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Unhappy SLAPPers: more muscle for the Citizen Participation Act
The Illinois Supreme Court held that the Act immunized a defamation defendant's statements to a reporter about a developer.
Rejecting lower courts' narrow interpretations of the Citizen Participation Act, 735 ILCS 110/1 et seq, the Illinois Supreme Court has held that the statute immunized a defamation defendant's statements to a reporter as he was leaving a public forum in a Chicago alderman's office. Wright Development Group, LLC v Walsh, 2010 WL 4125655 (Ill Sup Ct).
Facts and lower-court holding
John Walsh, the defendant, owned a condominium unit at 6030 North Sheridan Road in Chicago and was the president of the building's condominium association at the time of the meeting. The building had earlier been converted to condominiums by two limited liability companies, Sixty Thirty LLC and Wright Management, LLC, and two individuals, W. Andrew Wright and his son, James A. Wright, both of whom were members of those LLCs as well as a third LLC, Wright Development Group, LLC, the plaintiff. All three LLCs shared a business address in Palatine.
In 2006, the building's condominium association sued the individual Wrights and the first two LLCs named above, Sixty Thirty LLC and Wright Management, LLC. Wright Development Group, LLC was not named in that suit.
A Chicago alderman convened a forum in 2007 to obtain public input for a proposal to reform the Municipal Code with respect to the sale of condominiums and invited local residents to communicate problems they had experienced with developers and contractors who were building and renovating condominium buildings in the ward.
Around a dozen people spoke at the meeting, including Walsh, who discussed the repairs at his building and the lawsuit against the Wrights and the two LLCs. After the formal question and answer session, Walsh and others, including the alderman's staff, remained in the office discussing the matter for a short time.
As Walsh was about to leave, a report er approached him and asked some questions. Walsh answered by discussing his building's problems, the lawsuit, and his condominium association's need to take out a $1.8 million loan. He referred to the developers as "the Wright Development Group" or "the Wright Group." A local newspaper published Walsh's statements.
Wright Development Group, LLC then filed a complaint alleging defamation per se against Walsh and the newspaper companies. The defendants filed motions to dismiss under section 2-615 of the Code of Civil Procedure. Separately, Walsh filed a motion to dismiss pursuant to the Citizen Participation Act (CPA), asserting that the suit was a "strategic lawsuit against public participation," or "SLAPP," as defined by 735 ILCS 110/5, and requested that briefing on the other motions be stayed.
The court denied Walsh's CPA motion, finding that his statement to the reporter was outside the statute's scope, and denied his motion to reconsider or, alternatively to enter SCR 308 findings. Once briefing on the earlier-filed motions was complete, it granted Walsh's 2-615 motion, holding that under the innocent construction rule, his statements were not actionable, and dismissed the complaint with prejudice.
Walsh appealed the two interlocu-tory orders denying him relief, asserting he was denied his statutory immunity and mandatory attorney's fees under the CPA. In an order pursuant to SCR 23, the appellate court dismissed his appeal as moot. The supreme court allowed his petition for leave to appeal.
"[M]ere dismissal of SLAPP lawsuits [is] insufficient"
The court reviewed the CPA's provision on public policy, which stated that Illinois has seen a disturbing increase in SLAPPs. "'The threat of SLAPPs significantly chills and diminishes citizen participation in government, voluntary public service, and the exercise of these important constitutional rights.' This 'abuse of the judicial process can and has been used as a means of intimidating, harassing, or punishing citizens and organizations for involving themselves in public affairs.'" Wright at *6, quoting 735 ILCS 110/5. The court noted that the legislature directed a liberal construction of the CPA so as to fully effectuate its purposes and intent. 735 ILCS 110/30(b).
Saying "the legislature deemed the mere dismissal of SLAPP lawsuits insufficient" Wright at *7, the court found that Walsh's appeal was not moot. Both determining whether the suit was a SLAPP and, if so, awarding attorney fees and costs constituted significant relief under the CPA, unavailable through section 2-615, the court said.
Because paragraph 15 of the CPA expressly encompasses statements directed at the electorate as well as government officials, the court found that Walsh's statements to the reporter were both on a public matter, that is, the problems of condominium conversion and draft legislation, and in furtherance of his rights of petition, speech, association, or to otherwise participate in government, as required by the same paragraph of the statute to qualify for immunity.
The court also commented that the CPA does not require otherwise protected statements to be made during a meeting and not afterward, as the trial court believed. It reversed the appellate court's judgment and the trial court's interlocu-tory orders, held that the CPA's immunity applied to Walsh, and remanded the case to the circuit court to award Walsh his reasonable attorney fees and costs.
Chicago lawyers Julie Bauer and Lindsay Beyer were local counsel on the amicus brief for the Citizen Media Law Project of the Berkman Center for Internet and Society at Harvard University. Bauer said "The good news for citizens concerned about being SLAPPed is that the supreme court interpreted the statute fairly broadly, consistent with the way it's written. For practitioners, Justice Freeman's concurring opinion, in which he sets forth his procedural expectations for requests for dismissal, is very important."