Appeal from the Circuit Court of McHenry County. No. 06-LA-371 Honorable Michael W. Feetterer, Judge, Presiding.
The opinion of the court was delivered by: Justice Hudson
Appeal from the Circuit Court of McHenry County. No. 06-LA-371 Honorable Michael W. Feetterer, Judge, Presiding.
JUSTICE HUDSON delivered the judgment of the court, with opinion. Justices Zenoff and Burke concurred in the judgment and opinion.
¶ 1 Plaintiff, Charles August, filed in the circuit court of McHenry County a complaint against defendant, Robert Hanlon. As amended, the complaint contained one count of slander per quod and one count of false light invasion of privacy. The trial court granted defendant's motion for summary judgment on the basis that the Citizen Participation Act (Act) (735 ILCS 110/1 et seq. (West 2010)) provided defendant immunity from the claims alleged by plaintiff. In conjunction with the judgment, the trial court denied defendant's request for attorney fees. Thereafter, each party filed a motion to reconsider and defendant filed a motion for sanctions pursuant to Illinois Supreme Court Rule 137 (eff. Feb. 1, 1994). The trial court denied the relief requested by the parties, and they both appealed. In appeal No. 2-11-1252, plaintiff argues that the trial court erred in finding that the Act applies to this case. In appeal No. 2-11-1280, defendant challenges the trial court's denial of attorney fees and sanctions. On our own motion, we consolidated the parties' appeals. For the reasons that follow, we find that the Act does not apply to the facts of this case and that, therefore, defendant's requests for attorney fees and sanctions are moot. Accordingly, the judgment of the trial court is affirmed in part and reversed in part and the cause is remanded for further proceedings.
¶ 3 This case involves the application of the Act, Illinois's version of an anti-SLAPP statute. 735 ILCS 110/1 et seq. (West 2010). The term "SLAPP" is an acronym for "Strategic Lawsuits Against Public Participation." Sandholm v. Kuecker, 2012 IL 111443, ¶ 1. SLAPPs are lawsuits aimed at preventing citizens from exercising certain constitutional rights or at punishing those who have done so. Wright Development Group, LLC v. Walsh, 238 Ill. 2d 620, 630 (2010); Mund v. Brown, 393 Ill. App. 3d 994, 995 (2009). SLAPPs use the threat of money damages or the prospect of the cost of defending against the suits to "chill" a party's speech or protest activity and discourage opposition by others. Sandholm, 2012 IL 111443, ¶ 34 (citing John C. Barker, Common-Law and Statutory Solutions to the Problem of SLAPPs, 26 Loy. L.A. L. Rev. 395, 396 (1993)); Wright Development Group, LLC, 238 Ill. 2d at 630; see also 735 ILCS 110/15 (West 2010) (discussing the public policy behind the Act).
¶ 4 The Act, which became effective in August 2007 (Pub. Act 95-506 (eff. Aug. 28, 2007); see 735 ILCS 110/99 (West 2010)), seeks to extinguish SLAPPs and protect citizen participation in government in three principal ways (Wright Development Group, LLC, 238 Ill. 2d at 632). First, it immunizes citizens from civil actions "based on, relate[d] to, or *** in response to" any acts made "in furtherance of the [citizens'] constitutional rights to petition, speech, association, and participation in government." 735 ILCS 110/15 (West 2010); Wright Development Group, LLC, 238 Ill. 2d at 632. Second, the Act establishes an expedited legal process to dispose of SLAPPs in both the trial court and the appellate court. 735 ILCS 110/5, 20 (West 2010); Wright Development Group, LLC, 238 Ill. 2d at 632. Third, the Act mandates that a party who prevails in a motion under the Act shall be awarded "reasonable attorney's fees and costs incurred in connection with the motion." 735 ILCS 110/25 (West 2010); Wright Development Group, LLC, 238 Ill. 2d at 632. We note that the Act has been written more broadly than anti-SLAPP statutes in other states (Mark J. Sobczak, Comment, SLAPPed in Illinois: The Scope and Applicability of the Illinois Citizen Participation Act, 28 N. Ill. U. L. Rev. 559, 573 (2008)) and that the legislature has mandated that the Act be liberally construed (735 ILCS 110/30(b) (West 2010)).
¶ 5 The initial complaint in this case was filed on November 22, 2006. The complaint was amended on November 14, 2007, and September 9, 2008. The second amended complaint alleged as follows. Plaintiff was a business agent and union organizer for Local 150 of the International Union of Operating Engineers. On June 5, 2006, defendant, an attorney licensed to practice law in Illinois, filed in the circuit court of McHenry County a complaint on behalf of Merryman Excavation, Inc. (Merryman), and against multiple parties, including plaintiff. The Merryman lawsuit alleged that plaintiff and another individual (R.W. Smith, Jr.) stole money from Merryman by soliciting a donation for a charitable endeavor through Smith's business, a food and drink establishment named "Jesse Oaks," but keeping the money rather than forwarding it to a charity.
¶ 6 On June 7, 2006, defendant had a telephone conversation with Charles Keeshan, a newspaper reporter. Keeshan informed defendant that he was gathering information for an article to be published in the Daily Herald concerning the Merryman lawsuit and that he was seeking defendant's comments about the allegations therein. On June 8, 2006, Keeshan's article was published in the Daily Herald. Charles Keeshan, Businessman Alleges He Was Scammed Out of $10,000, Daily Herald, June 8, 2006. The article states that Merryman filed suit accusing plaintiff, Smith, and a third individual of defrauding it out of the $10,000 that Merryman thought was going to charity. In the article, defendant is quoted as stating that "[Merryman] opened up [its] checkbook and wrote a big check, only to find out that not only did none of the money go to a disabled kid, but that Jesse Oaks isn't a kid, it's a biker bar." As alleged in the article, defendant also claimed that he "asked for Smith's documentation proving the money was donated but so far his requests have gone unanswered." Also with respect to the request for documentation, defendant is quoted as saying that he and Merryman had "seen nothing like that. This isn't a case of a mere misunderstanding."
¶ 7 According to plaintiff, defendant's statements to Keeshan "were factual comments on a pending lawsuit which was designed to falsely accuse [plaintiff] of defrauding and stealing from defendant's client." Plaintiff alleged that defendant, in the presence of Keeshan, "uttered and published false and defamatory statements about, of and concerning [him]." Plaintiff asserted that a third party reading the Daily Herald article in which the statements were published "would reasonably understand the defamatory statements complained of were of and concerning [plaintiff] at the time said statements were made." Plaintiff complained that defendant's statements to Keeshan contained "false allegations" that plaintiff had stolen money from Merryman when plaintiff solicited the charitable donation. According to plaintiff, defendant had received documentation and a letter from Smith's attorney identifying the charities that received Merryman's donation. Plaintiff alleged that defendant "knew or should have known his comments would be further published in the Daily Herald, thus extending his utterance and publication beyond the newspaper reporter and to the general public."
¶ 8 Count I of the complaint alleged slander per quod. Plaintiff alleged that defendant's false and defamatory statements "maliciously slandered Plaintiff, wrongfully intending to bring Plaintiff into public disgrace and scandal and further wrongfully intending to injure and to destroy the Plaintiff's good name, credit and reputation throughout McHenry County and adjoining counties and to bring him into disrepute among his colleagues and co-workers, and otherwise; and to generally discredit him by falsely and maliciously speaking, uttering and publishing, concerning Plaintiff, said defamatory false and scandalous words." Plaintiff claimed that, as a direct and proximate result of defendant's false and defamatory comments, he was not selected to run for the position of treasurer of Local 150, a position that would have benefitted him with an annual salary increase of between $40,000 and $45,000. Plaintiff also claimed that, as a direct and proximate result of defendant's false and defamatory comments, he was unable to act in his role as a principal fundraiser for a local charity.
¶ 9 Count II of the complaint alleged false light invasion of privacy. Plaintiff alleged that defendant's false and defamatory statements "maliciously slandered [him], wrongfully intending to bring [plaintiff] into public disgrace and scandal and further wrongfully intending to injure and to destroy [plaintiff's] good name, credit and reputation throughout McHenry County and adjoining counties and to bring him into disrepute among his colleagues and co-workers, cause him to be regarded as a person unfit and untrustworthy to discharge the duties of his employment and office, cause him to be regarded as a person having committed criminal acts involving moral turpitude, prejudice him with his colleagues, and co-workers, and otherwise; and to generally discredit him by falsely and maliciously speaking, uttering and publishing concerning [plaintiff], said defamatory false and scandalous words." Plaintiff alleged that defendant's false statements placed him in a false light before the public and were made with actual malice. In support of this claim, plaintiff again cited his claims that he was not selected to run for the position of treasurer of Local 150 and that he was unable to act in his role as a principal fundraiser for a local charity.
¶ 10 On December 2, 2008, defendant filed a motion to strike "designated immaterial matter" and multiple motions for judgment on the pleadings. See 735 ILCS 5/2-615(a), (e) (West 2008). On May 8, 2009, the trial court entered a written order granting in part defendant's motion to strike but denying all of defendant's motions for judgment on the pleadings. In addition, the court ordered defendant to file an answer to the second-amended complaint. On March 17, 2011, defendant's attorney of record was granted leave to withdraw from representing defendant. Subsequently, defendant filed his pro se appearance.
¶ 11 On March 29, 2011, defendant filed a pro se motion for summary judgment based upon immunity under the Act (735 ILCS 5/2-1005, 110/1 et seq. (West 2010)). Defendant also filed a memorandum of law in support of his motion for summary judgment, with various attachments, including his own affidavit. Defendant alleged that plaintiff's lawsuit amounted to a SLAPP action in that the claims therein "are not only based on [defendant's] actions as an officer of the court, but according to the complaint are based upon and relate to the actions undertaken by [defendant] on behalf of his clients to petition the government for redress of grievances." In conjunction with his request for summary judgment, defendant requested reimbursement for "costs and attorney fees in bringing this motion." See 735 ILCS 110/25 (West 2010).
¶ 12 On May 16, 2011, plaintiff filed a response to defendant's motion for summary judgment and a memorandum of law in support thereof. Among other things, plaintiff argued in his memorandum that defendant is not entitled to immunity under the Act, because the acts complained of in plaintiff's complaint were not "based upon, relate[d] to, or in response to" any act of defendant in furthering his own constitutional rights. See 735 ILCS 110/15 (West 2010). Instead, plaintiff asserted, his complaint was brought to seek damages for the injuries he sustained as a result of defendant's wrongful conduct. Plaintiff also argued that the Act does not apply to defendant because he was not exercising his own constitutional right to petition but was merely representing Merryman in the exercise of its constitutional rights. In addition, plaintiff contended that the Act does not apply retroactively to cases such as this, which were filed prior to its effective date.
¶ 13 On July 28, 2011, the court held a hearing on defendant's motion for summary judgment. After the parties argued their respective positions, the court granted defendant's motion. Initially, the court, relying on Shoreline Towers Condominium Ass'n v. Gassman, 404 Ill. App. 3d 1013 (2010), held that the Act is procedural and therefore applies retroactively. Next, the court rejected plaintiff's argument that the Act does not apply to defendant because he was not exercising his own constitutional right to petition but was merely representing Merryman in the exercise of its constitutional rights. The court noted that the Act defines the word "person" to include "two or more persons who have a joint or common interest." See 735 ILCS 110/10 (West 2010). However, unable to find any case law from Illinois addressing whether the Act protects the statements and actions of an attorney made in the course of his or her representation of a client, the court looked to case law from California. See, e.g., Taheri Law Group v. Evans, 72 Cal. Rptr. 3d 84 (Cal. Ct. App. 2008). The court interpreted the case law from California as "consistently h[olding] that the California anti-SLAPP immunity can apply to the actions of extra-judicial statements of attorneys made during the scope of their representation." This body of case law from California, combined with the Act's definition of "person" and the Act's requirement that it be liberally construed (see 735 ILCS 110/30(b) (West 2010)), persuaded the court that the Act "can apply to and afford immunity to attorneys who petition the government on behalf of their clients."
¶ 14 The court then reviewed plaintiff's second amended complaint and determined that it is "based upon the actions of Defendant." The court determined that defendant's act of filing a lawsuit against plaintiff on Merryman's behalf constituted "conduct genuinely aimed at procuring favorable government action, result or outcome." The court also determined that defendant's comments to Keeshan, which referenced the Merryman lawsuit, are covered under the Act. The court further found that "there was nothing else to really look at or present to me on behalf of the Plaintiff that clearly establishes that the ...