richard f. friedman neal & leroy, llc chicago, illinois
TRANSCRIPT
Fairness Hearings Citizen Participation Act
Real Estate and Land Use LitigationLaw Seminars International
March 1, 2012
© 2012 Richard F. Friedman. All rights reserved.
Richard F. FriedmanNeal & Leroy, LLCChicago, Illinois
Fairness Hearings
Singapore Dunes
Singapore Dunes, LLC v. Suagatuk Twp., 1:10-CV-210 W.D. Mich).
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Settlement Factors other than the Public Interest
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.
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What is a fairness hearing?
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.
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Fairness hearings for settlements involving the government.
Zoning.Environmental.Transportation.Landmarks and other protected
historic resources.
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Fairness hearings for settlements involving only private parties
Public trusts.
Charitable trusts.
Trusts Enforceable by the Attorney General. No requirement for public input. Enforcement discretionary by the A.G.
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No uniform standard for decree approval
"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 uniform recognition of fairness hearing
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.
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Fairness hear required—class action settlements
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.
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Federal environmental litigation settlements
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.
Illinois land use disputes—limited opportunities for fairness hearings
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).
Proposed fairness hearing standard
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.
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Citizen Participation Act
735 ILCS 110/1 et seq.
Effective August 28, 2007.
Immunity nullified by Sandholm v. Kueker, 2012 IL 111443, announced January 20, 2012.
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SLAPP suits
Strategic Lawsuits Against Public Participation
Legislative finding that SLAPPs and threat of SLAPPs significantly chill citizens’ participation in government. Sec. 5.
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Common types of SLAPPs
Defamation. Interference with contract . Interference with prospective
economic advantage. Intentional infliction of emotional
harm.Anti-trust.Conspiracy.
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Immunity for SLAPP defendants “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
CPA defense motions expedited
Must be decided by court within 90 days of noticing the motion. 735 ILCS 11/20(a).
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No immunity against legitimate claims
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.
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CPA’s chilling effect on legitimate claims
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
Immediate appeal
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).
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Attorneys fees award
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.
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For more information
Richard F. Friedmanattorney at law
203 N. LaSalle St. Suite 2300Chicago, IL 60601
312 641-7144
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