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No Jurisdiction For Interlocutory Appeal In SLAPP Lawsuit

By Steven R. Merican

Robert Stein and Clinton Krislov both are attorneys. Stein sued Krislov and his lawfirm for libel. The alleged libelous statements were made in a letter Krislov wrote to a federal judge who was presiding over a class action case. Krislov?s letter stated that Stein misrepresented to the court his experience as class counsel.

Krislov asked the trial court to dismiss Stein?s libel case. Among other things, Krislov asserted immunity from Stein?s lawsuit based on the Citizen Partcipation Act. The Act gives immunity to a person who was sued as a result of exercising his rights to free speech and to participation in government.

The trial court denied Krislov?s request to dismiss. Krislov appealed under Illinois Supreme Court Rule 307(a)(1) (appeal as of right from an interlocutory injunction) and the Act. The First District Illinois Appellate Court ruled that it did not have jurisdiction to consider Krislov?s appeal. The appellate court stated (1) the denial of Krislov?s request to dismiss did not qualify for appeal under Rule 307; (2) the Act could not provide appellate jurisdiction where the Illinois Supreme Court had not.

This is how the appellate court explained it:

Defendants {Krislov] contend this court has jurisdiction to review this appeal as an interlocutory appeal based on Rule 307(a)(1) and the language of section 20(a) of the Act.

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When determining whether a trial court?s action constitutes an appealable injunctive order, the substance of the action, not the form, is relevant.

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We recognize that the meaning of ?injunction? should be construed broadly ? however, the motion to dismiss in this case does not constitute an injunction. Defendants were not required to do anything or forced to refrain from anything as a result of the trial court?s order denying their motion to dismiss. Defendants were not restrained in their speech where the trial court issued no directive regarding defendants? ability to speak about the case. In its order, the trial court simply concluded that the Act did not apply to the case at bar because of the newly created immunity could not be applied retroactively. Defendants retain the ability to defend Krislov?s actions in the underlying lawsuit where they can assert the same arguments in defense of Krislov?s letter despite the lack of immunity from the Act.?

The appellate court also rejected Krislov?s argument that the Act itself provided appellate jurisdiction.

We previously determined that the denial of the motion to dismiss in this case was not a final judgment and not injunctive in nature. Though we recognize that statutes are presumed constitutional, if the legislature was attempting to provide appellate jurisdiction from a nonfinal order not falling within the dictates of Rule 307, a constitutional conflict would exist ? ?If a supreme court rule does not grant the right to appeal from a nonfinal judgment, then there is no right to an interlocutory appeal and the appellate court does not have jurisdiction to hear the appeal ? Thus, a statute that claims to give the 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 of the article II, section 1, of the constitution ? Appellate jurisdiction is, therefore, not conferred by section 20(a) of the Act.?

Read the whole case, Stein v. Krislov, 1-09-3478 (11/8/10), by clicking here.

Full post as published by Illinois Appellate Lawyer Blog on November 28, 2010 (boomark / email).