Court considers applicability of Citizen Participation Act

Marty Dolan, principal at Dolan Law, and his associate Karen Munoz represent victims of wrongful death and personal injury. His column “Law and Wellness” appears in the Chicago Lawyer and her column appears regularly in the Law Bulletin. This week’s blog is written by Karen Munoz.

The Citizen Participation provides that all ‘[a]cts in furtherance of the constitutional rights to petition, speech, association and participation in government are immune from liability, regardless of intent or purpose, except when not genuinely aimed at procuring favorable government action, result, or outcome.” 735 ILCS 110/15. The Citizen Participation Act seeks to extinguish Strategic Lawsuits Against Public Participation (SLAPPs) and protect citizen participation by:

a)      Immunizing citizens from civil actions based on acts made in furtherance of a citizen’s speech rights or right to petition government;

b)      Establishing an expedited legal process to dispose of SLAAPs both before the trial court and appellate court; and,

c)      Mandating a prevailing movant to be awarded reasonable attorney fees and costs incurred in connection with the motion.

The Appellate Court case of August v. Hanlon, 2012 IL App (2d) 111252 (Sept. 6, 2012) discussed the applicability of the Citizen Participation Act. August was a business agent and union organizer for Local 150 of the International Union of Operating Engineers. The defendant is an attorney whose services were engaged by Merryman Inc. Merryman had filed a lawsuit alleging that August and another individual solicited money from Merryman under false pretenses. The defendant gave a quote to a local newspaper regarding these allegations. The plaintiff believes that this statement was designed to falsely accuse the plaintiff of defrauding and stealing from the defendant’s client. The defendant filed a motion for summary judgment in the present case on the basis that the Citizen Participation Act granted him immunity. The defendant also filed for costs and attorney fees in bringing this motion. The motion for summary judgment was granted but the motion for sanctions was denied.

The plaintiff appealed the denial of his motion to reconsider and the defendant appealed the denial of sanctions. It was held by the Appellate Court that the Citizen Participation Act does not apply to the present set of facts. It was also found that the plaintiff’s objective in filing suit was not solely to interfere with the defendant’s right to petition, but to protect his reputation and goodwill in community, resulting from  the defendant’s allegedly false and defamatory statements. The court relied on the Supreme Court case of Sandholm v. Kuecker, 2012 IL 111443, which stated that the act intended “to target only meritless, retaliatory SLAPPs and did not intend to establish a new absolute or qualified privilege for defamation.” Sandholm ¶50.

The court in Sandholm found that “where a plaintiff files suit genuinely seeking relief for damages for the alleged defamation or intentionally tortious acts of defendants, the lawsuit is not solely based on defendant’s rights of petition, speech, association or participation in government. In that case, the suit would not be subject to dismissal under the Act.” Sandholm ¶45. The defendant bears the initial burden of proving that the plaintiff’s lawsuit was solely based on, related to, or in the response to the defendant’s acts in furtherance of their rights of petition, speech or association, or to participate in government. If the defendants met their burden, then, the burden would shift to the plaintiff to provide clear and convincing evidence that the act did not immunize them from liability.

In the present case it was found that the plaintiff’s objective in filing suit was to seek damages for the personal harm to his reputation resulting from defendant’s allegedly false and defamatory statements. The court found that the plaintiff’s complaint was supported by concrete examples, which were, in part, undertaken to protect the plaintiff’s reputation and goodwill in the community.

Therefore, it is clear that the act will not act as a blanket defense for all defamation cases. For the act to apply that the defendant failed to prove that the plaintiff’s complaint was based solely on the defendant’s exercise of his constitutional rights of petition, speech, association, or to participate in government. Then, and only then, will the burden shift to the plaintiff to provide clear and convincing evidence that the defendant’s acts were not covered by the act.

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