Justia.com Opinion Summary: Plaintiff, hired as a public school basketball coach in 1999, and made athletic director in 2003, was fired as coach in 2008, following a campaign based on his allegedly abusive and bullying style of coaching. He filed suit for defamation, false light invasion of privacy, civil conspiracy to intentionally interfere with prospective business advantage, and slander per se. The trial court dismissed as a Strategic Lawsuit Against Public Participation under the Citizen Participation Act, 735 ILCS 110/15. The appellate court affirmed. The Supreme Court reversed. The purpose of the Act is to protect citizens who are attempting to speak freely or petition government from retaliatory meritless lawsuits, intended to chill exercise of constitutional rights and impose burdensome expenses. The special summary dismissal under the Act, without discovery, allows attorney fees. For SLAPP protections to apply, plaintiff's claim must be solely based on the movant's rights of petition, speech, association, or participation in government. The Act is not intended to apply to tortious acts and does not create a new privilege concerning defamation. It is possible that defendants could spread lies about plaintiff while at the same time genuinely petitioning government for redress, but such a situation cannot support dismissal as a SLAPP.
Receive FREE Daily Opinion Summaries by Email Court description: The plaintiff in this Lee County lawsuit was hired to be head basketball coach at
Dixon High School in 1999, and, in 2003, he was given the additional position of
athletic director. On April 23, 2008, the school board voted to remove him from his
position as basketball coach. Two days later, on April 25, he filed this civil action for
damages, naming numerous defendants and alleging that they campaigned to have
him removed because they did not like his coaching style. He claimed defamation per
se, false light invasion of privacy, civil conspiracy to intentionally interfere with
prospective business advantage, and slander per se.
The defendants moved to dismiss the complaint as a SLAPP (Strategic Lawsuit
Against Public Participation) under the Citizen Participation Act. They were
successful in the circuit court and in the appellate court. The purpose of the SLAPP
legislation is to protect citizens who are attempting to speak freely or petition their
government from being harassed by retaliatory meritless lawsuits which are intended
to chill the exercise of their constitutional rights and intended to impose burdensome
expenses upon them. The special form of dismissal allowed for by this statute is a
summary one, without discovery, and with attorney fees being allowed. The typical
example of a SLAPP involves citizens who are complaining about zoning and who
are sued by developers.
The Illinois Supreme Court construed the statute to mean that, for a motion to
dismiss as a SLAPP to succeed, the plaintiff’s claim must be solely based on the
movant’s rights of petition, speech, association, or participation in government. Thus,
where a plaintiff files suit genuinely seeking relief for alleged defamation or
intentional torts, the lawsuit is not solely based on the defendant’s constitutional
rights and is not subject to dismissal as a SLAPP. The Act is not intended to protect
those who commit tortious acts and then seek refuge in the immunity conferred by
this statute. The supreme court declined to read into the statute a new privilege
concerning defamation where the legislature had not made clear an intent to do so.
It is possible that the defendants could spread lies about the plaintiff while at the
same time genuinely petitioning government for redress, but such a situation cannot
support dismissal as a SLAPP.
The facts of this case, as alleged in the pleadings, do not show that the plaintiff’s
lawsuit was based solely on the defendants’ exercise of their constitutional rights.
The supreme court said that, here, “the true goal of plaintiff’s claims is not to
interfere with and burden defendants’ free speech and petition rights, but to seek
damages for the personal harm to his reputation from defendants’ alleged defamatory
and tortious acts.” Thus, the defendants have not met their burden of showing that
they are entitled to a SLAPP dismissal.
Both the circuit and appellate courts were reversed. On remand, the circuit court
should consider any remaining grounds for dismissal raised by the defendants,
including protected opinion, fair reporting privilege, and failure to plead the required
elements, including actual malice.
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2012 IL 111443
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
(Docket No. 111443)
STEVE SANDHOLM, Appellant, v. RICHARD KUECKER et al.,
Appellees.
Opinion filed January 20, 2012.
JUSTICE BURKE delivered the judgment of the court, with
opinion.
Chief Justice Kilbride and Justices Freeman, Thomas, Garman,
Karmeier, and Theis concurred in the judgment and opinion.
OPINION
¶1
At issue in this appeal is the applicability of the Citizen
Participation Act (Act) (735 ILCS 110/1 et seq. (West 2008)),
commonly referred to as the anti-SLAPP (Strategic Lawsuits Against
Public Participation) statute, to a lawsuit alleging intentional torts
based on alleged statements by the defendants attacking the plaintiff’s
reputation. The circuit court dismissed plaintiff’s lawsuit in its
entirety, finding defendants immune from liability under the Act. The
appellate court affirmed. 405 Ill. App. 3d 835. For the reasons that
follow, we reverse the judgments of the appellate and circuit courts
and remand the cause to the circuit court for further proceedings
consistent with this opinion.
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BACKGROUND
The plaintiff, Steve Sandholm, filed his initial complaint in the
circuit court of Lee County on April 25, 2008. Plaintiff subsequently
filed three amended complaints, alleging multiple counts of
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defamation per se, false light invasion of privacy, civil conspiracy to
intentionally interfere with prospective business advantage, and
slander per se, against defendants, Richard Kuecker, Ardis Kuecker,
Glen Hughes, Michael Venier, Al Knickrehm, Tim Oliver, Dan
Burke, David Deets, Mary Mahan-Deatherage, NRG Media, LLC,
Greg Deatherage, Neil Petersen, and Robert Shomaker. Plaintiff’s
second amended complaint alleged the following facts.
Plaintiff was hired as the head basketball coach at Dixon High
School beginning with the 1999-2000 school year. In the 2003-2004
school year, he was assigned the additional position of the school’s
athletic director. Plaintiff received positive evaluations of his job
performance during his entire tenure at Dixon High School.
In February 2008, defendants began a campaign to have plaintiff
removed as basketball coach and athletic and activities director due
to their disagreement with his coaching style. Plaintiff alleged that
defendants made multiple false and defamatory statements in various
media as part of their campaign. Defendants Richard and Ardis
Kuecker, Hughes, Venier, Oliver, Burke, Deets and MahanDeatherage formed a group called the “Save Dixon Sports
Committee” and established a Web site called savedixonsports.com.
Richard Kuecker posted a letter on the Web site titled “Hostages
in the Gym,” dated February 28, which stated that plaintiff badgered
and humiliated players and that his conduct was excessively abusive
and constituted bullying. On March 8 and again on March 10, Greg
Deatherage published the “Hostages in the Gym” letter on the
Northern Illinois Sports Beat Web site.
On February 28 and 29, Shomaker sent e-mails to school board
member Carolyn Brechon, stating that plaintiff had “ruined things for
everyone,” and that “many people tell me that [plaintiff’s] half time
speeches are so profanity laced that they want to leave the locker
room.”
On March 11, Venier sent an email to Dixon school board
member James Hay, stating similar comments about plaintiff’s
bullying and abuse of players. On March 14, Richard Kuecker sent an
email to Matt Trowbridge, a reporter for the Rockford Register Star,
stating that plaintiff’s abusive behavior was the same as bullying; that
“we were held hostage for three years”; and that plaintiff was a bad
coach and an embarrassment to the community.
On March 19, defendants presented a petition to the Dixon school
board, a copy of which was posted on the savedixonsports.com Web
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site. The petition stated that plaintiff abused his position of influence,
exhibited a lack of positive character traits, criticized players in a way
that amounted to abuse and bullying, and made demands “bordering
on slavery.” The petition also stated that no one, either “in-house” or
“out-of-house,” wanted to do business with plaintiff in his position as
athletic director at Dixon High School; that plaintiff had alienated
himself from all youth athletic feeder programs; and that plaintiff had
“worn out his welcome in far too many circles to continue to do the
complete and successful job you pay him to do.” After considering
the petition, the school board voted on March 19 to retain plaintiff in
his positions of athletic director and head basketball coach.
On March 21, Venier, Richard Kuecker, Hughes, and Knickrehm
appeared on WIXN Radio, AM 1460 (owned by defendant NRG
Media, LLC), at the request of Knickrehm, general manager of the
radio station, to discuss their dissatisfaction with the school board’s
decision. During the broadcast, defendants stated that plaintiff was
performing adversely in his job as athletic director, that he was an
embarrassment to the community, that no one wanted to do business
with him, and that business owners were finding it harder to support
the sports program at Dixon High School. The broadcast was posted
on the savedixonsports.com Web site for republication to persons
viewing the Web site from March 24 to April 10, and from April 22
to April 26. Also posted to the Web site was a “public service
announcement,” which was broadcast on WIXN radio. In the
announcement, Venier stated that the school board had “failed
miserably”; Oliver stated that plaintiff had been “getting away with
this for years”; and Mahan-Deatherage stated that the problem “goes
across all athletics” and was an embarrassing situation.
On March 21, Petersen, a former school board member, sent a
letter to the school board stating that the proposed code of conduct
was a “slap in the face” and that it should be directed at plaintiff “who
continually demonstrates undesirable behavior and a total lack of
respect for anyone.” He stated further that the funding from corporate
and business entities to support extracurricular programs was in
jeopardy and may evaporate.
On several occasions in March and April 2008, Deatherage
published comments about plaintiff on the Northern Illinois Sports
Beat Web site and on the saukvalleynews.com Web site, including
calling plaintiff a “psycho nut who talks in circles and is only
coaching for his glory.” Deatherage also commented that plaintiff, in
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his role as athletic director, was spending the sports money on the
varsity basketball program to the detriment of other sports programs
at Dixon High School.
On March 26, 2008, Ardis Kuecker posted a letter to the editor on
the saukvalleynews.com Web site, questioning whether the new
athletic code of conduct would force plaintiff “to stop his utilization
of verbal abuse, emotional abuse, bullying and belittling–all aimed
toward his players, as well as power conflicts with his fellow
coaches.”
On April 10, the members of the Save Dixon Sports Committee
sent a letter to Doug Lee, president of the Dixon school board. The
letter stated that for nine years, plaintiff “tore down his players to the
point of humiliation”; that the situation was akin to a “classic abuse
situation” in which the abuser “tells them he loves them”; that parents
and players felt they could not speak up for fear of retaliation by the
coach against the players; and that plaintiff was the “exact opposite”
of what an athletic director should be. On the same day, defendants
posted on their Web site an open letter to the school board containing
the same or similar statements about plaintiff. Also on April 10,
Shomaker sent a letter to school board member Carolyn Brechon,
stating that plaintiff had threatened his son, Eric.
On April 12, Hughes sent a letter to all members of the Dixon
school board, in which he stated that plaintiff’s bullying, berating,
and degrading of his players, threats against them, and his “slave/dog
treatment of [assistant basketball coach] John Empen” should not be
tolerated, and that “evil succeeds when good people do nothing.”
On April 16, an article was published in the Rockford Register
Star, in which several defendants made comments about plaintiff.
Richard Kuecker stated that plaintiff “tore down” players, told them
“they’re no good,” belittled them, “got in their face,” and shook his
finger at them. Hughes stated that plaintiff had blackmailed his son,
Scott, by threatening to give a bad scouting report to a college if Scott
did not stop criticizing plaintiff to outsiders.
On April 23, the Dixon school board voted to remove plaintiff
from his position as basketball coach but retained him as the school’s
athletic director.
On April 24, an article was published in the Dixon Gazette and on
saukvalleynews.com in which Mahan-Deatherage made the following
statement: “Why does there have to be an instance of where someone
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is shoved and pushed? Why can’t all these instances of abuse over 10
years *** isn’t that enough to fire him?”
In May or June 2008, Shomaker met with three officers of the
Junior Dukes Football Program and told them that plaintiff had
treated student athletes badly and used foul or profane language
toward students.
Counts I through XII alleged defamation per se against all
defendants except Petersen. Plaintiff alleged that defendants’ false
and defamatory statements imputed an inability to perform and/or a
want of integrity in the discharge of his duties as basketball coach and
athletic director; prejudiced his ability to perform his job duties;
falsely imputed that plaintiff had engaged in criminal activity; and
caused presumed damages to his reputation. Counts XIII through
XXII, as well as count XVI, alleged false light invasion of privacy
against all defendants except Petersen and Ardis Kuecker. These
counts alleged that defendants’ derogatory and false statements placed
him in a false light before the public and were made with actual
malice or with reckless disregard of the truth or falsity of the
statements. Count XXIII alleged civil conspiracy to interfere with
prospective business advantage against all defendants except
Petersen, based on the fact that plaintiff had a reasonable expectancy
to enter into a valid business relationship with the Dixon School
District to continue his employment as head boys basketball coach
through the 2010-2011 school year. Finally, counts XXIV and XXV
alleged that Petersen’s actions as an individual constituted slander per
se and intentional interference with prospective business advantage.
Following the filing of plaintiff’s second amended complaint,
defendants filed separate motions to dismiss pursuant to section 2615 of the Code of Civil Procedure (735 ILCS 5/2-615 (West 2008)).
Defendants contended, among other things, that the second amended
complaint constituted a SLAPP specifically prohibited by the Act.
The Act applies to “any motion to dispose of a claim in a judicial
proceeding on the grounds that the claim 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.” 735 ILCS 110/15 (West 2008). The Act
immunizes from liability “[a]cts in furtherance of the constitutional
rights to petition, speech, association, and participation in government
***, regardless of intent or purpose, except when not genuinely aimed
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at procuring favorable government action, result, or outcome.” 735
ILCS 110/15 (West 2008).
In response to the dismissal motions, plaintiff filed a responsive
pleading arguing that defendants’ actions were not “in furtherance of
the constitutional rights to petition,” and, even if they were, that such
actions were “not genuinely aimed at procuring favorable government
action, result or outcome.” On the date of the hearing on the motions
to dismiss, plaintiff filed an additional written response. He argued
that the Act is unconstitutional as applied to him as well as to all
public employees in the state. Plaintiff based his constitutional
arguments on article I, section 12, of the Illinois Constitution (Ill.
Const. 1970, art. I, § 12), which guarantees a right to a legal remedy
for all injuries or wrongs received to a person’s privacy or reputation,
and article I, section 6 (Ill. Const. 1970, art. I, § 6), which grants
individuals the right to be free from invasions of privacy. The circuit
court delayed the hearing to allow defendants to respond to plaintiff’s
constitutional arguments.
Following the hearing, the circuit court issued a memorandum
opinion and order dismissing plaintiff’s second amended complaint
in its entirety, finding defendants immune from all claims pursuant to
the Act. The court did not reach the remaining grounds raised in
defendants’ motions to dismiss.
Prior to the circuit court’s decision, plaintiff filed a motion for
leave to file his third amended complaint, which added additional
allegations in count X and an additional count XXVI for false light
invasion of privacy against Shomaker. The circuit court allowed leave
to file the third amended complaint only as to counts X and XXVI,
finding that the remaining counts were identical to those alleged in
the second amended complaint. The circuit court subsequently
dismissed counts X and XXVI of plaintiff’s third amended complaint
on the grounds that the Act barred the claims alleged in those counts.
In response to defendants’ collective motion for attorney fees, the
circuit court awarded fees to defendants pursuant to section 25 of the
Act (735 ILCS 110/25 (West 2008)), in the total amount of
$54,500.78, divided into four separate amounts for the various
attorneys. The court limited the award only to those fees which could
be specifically verified as connected to work done on the motion
under the Act.
Plaintiff appealed the dismissal of his complaints. Defendants,
with the exception of Venier, filed cross-appeals seeking expansion
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of the attorney fee awards to include those fees associated with the
entire defense.
The appellate court affirmed. 405 Ill. App. 3d 835. The court held
that the Act “alters existing defamation law by providing a new,
qualified privilege for any defamatory statements communicated in
furtherance of one’s right to petition, speak, assemble, or otherwise
participate in government *** even with actual malice.” Id. at 851,
855. The court acknowledged that, under its construction, “the Act is
broad, changing the landscape of defamation law”; however, the court
held that it is the duty of the legislature, not the courts, to rewrite the
statute. Id. at 855.
As applied to the facts, the court found that dismissal of plaintiff’s
claims was proper. The court found that defendants’ acts were
“genuinely aimed at procuring favorable government action, result,
or outcome” because reasonable persons could expect the school
board to change its initial decision to retain plaintiff after defendants’
campaign placed public pressure on the board. Id. at 862-63. The
school board decision was a “government process” under the plain
language of the Act. Thus, defendants were acting in furtherance of
their rights to participate in government with the goal to obtain
favorable government action. Id. at 864. The court further held it was
“undisputed that plaintiff’s lawsuit was based on or in response to
defendants’ ‘acts in furtherance.’ ” Id.
The court next rejected plaintiff’s constitutional arguments. With
regard to the right to a remedy under article I, section 12, of the
Illinois Constitution of 1970 (Ill. Const. 1970, art. I, § 12), the court
held that the right to remedy clause is an expression of philosophy
rather than a mandate for a specific remedy. Id. at 851. In the context
of the Act, the court held, the legislature properly exercised its
inherent power to repeal or change the common law by granting a
qualified privilege for speech made in the exercise of the right to
participate in government. Id. at 852. The court found plaintiff’s
equal protection argument to be equally unavailing. The court
disagreed with the plaintiff that the Act places public employees in a
special category because the Act applies, on its face, to any moving
party whose alleged acts were in furtherance of the moving party’s
rights to petition, speak, assemble, or otherwise participate in
government. Id. Finally, the court affirmed the award of attorney fees
by the circuit court, limited to those fees associated with the motion
to dismiss on grounds based on the Act. Id. at 869.
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This court allowed plaintiff’s petition for leave to appeal. Ill. S.
Ct. R. 315 (eff. Feb. 26, 2010). We granted leave to the State to
intervene in the cause as an intervenor-appellee, and we allowed the
American Civil Liberties Union of Illinois, the Illinois Press
Association, the Illinois Broadcasters Association, and the Public
Participation Project to submit an amicus curiae brief in support of
defendants.
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ANALYSIS
I. Citizen Participation Act
In August 2007, Illinois joined more than 20 other states1 in
enacting anti-SLAPP legislation, in the form of the Citizen
Participation Act (735 ILCS 110/1 et seq. (West 2008)). The term
“SLAPP” was coined by two professors at the University of Denver,
George W. Pring and Penelope Canan, who conducted the seminal
study on this type of lawsuit. George W. Pring & Penelope Canan,
“Strategic Lawsuits Against Public Participation” (“SLAPPs”): An
Introduction for Bench, Bar and Bystanders, 12 Bridgeport L. Rev.
937 (1992). “SLAPPs, or ‘Strategic Lawsuits Against Public
Participation,’ are lawsuits aimed at preventing citizens from
exercising their political rights or punishing those who have done so.”
Wright Development Group, LLC v. Walsh, 238 Ill. 2d 620, 630
(2010) (citing generally Penelope Canan & George W. Pring,
Strategic Lawsuits Against Public Participation, 35 Soc. Probs. 506
(1988)). “SLAPPs use the threat of money damages or the prospect
of the cost of defending against the suits to silence citizen
participation.” Walsh, 238 Ill. 2d at 630 (citing 735 ILCS 110/5 (West
2008)). The paradigm SLAPP suit is “one filed by developers,
unhappy with public protest over a proposed development, filed
against leading critics in order to silence criticism of the proposed
development.” Westfield Partners, Ltd. v. Hogan, 740 F. Supp. 523,
525 (N.D. Ill. 1990). A SLAPP is “based upon nothing more than
defendants’ exercise of their right, under the first amendment, to
petition the government for a redress of grievances.” Hogan, 740 F.
Supp. at 525.
1
See Mark J. Sobczak, Comment, SLAPPed in Illinois: The Scope
and Applicability of the Illinois Citizen Participation Act, 28 N. Ill. U. L.
Rev. 559, 559-60, 576 n.149 (2008).
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SLAPPs are, by definition, meritless. John C. Barker, CommonLaw and Statutory Solutions to the Problem of SLAPPs, 26 Loy. L.A.
L. Rev. 395, 396 (1993). Plaintiffs in SLAPP suits do not intend to
win but rather to chill a defendant’s speech or protest activity and
discourage opposition by others through delay, expense, and
distraction. Id. at 403-05. “In fact, defendants win eighty to ninety
percent of all SLAPP suits litigated on the merits.” Id. at 406. While
the case is being litigated in the courts, however, defendants are
forced to expend funds on litigation costs and attorney fees and may
be discouraged from continuing their protest activities. Id. at 404-06.
“The idea is that the SLAPP plaintiff’s goals are achieved through
the ancillary effects of the lawsuit itself on the defendant, not through
an adjudication on the merits. Therefore, the plaintiff’s choice of what
cause of action to plead matters little.” Mark J. Sobczak, Comment,
SLAPPed in Illinois: The Scope and Applicability of the Illinois
Citizen Participation Act, 28 N. Ill. U. L. Rev. 559, 561 (2008).
SLAPPs “masquerade as ordinary lawsuits” and may include myriad
causes of action, including defamation, interference with contractual
rights or prospective economic advantage, and malicious prosecution.
Kathryn W. Tate, California’s Anti-SLAPP Legislation: A Summary
of and Commentary on its Operation and Scope, 33 Loy. L.A. L. Rev.
801, 804-05 (2000). Because winning is not a SLAPP plaintiff’s
primary motivation, the existing safeguards to prevent meritless
claims from prevailing were seen as inadequate, prompting many
states to enact anti-SLAPP legislation. Id. at 805. These statutory
schemes commonly provide for expedited judicial review, summary
dismissal, and recovery of attorney fees for the party who has been
“SLAPPed.” Id.
These characteristics of SLAPPs are reflected in the language of
the Act, particularly section 5, which sets forth the public policy
considerations underlying the legislation:
Ҥ 5. Public Policy. Pursuant to the fundamental
philosophy of the American constitutional form of
government, it 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
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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.
Civil actions for money damages have been filed against
citizens and organizations of this State 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. There has been a disturbing
increase in lawsuits termed ‘Strategic Lawsuits Against
Public Participation’ in government or ‘SLAPPs’ as they are
popularly called.
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.
It is in the public interest and it is the purpose of this Act
to strike a balance between the rights of persons to file
lawsuits for injury and the constitutional rights of persons to
petition, speak freely, associate freely, and otherwise
participate in government; to protect and encourage public
participation in government to the maximum extent permitted
by law; to establish an efficient process for identification and
adjudication of SLAPPs; and to provide for attorney’s fees
and costs to prevailing movants.” 735 ILCS 110/5 (West
2008).
Section 15 of the Act describes the type of motion to which the
Act applies:
“This Act applies to any motion to dispose of a claim in
a judicial proceeding on the grounds that the claim 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.
Acts in furtherance of the constitutional rights to petition,
speech, association, and participation in government are
immune from liability, regardless of intent or purpose, except
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when not genuinely aimed at procuring favorable government
action, result, or outcome.” 735 ILCS 110/15 (West 2008).
A “claim” under the Act includes “any lawsuit, cause of action,
claim, cross-claim, counterclaim, or other judicial pleading or filing
alleging injury.” 735 ILCS 110/10 (West 2008). “Government” is
defined as “a branch, department, agency, instrumentality, official,
employee, agent, or other person acting under color of law of the
United States, a state, a subdivision of a state, or another public
authority including the electorate.” Id.
When a motion to dismiss is filed pursuant to the Act, “a hearing
and decision on the motion must occur within 90 days after notice of
the motion is given to the respondent.” 735 ILCS 110/20(a) (West
2008). Discovery is suspended pending a decision on the motion. 735
ILCS 110/20(b) (West 2008). However, “discovery may be taken,
upon leave of court for good cause shown, on the issue of whether the
movants [sic] acts are not immunized from, or are not in furtherance
of acts immunized from, liability by this Act.” Id. “The court shall
grant the motion and dismiss the judicial claim 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.” 735
ILCS 110/20(c) (West 2008).
Section 25 provides that the court “shall award a moving party
who prevails in a motion under this Act reasonable attorney’s fees
and costs incurred in connection with the motion.” 735 ILCS 110/25
(West 2008). Section 30(b) provides that the Act “shall be construed
liberally to effectuate its purposes and intent fully.” 735 ILCS
110/30(b) (West 2008).
In construing the statute, we bear in mind the familiar principles
of statutory construction. Our primary objective is to ascertain and
give effect to the intent of the legislature. Solon v. Midwest Medical
Records Ass’n, 236 Ill. 2d 433, 440 (2010). The most reliable
indicator of the legislative intent is the language of the statute, which
should be given its plain and ordinary meaning. Id. All provisions of
a statute should be viewed as a whole. Accordingly, words and
phrases should be interpreted in light of other relevant provisions of
the statute and should not be construed in isolation. DeLuna v.
Burciaga, 223 Ill. 2d 49, 60 (2006). We also presume, in interpreting
the meaning of the statutory language, that the legislature did not
intend absurdity, inconvenience, or injustice. Id. Our review of an
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issue of statutory interpretation is de novo. Lee v. John Deere
Insurance Co., 208 Ill. 2d 38, 43 (2003).
Plaintiff argues that the Act is intended to apply only to actions
based solely on the defendants’ petitioning activities and does not
immunize defamation or other intentional torts. In other words, if the
plaintiff’s intent in bringing suit is to recover damages for alleged
defamation and not to stifle or chill defendants’ rights of petition,
speech, association, or participation in government, it is not a SLAPP
and does not fall under the purview of the Act. We agree. Looking at
the statute in its entirety, it is clear that the legislation is aimed at
discouraging and eliminating meritless, retaliatory SLAPPs, as they
traditionally have been defined.
In deciding whether a lawsuit should be dismissed pursuant to the
Act, a court must first determine whether the suit is the type of suit
the Act was intended to address. Under section 15, a claim is subject
to dismissal where it 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.” 735 ILCS 110/15 (West 2008). This description of a
claim subject to the Act must not be construed in isolation but in the
context of the purposes described in the public policy section. One of
the Act’s stated purposes is to “establish an efficient process for
identification and adjudication of SLAPPs.” 735 ILCS 110/5 (West
2008). In the service of that goal, the Act describes a SLAPP suit as
one which “chills and diminishes citizen participation in government,
voluntary public service, and the exercise of these important
constitutional rights.” Id. The Act further identifies a SLAPP as an
“abuse of the judicial process” which “can and has been used as a
means of intimidating, harassing, or punishing citizens and
organizations for involving themselves in public affairs.” Id.
The description of a SLAPP in section 5 mirrors the traditional
definition of a SLAPP as a meritless lawsuit intended to chill
participation in government through delay, expense, and distraction.
Indeed, this court has recognized that the “purpose of the Act is to
give relief, including monetary relief, to citizens who have been
victimized by meritless, retaliatory SLAPP lawsuits because of their
‘act or acts’ made ‘in furtherance of the constitutional rights to
petition, speech, association, and participation in government.’ ”
(Emphasis added.) Walsh, 238 Ill. 2d at 633 (quoting 735 ILCS
110/15 (West 2008)).
-12-
¶ 45
¶ 46
¶ 47
In light of the clear legislative intent expressed in the statute to
subject only meritless, retaliatory SLAPP suits to dismissal, we
construe the phrase “based on, relates to, or is in response to” in
section 15 to mean solely based on, relating to, or 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.” 735 ILCS 110/15 (West 2008). Stated another way,
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 defendants’s rights of petition, speech,
association, or participation in government. In that case, the suit
would not be subject to dismissal under the Act. It is clear from the
express language of the Act that it was not intended to protect those
who commit tortious acts and then seek refuge in the immunity
conferred by the statute.
The Massachusetts Supreme Court reached a similar conclusion
in interpreting that state’s anti-SLAPP law. See Duracraft Corp. v.
Holmes Products Corp., 691 N.E.2d 935 (Mass. 1998). The
Massachusetts anti-SLAPP statute provides, in part:
“In any case in which a party asserts that the civil claims,
counterclaims, or cross claims against said party are based on
said party’s exercise of its right to petition under the
constitution of the United States or of the commonwealth,
said party may bring a special motion to dismiss. The court
shall advance any such special motion so that it may be heard
and determined as expeditiously as possible. The court shall
grant such special motion, unless the party against whom such
special motion is made shows that: (1) the moving party’s
exercise of its right to petition was devoid of any reasonable
factual support or any arguable basis in law and (2) the
moving party’s acts caused actual injury to the responding
party. In making its determination, the court shall consider the
pleadings and supporting and opposing affidavits stating the
facts upon which the liability or defense is based.” (Emphasis
added.) Mass. Gen. Laws ch. 231, § 59H (1994).
The court held that, “[d]espite the apparent purpose of the antiSLAPP statute to dispose expeditiously of meritless lawsuits that may
chill petitioning activity, the statutory language fails to track and
implement such an objective.” Duracraft Corp., 691 N.E.2d at 943.
Accordingly, the court adopted a construction of “ ‘based on’ that
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¶ 48
¶ 49
¶ 50
would exclude motions brought against meritorious claims with a
substantial basis other than or in addition to the petitioning activities
implicated.” Id. The court held that “[t]he special movant who
‘asserts’ protection for its petitioning activities would have to make
a threshold showing through the pleadings and affidavits that the
claims against it are ‘based on’ the petitioning activities alone and
have no substantial basis other than or in addition to the petitioning
activities.” Id. Imposing this requirement on special movants under
the statute would, according to the court, “serve to distinguish
meritless from meritorious claims, as was intended by the
Legislature.” Id.
Our construction of the phrase “based on, relates to, or is in
response to,” in section 15 similarly allows a court to identify
meritless SLAPP suits subject to the Act. This interpretation also
serves to ameliorate the “particular danger inherent in anti-SLAPP
statutes *** that when constructed or construed too broadly in
protecting the rights of defendants, they may impose a counteractive
chilling effect on prospective plaintiffs’ own rights to seek redress
from the courts for injuries suffered.” Mark J. Sobczak, Comment,
SLAPPed in Illinois: The Scope and Applicability of the Illinois
Citizen Participation Act, 28 N. Ill. U. L. Rev. 559, 575 (2008).
Furthermore, construing the Act to apply only to meritless
SLAPPs accords with another express goal in section 5: “to strike a
balance between the rights of persons to file lawsuits for injury and
the constitutional rights of persons to petition, speak freely, associate
freely, and otherwise participate in government.” 735 ILCS 110/5
(West 2008). The Act’s intent to “strike a balance” recognizes that a
solution to the problem of SLAPPs must not compromise either the
defendants’ constitutional rights of free speech and petition, or
plaintiff’s constitutional right of access to the courts to seek a remedy
for damage to reputation. See John C. Barker, Common-Law and
Statutory Solutions to the Problem of SLAPPs, 26 Loy. L.A. L. Rev.
395, 397-98 (1993) (“Plaintiffs must be able to bring suits with
reasonable merit and defendants must be protected from entirely
frivolous intimidation suits designed to chill legitimate participation
in public affairs.”).
We believe that, had the legislature intended to radically alter the
common law by imposing a qualified privilege on defamation within
the process of petitioning the government, it would have explicitly
stated its intent to do so. See In re D.F., 208 Ill. 2d 223, 235 (2003).
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¶ 51
The legislative history of the Act further supports our conclusion that
the legislature intended to target only meritless, retaliatory SLAPPs
and did not intend to establish a new absolute or qualified privilege
for defamation. The sponsor of the bill in the Senate, Senator
Cullerton, stated that the bill was intended to “address the concern
that certain lawsuits that could be filed that significantly would chill
and diminish citizen participation in government or voluntary public
service or the exercise of those constitutional rights.” 95th Ill. Gen.
Assem., Senate Proceedings, April 20, 2007, at 15 (statements of
Senator Cullerton). Senator Cullerton then gave an example of the
type of suit targeted by the bill:
“[L]et’s say a community organization makes
recommendations to a local alderman concerning zoning
changes. They just give advice, then the party that might not
agree with that decision, the vote of the alderman, they–that
person, that landowner would file a lawsuit, not just against
the municipality, but also against the community organization
that gave the advice. Even though all they were doing was
giving advice to their elected officials. So, that’s what the
purpose of the bill is.” 95th Ill. Gen. Assem., Senate
Proceedings, April 20, 2007, at 15-16 (statements of Senator
Cullerton).
The House sponsor, Representative Franks, also described a scenario
as an example of a SLAPP:
“I can tell you in my county, it’d be in the Village of
Richmond, there was [sic] two (2) gentlemen running for
trustees who were ... who won but they were sued by a
developer, threatened with bankruptcy, not being able to pay
their legal fees, even though the ... the developer’s lawsuit
was thrown out on three (3) separate occasions and that would
stop the type of abuse.” 95th Ill. Gen. Assem., House
Proceedings, May 31, 2007, at 58 (statements of
Representative Franks).
The legislators’ statements further support our interpretation that
the Act was aimed solely at traditional, meritless SLAPPs. There was
no discussion in the legislative debates about establishing a new
privilege for defamation. We recognize that the legislature has the
inherent power to repeal or change the common law and may do away
with all or part of it. See, e.g., Michigan Avenue National Bank v.
County of Cook, 191 Ill. 2d 493, 519-20 (2000) (“passage of the Tort
-15-
¶ 52
¶ 53
Immunity Act constituted an exercise of the General Assembly of its
broad power to determine whether a statute that restricts or alters an
existing remedy is reasonably necessary to promote the general
welfare”). We simply do not believe that, in enacting the anti-SLAPP
statute, the legislature intended to abolish an individual’s right to seek
redress for defamation or other intentional torts, whenever the
tortious acts are in furtherance of the tortfeasor’s rights of petition,
speech, association, or participation in government. Dismissal of a
lawsuit pursuant to the Act is a drastic and extraordinary remedy. Not
only is a suit subject to cursory dismissal within 90 days of the
motion being filed, but the plaintiff is prohibited from conducting
discovery, except through leave of court, and is required to pay
defendant’s attorney fees incurred in connection with the motion. In
light of the severe penalties imposed on a plaintiff under the Act, we
will not read into the statute an intent to establish a new, qualified
privilege absent an explicit statement of such intent.
Several of the defendants concede that the Act applies only to
meritless lawsuits, but they argue that the so-called “sham exception”
set forth in the second clause of section 15 is sufficient to separate
SLAPPs from meritorious suits. This exception states 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.” (Emphasis added.)
735 ILCS 110/15 (West 2008). Defendants argue that, where
petitioning activities are genuinely aimed at procuring a favorable
governmental result, a plaintiff’s lawsuit for alleged defamation
occurring in the course of petitioning is, by definition, without merit.
Defendants’ argument is unpersuasive.
The sham exception tests the genuineness of the defendants’ acts;
it says nothing about the merits of the plaintiff’s lawsuit. It is entirely
possible that defendants could spread malicious lies about an
individual while in the course of genuinely petitioning the
government for a favorable result. For instance, in the case at bar,
plaintiff alleges that defendants defamed him by making statements
that plaintiff abused children, did not get along with colleagues, and
performed poorly at his job. Assuming these statements constitute
actionable defamation, it does not follow that defendants were not
genuinely attempting to achieve a favorable governmental result by
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¶ 54
¶ 55
pressuring the school board into firing the plaintiff.2 If a plaintiff’s
complaint genuinely seeks redress for damages from defamation or
other intentional torts and, thus, does not constitute a SLAPP, it is
irrelevant whether the defendants’ actions were “genuinely aimed at
procuring favorable government action, result, or outcome.” Thus,
plaintiff’s suit would not be subject to dismissal under the Act.
Turning to the merits in the case at bar, at issue is whether
plaintiff’s complaint should have been dismissed pursuant to the Act.
At the outset, we note that all of the motions to dismiss in this case
were filed under section 2-615 of the Code of Civil Procedure (735
ILCS 5/2-615 (West 2008)). A section 2-615 motion to dismiss
challenges only the legal sufficiency of a complaint and alleges only
defects on the face of the complaint. Board of Directors of Bloomfield
Club Recreation Ass’n v. The Hoffman Group, Inc., 186 Ill. 2d 419,
423 (1999). A motion to dismiss based on the immunity conferred by
the Act, however, is more appropriately raised in a section 2619(a)(9) motion, which allows for dismissal when the claim asserted
against the defendant is “barred by other affirmative matter avoiding
the legal effect of or defeating the claim” (735 ILCS 5/2-619(a)(9)
(West 2008)). Wright Development Group, LLC v. Walsh, 238 Ill. 2d
620, 641 (2010) (Freeman, J., specially concurring, joined by Thomas
and Burke, JJ.). Immunity from tort liability pursuant to statute is an
affirmative matter properly raised in a section 2-619 motion to
dismiss. See, e.g., Van Meter v. Darien Park District, 207 Ill. 2d 359,
367 (2003) (construing section 2-201 of the Local Governmental and
Governmental Employees Tort Immunity Act (745 ILCS 10/2-201
(West 1994)). Since plaintiff has not been prejudiced by the motions
to dismiss having been filed under section 2-615, we will treat the
parts of the motions asserting immunity under the Act as if they had
been filed under section 2-619(a)(9). See Wallace v. Smyth, 203 Ill.
2d 441, 447 (2002); Gouge v. Central Illinois Public Service Co., 144
Ill. 2d 535, 541-42 (1991).
A motion to dismiss under section 2-619(a) admits the legal
sufficiency of the plaintiff’s claim but asserts certain defects or
defenses outside the pleadings which defeat the claim. Wallace, 203
2
Plaintiff does not argue in this court that defendants’ acts were not
“genuinely aimed at procuring favorable government action, result, or
outcome.”
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¶ 56
¶ 57
Ill. 2d at 447. When ruling on the motion, the court should construe
the pleadings and supporting documents in the light most favorable
to the nonmoving party. Czarobski v. Lata, 227 Ill. 2d 364, 369
(2008). The court must accept as true all well-pleaded facts in
plaintiff’s complaint and all inferences that may reasonably be drawn
in plaintiff’s favor. Morr-Fitz, Inc. v Blagojevich, 231 Ill. 2d 474, 488
(2008). The question on appeal is “whether the existence of a genuine
issue of material fact should have precluded the dismissal or, absent
such an issue of fact, whether dismissal is proper as a matter of law.”
Kedzie & 103rd Currency Exchange, Inc. v. Hodge, 156 Ill. 2d 112,
116-17 (1993). Our review is de novo. Id.
The procedure set forth in the Act provides the proper framework
for our analysis. Section 15 requires the moving party to demonstrate
that the plaintiff’s complaint 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.” 735 ILCS 110/15 (West 2008); Walsh,
238 Ill. 2d at 635. If the moving party has met his or her burden of
proof, the burden then shifts to the responding party to produce “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” under the Act. 735 ILCS 110/20(c) (West 2008); Walsh, 238
Ill. 2d at 636-37. Thus, defendants had the initial burden of proving
that plaintiff’s lawsuit was solely “based on, relate[d] to, or in
response to” their acts in furtherance of their rights of petition, speech
or association, or to participate in government. Only if defendants
have met their burden does the plaintiff have to provide clear and
convincing evidence that defendants’ acts are not immunized from
liability under the Act.
We conclude, based on the parties’ pleadings, that plaintiff’s
lawsuit was not solely based on, related to, or in response to the acts
of defendants in furtherance of the rights of petition and speech.
Plaintiff’s suit does not resemble in any way a strategic lawsuit
intended to chill participation in government or to stifle political
expression. It is apparent that the true goal of plaintiff’s claims is not
to interfere with and burden defendants’ free speech and petition
rights, but to seek damages for the personal harm to his reputation
from defendants’ alleged defamatory and tortious acts. Defendants
have not met their burden of showing that plaintiff’s suit was based
solely on their petitioning activities.
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¶ 58
We emphasize that we express no opinion on the actual merits of
plaintiff’s causes of action. We simply hold that plaintiff’s lawsuit is
not a SLAPP within the meaning of the Act and, thus, is not subject
to dismissal on that basis. Upon remand, the circuit court should
consider any remaining bases for dismissal raised by defendants,
including that defendants’ statements constitute protected opinion,
that the statements are protected under the fair reporting privilege,
and that plaintiff’s complaint failed to adequately plead the required
elements, including actual malice.
¶ 59
¶ 60
II. Constitutional Issues
Plaintiff further contends that the Act as a whole is
unconstitutional under various provisions of the United States and
Illinois Constitutions. See Ill. Const. 1970, art. I, § 12 (right to
remedy and justice); Ill. Const. 1970, art. I, § 4 (freedom of speech);
Ill. Const. 1970, art. I, § 5 (right to apply for redress of grievances);
Ill. Const. 1970, art. I, § 6 (right to be secure against unreasonable
invasions of privacy); Ill. Const. 1970, art. I, § 2 (due process and
equal protection); U.S. Const., amend. XIV (due process and equal
protection). All of plaintiff’s arguments alleging that the Act is
unconstitutional are based on the assumption that the Act establishes
a privilege for defendants who engage in defamatory acts in the
process of petitioning the government. Because we hold that the
legislature did not intend to establish such a privilege, we do not find
the statute unconstitutional under any of the grounds raised by
plaintiff.
¶ 61
¶ 62
III. Attorney Fees
Defendants, with the exception of Venier, appeal that part of the
appellate court’s judgment affirming the circuit court’s award of
attorney fees. This claim was raised in a cross-appeal to the appellate
court. Jurisdiction in this court is pursuant to Supreme Court Rule
318(a) (Ill. S. Ct. R. 318(a) (eff. Jan. 1, 1967)). Poindexter v. State ex
rel. Department of Human Services, 229 Ill. 2d 194, 205 n.4 (2008)
(allowance of one party’s petition for leave to appeal brings before
this court the other party’s requests for cross-relief).
Because we are reversing the appellate court’s judgment affirming
the dismissal of plaintiff’s complaints under the Act, our resolution
of the attorney fee issue will not affect the parties to this case.
¶ 63
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¶ 64
¶ 65
Therefore, the issue is moot. However, we will address the issue
under the public interest exception to the mootness doctrine because
the question is of a public nature in that any individual or legal entity
in the state may be subject to the Act; the issue is likely to recur in
future cases; and a definitive decision by this court will provide
guidance to the lower courts in deciding which attorney fees are
appropriate under the Act. See Goodman v. Ward, 241 Ill. 2d 398,
404-05 (2011).
Turning to the merits, Illinois follows the “American rule,” which
prohibits prevailing parties from recovering their attorney fees from
the losing party, absent express statutory or contractual provisions.
Morris B. Chapman & Associates, Ltd. v. Kitzman, 193 Ill. 2d 560,
572 (2000). Accordingly, statutes which allow for such fees must be
strictly construed as they are in derogation of the common law.
Carson Pirie Scott & Co. v. State of Illinois Department of
Employment Security, 131 Ill. 2d 23, 49 (1989). Although the statute
provides that “[t]his Act shall be construed liberally to effectuate its
purposes and intent fully” (735 ILCS 110/30(b) (West 2008)), this
statement of construction applies to the substantive provisions of the
Act and not to the fee-shifting provision in section 25. This issue
involves the interpretation of a statute and, thus, is subject to de novo
review. DeLuna v. Burciaga, 223 Ill. 2d 49, 59 (2006).
Section 25 of the Act provides: “The court shall award a moving
party who prevails in a motion under this Act reasonable attorney’s
fees and costs incurred in connection with the motion.” 735 ILCS
110/25 (West 2008). In an apparent misreading of the plain language
of the statute, defendants contend that the phrase “incurred in
connection with the motion” does not mean solely in connection with
the motion filed under the Act. Rather, they interpret the phrase to
mean that prevailing movants are entitled to attorney fees incurred in
connection with the entire defense, including attacking the allegations
on the face of the complaint and raising other defenses and privileges
unrelated to the Act. They base their argument on the statute’s
definition of a “motion,” which includes “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 (West 2008). In our
view, the language in section 25 is unambiguous and supports only
one interpretation. Attorney fees “incurred in connection with the
motion” include only those fees which can specifically be delineated
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¶ 66
¶ 67
as incurred in connection with the motion to dismiss filed under the
Act.
Defendants’ reliance on Hensley v. Eckerhart, 461 U.S. 424
(1983), to support their position on the fee issue, is misplaced. There,
the United States Supreme Court interpreted 42 U.S.C. § 1988, which
provides that in federal civil rights actions, “ ‘the court, in its
discretion, may allow the prevailing party, other than the United
States, a reasonable attorney’s fee as part of the costs.’ ” Id. at 426
(quoting 42 U.S.C. § 1988). The Court held that, where a plaintiff
presents several claims for relief in the same lawsuit, and only some
of the claims for relief are successful, attorney fees may be allowed
for all claims involving a common core of facts or based on related
legal theories. Id. at 434-35. The fee-shifting statute in the instant
case obviously differs from the statute in Hensley, in that it
specifically provides that only fees “incurred in connection with the
motion” filed under the Act are allowed to a prevailing movant.
Therefore, any fees incurred which are not specifically connected to
the motion to dismiss pursuant to the Act are not allowed.
We note further that plaintiff presents an argument in his reply
brief challenging the jurisdiction of the circuit court to award fees
under the statute.3 He argues that the circuit court lost jurisdiction to
dismiss his complaints and to award attorney fees to defendants when
it ruled on the motions to dismiss more than 90 days after the motions
were filed. See 735 ILCS 110/20(a) (West 2008) (“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.”). Plaintiff asserts that the circuit court’s failure to
comply with the 90-day requirement caused it to lose jurisdiction of
the case. The argument lacks merit. Nowhere in the Act does it state
that the circuit court loses jurisdiction when it fails to rule on a
motion to dismiss within 90 days of its filing. There is no other
support for plaintiff’s conclusion that the circuit court’s jurisdiction
is dependent upon compliance with the 90-day time limit in the Act.
Moreover, plaintiff himself was responsible for the delay in this case
3
Plaintiff first raised the jurisdictional argument in his motion for
reconsideration in the trial court but did not raise it in the appellate court.
Nevertheless, a lack of subject matter jurisdiction may be raised at any
time, in any court, either directly or collaterally. Fredman Brothers
Furniture Co. v. Department of Revenue, 109 Ill. 2d 202, 215 (1985).
-21-
by filing a last-minute responsive pleading on the date of the hearing
on the dismissal motions. Accordingly, we reject plaintiff’s
jurisdictional challenge to the circuit court’s rulings.
¶ 68
¶ 69
¶ 70
¶ 71
¶ 72
CONCLUSION
For the foregoing reasons, the judgments of the appellate court
and the circuit court are reversed, and the cause is remanded to the
circuit court for further proceedings consistent with this opinion.
Appellate court judgment reversed;
circuit court judgment reversed;
cause remanded.
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