendant by the libel or slander action.
   c.  Punitive damages.
   d.  Any other relief otherwise permitted by law.
    Sec. 3.  NEW SECTION.  659B.3  Special motion for expedited relief.
   Not later than sixty days after a party is served with a petition, crossclaim, counterclaim, third-party claim, or other pleading that asserts a cause of action to which this chapter applies, or at a later time on a showing of good cause, the party may file a special motion for expedited relief to dismiss the cause of action or part of the cause of action.
    Sec. 4.  NEW SECTION.  659B.4  Stay.
   1.  Except as otherwise provided in subsections 4 through 7, on the filing of a motion under section 659B.3, all of the following apply:
   a.  All other proceedings between the moving party and responding party, including discovery and a pending hearing or motion, are stayed. 
   b.  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 659B.3.
   2.  A stay under subsection 1 remains in effect until entry of an order ruling on the motion under section 659B.3 and expiration of the time under section 659B.9 for the moving party to appeal the order.
   3.  Except as otherwise provided in subsections 5, 6, and 7, if a party appeals from an order ruling on a motion under section 659B.3, all proceedings between all parties in the action are stayed. The stay remains in effect until the conclusion of the appeal.
   4.  During a stay under subsection 1, 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 659B.7, subsection 1, and the information is not reasonably available unless discovery is allowed.
   5.  A motion under section 659B.10 for costs, attorney fees, and expenses is not subject to a stay under this section.
   6.  A stay under this section does not affect a party’s ability to voluntarily dismiss a cause of action or part of a cause of action or move to sever a cause of action. 
   7.  During a stay under this section, the court for good cause may hear and rule on all of the following: 
   a.  A motion unrelated to the motion under section 659B.3.
   b.  A motion seeking a special or preliminary injunction to protect against an imminent threat to public health or safety.
    Sec. 5.  NEW SECTION.  659B.5  Hearing.
   1.  The court shall hear a motion under section 659B.3 not later than sixty days after filing of the motion, unless the court orders a later hearing for any of the following:
   a.  To allow discovery under section 659B.4, subsection 4.
   b.  For other good cause.
   2.  If the court orders a later hearing under subsection 1, paragraph “a”, the court shall hear the motion under section 659B.3 not later than sixty days after the court order allowing the discovery, unless the court orders a later hearing under subsection 1, paragraph “b”.
    Sec. 6.  NEW SECTION.  659B.6  Proof.
   In ruling on a motion under section 659B.3, the court shall consider the pleadings, the motion, any reply or response to the motion, and any evidence that could be considered in ruling on a motion for summary judgment under rule of civil procedure 1.981.
    Sec. 7.  NEW SECTION.  659B.7  Dismissal of cause of action in whole or part.
   1.  In ruling on a motion under section 659B.3, the court shall dismiss with prejudice a cause of action, or part of a cause of action, if any of the following are true:
   a.  The responding party fails to establish a prima facie case as to each essential element of the cause of action.
   b.  The moving party establishes that any of the following:
   (1)  The responding party failed to state a cause of action upon which relief can be granted.
   (2)  There is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law on the action or part of an action.
   2.  A voluntary dismissal without prejudice of a responding party’s cause of action, or part of a cause of action, that is the subject of a motion under section 659B.3 does not affect a moving party’s right to obtain a ruling on the motion and seek costs, attorney fees, and expenses under section 659B.10.
   3.  A voluntary dismissal with prejudice of a responding party’s cause of action, or part of a cause of action, that is the subject of a motion under section 659B.3 establishes for the purpose of section 659B.10 that the moving party prevailed on the motion.
    Sec. 8.  NEW SECTION.  659B.8  Ruling.
   The court shall rule on a motion under section 659B.3 not later than sixty days after a hearing under section 659B.5.
    Sec. 9.  NEW SECTION.  659B.9  Appeal.
   A moving party may appeal as a matter of right from an order denying, in whole or in part, a motion under section 659B.3. The appeal must be filed not later than thirty days after entry of the order.
    Sec. 10.  NEW SECTION.  659B.10  Costs, attorney fees, and expenses.
   On a motion under section 659B.3, the court shall award court costs, reasonable attorney fees, and reasonable litigation expenses related to the motion in the following circumstances:
   1.  To the moving party if the moving party prevails on the motion.
   2.  To the responding party if the responding party prevails on the motion and the court finds that the motion was frivolous or filed solely with intent to delay the proceeding.
EXPLANATION
The inclusion of this explanation does not constitute agreement with
the explanation’s substance by the members of the general assembly.
   This bill establishes certain privileges for communications made regarding incidents of sexual assault, harassment, or discrimination and creates a special motion for expedited relief in those actions involving defamation, libel, and slander. The bill provides definitions.
   The bill applies to a cause of action asserted in a civil action against a person involving communications about sexual assault, harassment, or discrimination are not actionable under Code chapter 659 unless made with malice. The bill only applies to a person that has, or at any time had, a reasonable basis to file a complaint of sexual abuse, harassment, or discrimination, whether the complaint is, or was, filed or not.
   The bill provides for attorney fees and damages available to a prevailing defendant in any action brought under Code chapter 659 (libel and slander) against that defendant for making that communication. The bill allows a defendant in an action of such privileged communication to request an expedited review. The bill further provides for a prevailing defendant in any libel or slander action to recover (1) reasonable attorney fees and costs, (2) noneconomic damages, (3) punitive damages, and (4) any other relief otherwise permitted by law.
   The bill provides that no later than 60 days after being served with a cause of action to which the bill applies, or at a later time upon showing of good cause, a party may file a special motion for expedited relief to dismiss the cause of action or part of the cause of action. The filing of the special motion stays all other proceedings between the parties, and the court has discretion to stay a proceeding involving another party if the hearing or ruling on motion would adjudicate an issue material to the motion. A hearing shall be held no later than 60 days after filing the motion, unless the court orders a later hearing to allow discovery or for good cause. A stay remains in effect until an order ruling on the motion is entered and the 30-day appeal period following the order has concluded. During a stay, the court may allow limited discovery if a party shows the information is not reasonably available and that specific information is necessary to establish whether a party has satisfied the party’s burden under the bill. The court may also, for good cause, hear and rule on motions unrelated to the special motion and a motion seeking an injunction. The bill provides that a motion for costs, attorney fees, and expenses is not subject to the special motion for expedited relief stay. The parties’ ability to voluntarily dismiss or move to sever is not affected by the special motion for expedited relief stay.
   The bill provides that in ruling on a special motion for expedited relief, the court shall dismiss with prejudice a cause of action, or part of a cause of action, if the moving party establishes that either the responding party fails to establish a prima facie case as to each essential element of the cause of action or the moving party establishes that the responding party failed to state a cause of action upon which relief can be granted or there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law on the cause of action or part of the cause of action.
   The bill provides that the court may award court costs, reasonable attorney fees, and reasonable litigation fees relating to the special motion to the prevailing party.