“Congress shall make no law…abridging the freedom of speech, or of the press…”¹

“[I]t is the public policy of this state to promote the rights of citizens to vigorously participate in government”² and to “[p]rotect citizens from the chilling effect of retributive and abusive strategic lawsuits against public participation, commonly referred to as SLAPP suits.”³ To further these public policies, Michigan has become the latest state to have its version of the Uniform Public Expressions Protection Act (“UPEPA”) enacted.⁴ For practitioners, the UPEPA represents a sea change in how defamation, invasion of privacy, tortious interference, nuisance, or other similar claims will be litigated when they intersect with protected speech.

This article will address the background of the UPEPA, its purpose, and the new set of procedures that aim to: “Provid[e] for expedited judicial review[;]” “Provid[e] for a stay on discovery and other time and money consuming maneuvers during the expedited judicial review[;]” “Proscrib[e] the evidence that may be considered in the expedited judicial review[;]” “Establish the burden of proof for the expedited judicial review[;]” and “Provid[e] for sanctions.”⁵

Background and Purpose of Anti-SLAPP Legislation

On their face, strategic lawsuits against public participation (“SLAPP”) bring causes of action for defamation or similar, but their true goal is not to prevail on the claims, but to intimidate and financially exhaust defendants. The Uniform Law Commission (“ULC”) has set forth that “[t]hese kinds of abusive lawsuits are particularly troublesome when defendants find themselves targeted for exercising their constitutional rights to publish and speak freely, petition the government, and associate with others.”⁶

Starting in the early 1990s,⁷ states began enacting legislation to provide methods to dismiss SLAPP cases in a judicially efficient and economical manner by providing a path to early dismissal. Michigan has now joined the more than 30 states that have enacted anti-SLAPP legislation, by and through the UPEPA, which permits a defendant to file a motion to dismiss a SLAPP at its onset while also staying discovery in the case (except in certain limited circumstances). According to the ULC, the model UPEPA serves two purposes: (1) Protection of “individuals’ rights to petition and speak freely on issues of public interest;” and (2) Simultaneous protection of “the rights of people and entities to file meritorious lawsuits for real injuries.”⁸

THE UPEPA’S “ELIGIBLE CAUSES OF ACTION”

Before taking any action under the UPEPA, a litigant must first establish that the action they seek to dismiss under the UPEPA is an “eligible cause of action.”⁹ An “eligible cause of action” must arise after March 24, 2026 and be based on one of the following: (1) “A communication by the person in a legislative, executive, judicial, administrative, or other governmental proceeding[;]”¹⁰ (2) “A communication by the person on an issue under consideration or review in a legislative, executive, judicial, administrative, or other governmental proceeding;”¹¹ or (3) “The person’s exercise of the right of freedom of speech or of the press, the right to assemble or petition the government for a redress of grievances, or the right of association, guaranteed by the United States Constitution or the state constitution of 1963 on a matter of public concern.”¹²

However, some eligible causes of action are exempt from the UPEPA’s procedures.¹³ An otherwise eligible cause of action is not eligible if “[i]t is against a person primarily engaged in the business of selling or leasing goods or services if the cause of action arises out of a communication related to the person’s sale or lease of the goods or services.”¹⁴ Further, otherwise eligible causes of action are not eligible if the claim is made by an individual for a violation of:

• The Elliott-Larsen Civil Rights Act, 1976 PA 453, MCL 37.2101 to 37.2804;
• The Persons with Disabilities Civil Rights Act, 1976 PA 220, MCL 37.1101 to 37.1607;
• The Whistleblowers' Protection Act, 1980 PA 469, MCL 15.361 to 15.369;
• Worker's Disability Compensation Act of 1969, 1969 PA 317, MCL 418.101 to 418.941;
• The Freedom of Information Act, 1976 PA 442, MCL 15.231 to 15.246;
• Title VII of the Civil Rights Act of 1964, 42 USC 2000e to 2000e-17, including, but not limited to, the Pregnancy Discrimination Act, 42 USC 2000e(k);
• Title IX of the Education Amendments of 1972, 20 USC 1681 to 1689;
• The Age Discrimination in Employment Act of 1967, 29 USC 621 to 634;
• The Americans with Disabilities Act of 1990, Public Law 101-336;
• The Family and Medical Leave Act of 1993, Public Law 103-3; and
• The Fair Labor Standards Act of 1938, 29 USC 201 to 219.¹⁵

For eligible causes of action, the next step is for a litigant to file a “special motion for expedited relief” (“Special Motion”) under the UPEPA’s procedures.¹⁶

THE UPEPA’S SPECIAL MOTION AND STAY OF PROCEEDINGS

Not later than 60 days after being served with a complaint or other pleading that asserts an eligible cause of action, a party may file a Special Motion seeking “to dismiss the action or part of the action.”¹⁷ However, the filing timeframe may be extended by a court for good cause shown.¹⁸ Under Michigan Court Rule 2.114(B), a Special Motion “must also include a statement that the motion is a special motion being filed pursuant to MCL 691.1853 et seq. and state the basis for the motion under MCL 691.1857.”¹⁹

After a Special Motion has been properly filed, all proceedings between the moving party and responding party, including discovery and pending hearings or motions, are stayed (except in specific, limited circumstances).²⁰ If there are other parties to the action not subject to the Special Motion, then the moving party may move to stay discovery and pending hearings and motions “if the hearing or ruling on the motion would adjudicate, or the discovery would relate to, an issue material” to the Special Motion.²¹ The stay remains in effect until the entry of an order ruling on the Special Motion and the expiration of the time for the moving party to appeal the order²² or the conclusion of an appeal by the moving party.²³

However, a judge does have authority under the UPEPA to 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 [the UPEPA]”²⁴ and the “information is not reasonably available unless discovery is allowed.” A motion for costs, attorney fees, and expenses under the UPEPA is not subject to the stay,²⁵ nor does the stay prevent a party’s ability to voluntarily dismiss the action or parts of the action (but not without consequences).²⁶ If a party appeals an order on a Special Motion, all “proceedings between all parties in the action are stayed until the conclusion of the appeal.”²⁷

UPEPA HEARINGS AND APPEALS

The UPEPA and Michigan Court Rule 2.114, et seq. create a framework for courts to hear Special Motions. This framework will be familiar to practitioners that have brought or defended motions for summary disposition under Michigan Court Rules 2.116(C)(8) (failure to state a claim on which relief can be granted) and 2.116(C)(10) (except as to the amount of damages, there is no genuine issue as to any material fact, and the moving party is entitled to judgment or partial judgment as a matter of law).²⁸

A hearing on a Special Motion must be held not later than 60 days after the Special Motion is filed, unless the court permits limited discovery or for good cause.²⁹ If limited discovery is permitted, then the hearing must be held within 60 days after the court orders the discovery.³⁰ A court shall rule on a Special Motion not later than 60 days after the hearing on the Special Motion.³¹

When ruling on a Special Motion, similar to a ruling on a motion for summary disposition under MCR 2.116(C)(10), a judge shall “consider the pleadings, the motion, any reply or response to the motion, affidavits, depositions, admissions, or other documentary evidence.”³² A court “shall dismiss with prejudice” an action or part of an action when certain conditions are met.³³ Further, the UPEPA “must be broadly construed and applied to protect the exercise of the right of freedom of speech and of the press, the right to assemble and petition the government for a redress of grievances, and the right of association, guaranteed by the United States Constitution and the state constitution of 1963.”³⁴

First, to prevail on a Special Motion, the moving party must prove that the cause of action is an eligible cause of action under the UPEPA.³⁵ Correspondingly, the responding party must fail to establish that the cause of action is not an eligible cause of action.³⁶ Second, one of the following must occur:

1. “The responding party fails to establish a prima facie case as to each essential element of the cause of action[;]”³⁷ or
2. The moving party establishes that the responding party either: “failed to state a cause of action on which relief can be granted[,]”³⁸ or that “[t]here 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 the action.”³⁹

UPEPA litigation will likely look to interpretations of MCR 2.116(C)(8) and MCR 2.116(C)(10) for guidance until Michigan’s appellate courts weigh in on the UPEPA. Importantly, if a Special Motion is denied or denied in part, the moving party may appeal as a matter of right.⁴⁰ Appeals must be filed not later than 21 days after the entry of the order and must be filed in accordance with MCR 7.204, et seq.⁴¹ The stay in the trial court will remain in effect during the pendency of the appeal.⁴²

UPEPA FEE SHIFTING AND SANCTIONS

In addition to establishing the process to file and have a Special Motion heard, the UPEPA also establishes a mandatory fee-shifting framework that practitioners should take note of.⁴³ Under the UPEPA, a court must “award court costs, reasonable attorney fees, and reasonable litigation expenses related to the special motion” to the moving party if the moving party prevails on the Special Motion.⁴⁴ Conversely, a court must “award court costs, reasonable attorney fees, and reasonable litigation expenses related to the special motion” to the responding party if it “prevails on the motion and the court finds that the motion was frivolous or filed solely with intent to delay the proceeding.”⁴⁵

A responding party cannot voluntarily dismiss an action or part of an action without prejudice to purposefully avoid sanctions under the UPEPA, as such a dismissal “does not affect a moving party’s right to obtain a ruling on [a] motion and seek costs, attorney fees, and expenses under [the UPEPA].”⁴⁶ Importantly, if a responding party voluntarily dismisses an action or part of an action under the UPEPA with prejudice, then the dismissal “establishes for the purpose of [the UPEPA] that the moving party prevailed on the motion.”⁴⁷ As discussed above, a motion for sanctions under the UPEPA is not subject to a stay under the UPEPA.⁴⁸

CONCLUSION

As courts begin to interpret and apply the UPEPA, litigators must quickly understand and adapt to its expedited framework and mechanics to effectively advocate for their clients. By imposing mandatory stays of discovery, demanding early evidentiary showings, and shifting the financial risk of litigation via attorney fee awards, the UPEPA aims to ensure that the courtroom cannot be used as a tool for censorship. Only time will tell if the UPEPA accomplishes this lofty goal.