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SLAPP suits take a hit: a new bill would discourage developers and others from suing - and thus trying to silence - opponents of their subdivisions, landfills, and the like.

Inherent in the idea of a democracy are the rights of citizens to participate in government, to express their views on subjects of public interest, and to petition government officials for action on those subjects. When people realize that they might get sued for engaging in any of those activities, however, they may make a rational economic decision not to take part in such constitutionally protected activities.

The general Assembly has acted to curb such lawsuits, known as SLAPPs. By unanimous votes in both houses, the general Assembly passed SB 1434, termed the Citizen Participation Act.

Strategic Lawsuit Against Public Participation

SLAPP stands for Strategic Lawsuits Against Public Participation. The bill defines the term at section 5: a civil action for money damages filed against a citizen or organization as a result of their valid exercise of their constitutional rights to petition, speak freely, associate freely, and otherwise participate in and communicate with government. In the same section, the bill notes a disturbing increase in such suits.

SLAPPs frequently arise in the context of real estate development, according to Springfield lawyer Donald Craven, general counsel to the Illinois Press Association. Perhaps a developer proposes a project such as a subdivision--or a landfill, or a factory farm--in an area where none yet exist.

Property owners in the area get wind of the project and decide to take an active role in opposing it. They may exercise their opposition by attending meetings of the county board or zoning board of appeals, writing letters to their elected representatives or newspapers, demonstrating peacefully, or circulating petitions. Though such actions are protected by the United States Constitution, someone standing to profit from the proposed development--the developer, perhaps--may file suit against those opposing the project, alleging defamation, interference with contract, or some other tort.

A SLAPP may have little or no chance of success on its merits, Craven says. But merely filing the SLAPP serves the plaintiff's purpose because the project opponents have to dedicate resources they might have used for further constitutionally protected activity directed against the project to hiring counsel and defending the lawsuit. Thus, as the public policy section of SB 1434 observes, both SLAPPs and the threat of SLAPPs deter citizens from engaging in important constitutionally protected activity.

"[T]he statute will have to be used"

Section 15 of SB 1434 makes it applicable to any motion to dispose of a claim in a judicial proceeding on the grounds that the claim relates to an act of the moving party in furtherance of his or her rights of petition, speech, association, or otherwise to participate in government. The section further provides that "[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."

The bill provides that upon the filing of a motion to dispose of such a claim, the court must convene a hearing and make a decision on the motion within 90 days after notice of the motion. Discovery is suspended pending a decision on the motion, except that with leave of court for good cause shown, discovery is permitted on whether the movants' acts are not immunized from liability under the act.

Unless the responding party produces clear and convincing evidence that the moving party's acts are not immunized under the statute, the court is to grant the motion and dismiss the claim. The bill directs the appellate court to expedite any appeal from a trial court's failure to rule on the motion within that period or from a trial court order denying the motion.

The bill goes on to provide a strong disincentive for filing a SLAPP: section 25 requires the court to award the prevailing movant reasonable attorney's fees and costs incurred in connection with the motion. The act does not provide fees to a prevailing respondent.

Craven notes that SLAPPs may also arise in the context of consumer opposition to certain products or other business or government activities. He hails the passage of SB 1434 as a needed antidote to the chilling effect of SLAPPs on constitutionally protected citizen activity. "I have no doubt that the statute will have to be used," Craven predicts, to chill the inclination to file SLAPPs.

SB 1434 was sent to the governor June 29, 2007. Read more about SLAPPs at http://chillingeffects.org/, the Chilling Effects Clearinghouse (a joint project of the Electronic Frontier Foundation and Harvard, Stanford, Berkeley, University of San Francisco, University of Maine, George Washington School of Law, and Santa Clara University School of Law clinics), and http://www.casp.net/, the California Anti-SLAPP Project.

Helen W. Gunnarsson is an attorney and writer in Highland Park. She can be reached at <gunnarssonhg@comcast.net>.
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Title Annotation:Strategic Litigation Against Public Participation; Illinois
Author:Gunnarsson, Helen W.
Publication:Illinois Bar Journal
Date:Sep 1, 2007
Words:804
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