Note: This page covers information specific to Arizona. For general information concerning Strategic Lawsuits Against Public Participation (SLAPPs), see the overview section of this guide.
A.R.S. § 12‑752 allows you to counter a SLAPP suit against you by filing a motion to dismiss. The statute also provides that the court shall grant the moving party costs and reasonable attorney fees, if the court grants the motion to dismiss.
Activities protected by the Arizona Anti SLAPP Statute
The Arizona anti-SLAPP statute applies to legal actions involving “a party’s exercise of the right of petition.” A.R.S. § 12‑751 defines “exercise of the right of petition” as
any written or oral statement that falls within the constitutional protection of free speech and that is made as part of an initiative, referendum or recall effort or that is all of the following:
- Made before or submitted to a legislative or executive body or other governmental proceeding.
- Made in connection with an issue that is under consideration or review by a legislative or executive body or any other governmental proceeding.
- Made for the purpose of influencing a governmental action, decision or result.
The statute further defines “governmental proceeding” to include proceedings by an official, officer, or body of the state, political subdivision of the state, or federal government. Id. The definition excludes judicial proceedings. Id.
If your statement does not fall within the definition of “exercise of the right of petition,” it will not be covered by the Arizona anti‑SLAPP statute. See Tennenbaum v. Arizona City Sanitary District, 799 F. Supp. 2d 1083 (D. Ariz. 2011) (holding that the Arizona anti‑SLAPP statute does not apply to a letter sent by legal counsel for the city Board of Directors or presentation at an open forum of the Board defending actions of the Board to the public because they were not part of a “recall effort” or “made before . . . a governmental proceeding” or “made for the purpose of influencing a governmental action, decision, or result”); Varela v. Perez, No. CV‑08‑2356‑PHX‑FJM, 2009 U.S. Dist. LEXIS 116027 (D. Ariz. Nov. 25, 2009) (holding that the Arizona anti‑SLAPP statute does not apply to “the filing of a criminal complaint with law enforcement”).
The statute specifically provides that it does not:
- Affect, limit or preclude the right of the moving party to any remedy otherwise authorized by law.
- Apply to an enforcement action that is brought in the name of this state or a political subdivision of this state.
- Create any privileges or immunities or otherwise affect, limit or preclude any privileges or immunities authorized by law.
- Limit or preclude a legislative or executive body or a public agency from enforcing the rules of procedure and rules of order of the body or agency.
A.R.S. § 12‑752(E).
How to use the Arizona Anti-SLAPP statute
The Arizona anti‑SLAPP statute gives you the ability to file a motion to dismiss within 90 days after service of the complaint or, in the court's discretion, at any later time on terms that the court deems proper. A.R.S. § 12‑752(C). (You may also have other bases to move to dismiss under other rules or statutes; you should consult an attorney as to whether deadlines for other motions are affected by the filing of a motion to dismiss under the anti-SLAPP statute.)
The statute provides that, "[w]hen possible," the court must give "calendar preference" to an action filed under the statute and that the court must conduct an expedited hearing after the motion is filed and notice of the motion has been served as provided by court rule. A.R.S. § 12‑752(A).
The court will grant the motion to dismiss unless the responding party shows that your exercise of the right of petition "did not contain any reasonable factual support or any arguable basis in law" and that your "acts caused actual compensable injury to the responding party." A.R.S. § 12‑752(B). "In making its determination, the court shall consider the pleadings and supporting and opposing affidavits stating facts on which the liability or defense is based." Id.
If you request it, the court will also make findings about "whether the lawsuit was brought to deter or prevent the moving party from exercising constitutional rights and is thereby brought for an improper purpose" such as to harass or delay or increase the cost of litigation. Id. If the court finds that the lawsuit was brought for these purposes, then the statute states that you are "encouraged" to pursue additional sanctions "as provided by court rule." Id.
What Happens If You Win A Motion To Dismiss Or Quash
If you prevail on your motion to dismiss, the statute provides that the court "shall" award you "costs and reasonable attorney fees, including those incurred for the motion." The statute states that "costs" means "all costs that are reasonably incurred in connection with a motion to dismiss pursuant to this section" including "filing fees, record preparation and document copying fees, documented time away from employment to confer with counsel or attend case related proceedings, expert witness fees, travel expenses and any other costs that the court deems appropriate."
However, if you do not prevail and the court finds that your motion to dismiss is "frivolous or solely intended to delay," the court "shall" award "costs and reasonable attorney fees to the prevailing party on the motion." In determining whether the motion to dismiss is frivolous, the court may consider whether the case involves novel issues of law. See Tennenbaum, 799 F. Supp. 2d at 1090.
If you succeed in fending off a SLAPP lawsuit in Arizona, you may be able to bring a claim of malicious prosecution against the original plaintiff. While Arizona does not have a special form of process for a "SLAPPback" claim, the elements of a malicious prosecution claim are similar. You should consult an attorney to see whether such a claim may be viable in your case.
