Appellate Law

Unconstitutional For Illinois SLAPPs Act To Grant Appellate Jurisdiction Over Interlocutory Order

By Steven R. Merican

Louis Mund sued the Browns and the Furkins for abuse of process, malicious prosecution, and intentional infliction of emotional distress. The Browns and the Furkins asked the trial court to dismiss the case. They argued that the Illinois Citizen Participation Act (statute that ?aims to protect defendants from ?Strategic Lawsuits Against Public Participation? (SLAPPs), which harass citizens for exercising constitutional rights, such as the right to petition the government.?) The trial court denied the request to dismiss the case, so the Browns and the Furkins appealed.

The Browns and the Furkins argued that the Citizen Participation Act expressly allowed an appeal ?from a trial court order denying? a motion to dismiss. But the Fifth District Illinois Appellate Court refused to recognize that part of the statute, and dismissed the appeal for lack of appellate jurisdiction. The appellate court ruled that the legislative attempt to make the order immediately appealable conflicted with the Illinois Constitution in two respects:

? First, the constitution allows only final orders to be appealed, and permits only the Illinois Supreme Court to make rules for appeal of interlocutory orders.
? Second, the legislature violated the separation-of-powers clause of the constitution by attempting to exercise a power reserved to the supreme court.

Here is the court?s explanation:

If ? we were to interpret the language of the [Citizen Participation] Act as the defendants request ? we would encounter a constitutional conflict. The Illinois Constitution ? grants the right to appeal from a final judgment only ? However, it gives the right to make rules governing interlocutory appeals exclusively to the supreme court ? Thus, a statute that claims to give a right to an interlocutory appeal not covered by supreme court rules or to give the appellate court jurisdiction over that appeal would violate article VI, section 6, of the constitution. Such a statute also would violate the separation-of-powers clause in article II, section 1, of the constitution ? [No branch of the government may exercise powers reserved to another branch.]

Read the whole case, Mund v. Brown, No. 5-08-0178 (8/21/09), by clicking here.

Full post as published by Illinois Appellate Lawyer Blog on November 21, 2009 (boomark / email).