Party Can Waive Rights under Anti-SLAPP Statute

Party Can Waive Rights under Anti-SLAPP Statute

  Tuesday, January 31, 2012    Julie Tappendorf

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In Johannesen v. Eddins, 2011 IL App (2d) 110108, an Illinois appellate court overturned the trial court’s dismissal of a lawsuit and remanded the case to determine whether a party had waived his rights under the anti-SLAPP law (the Citizen Participation Act) when he verbally agreed to support his neighbor's variation application.

Plaintiff sought to build a new home next to defendant’s property.  Defendant requested that the plaintiff shift the proposed home further away from defendant’s property, creating the need for a corner side yard variation.  Plaintiff agreed to accommodate defendant’s request; in exchange, defendant orally agreed that he would support the owners’ application for a corner side yard variance. Plaintiff filed a variation application, and defendant signed the application as a “nominal applicant.”

During and after the ZBA’s consideration of plaintiff’s’ application, defendant allegedly engaged in a series of ex parte communications with the village manager, to urge the recalculation of plaintiff’s front setback requirement. The village manager issued a determination letter recalculating the front setback requirement.  That recalculation meant plaintiff could no longer construct his proposed home. Plaintiff appealed the manager’s determination, and defendant publicly opposed plaintiff’s appeal. The village ultimately granted less intense variations, and plaintiff had to redesign a smaller home, in a significantly different location.   

Plaintiff sued defendant, claiming he breached his oral promise to forego any challenge to the village’s front setback calculation.  Defendant filed a motion to dismiss under Illinois’ anti-SLAPP statute, the Citizen Participation Act.  That statute protects a citizen’s right to public participation, and authorizes a party to file a motion to dismiss a lawsuit on the grounds that the suit is based on defendant’s actions in furtherance of his or her First Amendment rights of petition, speech, association, or to otherwise participate in government.

On appeal, plaintiff argued that defendant waived his First Amendment rights when he entered into an oral agreement to support the corner side yard variation and forego any challenge to the village’s front setback calculation. The appellate court found that the trial court failed to consider plaintiff’s argument, and that it was improper to dismiss plaintiff’s lawsuit because actual testimony was necessary to establish the terms of the alleged oral agreement and the extent of any waiver by defendant. The court noted that a party may waive rights under the statute based on a preexisting legal relationship, like a contract or settlement agreement.

Post authored by Dan Bolin, Ancel Glink.