An Illinois appellate court has tentatively concluded that Illinois' newly enacted Citizen Participation Act, which provides immunity for speech related to certain matters of government and public concern, violates the Illinois Constitution because it allows a party to appeal the denial of a motion to dismiss under the Act before the entire case has come to a conclusion.  Mund v. Brown et al., No. 05-L-83 (Ill. App. Ct. Aug. 13, 2008).   If the court, which has asked the parties and the Illinois Attorney General to brief the issue, ultimately invalidates the right to file an interlocutory appeal, it would significantly undermine the effectiveness of this important new law.

The Illinois Citizen Participation Act (CPA), 735 Ill. Comp. Stat. 110 (2007), went into effect on August 28, 2007 and is the most recent addition to the growing list of state anti-SLAPP laws.  (SLAPP stands for "Strategic Lawsuit Against Public Participation" and refers to lawsuits filed in retaliation against the target's speaking out on a public issue or controversy.) SLAPPs are typically brought by corporations, developers, or government officials against individuals or community organizations that oppose their actions. To guard against the chilling effect of SLAPPs, twenty-six states have some form of anti-SLAPP law. For information on SLAPPs and the various state laws that protect against them, see our legal guide.

The CPA, the first law of its kind in Illinois, provides immunity for speech related to certain matters of government and public concern. The preamble to the CPA explains the legislature's purpose in passing the Act:

[I]t is declared to be the public policy of the State of Illinois that the constitutional rights of citizens and organizations to be involved and participate freely in the process of government must be encouraged and safeguarded with great diligence. The 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. The laws, courts, and other agencies of this State must provide the utmost protection for the free exercise of these rights of petition, speech, association, and government participation.

To effectuate this policy, the CPA allows a party who has been sued as a result of the exercise of the aforementioned rights to file a motion to dispose of the lawsuit which a court must grant unless it 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." 735 Ill. Comp. Stat. 110/20. Under the CPA, all actions "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 Ill. Comp. Stat. 110/15. The Act also requires that all discovery must be suspended pending a decision on a motion under the CPA, and that the movants are entitled to attorney’s fees and costs if they prevail. For more information on the CPA, see the Illinois anti-SLAPP section of our legal guide.

Because SLAPP filers often seek to intimidate and silence their targets through the threat of an expensive lawsuit, it is critical that anti-SLAPP laws contain provisions that allow defendants to quickly extinguish meritless claims and to file expedited appeals when judges refuse to dismiss such claims.  As anyone who has had experience with the American legal system knows, even meritless lawsuits can be expensive to defend because the U.S. legal system generally gives the benefit of the doubt to a party bringing a lawsuit until the fact-finding stage, and a winning defendant is not usually entitled to attorneys' fees and other defense costs (as in some other countries). This means that, even if the lawsuit ultimately fails, the process of defending against a SLAPP can be a daunting and expensive prospect for many individuals.

To avoid this form of intimidation, the CPA allows a party who believes it has been the subject of a SLAPP to get a speedy decision on a motion to dismiss and to file an expedited appeal of a court's denial even before the case has come to a full conclusion.  Section 20(a) of the CPA states:

On the filing of any motion as described in Section 15, a hearing and decision on the motion must occur within 90 days after notice of the motion is given to the respondent. An 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. 

It is the CPA's interlocutory appeal provision that is proving to be the problem in the Mund case ("interlocutory" is a legal term that refers to a judicial order or decree that is issued prior to the termination of a cause of action).  Without getting into too much of the facts, which don't involve online publication, here is a summary: Louis Mund filed a lawsuit alleging malicious prosecution, abuse of process, and intentional infliction of emotional distress against a number of individuals, claiming that they had, among other things, challenged his acquisition of certain parcels of land.  In February 2008, the defendants filed two motions to dismiss the claims against them pursuant to the CPA.  The trial court heard oral argument on the motions that same month and on March 14, 2008, denied the motions in a one-page order that did not explain the court's reasons for doing so.

The defendants quickly appealed the denial, but before Mund had filed his brief in support of the lower court's decision, the Appellate Court of Illinois, Fifth Judicial District, issued an order questioning whether the CPA is constitutional:

This statute presents a separation of powers issue where its creation of an appeal by right from an interlocutory order is in apparent conflict with article VI, section 6, of the Illinois Constitution of 1970, which prescribes that the Supreme Court may provide for appeals from less than final judgments, and Supreme Court Rule 307, which prescribes the necessary jurisdictional conditions precedent for pursuing interlocutory appeals by right. An order denying a motion to dismiss does not fall within the ambit of Supreme Court Rule 307(a) and is not otherwise subject to an appeal by right. If the statute is in violation of the separation of powers provision in our State constitution, then the appeals must fail for lack of appellate jurisdiction[.]

The court also ordered the parties to file supplemental briefs within 35 days, and gave the Illinois Attorney General the option to intervene, addressing the separation of powers issue the court identified.

While this might seem like only a technical issue, it goes to the very heart of the CPA and other state anti-SLAPP laws.  The right to appeal the denial of an anti-SLAPP motion is essential to effectuating the laudable policies behind these laws.  It is relatively easy for plaintiffs to succeed at the motion to dismiss stage under normal pleading rules (a court will presume that the plaintiff's factual allegations are true, after all).  If a court puts off the more stingent analysis demanded by the CPA until a later stage in the litigation, it will do the defendant little good to be vindicated in the end because he or she will have had to expend a small fortune taking depositions, defending depositions, reviewing documents, and filing a motion for summary judgment.  For SLAPP filers, forcing defendants to incure these costs equates to "Mission Accomplished."  The CPA was passed to prevent shakedowns of this nature.

Should Mund's claims have been dismissed under the CPA?  I have no idea because the trial judge issued a one-page order that provides no explanation why he denied the defendants' motions to dismiss.  This cursory treatment is not what the Illinois legislature intended when it passed the CPA, which requires that judges apply a heightened level of scrutiny to claims that fall within the Act's ambit.  At least we can rely on an appellate court to scrutinize Mund's claims before any possible further damage is done, right?  Wrong.  

If Illinois appellate courts can't hear interlocutory appeals under the CPA, it won't just be these defendants who lose.  Anyone engaged in the activities the CPA ostensibly protects will be back in the cross-hairs of well-financed plaintiffs who will be empowered (again) to get their way through the threat of expensive litigation in Illinois.

(Thanks to B.K. for alerting us to the court's decision.)