By: Steven M. Puiszis
Introduction
Through the enactment of the Citizen Participation Act,[1] Illinois has joined a growing number of other states that have enacted so-called anti-SLAPP legislation.[2] “Strategic lawsuits against public participation” or “SLAPPs” refer to the use of civil litigation in an attempt to chill citizen participation in government.[3] A fairly typical SLAPP suit is brought a by developer, “unhappy with public protest over a proposed development, filed against critics in order to silence criticism of the proposed development.”[4] A SLAPP suit can be premised on any number of legal theories, including conspiracy, defamation, tortious interference with contract or prospective economic advantage and/or malicious prosecution.
The Illinois Citizen Participation Act broadly protects an individual’s constitutional rights “to petition, speak freely, associate freely, and otherwise participate in and communicate with government.”[5] The Act’s legislative history indicates that it is based on the Noerr-Pennington doctrine,[6] which extends the protection of the First Amendment to certain types of anti-competitive activity designed to influence governmental action that would otherwise violate the Sherman Act.[7] The Noerr-Pennington doctrine[8] is based upon the recognition that “[i]n a representative democracy … the whole concept of representation depends upon the ability of the people to make their wishes known to their representatives.”[9]
Section 5 of the Citizen Participation Act states it is the public policy of Illinois “that the constitutional rights of [its] citizens and organizations to be involved and participate freely in the process of government must be encouraged and safeguarded with great diligence.”[10] It recognizes that “[t]he information, reports, opinions, claims, arguments and other expressions provided by citizens are vital to effective law enforcement, the operation of government, the making of public policy and decisions, and the continuation of representative democracy.”[11]
Nature and Scope of the Immunity Provided
The Citizen Participation Act is ostensibly directed at combating the phenomena of SLAPP lawsuits. However, the Act’s reach is expansive, and the protection which it provides is noteworthy in both its nature and its scope. The legislature explained that the Act’s breadth was intended “to protect a citizen’s rights “to the maximum extent permitted by law,”[12] and indicated that the Act “shall be construed liberally to [fully] effect its purposes and intent.”[13]
Section 15 of the Act makes it applicable to any type of “claim”[14] in any type of judicial proceeding that is “based on, relates to, or is in response 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.”[15] Section 15 further provides that acts in furtherance of the “moving party’s rights to petition, speech, association and participation in government are immune from liability, regardless of intent or purpose.”[16]
The term “moving party” is defined in the Act as “any person on whose behalf a motion is …filed seeking dismissal of a judicial claim.[17] The term “person” includes any “individual, corporation, association, or organization, partnership, 2 or more persons having a joint or common interest, or other legal entity.” Thus, literally any person, group or organization can avail itself of the Act’s protection in appropriate circumstances.
The Act broadly defines the term “government” to include “a branch, department, agency, instrumentality, official, employee, agent or other person, acting under color of law of the United States, a state, a subdivsion or a state, or another public authority including the electorate.”[18] Accordingly, the Act seemingly reaches virtually any type of attempted participation in any aspect of the governmental processes from the local to the national level.
The Citizen Participation Act does not limit its application to claims involving matters of “public interest” or “public concern.” Its protection is also not necessarily limited to suits brought against the moving party by individuals or entities who had sought some form of permit, license, lease or zoning approval from a governmental entity. Nor is the Act strictly limited to a moving party’s statements or conduct that occurred in connection with, or that relates to any type of governmental or regulatory hearing or proceeding.[19]
Section 15 of the Act does contain a “sham exception” applicable when the moving party’s activities were “not genuinely aimed at procuring favorable government action, result or outcome.”[20] Otherwise, the Act’s protection is absolute in nature, and by its express terms, applies irrespective of the nature of the claim being brought or the legal theory on which a claim is based.[21]
There are however, a number of well-defined and narrowly limited categories of speech, such as obscenity, child pornography and true threats which are not protected by the First Amendment because of their “constitutionally proscribable” content.[22] Because the Citizen Participation Act is intended to protect a person’s First Amendment rights, the Act should not apply to litigation stemming from or involving those categories of unprotected speech.
Burden of Persuasion and Proof
Once the Act has been raised, Section 20(c) mandates that the motion be granted and the plaintiff’s claim be dismissed unless the court “finds that the responding party has produced clear and convincing evidence that the acts of the moving party are not immunized from, or are not in furtherance of acts immunized from liability by this Act.”[23] Unlike other immunity statutes in Illinois such as the Local Governmental Tort Immunity Act,[24] where the burden of persuasion always remains on the defendant,[25] once the Citizen Participation Act has been raised, the burden shifts to the plaintiff to overcome the Act’s protection.
However, the Act’s burden-shifting approach is consistent with how common-law privileges are handled in Illinois. As one appellate court noted: “Illinois courts have consistently held in tortious interference actions involving conditional privileges that the plaintiff bears the burden of pleading and proving the absence of privilege.”[26] The Act’s burden-shifting approach is also similar to how the defense of qualified immunity is addressed in §1983 claims.[27] Additionally, Illinois courts have similarly applied a clear and convincing evidence standard when addressing Noerr-Pennington’s sham exception.[28] Accordingly, the Citizen Participation Act’s approach to the burden of persuasion and proof should not be viewed as extraordinary.
Expedited Hearing and Appeal Procedures, Stay of Discovery and Attorney Fees
Not only does the Citizen Participation Act broadly provide absolute immunity to the moving party, it requires that once the Act’s protection has been raised through a motion,[29] an expedited hearing be held. The hearing and decision on any motion raising the Act “must occur within ninety (90) days after the notice of the motion is given to the respondent.”[30] The Act further requires that discovery be suspended pending a court’s ruling on the motion and provides that discovery can only occur with “leave of court for good reason shown, on the issue of whether the movants acts are not immunized from, or not in furtherance of acts immunized from, liability by this Act.”[31]
The Act also provides for an expedited appeal either from a trial court’s order denying a motion raising the Act, or a trial court’s failure to rule on that motion.[32] Finally, the Act contains an attorney’s fee provision and specifies that a court “shall award a moving party who prevails under the Act reasonable attorneys fees and costs incurred in connection” with bringing such a motion.[33]
Potential Application to Claims Against Governmental Officials or Employees
While the Act is primarily directed at citizens who petition, contact or lobby state or local governmental officials, the plain language of the Act is broad enough to encompass claims brought against governmental employees so long as the claim relates to an employee’s participation in the affairs of government or the exercise of his or her speech or associational rights. Section 15 of the Act makes its protection applicable to “any act or acts of the moving party in furtherance of the moving party’s rights.” Section 10 defines the term “moving party” as “any person.” Thus, Section 15 protects “any person’s” First Amendment rights, and even governmental employees should be entitled to raise its protection in appropriate circumstances.[34]
The Citizen Participation Act was clearly intended to provide an additional line of defense to those defenses and immunities heretofore available under Illinois’ common law or the Local Governmental Tort Immunity Act. It should not be overlooked when defending a claim that arguably involves your client’s petition, speech or associational rights.
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[1] 735 ILCS 110/1 et. seq.
[2] See, e.g., Shannon Hartzler, Note, Protecting Informed Public Participation: Anti-SLAPP Law and the Media Defendant, 41 Val U L. Rev. 1235 (2007); Mark J. Sobczak, Note, Slapped in Illinois: The Scope and Applicability of the Illinois Citizen Participation Act, 28 N. Ill. U L. Rev. 559 (2008) (noting there are more than 20 other states that have enacted anti-SLAPP laws).
[3] Section 5 of the Illinois Citizen Participation Act explains: “The threat of SLAPPs significantly chills and diminishes citizen participation in government, voluntary public service, and the exercise of these important constitutional rights. The abuse of the judicial process can and has been a means of intimidating, harassing or punishing citizens and organizations for involving themselves in public affairs. “ See 735 ILCS110/5.
[4] Westfield Partners, Ltd, v. Hogan, 740 F.Supp. 523, 525 (N.D.Ill. 1990).
[5] 735 ILCS 110/5.
[6] See Sobczak, SLAPPED In Illinois, supra note 2, at 569-70.
[7] 15 U.S.C. §1, et. seq.
[8] See Eastern Rail Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127, 138 ,145 (1961) (holding an advertising and lobbying campaign brought by a group of railroads designed to influence governmental action curtailing the use of trucks for long-distance hauling was permitted under the First Amendment, and as a result, their actions did not violate federal antitrust laws); United Mine Workers v. Pennington, 381 U.S. 657, 670 (1965) (explaining that Noerr shields from the Sherman Act “a concerted effort to influence public officials regardless of intent or purpose” and that “[j]oint efforts to influence public officials do not violate the antitrust laws even though intended to eliminate competition”). Pennington involved a union’s successful petition of the Secretary of Labor to raise the minimum wage paid to coal miners that effectively forced smaller coal-mining companies out of business. In California Motor Transport v. Trucking Unlimited, 404 U.S. 508 (1972), the Court extended Noerr’s reach to the institution of administrative and adjudicatory proceedings and also extended Noerr’s “sham exception to litigation.”
[9] Noerr, 365 U.S. at 137.
[10] 735 ILCS 110/5.
[11] Id.
[12] 735 ILCS 110/5.
[13] 735 ILCS 110/30(b).
[14] The terms “judicial claim” and/or “claim” are defined in Section 10 of the Act to “include any lawsuit, cause of action, claim, cross-claim, counter-claim, or other judicial pleading or filing alleging injury.” See 735 ILCS 110/10.
[15] 735 ILCS 110/15 (emphasis added).
[16] Id. (emphasis added). The “regardless of intent or purpose” provision found in Section 15 of the Act appears to have been taken directly from the Supreme Court’s Pennington decision. 365 U.S. at 670.
[17] See 735 ILCS 110/10.
[18] Id.
[19] For a discussion of other state’s anti-SLAPP laws, several of which contain these types of limitations noted in the text above, see Hartzler, Anti-SLAPP and the Media Defendant, supra note 2, at 1248-70; Sobczak, SLAPPED in Illinois, supra note 2, at 576-87.
[20] 735 ILCS 110/15. In Noerr, the Supreme Court recognized a “sham” exception where the First Amendment defense would be inapplicable. 365 U.S. at 144. Subsequently, in City of Columbia v. Omni Outdoor Advertising, Inc., 499 U.S. 365 (1991), the Court rejected a conspiracy exception to the Noerr-Pennington doctrine, Id. at 383, and concluded that Noerr’s sham exception could not be invoked where a defendant’s actions were “genuinely aimed at procuring favorable governmental action.” Id. at 380. In Professional Real Estate Investors, Inc. v. Columbia Pictures, 508 U.S. 49, 60 (1993), the Court further explained that Noerr’s sham exception is generally limited to First Amendment activities that are “objectively baseless” in the sense that “no reasonable litigant could realistically expect success on the merits.”
[21] Myers v. Levy, 348 Ill. App. 3d 906, 808 N.E. 2d 1139, 1151 (2d Dist. 2004), rejected the Noerr-Pennington doctrine as a defense to a defamation, false light and tortious interference claim brought by a former high school football coach against the parents of several of his players who had petitioned the school district for his dismissal as head coach. Since the Citizen Participation Act’s immunity applies regardless of the intent or purpose of the moving party, any precedential value Myers retains following the passage of the Act remains to be seen. Under sections 15, and 20(c) of the Citizen Participation Act, the plaintiff in Myers would now have the burden of proving by clear and convincing evidence either that the defendants’ actions were not “immunized” by the Act – in other words they were not “genuinely aimed at procuring favorable governmental action, result or outcome” - or were “not in furtherance of acts immunized from liability” under the Act.
[22] Categories of unprotected speech include: “true threats,” Watts v. United States, 394 U.S. 705, 707-08 (1969) (per curiam); “fighting words,” Chaplinski v. New Hampshire, 315 U.S. 568 (1942); “speech inciting imminent lawless action,” Brandenburg v. Ohio, 395 U.S. 444, 447-49 (1969) (per curiam); “offers to engage in illegal transactions,” United States v. Williams, 128 S.Ct. 1830, 1841 (2008); “obscenity,” Miller v. California, 413 U.S. 15 (1973); “child pornography,” New York v. Ferber, 458 U.S. 747 (1982).
[23] 735 ILCS 110/20(c) (emphasis added). Section 20(c) provides: “The court shall grant the motion and dismiss the judicial claim unless the court finds that the responding party has produced by clear and convincing evidence ….”
[24] 745 ILCS 10/1-101 et seq.
[25] See, e.g., Van Meter v. Darien Park Dist., 207 Ill. 2d 359, 370, 799 N.E.2d 273 (2003) (“Because the immunities afforded to governmental entities operate as an affirmative defense, those entities bear the burden of properly raising and proving their immunity under the Act.”).
[26] King v. Levin, 184 Ill. App. 3d 557, 540 N.E. 2d 492, 495 (1st Dist. 1989) (rejecting the argument that the burden of proof was improperly shifted to plaintiff where the Noerr-Pennington doctrine was raised in a tortious interference with prospective economic advantage claim).
[27] See, e.g. Kernats v. O’Sullivan, 35 F.3d 1171, 1176 (7th Cir. 1994).
[28] See Ray Dancer, Inc., v. DMC Corp., 230 Ill. App. 3d 40, 55, 594 N.E.2d 1344 (2d Dist, 1992) (“A very narrow ‘sham’ exception to the Noerr-Pennington doctrine provides that the bringing of a lawsuit may be a predicate for antitrust liability when it can be shown, by clear and convincing evidence, that the purpose of the suit is to harm the competitor, not by the results sought, but by the very process of the litigation itself.”)(emphasis added).
[29] The Act can be raised through any type of motion. Section 10 of the Act defines the term “Motion” to include: “any motion to dismiss, for summary judgment, or to strike, or any other judicial pleading filed to dispose of a judicial claim.” 735 ILCS 110/10.
[30] 735 ILCS 110/20(a).
[31] 735 ILCS 110/20(b).
[32] 735 ILCS 110/20(a). However, in Mund v. Brown, et.al., No. 5-08-0178, the Fifth District, on the court’s own motion, questioned the jurisdictional basis for an appeal under §20(a) of the Act. In an order issued August 13, 2008, the appellate court questioned whether §20(a) violates the separation of powers clause found in art. II, §1 of the Illinois Constitution and directed the parties to file supplemental briefs on the issue. The court noted that article VI, section 6 of the Illinois Constitution authorizes the Supreme Court to provide for appeals from less than final judgments, and that Supreme Court Rule 307 governs interlocutory appeals as a matter of right. The court observed that an appeal from an order denying a motion to dismiss raising the Citizen Participation Act does not fall within the ambit of Supreme Court Rule 307(a), is not otherwise subject to an appeal as a matter of right and does not require a finding under Supreme Court Rule 304(a). However, a proposed amendment to Supreme Court Rule 307 has been submitted to the Supreme Court’s Rules Committee for consideration which, if adopted, would obviate the issue raised in Mund.
[33] 735 ILCS 110/25.
[34] Similarly, Illinois courts have permitted local units of government to raise the Noerr-Pennington doctrine. See, e.g., Stahelin v. Forest Preserve Dist. of DuPage County, 376 Ill. App. 3d 765, 803, 877 N.E.2d 1121 (2d Dist. 2007) (“This doctrine has [also] been extended to local governmental bodies to immunize them from suit.”); Village of Lake Barrington v. Hogan, 272 Ill. App. 3d 225, 236, 649 N.E.2d 1366 (2d Dist. 1995) (same).
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