Considerations other than the public interest may be factors in the settlement: Cost savings by discontinuing the litigation. Quick exit from the litigation. Avoidance of controversy. Obtaining court “cover” for a result not available by other means. Lack of information so that the court and parties can know the wider impact of the settlement. 4
Public notice of the terms of the potential settlement of litigation. Opportunity for the public to provide input In writing. And/or in testimony before the court. 5
Zoning. Environmental. Transportation. Landmarks and other protected historic resources. 6
Public trusts. Charitable trusts. Trusts Enforceable by the Attorney General. No requirement for public input. Enforcement discretionary by the A.G. 7
"Fair, reasonable, adequate, consistent with applicable law.” Metro. Housing Dev. Corp. v. Vil. Arlington Hts., 616 F.2d 1006 (7th Cir. 1980). Public interest: "adequately protects and is consistent with the public interest" U.S. v. BP Exploration & Oil Co., 167 F.Supp.2d 1045 (N.D. Ind. 2001); U.S. v County of Muskegon, 298 F.3d 569 (6th Cir. 2002).
No general mechanism or procedure for applying public interest standard. U.S. v. BP Exploration & Oil Co., 167 F.Supp.2d 1045 (N.D. Ind. 2001) hearing not necessary (but notice published and comments received). U.S. v. City of Akron, 794 F.Supp.2d 782 (N.D. Ohio 2011) 2-day fairness hearing conducted. 9
Fed class action settlements - Rule 23(e) notice to class members of proposed settlement. hearing. finding of “fair, reasonable, and adequate.“ affected class is already before the court through class representative. Illinois class actions has no similar law, but courts generally follow Fed. Procedure. 10
28 CFR Sec. 50.7. Proposed settlement must be lodged with court. U.S. Dept. Justice will receive, consider and file with the court all written comments. No provision for hearing or taking testimony.
Illinois land use disputes—limited opportunties for fairness hearings Notice, hearing and administrative review available for certain Zoning. ▪ see Div. 13 of Ill. Munic. Code. 65 ILCS 5/11-13-1 et seq. for notices and hearings. Landmarking. Environmental. Parties of record (or applicants) appearing before admin. agency are parties in administrative review cases. 735 ILCS 5/3-107.
Limits to public input in land use court settlements. Interested (lay) parties may choose not to appear in administrative review. Different issues may arise in the proposed decree. Appearing by counsel is expensive. Appearing members of the public may not be aware of the settlement negotiations. Affected members of public outside the geographic limits in the original proceeding. 13
Illinois public input in land use disputes—when not required De novo review of all zoning decisions as legislative action. 65 ILCS 5/11-13-25. Deferential review may exclude pubic input. Injunction. Mandamus. Declaratory (except certain zoning).
Prior to approving a settlement agreement affecting the public interest, the court shall hold a fairness hearing. A matter “affecting the public interest” means substantially modifying a zoning, environmental, landmarking or other land use regulation affecting a particular parcel of property or the terms of a charitable or public trust. A fairness hearing shall be held no less than 30 days after publishing the proposed settlement in a newspaper of general circulation in the affected community. An person may submit written comments or testimony at the fairness hearing in accordance with procedures established by the court. The court shall approve a settlement agreement unless it is not fair, reasonable and adequately protects and is consistent with the public interest. 15
735 ILCS 110/1 et seq. Effective August 28, 2007. Immunity nullified by Sandholm v. Kueker, 2012 IL 111443, announced January 20, 2012. 16
Strategic Lawsuits Against Public Participation Legislative finding that SLAPPs and threat of SLAPPs significantly chill citizens’ participation in government. Sec. 5. 17
Defamation. Interference with contract. Interference with prospective economic advantage. Intentional infliction of emotional harm. Anti-trust. Conspiracy. 18
“Acts in furtherance of the constitutional rights to petition, speech, association, and participation in government are immune from liability, regardless of intent or purpose, except when not genuinely aimed at procuring favorable government action, result, or outcome.” 735 ILCS 110/15. Broader than other states’ SLAPP acts. Hytel Group, Inc. v. Butler, 405 Ill.App.3d 126 (2d Dist. 2010). 19
Must be decided by court within 90 days of noticing the motion. 735 ILCS 11/20(a). 20
Sandholm v. Kuecker 2012 IL 111433. Immunity is not total; damages available where plaintiff is “genuinely seeking relief.” “Substantial basis other than petitioning activities.” Defendant has initial burden of proof before presumption arises. CPA is properly raised as an other affirmative matter in a 2-619(a)(9) motion. 21
All speech and activities in context of public issues immunized under the terms of CPA, regardless of harm. Adopts Noerr-Pennington doctrine: “except when not genuinely aimed” at procuring government action. Eastern Railroad Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127, 135 (1961); United Mine Workers v. Pennington, 381 U.S. 657, 670 (1965). Presumption for defendant unless plaintiff produces clear and convincing evidence. 735 ILCS 110/20(c). Query, how does plaintiff produce evidence in response to motion to dismiss? 22
Sec. 20(a) Purports to permit interlocutory appeal. Providing for appeal from non-final order exceeds the legislature’s authority. Mund v. Brown, 393 Ill.App.3d 994 (5th Dist. 2009). Stein v. Krislov, 405 Ill.App.3d 538 (1st Dist.2010). 23
Reasonable attorneys fees and costs awarded to defendant in connection with motion. 735 ILCS 110/25. Note: to moving party, not prevailing party. Only attorneys fees related to the motion, not the entire case, may be awared under the CPA. Sandholm v. Kuecker 2012 IL 111433. 24
Richard F. Friedman attorney at law 203 N. LaSalle St. Suite 2300 Chicago, IL 60601 312 641-7144 25