A SLAPP False Alarm Out Of Chicago: The Law Is An Ass

Monday's Chicago Tribune ran a story that had all the makings of a free speech outrage: a developer had sued local residents who had spoke out against a proposed Park Ridge development.

The residents went to a pair of public hearings to express their concerns about a developer's plans for a new four-story condominium building in their Park Ridge neighborhood.

Then they found themselves on the receiving end of a lawsuit.

Multiple people emailed me about this story, and more tweeted it to me. Fie! Censorship! Suppression! The original impetus for anti-SLAPP statutes was developers suing NIMBY citizens. This is a classic SLAPP! It's actionable even under Illinois' pathetic anti-SLAPP statute! To arms!

Or not.

I wrote the developer's attorneys at Ungaretti & Harris LLP. They responded quickly and courteously. (You may or may not be surprised to hear that's not the response I generally get.) They sent me the complaint, and pointed to some authority that explained their stance.

See, the developer here isn't suing for damages. It's not asking for anything from the neighbors. It's suing to overturn a zoning commission decision denying it a permit to build a multi-family residential and commercial development in Park Ridge. And the developer's attorneys have an extremely credible argument that Illinois law requires them to name a ridiculous array of people in the lawsuit to accomplish that.

Illinois, like many states, has statutes governing how you can challenge a zoning decision. It's not unusual for that path to be a lawsuit seeking review of the administrative decision. What is unusual is that Illinois law (1) requires you to name, as a defendant, all "parties of record" to the underlying decision, and (2) defines "parties of record" ridiculously broadly. The developer has a very credible argument that the neighbors who spoke at the zoning meetings are "parties of record" and that they are required under Illinois law to name them as defendants.

The developer's attorneys pointed me to a case in which the Illinois Appellate Court overturned a lower court decision in a zoning challenge on the grounds that the developer making the challenge hadn't named as defendants the neighbors who had objected to the development. That case also involved Park Ridge zoning:

The Park Ridge residents who made personal or representative appearances at the zoning board hearing lived in the immediate vicinity of the plaintiffs' property. They were more than disinterested witnesses; they actively maintained a position opposed to the plaintiffs'. Their interest in the outcome of the hearing was substantial. They did not seek administrative review of the board's decision because the decision was favorable to them. Their interest became jeopardized a second time when the plaintiffs challenged the decision in the circuit court; yet they were neither notified of the suit nor made defendants. They were thus deprived of the opportunity of protecting their interest-the monetary value of their homes and the aesthetic level of their neighborhood-in court.

O'Hare Int'l Bank v. Zoning Bd. of Appeals, City of Park Ridge, 8 Ill. App. 3d 764, 767, 291 N.E.2d 349, 351 (1972)

I did a little research on my own to see if the developer was relying on bad law. I found multiple cases emphasizing that failure to name the proper parties deprives the court of jurisdiction — meaning that any good result the developer got would be for naught. For instance, in one case a police officer suing a police commission for reinstatement was thwarted because he didn't name, as a defendant, the police chief who had complained about him to the commission:

Moreover, numerous Illinois supreme court and appellate court cases held that failure to name all parties who were of record at the administrative hearing makes a complaint fatally defective. See Winston, 407 Ill. 588, 95 N.E.2d 864; O'Hare International Bank v. Zoning Board of Appeals (1972), 8 Ill.App.3d 764, 291 N.E.2d 349. The requirement of naming all parties of record as defendants is both mandatory and jurisdictional. (Winston, 407 Ill. at 595-96, 95 N.E.2d 864; O'Hare International Bank, 8 Ill.App.3d at 767, 291 N.E.2d 349.) Section 3-107 of the Administrative Review Act states:

Marozas v. Bd. of Fire & Police Comm'rs of City of Burbank, 222 Ill. App. 3d 781, 787, 584 N.E.2d 402, 406 (1991)

In short, I think that the developer's lawyers here are right: there is at least a reasonable concern that a court will find that they must sue the neighbors who appeared at the zoning hearings in order to get relief from the zoning decision. That's a bizarre rule, but it's Illinois' rule, not the developer's.

Quench the torches, let fall the pitchforks: this likely isn't a SLAPP suit.

From my Monday-morning-quarterback armchair I will note that it would have been prudent to have a paragraph in the complaint saying something like "the Neighbor Defendants are named solely as required by Illinois law as potential parties of record to the administrative hearing, and no relief is sought specifically from them." It also would have been prudent to have an advance media strategy when this hit; a furor about SLAPPs was predictable. Nobody's perfect.

Remember: the media doesn't get law. Don't trust its reporting. Don't assume that sombody's failure to respond meant that they don't have a response.

Edited to add: Jack Leyhane is not completely convinced.

Last 5 posts by Ken White

Comments

  1. LawDawg says

    Andrew Koppelman, a professor at Northwestern University law school, said naming residents appears to be "pure harassment" because they do not have the ability to approve or deny the developer's plans.

    This is what happens when you seek comment from a law professor who likely hasn't practiced in the subject area in decades, if at all.

  2. sorrykb says

    You just had to go and inject "reason" and "nuance" into the story.

    What I am supposed to do with all this rage now?

  3. Chris Upchurch says

    @sorrykb:

    What I am supposed to do with all this rage now?

    Direct it at Rocca Labs. They deserve it.

  4. Chris Upchurch says

    The law is an ass, indeed.

    I can actually understand the intention behind this: to preserve the rights of participants in an administrative hearing to defend a judgement in their favor in court. However the implementation seems like it would have the effect of deterring individuals from speaking out at any sort of administrative hearing. "Speak your mind, and if we listen, you might get sued."

    Some sort of notice requirement coupled with the right to intervene in a subsequent lawsuit would preserve that right while giving speakers the choice whether or not to participate in court.

  5. Sean F says

    However the implementation seems like it would have the effect of deterring individuals from speaking out at any sort of administrative hearing. "Speak your mind, and if we listen, you might get sued."

    Why should they care? No relief is being sought from them – if the developer wins, then the zoning board's ruling gets overturned. If they don't want to participate in the court proceedings, they can (and likely will) do nothing and they won't have any exposure to any liability. Of course, if they feel strongly enough about the zoning permit, they can hire an attorney to protect their interest (i.e., argue that the denial should be upheld). If they don't, they can rely upon the City of Park Ridge to defend the zoning board's decision and it won't cost them a dime.

  6. George William Herbert says

    I think that Ken's comment that "The Law is an Ass" is entirely appropriate; though notification or even inclusion of the objectors who caused the zoning decision to go that way may be appropriate, the law (or precedent) should include some way to clearly statutorily note that they're just parties for the sake of having standing to participate, and not defendants subject to a sought relief or punitive sanction of some sort. And a mandatory disclaimer to that effect in the suits, so people don't have to hire an attorney to tell them that they're not personally in jeopardy.

    Making them think they're pulled in and being legally harassed for having spoken out is an ass move, in other words, even if it is the law.

  7. says

    "Why should they care? No relief is being sought from them"

    How obvious is that to them? After all, the news media and a law professor thought they were being sued for real. At the very least they're probably going to want to pay a lawyer to explain it to them, even (perhaps especially) if they people suing them explain real nice that they don't have anything to worry about. They'd also have to disclose the lawsuit on things like mortgage applications, and it would show up in background checks. Getting sued is a pain.

  8. SirWired says

    I have to say that I, myself, would panic if I received a big-ass lawsuit in my mailbox with me listed as a defendant. I can see the law requiring notice for all the parties of record, but requiring them to be listed as defendants is just silly.

    At the least, any prudent person is going to have to spend time and money consulting with a lawyer to verify that no action is required on their part, and that "losing" the lawsuit will have zero direct adverse consequences to them.

  9. Timothy says

    Ken-

    On a slightly related note, I'd love to get your read on the news that Daniel Snyder is suing the Native Americans who testified against the Redskins mark in that it was offensive to Native Americans. Link.

  10. says

    In a perfect world, all parties could sue the legislators responsible for this mess.

    Oh, wait (nod to Clark), in a perfect world there would not be any legislatures.

  11. Nicholas Weaver says

    Just a thought: IANAL, but this actually makes sense to me: the named defendants have standing, and this law effectively forces the plaintiff to specify those who do have standing.

    Lets take a hypothetical: Lisa Simpson strongly objected to the zoning change to put a rendering plant next door ("Once you get used to the smell of melted hogfat, you'll never know how you lived without it"), and the Springfield zoning board went with Lisa's position.

    Now the developer, Pollution Co Whale Recycling Business (A Division of Burns Enterprises) challenges it in court, and the city's attorney, a Mister L Hutz, and his assistant Gill, decides not to really fight it (after all, that Sweet Sweet Republican Money into Mayor Quimby's finance warchest does count for something in this town).

    In most other states, Lisa is straight out of luck. But in Illinois, since she's a named defendant, she can actually hire a competent attorney and has standing to ensure that the abandoned Ford house across the street is not turned into a stinking industrial plant.

  12. mud man says

    Makes sense to me … these folks actively expressed their opposition in the past and they deserve to be included as the process is formalized. It would be nice if going down to talk with the public arbitrator on a matter of neighborhood concern were not a matter for serious anxiety, but well. As it is, what kind of showing are the "defendants" required to make? Is it like a class action suit where if I ignore it folks will just go ahead without me?

  13. Blah Blah says

    The Chicago Tribune presented a misleading story based on a failure to research the facts at hand or the laws involved? I'm shocked, shocked I tell you!

  14. Antony F. P. Vickery says

    "The law is an ass" is a common misquotation of the phrase "the law is a ass," which Charles Dickens has Mr. Bumble say in Oliver Twist.

    Of course, if you use the original text today you risk the reader concluding that the appearance of "a" instead of "an" before a word that starts with a vowel is the result of careless editing, but for accuracy's sake and to honor Dickens, that's a risk I believe we should take.

  15. Salem says

    @Nicholas Weaver: Your reasoning is good, but unfortunately invalidated by your forgetting that Quimby is a Democrat. Nul points.

  16. Conster says

    Somehow Mr. White finds time to practice both law and journalism from his base in California. I don't know how he does it.

    Says the guy writing a blog post.

  17. Nicholas Weaver says

    Mayor Joseph Fitzgerald O'Malley Fitzpatrick O'Donnell the Edge "Diamond Joe" Quimby may be a Dumb-o-crat, but he's not above taking a bribe from Republicans. Unless you think Fat Tony is more honorable a source of bribes than C Montgomery Burns….

  18. Sterling Archer says

    "The law is an ass" is a common misquotation of the phrase "the law is a ass," which Charles Dickens has Mr. Bumble say in Oliver Twist.

    It's a pretty funny quote taken in a larger context:

    …the law supposes that your wife acts under your direction."

    "If the law supposes that," said Mr. Bumble, squeezing his hat emphatically in both hands, "the law is a ass — a idiot. If that's the eye of the law, the law is a bachelor; and the worst I wish the law is, that his eye may be opened by experience — by experience.”