Citizen Participation Act Defense Can’t Be Raised For The First Time On Appeal.

A.J. Bos got approval from the Department of Agriculture to build a “megadairy” in Nora, Illinois. A few citizens in the area did not want the dairy to be constructed because they felt the location was susceptible to groundwater contamination by seepage of animal waste. They formed an organization, Helping Others Maintain Environmental Standards, referred to as HOMES, to oppose the dairy.

HOMES sued Bos, and asked the trial court for a preliminary injunction to prevent the dairy from being built. The trial court enjoined Bos from operating a livestock management facility at that location. Bos felt the injunction was improperly entered because HOMES greatly overstated its case and withheld evidence favorable to Bos. Bos asked the trial court to dissolve the injunction, and to award him damages for HOMES’s conduct, but the court denied Bos’s requests. So Bos appealed.

After a full hearing, the trial court refused HOMES’s request for a permanent injunction against Bos’s proposed dairy farm. The court ruled that HOMES had not proven its case by a preponderance of the evidence. So HOMES appealed.

HOMES also asked the appellate court to dismiss Bos’s appeal. HOMES argued that the Illinois Citizen Participation Act prohibited Bos’s appeal. The purpose of the Act is to prevent lawsuits and intimidation against citizens and organizations who get involved in public affairs.
But the Second District Illinois Appellate Court refused to dismiss Bos’s appeal because HOMES had not raised the Act in the trial court, and the Act did not authorize a party to bring it up for the first time on appeal. This is the appellate court’s explanation:

Generally, a party who does not raise an issue in the trial court forfeits the issue and may not raise it for the first time on appeal … Moreover, the Act does not contemplate a party bringing the motion for the first time on appeal. The Act refers to discovery and a hearing and decision on the motion within 90 days, as well as to a clear and convincing standard for ruling on the motion … These procedural mechanisms and the evidentiary standard clearly pertain to the trial court rather than the appellate court … Accordingly, we deny plaintiffs’ motion to dismiss.”
In the end, Bos beat back HOMES’s appeal, but he lost his attempt to get damages for having to defend the preliminary injunction motion.

Read the whole case, Helping Others Maintain Environmental Standards v. Bos, Nos. 2-09-1283, 2-19-0162 (12/22/10), by clicking here.

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