31 January 2012
A recent Illinois Supreme Court decision, Sandholm v. Kuecker,1 creates additional complexity when seeking dismissal based on Illinois’s anti-SLAPP (“Strategic Lawsuit Against Public Participation”) statute.2
In 2007, Illinois joined more than 20 other states in enacting anti-SLAPP legislation, which is intended to avert lawsuits that are aimed at preventing citizens from participating in government. Illinois’s statute immunizes acts undertaken in furtherance of a person’s right to participate in government “regardless of intent or purpose, except when [those acts are] not genuinely aimed at procuring favorable” government action.3 The statute applies to any dispositive motion challenging a claim that is “based on, relates to, or is in response to” acts of the moving party in furtherance of his or her right to participate in government4 and requires a court to dismiss claims to which the statute applies unless the plaintiff produces “clear and convincing evidence” that the acts at issue were not genuinely aimed at procuring favorable government action.5
The plaintiff in Sandholm, a high school athletic director and head basketball coach, alleged various defamation, false light, invasion of privacy and tortious interference claims against multiple defendants who were supposedly part of a campaign before the school board and throughout the community to have the plaintiff removed from his positions. The trial court dismissed the plaintiff’s complaint, finding that the anti-SLAPP statute immunized the claims.6 The appellate court agreed.
In reaching its decision, the appellate court concluded that the anti-SLAPP statute provides a “qualified privilege for any defamatory statements communicated in furtherance of one’s right to … participate in government,” which “may be exceeded if the statements are not made with the genuine aim at procuring a favorable government action.”7 So, based on the appellate court’s interpretation of the statute, even tortious acts occurring in the furtherance of a person’s participation in government would be immune from liability so long as those acts were intended to procure favorable government action.
The Illinois Supreme Court disagreed. The court said that legislative history supports a conclusion that the anti-SLAPP statute is not “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 … participation in government.”8 Rather, the statute was only intended to target “meritless, retaliatory” SLAPP lawsuits and does not “establish a new absolute or qualified privilege for defamation.”9 Accordingly, the court held that the statute applies only to actions “based solely on the defendants’ petitioning activities and does not immunize defamation or other intentional torts.”10 Put differently, “if the plaintiff’s intent in bringing suit is to recover damages for alleged defamation and not to stifle or chill defendants’ rights … or participation in government,” it does not fall under the purview of the anti-SLAPP statute.11
So now, instead of simply showing that complained-of acts occurred in the furtherance of his or her rights to participate in government with the aim of seeking favorable government action, a defendant seeking immunity under the anti-SLAPP statute must also establish the plaintiff’s intent in filing the lawsuit. Such intent presumably would be established by showing that a plaintiff’s claims are meritless, and by highlighting other surrounding circumstances. This leads to a procedural quandary.
As the court explained in Sandholm, a motion to dismiss based on immunity conferred by statute should be raised in a dismissal motion under section 2–619(a)(9) of the Illinois Code of Civil Procedure.12 But a motion under this section “admits the legal sufficiency” of a plaintiff’s claim.13 Thus, taking the Sandholm decision literally, a defendant could never establish immunity under the anti-SLAPP statute (i.e., by showing that the plaintiff’s claims are meritless), because, in order to properly bring a motion under the statute, the defendant would have to admit the validity of the plaintiff’s claims. Future decisions will need to address this issue.
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1. __ N.E.2d __, No. 111443, 2012 WL 169708 (Ill. Jan. 20, 2012).
2. The Citizen Participation Act, 735 Ill. Comp. Stat. Ann. (“ILCS”) 110/1 et seq. (West 2012)
3. 735 ILCS 110/15.
5. 735 ILCS 110/20(c).
6. Sandholm v. Kuecker, 942 N.E.2d 544, 554 (Ill. App. Ct. 2010).
7. Id. at559-60.
8. Sandholm, 2012 WL 169708 at *11.
10. Id. at *9.
12. Id. at *12 (discussing 735 ILCS 5/2–619(a)(9)).
13. Sandholm, 2012 WL 169708 at *13 (emphasis added).