he's called the first case the second appropriately as i said it's fifteen minutes for each side we have time i'm not going to really watch the minutes that closely at the same time don't push ok thank your honour's in two thousand and ten a government watchdog group aptly called the better government association and b f l d a local media outlet got together and petition their government to only anti slab statute the the c p a was designed to foster and protect no other illinois decision applying the c p a has involved such a direct appeal to government and requests for course came down earlier this year after the illinois supreme court's decision in san home and in him and this court laid out a three prong test for determining when the c p a applies namely the c p a provides for dismissal when one you have the exercise by the defendants of first amendment rights directed towards bringing about favorable government change we think without question that is met here you have the defendants speaking out about inefficiencies in government calling for reform and actually achieving results and getting reform and as we'll see a little bit later it's this kind of speech i think that distinguishes this case from all the other cases that have applied the c p a now the second prong the plaintiff's claims are solely based on the defendant's acts and further of that and further in some of their first a rights there are really two ways of looking at this first of all you can just look at the plaintiff's complaint here all of the allegations are based exclusively on the petitioning speech here they all relate to the defendant's conduct in the course of reporting about and calling for reform of the judicial system in cook county unlike all the other cases there's no preexisting relationship there's no private dispute here in hammond you recall that's the wake up in your make up case that was a dispute between competitors in san home there was a long running battle between parents and the local coach dura craft high tell they involve relationship between an employee and his or her employer the august case that just came down a week or so ago and for all of the defendant there was an attorney who had filed suit against the plaintiff in another matter and then finally we have the mayor the myer versus levy case another case actually cited by the plaintiff which was another coach case so there are no allegations in this complaint that the defendants perpetrated any acts outside the course of their petitioning speech now there's another way of looking at this and that is the court can look behind the allegations to see if these claims have any independent basis and sometimes this is necessary because here's the real challenge i think in dealing with the c p a and that is there's always the tort alleged claimed right the challenges that slap suits don't announce themselves as slap suits they masquerade as legitimate torts but fortunately san home dirk kraft i tell they all say that a court can look behind the pleadings it can look at affidavit submitted both pro and con they can look at the facts and circumstances behind the filing of the case and this is consistent with the statute because it allows a motion to dismiss that which has been interpreted as a two six one nine hundred eighty nine bring an affirmative matter that allows a motion for s what sam holmes says is there has to be an independent basis a genuine basis for making that claim and that's what's separates a slap versus a non slapped suit here if you look at is original complaint which i think shows his true motivation in filing the complaint to begin with there wasn't even an assertion that he didn't leave work early the only assertion was that there was a mis identification of his car and his home same thing with the original complaint the amended complaint the assertion there is that the defendant statement that i left early on three occasions was false because he doesn't stand home say that the plaintiff has stated a merit less retaliatory suit and here the defendants offered into evidence through affidavits substantial evidence that showed for example in the month before the reports were broadcast the plaintiff's court room was closed every day of the month by two or to fifteen what's more  we ordered transcripts from his preliminary hearing proceedings which also showed that his proceedings concluded by two zero zero five at the latest that was uncontroverted and we have a situation here where the plaintiff did not file a verified complaint did not file a verified amended complaint had the opportunity to come forward with an affidavit establishing that in fact he did not routinely material mistake your honor the gist of the report and if you look at paragraph nineteen of his amended complaint the gist of the report was some cook county judges leave early not where he went after leaving early it's that they leave early and the un contradicted evidence is that he leaves early to use to give us a slap to allow an expedited appeal of cases involving whether it's news it goes bad it's a just in so you can see many cases one just like you cited six cases when you first started or any of those winners some huge corporation being beat up by some individual citizen actually your honor i'd like to take minor issue with with what you sad we had is and that is while it's often said that the paradigm manik the typical slapp suit involves for example a developer trying to crush the citizen right if you read  sex article which was cited by the supreme court really it usually has an issue that occurs in a local setting of importance to the local population where the target is somebody  who's speaking out on that issue and usually the plaintiff is someone who is acting in his own economic interest so it's not always just little guy versus big guy right now which i think of those guys like in hammond's where ther question this is because of the importance of this type of suit there's got to be a mechanism whereby the courts can evaluate whether this is a slap and if you look at the damages the judge ryan claimed seven million dollars before there was any supervisory action taken against him when you look at when it was filed the report said that we interviewed tim evans and he's poised to act and then the very next day the suit petitioning speech right of assembly that's the threshold question is that the type of conduct that the defendants are engaging in and i think there's no question that that's what's going on here didn't say melissa that was restricted to government action  consideration that's not part of the step in the analysis when the motion is made and i think that is a a consideration when the motion is made that that was never severely contested in this case that there wasn't any fact the tr court found that the defendants conduct was genuinely aimed at bringing about governmental change consuls well i want to continue with your analysis he said miller has the burden what's the burden of proof there the mov and and i would just note again that even though the plaintiffs submitted some affidavits on totally collateral issues he never contested the fact that he routinely le rather to chile define a speech or part of a protest protest activity jim ryan's trying to prevent you from speaking he's not actively trying to get seven million dollars from fox news it did he did language close to his for money that's a big problem for the defense of further plaintiff's forced defense according to expend funds on litigation costs and attorney's fees to defend against the finest america's claims and these court deals discourage the defense and it's not only that they would say it's spend money but sure that their children show their speech no one came out with after the suit was filed there was no further investigation i mean the fact that a lawsuit is filed has a chilling effect on further investigation further discussion if you look at the high tell decision let me direct the court to that that says that you can infer retaliate tory intent by a the lack of merit in the claims b when it was filed the the reports were substantially true if i could direct your attention to the myers versus levy case which which plaintiff cited that was a case where the defendant said i have one hundred signatures of parents who think that coach is inappropriate right and what the truth was that they only had thirty nine so the so the coach sued for defamation and the appellate court said even though we don't condone exaggeration misrepresentation the thrust of the claim was the coaches were unhappy the parents were unhappy with the coach and so the statements were substantially true he had the same thing here ok let's assume that he did leave early equating mirrorless with failure to state a cause of action you can't you could have that situation where if a plaintiff brings a suit and for example brings all wrongful termination suit even though there no employer employee relationship from the face of the complaint you can you can tick off that there's no merit to that it must been a file for other reasons but didn't the hammonds case specifically reject that approach that high tell took relative example if it's clearly barred by the statue of limitations with the court in hammond's i think was addressing we had ugh viewed in that case that because the suit could have been dismissed on a two six fifteen or two six  court could have firm on that ground but that's a big difference to sixteen years in nineteen correct but that's not what i'm saying i'm saying that when a court conducts its analysis to determine whether or not the suit is merit less right they can look at the claims plaid if it if whether it's under a two six fifteen i e it would never survive a motion to dismiss or under two six nineteen where the defendant has brought forth affirmative matter it's still the and retaliatory is that right or as put by the san home court whether it's solely based on the petition why do you think that equals at your bird show that correct right and you're arguing to us that you  that he didn't feel you did cause the action that right that he couldn't be successful in any of these claims whether you look at it from the face of the complaint i e he didn't really plead a defamation claim because whether it was his car or not claim if you have fox broadcasting stories that judges leave a courthouse midday you have one judge was followed in his car was parked outside his house today another judge was seen mid day in the backyard of her backyard residence and they also broadcast a statement via p g a official saying judges should punch a time clock each day doesn't all that a minimal imply to the t v viewer that judges are gauged in wrongdoing i don't believe so your honor i mean these are elected officials serious not even an implication of long doing by the judge under those facts the thrust of the report was the inefficient use of of course  question directly yes not least an implication of wrongdoing and i don't mean to be here which t v web when you look at the thrust of the report which is resources not utilized properly courtrooms are empty and judges are not putting in a full day it doesn't necessarily impugn the integrity of the judges your honor it in putin's the integrity of the system and to the extent someone could draw a negative inference from that of course in illinois we have the innocent construction rule and that report was good reporting about how some judges are just not fully utilized in that the system needs to can't understand why the assessment of attorneys fees that issue would have any bearing on whether or not this is a slap or not that would it that if it were the determinative purposes of this that that i mean when motion to dismiss under the and i slapped and that would not be a relevant consideration that may be the outcome of a determination that yes this is a slap but i just don't see  evidence then what's a third party well there let's assume the first two prongs are satisfied then the burden shifts to the to the plaintiff to show by clear and convincing evidence that the  activities were not genuinely aimed about bringing about governmental change the plaintiff offered no evidence on that score and the trial court correctly found that they were genuinely and as evidenced in the fact that activities were taken that could make one more observation in their point and that is that act actually requires a court to look at each clean individually it says the act applies to any motion to dismiss of a claim in a judicial proceeding on the grounds that the claim is based on the exercise of first amendment rights and this makes sense because let's say you have one meritorious claim and then five frivolous ones has the same chilling effect as if they were all frivolous forcing the defendant to defend five frivolous suits incurring the expense of that so just would have the expense of representing one so i don't know if it requires my work my mission more lawyers the the the non movements burden is to show the only way that the the the nonmoving can avoid application of the stat of the slap statute is to show that the defendant's conduct is a sham ok that they're not genuinely and that it's calculated just to did delay and frustrate the plaintiff and then again there's no evidence of that here so are you saying that there and they the nonmoving has to show that the defendants conduct was all a sham it really wasn't calculated or that are aimed to bring about governmental change thank you would disperses the character of a public ops are in a written or printed paper delivered to those who are invested with the power of removing him from office is responsible to the injured in damages  such paper as messed under this auspices to cover the investigating conduct of the officer for the general good public policy demands no such sacrifice of the rights of the persons before the justices today is a case of david versus goliath this is a case where a multibillion dollar multinational corporation has taken an attack on albeit a judge of the circuit  of cook county he is david there's nothing that judge ryan or myself can do to fox news or the better government association to slap the shut him up well how much  known for thirty five million down well thirty five million dollars that if the jury comes back and awards that justice win then albeit we requested seven million dollars in this case because we did a jury verdict jury of several is where i get the number crypt but there are coming from the same set of facts and as a plaintiff attorney we all plead different counts in the beginning of the case the system participation act has a burden i put forth this court that the defendants have not met their burden the defendants have not proved that this lawsuit is solely based on their first  and how do we show that it's their burden from across the state why this case is a slap suit and why it's so early based on their speech they need to put forth those facts they have not the facts in this case are about false statements that were stated regarding judge jim ryan which occurred on may twenty fourth two thousand and ten it's a fact th ten allege that judge ryan left early in portrayed his vehicle in the driveway of a home it's a fact that it was not his vehicle it was not his  based on that activity which includes showing that the suit was near a list and retaliatory you threw that as well that i do agree with ok tell me how your opponent did or did not carry its burden me showing that that they did got all they said is this is first amendment speech therefore it's protected and it's the place contention that they have not met their burden in the bird has not shifted to the plaintiff even though the plaintiffs put forth all the facts court that this is not a slap sue in the has merit they point the burden actually did not shift to us but we took it upon ourselves to give the facts to show it's not a slam counselor but the fact that the requests for damages  against a cane county jury where mr mandela was involved as well in that award was seven million dollars so we didn't pull that award out of the year that was an award that we actually looked at the jury verdict within the state of illinois for the judge has been awarded a date in time on may twenty fourth and told them this information is incorrect they continued to put teaser video on the t v showing him ducking al and making comments dirty little secret cook county justice mr packer saying referred to playing hooky cutting elderly either this is a full time job or not accusing the judges of malfeasance they said the immediate effect not only on his job and role as a judicial officer it affected his family and affected his wife his two twin daughters this is not something that someone walks home and turns on a t v this is television all other his daughter's friends were coming from your dad he's in trouble his wife was causing them problems he was having problems with dealing with his bosses the supreme court was brought in on it this is something that couldn't wait he told them this is false he told them this is wrong he gave them the evidence that on the date they claimed the first date he left early  search warrant to fifty first i want work at two thirty which clearly shows he was not at home on the second date fox and the b j stated that he left early in the fall them leave early he wasn't going to court house the record sure there was a different judge doing this it's a slap suit just because someone fouls a plane doesn't mean he's doing it to harass or retell retaliate the two six one five motions are actually still pending in the trial court and haven't been ruled and impose attorney's fees is wrong because the fence council want them to look at well this is a slap suit it's still with first amendment dealing with government action game over impose peace which i believe judge egan was doing in that scenario was he looked at the case of right from the only supreme court and saw that they looked at the facts of the case and he followed right issued the facts looked at the facts issued his opinion the nine the c p a and what he was stat commonly known as soon as their strategic lawsuits against public participation and the traditional slap was a big developer suing the citizen activists but they've evolved over the course of time and what the c p a is intending to do is protect more it's intending to protect protect parties and organisations who seek to petition the government to obtain favorable action and the conduct that's at issue here is without dispute brought by an organization to be ga whose mission is to work for the integrity transparency and accountability in government by exposing corruption and efficiency that's their mission seek to last or their participation in government there's no question about that the c p a is about more than david versus goliath section town of the c p a specifically list all the different type of organizations who are entitled to protection and there's nothing that would exclude even a media organization such as dot w o f l the judge can only when he analyze the c p a the sac our opinion addressed this very point another is intending to do something it has an objective it's intending to foster governmental speech petitioning and governmental action and are there prices to be paid in the course of doing that absolutely and the legislature recognized that in the in the outset of the c p a they set forth the public policy and what they state is participation in government is supposed to be save guarded with great diligence  report tells us first determine whether the suit is the type of suit the act intended to address what does it mean for the trial court to do well i think there's two elements there of it you can look at the entire lawsuit and what the lawsuit is about the context of the lawsuit who the parties are involved in the lawsuit when it was filed and what is that lawsuit seeking in this case we're talking about a public official who has followed a lawsuit about the criticism under which the court is where the c p a wants to protect and then it is remains the defendant's urge burden to make the initial showing that plaintiff lawsuit is is solely based on that petitioning activity we've discussed the ways that they can demonstrate that is by as it as i discussed looking at the context of the lawsuit but also looking at the claims that the lawsuit includes in this case there are four causes of action intentional infliction of emotional distress the false light and the defamation per se each one of those claims should be looked at individually and handle life and as we submitted in our papers plaintiff has not met his burden with respect to those claims also doesn't the determined this is not government petitioning this is not what the c p a was talking about when he wrote the decision so and my understanding of that interpretation your honor is that we don't have to go through the entire analysis you don't even get out of the box this was not a government partitioning case this is not with the c p a was intended to be talking about the sub had already survived the two six one five motion when he said come to them there was an summary judgment at that point but the court did go through and look at all the allegations what were the allegations what kind of damages were dollar seven million dollars damages request and as you said your honor in the amended complaint it quadrupled a lawsuit that was filed during the middle of an investigation during the middle of the broadcast  stop the speech stop the petitioning activity he filed the lawsuit before any action had been taken against he filed the lawsuit after only three out of the four broadcasts have been have been telecast on television i also would like to speak to some of pelleas statements as to the record v motion to dismiss that was before the court that what it was the motion to dismiss the amended complaint and that was brought submitted to the court significant evidence both plaintiffs and that this is not as a case where you need to look into only f b i allegations there was a six one nine motion where both parties had submitted have had submitted multiple af davits and materials and those materials demonstrated that the statements that were there were contained in the broadcast were in fact substantial is true i as to your questions about didn't this telec wrongdoing by the judge that is not sufficient to state a defamation person claiming wrongdoing is not enough that is not that is not a statement that he connected any kind of criminal activity or has acted improper or inappropriate in he and his judicial conduct while on the batch is it wrong for him not to put in a full day's work it's certainly wrong to all the taxpayers that's the very reason why the p g a and conducted this investigation to bring these issues to light bring them to the electric bring him to the other suggestion that a judge leaves the courthouse at two o'clock whatever time it is is that enough to suggest to the court the court or the judge is doing something inappropriate could judge couldn't be going to a lecture to law school or giving a presentation somewhere on the law would not lead appropriate if you want your honor but the evidence that's in the record and it is in the records and the material that we submitted demonstrated that when the envisage investigation was conducted and april two thousand and ten the very month before the actual broadcast was on was on television judge ryan did not state court  to town on a single day he wasn't in his court we wasn't in his court room was he out of the courthouse he had left he had left you this courtroom this close again you could've been in chambers getting out it is possible that may be the case there was no evidence official who has been criticized about how he knew how he was performing his public duties this was not a lawsuit that was brought because the p g a and w provided some salacious report on his personal life or his personal interests this was a report on how he was conducting his public duties this is precisely the type of conduct that the c p a has stated is of the most