Article

The Illinois Supreme Court Bolsters Shield Against SLAPP Suits

Strategic lawsuits against public participation, or SLAPP suits as they are commonly known, are aimed at preventing or punishing citizens who have exercised their constitutional rights to petition the government and to free speech. One of the many problems with SLAPP suits is that they have a chilling effect on citizen participation in the government. In response to a growing number of SLAPP suits, the Illinois General Assembly in 2007 passed the Citizen Participation Act (735 ILCS 110/1, et seq.) to immunize citizens who have engaged in protected activity. In so doing, Illinois joined a growing number of states to enact anti-SLAPP suit legislation.

The Citizen Participation Act was enacted to protect and encourage public participation in the government. See 735 ILCS 110/5. The Act accomplishes this goal by immunizing citizens from liability for acts in furtherance of the “constitutional rights to petition, speech, association, and participation in government.” 735 ILCS 110/15. The Act provides for expedited court hearings and mandatory attorneys fees for parties that have successfully barred claims under the Act. 735 ILCS 110/20, 110/25. The legislature also made clear that the Act is to “be construed liberally.” 735 ILCS 110/30.

Until recently, there were few Illinois cases interpreting the application of the Citizen Participation Act. However, in a recent decision, the Illinois Supreme Court made clear the Act should be applied to a broad range of protected activity. In Wright Development Group, LLC v. Walsh, 238 Ill.2d 620, 2010 WL 4125655 (2010), the court clarified the scope of the Act’s applicability. The court made clear that immunized acts are not limited to direct petitions to a government official. 2010 WL 4125655 at *10. Instead, the Citizen Participation Act is to be liberally construed to include statements made to the “electorate” and acts in furtherance of the rights to free speech and association. Id. The Act now protects statements made to the media regarding public concerns.

Wright Development was based on a defamation per section brought against John Walsh for statements he made to a reporter during a public forum inside an alderman’s office. Walsh, as president of his condominium association, attended a public meeting called by the alderman to discuss issues with condominium contractors and developers. At the public meeting, Walsh discussed problems that had occurred with the building’s developer during the conversion to condominiums. Walsh was then approached by a reporter at the meeting and asked about his statements to the alderman’s representatives. Based on the statements made to the reporter, Wright Development filed a complaint alleging defamation per se against Walsh.

The procedural history of this case reflects the lack of clarity in the rules on how to handle motions under the Citizen Participation Act. Walsh first filed a motion to dismiss under §2-615 of the Code of Civil Procedure and then a stand-alone motion to dismiss pursuant to the Citizen Participation Act. The trial court stayed all other proceedings except for discovery related to the issue of whether Walsh’s acts were immunized. Discovery included the deposition of John Walsh. After discovery and briefing on the motion under the Act, the trial court denied Walsh’s motion under the Act. The trial court stated that Walsh, when making statements to the reporter, was “not even trying to procure favorable governmental action at that point because the Alderman’s representative ha[d] left the room.” 2010 WL 4125655 at *4. Walsh filed a motion to reconsider or, alternatively, to enter Supreme Court Rule 308 findings. Based on the current state of the Illinois Supreme Court rules, Rule 308 findings would be necessary for an immediate appeal of the issue. The trial court denied these motions and entered an order to resume briefing on the §2-615 motion to dismiss. Id. The trial court ultimately dismissed the action with prejudice pursuant to the §2-615 motion to dismiss, based on the innocent construction rule.

Walsh filed an appeal of the two interlocutory orders denying his motion to dismiss under the Citizen Participation Act. The appellate court dismissed Walsh’s appeal as moot, stating that Walsh had already received the relief he sought. The Illinois Supreme Court then granted Walsh’s petition for leave to appeal. The court reversed the appellate court’s decision. The court found that the appeal was not moot because the Act offers greater protection from SLAPP suits than a general §2-615 motion to dismiss, including an expedited trial and appellate procedure and the award of mandatory attorney fees. The court also reversed the trial court’s orders denying Walsh’s motion to dismiss based on the Act and remanded the case to the trial court to award Walsh reasonable attorneys’ fee.

The Illinois Supreme Court held that Walsh enjoyed immunity from liability under the Citizen Participation Act. The Act protects and immunizes the “constitutional rights to petition, speech, association, and participation in government.” 735 ILCS 110/15. The court determined that Walsh had engaged in “clearly immunized activity.” 2010 WL 4125655 at *8. First, the court reasoned that the nature of Walsh’s comments addressed a public matter (in this case, draft legislation affecting problems of condominium conversion) so his statements were in furtherance of his right to petition the government. Id. The court also acknowledged that Walsh’s comments reflected the purpose of the public meeting and were related to his comments to the alderman’s representatives, and were thus protected speech. Id. In addition, the statements affected the public and were also protected as such. Id.

Furthermore, the Illinois Supreme Court made clear that the activity in question need not be directed at government officials to be immunized. 2010 WL 4125655 at *9. Indeed, “the Act expressly encompasses exercises of political expression directed at the electorate as well as government officials.” [Emphasis in original.] Id. The court went on to hold that because “the electorate” is included in the definition of “government” (735 ILCS 110/10), the Act does not require a “direct appeal to a government official.” 2010 WL 4125655 at *10. This unequivocal statement of the law reinforces the Act’s broad scope: statements to the media also receive protection under the Act.

The practical implications of Wright Development are far-reaching for civil practitioners:

Suits which implicate a defendant’s constitutional rights expose the plaintiff to risk of liability.
Practitioners should be wary of filing a suit which could potentially be construed as a SLAPP suit. Likewise, practitioners should consider voluntarily dismissing their claim if it becomes clear that the Act has been violated. The Act contains a mandatory attorneys fees and costs provision. Specifically, the Act mandates that a prevailing moving party be awarded “reasonable attorney’s fees and costs incurred in connection with the motion.” 735 ILCS 110/25. Although the phrase “in connection with the motion” was not defined in Wright Development, the subtext of the opinion suggests a broad definition should be applied. In Wright Development, the Illinois Supreme Court thoroughly addressed the policy behind the Citizen Participation Act. Because the Act protects citizens who have properly exercised their constitutional rights “to the maximum extent permitted by law” (735 ILCS 110/5), it would seem that a prevailing party should be entitled to be made nearly whole for suits brought in violation of the Act.

Broad application of the Citizen Participation Act.
As demonstrated in Wright Development, the application of the Citizen Participation Act is broad. For starters, the court made clear that there is no requirement that the activity in question involve a direct petition to a government official. Instead, the Act provides broader protection, including statements made to the electorate through the media. There is no question that a liberal definition applies to “any act or acts of the moving party in furtherance of the moving party’s rights of petition, speech, association, or to otherwise participate in government.” 735 ILCS 110/15. While the farthest limits of the Act’s application have yet to be tested, practitioners should be mindful of the precedent set here by the Illinois Supreme Court.

The Act arguably also raises issues that practitioners may wish to challenge. In his concurring opinion on Wright Development, Justice Freeman, joined by two other justices, foreshadowed issues that may be ripe for challenging portions of the Act in the near future:

Constitutionality.
In Justice Freeman’s concurring opinion, he notes that the constitutionality of the Citizen Participation Act’s interlocutory appeal provision has already been called into question. 2010 WL 4125655 at *12, citing Mund v. Brown, 393 Ill.App.3d 994, 913 N.E.2d 1225, 332 Ill.Dec. 935 (5th Dist. 2009). The Act directs that “[a]n appellate court shall expedite any appeal or other writ, whether interlocutory or not, from a trial court order denying that motion or from a trial court's failure to rule on that motion within 90 days after that trial court order or failure to rule.” 735 ILCS 110/20(a). The Mund court recognized that Article VI, §6 of the Illinois Constitution vests the power to make rules concerning interlocutory appeals solely with the Supreme Court. Thus, any statute purporting to make rules about interlocutory appeals may be in violation of the Illinois Constitution’s separation of power clause. The issue has yet to be determined by the Illinois Supreme Court.

Procedural Dilemmas.
In addition, Justice Freeman discussed the problem with “stand-alone” Citizen Participation Act motions. First, he argues that the Act does not permit stand-alone Act motions. 2010 WL 4125655 at *11. He reasoned that such motions are properly brought under §2-619 of the Illinois Code of Civil Procedure. He further argues that the problem with stand-alone motions is that the current Supreme Court Rules do not provide for an interlocutory appeal process for such motions. Since Wright Development, the First District Appellate Court dismissed an interlocutory appeal from the denial of a stand-alone Act motion based on a lack of jurisdiction. See Stein v. Krislov, No. 1-09-3478, 2010 WL 4517358 (1st Dist. Nov. 8, 2010). However, according to Justice Freeman, the court’s opinion in Wright Development “virtually guarantees the filing of more stand-alone ‘Act motions.’ ” 2010 WL 4517358 at *12. As such, S.Ct. Rule 306 may need to be amended in the future to accommodate practitioners.