Why Illinois anti-SLAPP law may not protect condo owners
By Deborah Goonan, Independent American Communities
Back in September (2017), I wrote a post about a condo termination controversy at River Trails Condominium in Prospect Heights, Illinois.
River Trails meets all of the typical criteria for a good deconversion candidate: Constructed in the 1970s, dated architecture with aging infrastructure, many units selling for less than $100,000, with a location that is well-suited for apartments.
More than half of the units are rented by tenants, and currently owned by small real estate investors or reluctant landlords – owners who have moved on, but have been unable to sell their condos. While landlord owners are eager to sell their units to an apartment developer, most owner occupants are fighting for the right to keep their homes.
The current board of directors is in favor of selling the association for a deconversion. They argue that current owners who wish to stay put would receive market value for their units, and, if they wish, could then rent their current units from the new owner.
Owner occupants say they prefer to own property, but they would not be able to afford to buy another home with the money they would receive from a deconversion sale – reportedly, $90,800 – $127,000, depending on the number of bedrooms.
After an unsuccessful attempt to recall their condo board, a minority group of owners filed a lawsuit against River Trails Condo Association.
If you missed it, you can read the details here:
The latest development in this saga — the condo association is now suing three vocal condo owners for defamation.
Prospect Heights condo association accuses residents of defamation
News updated: 2/2/2018 6:02 PM
Cahcour Koop, The Daily Herald
A condo association in Prospect Heights is suing outspoken residents who oppose converting the condominiums into apartments, claiming recitations of Bible verses referring to board members as “wicked” and other statements defame their character.
River Trails Condominium Association board members filed the defamation lawsuit against residents Francisco Ruiz, Janusz Stanowski and Vijay Krishnan in mid-January. It’s the latest salvo in a bitter dispute between some residents and the association’s board, which wants to convert the condos south of Palatine Road and west of Milwaukee Avenue.
The lawsuit claims the defendants made numerous recklessly false statements, including saying the board abused due process, association employees made threats and the association failed to account for rents received from units.
Now, to most readers, the condo association’s lawsuit looks like retaliation against owners who tried to oust the majority of the board in favor of forcing a deconversion.
And you may think that the 2007 Illinois’ anti-SLAPP statute, known as the Citizen Participation Act (CPA), will result in the Court’s prompt dismissal of a defamation suit against three condo owner defendants. (Note: SLAPP is an acronym for strategic lawsuit against public participation.)
Unfortunately, the Illinois Supreme Court basically neutralized CPA in a ruling issued in 2012. As a result of this ruling, the burden has shifted to a Defendant to prove that the Plaintiff’s claim is meritless, and only pursued as a way to intimidate the Defendant and squelch free speech.
Or, put another way, Illinois Supreme Court’s interpretation of CPA assumes a Defendant is guilty of defamation pending the Defendant’s ability to prove innocence.
Critics such as Emily Jenkinson of Thompson Coburn LLP in Chicago, equate the Supreme Court’s decision in Sandholm v. Kuecker, reversing an Appellate Court ruling in favor of defendants, as nothing short of judicial activism. In a 2014 publication of DePaul Law Review, she points out that anti-SLAPP statutes in other states — specifically Massachusetts and California — offer more effective protection of First Amendment rights of Americans.
Jenkinson’s Note is well worth reading.
In her legal Note, Jenkinson concludes:
The Illinois appellate court in Sandholm was correct when it stated, “[t]he legislature presumably struck the balance by passing the Act itself, and it is not the court’s role to rewrite a statute that appears to lead to unjust results when interpreted as written.”215 The Illinois Supreme Court in Sandholm disregarded the appellate court’s reasoning and threw off the delicate balance established by legislators. The court should have recognized that the legislature had done its job when it wrote the CPA and prioritized defendants’ First Amendment rights over those of the plaintiff to bring a suit, in order to address the “disturbing” SLAPP trend.216 Perhaps the legislature made it the statute’s primary procedure to assess the defendant’s genuineness precisely because SLAPPs are so difficult to identify.217
The Illinois Supreme Court overstepped its bounds by effectively amending the statute because it determined that that preferential treatment was somehow unfair, but it is not the court’s role to alter legislation. The result is a confusing standard that can only be fixed by, either (1) an entire reversal of the Sandholm decision which restores the CPA standards back to the written language of the statute, or (2) an amendment to the CPA clarifying whether a suit need be “solely based on” the defendants’ speech, in addition to a factual evaluation of the merits of the suit, as detailed in this Note. Before the Illinois Supreme Court’s decision in Sandholm, critics warned that courts would have to fashion creative solutions to the statute’s overly broad and vague language;218 however, a solution that disenfranchises an entire class of individuals because they cannot afford to defend their First Amendment rights is not a solution, it is a gag order.
The battle over the ultimate fate of River Trails Condominium Association will rage on, with minority owners attempting to save their affordable homes at a distinct legal disadvantage.
Public Participation Project