there's case on the call the doctor's agenda number and nineteen case number one eleven for four three sent home versus cracker and if i'm not pronouncing that right please correct me coun actions of the defendants in this case this case has been dismissed soley on the basis of the application by the trial court and the appellate court of the citizens participation we will show i believe in our brief and in our reply brief that this state statute is unconstitutional as applied by both the united states supreme court case in mcdonald versus smith and also under the ri remedy clause applicable under the illinois constitution article one section twelve in this case mr stan homo's a thirty two year educator and coach coaches get criticized all the time they may make the wrong call they may make the wrong substitution of a player but that's not what he sued about he sued because this group who were dissatisfied with the way he coached went too far and started saying that he was devoid of any true citizenship that he abused his players they said it repeatedly on the internet in newspaper articles and on the radio and we're submit that that is defamation per se and that they are not protected by the c p a in this situation section fifteen of the act has now been interpreted by the to second district to completely eliminate any public employees right to seek remedy for damage to their reputation as guaranteed under article one section twelve of the illinois constitution there is no scenario in which a public employee cannot file an action for damages to his detention or to his person because the defense will always be while section fifteen i'm going to invoke that because i was genuinely aimed at trying to prick your a favorable government result whether you're successful or not is not the issue the issue becomes  situation i'm trying to get caught up i don't like this person i hate this person i hate this person with a passion so what i'm going to do is i'm going to make up the biggest lie about this person and tell everybody on the internet in newspapers or on t v anybody who will listen to me and that public employee not only will have no right to a defamation action but he'll be mcdonald's versus smith decided in one thousand nine hundred five the united states supreme court recognized that the right to petition government for redress is not absolute it did not elevate the first amendment right to petition to an ultra status to a status that's higher than the defamation laws existing new to the miss country include an unqualified right to express a damaging falshood in the exercise of that right wasn't guaranteed the supreme court further and stated to accept the petitioners claim of absolute immunity would elevate the petition clause to a special first amendment status despite the fact that the petition clause was inspired by the same ideals of liberty and democracy that gave us freedoms to speak publish and assemble isn't that what the second district's interpretation of second section fifteen is doing here isn't it elevating the right to petition the government for redress to an all term level to a higher level than what's guaranteed under the us constitution and as recognized under the mcdonald decision that's correct and your honor in this case we have no complete filed in this about the fact that they presented this position to the dixon school board if you look at our pleading in this case we attacked the fact that they went to the rockford register star but they went to the internet and created the save dick some sports web site every publish this and that they continued to do that and go on the radio with an r g and repeating these false hoods what they're saying here is we don't even have to put this week our speech is absolutely protected here they're saying that this statute as they interpret it gives an absolute immunity to any of their speech so long as they're trying to affect government change that's not the intent of  sad for a sad representative frank said one question are you trying to shut up the people who are doing the lawsuits mean somebody like mr sam no what i'm saying i'm trying to bring some sanity to  this isn't what this does brings no sanity it eliminates a complete cause of action guaranteed under article twelve article one section twelve of  constitution to all public employees there is not one dogcatcher one supreme court judge one governor one you name it school teacher who could ever survive a motion to dismiss their clock cause of action for interference with their employment for defamation or for invasion of their privacy if some citizen decides to create a website and just start slandering them on because that person will come in and found two sixteen motion to dismiss citing section fifteen of the c p a saying i was just trying to genuinely affect government change but that's not how this should work and we've pointed out that there are twenty two other states who have adopted the statues and they haven't interpreted them to credit blind absolute immunity to those who actually commit torts if you notice you in any read in my brief i believe it in the reply brief it page nineteen and eighteen nineteen the statutes themselves have been written in a way that allow the free speech and allow the participation in government but do not shield if they come in and abuse their discretion and abuse their rights in this situation which is what we've alleged there's been no finding by the trial court or the appellate court in this case that mr sam holmes claims against these defendants were you savvy in your decision last year in in the right development group that the purpose of the statute was to protect citizens who have been the victims of merit less retaliate tory slap lawsuits well who protects the individual from mob action in this situation who pro tax public employee from with a thirty two year record of that is spotless who has served children its entire career from being falsely accused of abusing those children that he has served for thirty two years while courting of the defendants no one they have argued in this that this is an either or and that the legislature decided by acting this that the balance was the balancing test to be done here was simply the enactment of the statute that's ludicrous there's no balancing test by simply saying we're going to protect all tortfeasor section five of the act specifically says that we are to do a balancing test itself to balance the interest or to strike it is the purpose of this act to strike a balance between the rights of citizens to file lawsuits for injuries and the constitutional rights of persons to petition while with the interpretation by the second case that this statute does not protect tortfeasor it does not protect people who actually act with defamation and speak false words again the right to petition government is not absolute you will be responsible for your false hoods if in the course of petitioning government you defame someone and that's the reasonable balancing test that you can pop apply to section fifteen of the act and again it's also in section fifteen it says the constitutional rights  constitutional to slander somebody nic donald and in the new york times versus sullivan the first amendment has never been expanded to par absolute protection to a citizen who slanders another so that's what's being done here you have to interpret the statute as a whole and when you look at the word constitutional you have to go back and look at the cases that are decided under defamation law what is constitutional and subject to a qualified privilege and what is not and in this case in the mcdonnell case right to petition does not elevate and trump any citizen's right to be free from defamation why can't the legislature make a choice i can the legislature make the choice that in their judgment the balance should be struck on the side of the first amendment rights and immunize them and not only to to make that balance but to have that determination made on the pleadings at the most or dismiss phase and what you're suggesting after evidence has been washed out and if i just like in the legislature do that because it's unconstitutional explain why please because under the first amendment you don't have a there is no restriction on free speech in the tremendous insight it's referring to but it doesn't relieve the speaker from responsibility of that abuse that is totally consistent with the u s supreme court decision so you can't interpret a statute to trump somebodies constitutionally protected rights it's just not legal you cannot win to win a constitutional statute or when a statute runs up against  constitutional provision and there's a conflict the constitutional provision trumps so so the right to seek damages for defamation is a constitutional right i believe so it says so under article one section twelve you have the right to remedy cases of that but usually those are in limit where the legislature is expressly it's stated that it's untapped as to why and under public policy we're going to give you immunity such as in a public representatives intended to do allow this act to be used as a shield to defamation there's no discussion in the legislative record and the statute itself section fi says under its express language we're going to do a balancing test of the right of citizens to bring an action for injury versus the right of citizens to  government action yes i think that's a question of fact in this your honor that the that the trial court and the appellate court completely failed to address the word genuine is in the statute it has to be a genuine attempt to participate in government is it genuine as a matter of law to come in and defame somebody is it genuine to go to  the age of four that's what we're opening this can of worms up to i could then go and make a internet posting on any public official in the state of makers these are people going on to the internet and urging the decision we're saying that you can do it legitimately you can engage in the free speech and right to petition but as know i'm not i'm not i mean it's got broad language in section fifteen but what i am saying has there needs to be a determination on on the get go in this case under this statute whether the person injured claim is meritorious or and that's what is completely glossed over here what we've done is put the throwing the baby out with the bathwater simply by  g nor pennington doctrine and explaining it to say it nor pennington doctrine being a new trust case but to expand it to say any time you say that you're doing it with the intent to favor genuine government that are genuinely doing it to affect government action or change your entitle to absolute immunity there is no balance here in the way that the defendants argue it and in the way from numerous administrators of mr stan homework with from the thirty two years prior to this that what was said in all my time in supervising him i never observed him do this that or the other thing to any of these kids and that could have created the issue of fact as to whether they were genuine in this case whether they were constitutionally protected in this case but that didn't happen we're out on a true sixteen to six fifteen motion to dismiss ignoring my argument that you have to first determine whether the injured person has claimed his merits has merit and then analyze it from the other aspect of it under section fifty please the court counsel michael scotto from the office of the illinois attorney general here on behalf of the intervenor of police state of illinois at the outset i think it's essential to clarify one point that may have been somewhat conflated in the last presentation there's a difference between this is to justice tyson's question there is a difference between not being constitutionally prohibited being constantly constitutionally prohibited from engaging in defamation and the minimum requirements that sullivan and mcdonald require all that sullivan mcdonald say is that you don't have a constitutional right to engage in malicious slander that's what those cases hold that once you engage in malice once you introduce that element you're no longer constitutionally protected what those cases do not hold and are therefore totally are the reason they're totally irrelevant to the constitutional question before the court what they don't hold is that states can go further and say that the exercise of policy making authority of the general assembly they cannot protect beyond the bare minimum announced constitutionally in those cases the interpretive question before the court today is whether or not that's what the general assembly did as we point out in our brief there are two competing interpretations of the statute that we think are supportable on the constitutional text the broader reading endorsed by the appellate court is the one that we think  readily with the statutory text and purpose but we introduce the other as an alternative as well and there's been no contention in this case that the alternative construction is in any way unconstitutional and as we show what our brief even under that alternative the judgment below must be affirmed the only practical difference between the two alternatives here both of which are eminently constitutional and permitted by the us supreme court doctrine permitted by this court's decision in michigan avenue national bank the core difference is what to do use words in furtherance of and regardless of intent or purpose mean in sections fifteen and twenty of the act do they mean that you're only immunized in so far as you get engage in constitutionally protected condom and to apply that to this case that would mean only in so far as you speak non malicious lee or instead do the words in furtherance of regardless of intent or purpose in combination with the statement of purpose in section five regarding most protection the statement in section thirty regarding interpreted broadly whether or not in combination in combination those suggest instead that this is an immunity akin to the immunity that's been recognized in the legislative context in the judicial context and justice thomas your question consistent with the way rhode island has interpreted their statute in the al this case under those interpretations what we have is an immunity that's not absolute it's conditional it's still conditional on a number of factors and i'll come to those in a moment i think that plaintiff has endeavored at times to suggest there are no limitations even under the broader reading but there are serious limitations even under the broader reading so maybe i should turn to those quickly now under the broader interpretation the notion would be that in furtherance of the regardless of intents and purpose in combination with the other phrase as i've mentioned suggest the general assembly had intent to more prophylactic protection on the core constitutional rights that are listed in sections fifteen and twenty of the act and if that's the case what it means and especially the phrase regardless of intent or purpose which is borrowed right out of the north if that phrase means what it appears to me such that malice is immaterial for example at this motion to dismiss stage under the act then what the hearer nonmoving to plaintiff is left to do is to establish by clear and convincing evidence one of several things he can show that this is a sham and indeed at times at the podium today that is the suggestion that's being made that this is a sham it's not genuinely aimed at procuring favorable government treatment that's an available defense even under the broader reading of the statute we know what that means that phrase is taken verbatim out of the supreme court's decision in city of columbia the on the case at page three eighty that very phrase appears we know from that and from legislative history should we even need to look there that this is an effort to embody the sham exception we know what that means it means we look and say what a reasonable person would a rational person conclude that these statements had a reasonable chance of procuring a desired government effect and if so then we proceed to ask and is this was this speaker in this case the defendants were they subjective longstanding doctrine that when a term of art is borrowed from preexisting case law and here it's not just a word or two it's an entire phrase the entire quote genuinely aimed at procuring favorable government action is wholesale borrowed from page three  illinois yes i would say two things in response to that your honor first if anything given that our ask amy is relatively new to the party in two thousand and seven it may suggest that by not including that language the general assembly knew exactly what it was doing in asking for a broader more prophylactic protection consistent with the language in section five and thirty of the act the second thing i would say about that that  as ambitious as this language is visa would be other states it's not alone it's not alone piece of the rhode island we talked about this is all developed thoroughly in the brief of the amicus and it's also not unprecedented when one considers cases i'm sorry one considers the existing common law or statutory immunities that are already recognized and are deed more absolute there's no sham exception to speaking malicious fal sure to introduce for i would provide two examples that came out really recent federal district court decisions they're not in the briefs there are more recent may and september decisions in both of which there were just trick judges found that the plaintiffs in those cases had satisfied the burden of establishing a sham exception and so i would in a moment commend both of those to the court as as examples where the sham exception has real teeth but beyond that i would say it is to be sure a sham exception again not the original creation of the general assembly borrowed from us supreme court case law in the north pennington omni professional real estate investors line of cases is intended i think to be a high bird in those basis developed originally in the antitrust context it's difficult no doubt for plaintiffs alleging antitrust violations to say that all of this government action is really nothing more than an effort at herding us through the  the speech itself that is there not actually trying to get some genuine government action it is by design a difficult standard i don't think that speaks at all to the constitutionality of the question certainly not under mcdonald or sullivan as i pointed out that's those have left open this issue if it's a constitute the constitutional question he's really raising is one under the article one section twelve the plaintiff is advancing and as we point out in our brief with michigan avenue national bank it's very difficult to claim that an act like this which makes more difficult but does not wipe the slate clean leaves the common law actions intact but you can have a national bank was if anything there was a far harsher toning down or softening of the ability to bring claims in that case and it was it was upheld two daughters question about examples the case called she versus loyola university medical center which came out in may in a case called trudeau versus consumer affairs in both cases the court said first under erie this is a subset of law and therefore applied federal court sitting in diversity applied the arse anti slapp law and it went on to conclude in bloom cases that the complaint could proceed because they simply didn't believe the actions in these cases one was an employment review another was a criticism of the consumer advocate mr trigger oh that in either case where they really aimed at government action they were aimed question about the sham defense or to prove that this is or is not a genuine attempt to seek to seek a government support those that does the trial court have a viable option or opportunity to determine that two six fifty it does your honor how it at the time that we filed this this predated the concurrence in the right decision which indicates that the more proper way of bringing a clear a challenge based on the c p s protections would be under two six one nine hundred eighty nine there was no challenge to the appropriateness either at the trial court level but by the by the plaintiff to the mechanism of bringing it as a two six fifteen motion the  act itself has a mechanism that says as soon as the a motion to dispose of a lawsuit based on the c p s protections as filed it has to be accomplished in a certain timeframe and it also allows for a certain level of discovery discovery is otherwise stayed in the case but remains open for the purpose of getting into the genuineness of the of the the movement's intent when they spoke their allegedly defamatory speech in this particular case the plaintive did not avail himself of an opportunity to take any any depositions any discovery regarding the genuineness speech and it does go beyond the four corners of the meeting room it sounds like today mr few wigger is acknowledging that it does is a matter of fact in the courts right decision from last october the speech was related to comments made by somebody to a newspaper and in that particular instance the court held that speech to a particular newspaper because it could go out to other members of the  condo board because it could go out to the alderman the population at large it is protected and as a matter of fact the definition of government in the c p a includes speech aimed at the electorate so here for example we have both the speech of the townspeople who were speaking out regarding the conduct of the coach and also the speech of the radio station and its general manager which which were again in furtherance of the town understand it is there were friends you know and radio content that they're alleging is the amatory the fact that they went from the meeting that didn't take the answer from that meeting as being sufficient and went on that you know it of itself would not be able to support the family is that right or say that that's that's correct because this was all part of a process as the appellate court recognised true trying to effectuate some kind of government change such as the removal of a teacher or a coach might be more than just attending families well let's say that one of the townspeople instead of speaking out or sending an email to the local superintendent went to visit relatives in florida and was complaining to those relatives in florida saying how awful the coach is how he needs to get fired well that's not certainly not in furtherance of any kind of government change so that wouldn't meet the first of these three tests that the appellate court adopted based on three part test that first looks at is this in furtherance of some kind of government action second with the objective lea real objective reasonable person believe that this action  reasonably likely to to procure some kind of government action then the third part is the subjective belief of the actual speaker did they subjectively intend to achieve some kind of government action i think in your particular question we focus on the second part which is well the objective reasonable person would not believe that if if you're simply going down to florida and telling your relative about this complaint it's going to achieve any kind of government change you need to go to the school board and make yourself known you need to go on the airwaves you need to write letters to the editor you need to do all these different things not only before the meeting in drafting and getting a petition people who are facing allegations of defamation if we accept mr sand holmes approach of saying we need to in every instance take a deep dive into the merits of whether there is def well that means a merits based opinion that means a trial on the merits which completely eviscerates the purpose of the c p a which is to do away with lawsuits based on allegations of defamation the only way to know us i believe it protects even malicious statements even allegations even statements that are alleged to be malicious thing is example num is that it's everything they're trying to get rid of this is that well i think in each instance and it's a case by case analysis you go to that three part test you first look at whether or applies to some kind of government action in the example that your honor just gave i believe it does you would then look to see whether those allegations and frankly the more outlandish the allegations are one could argue that the objective reasonable person would believe that those would not result in any kind of government change lying about somebody of saddam izing for girls something that is so easily dismissed provable to be false would actually have the exact opposite effect that the speaker had it wouldn't harm the person who face the allegations that were probably arm the speaker so in that instance it wouldn't pass the objective test the second part of the test and again there can be discovery limited discovery on the subject of intent of the speaker if the speaker has told other people hey i don't want this you know i want this guy out and i did but more than anything i just want to box him into a lot of litigation i know he doesn't have a whole lot of money so what i'm going to do is i'm just going to bring this this complaint and in that particular instance the subjective test would allow the the defamation lawsuit to were done for bonafide reasons to effectuate government change as the complaint even alleges here the complaint never alleges that our clients didn't do this for a bonafide reason the complaint at the record of page c three sixty two says the defendants in gauged in a campaign to have him removed from his positions as coach and athletic director so there's no question here that the sham exception would not apply but what would happen is if the defendants believe that the c p a protects them they would then file a motion to dispose of the case we filed a two six fifteen motion based on the concurrence and right from justices freeman and two other justices i believe probably the more appropriate route would asked the solicitor general earlier whether this is or ask mr fee whether i believe how this would be applied in certain states the anti slapp statutes are equally as broad as the solicitor general mentioned rhode island maine as a equally broad statute rhode island says on written almost identical to illinois actually it lays out the sham exception and a little more detail following the north pennington  doctrine does as well and incidentally since since we filed this lawsuit twenty two states had at that point illinois became the twenty second state at the time of this court's right development decision in two thousand don't believe that's a new that's correct your honor because again to decide whether it to take the approach of asking whether this is allegedly defamatory speech in any case that has a count for it's going to allege defamatory speech so that essentially put that analysis kind of puts the cart before the horse and gets us right back to where we were or with the situation that i discussed earlier on that you have to go to a trial on the merits  in order to to reach that decision and the entire point of this in all slap statutes is to provide a very quick mechanism for a defendant who speaks their mind on an issue of government import to not have to face the fear and the cost and the expense and the heartache of being sued because they chose to participate in government in government actions when we look at section five of the statute  lays out the purpose of the act many illinois legislative acts are quite dry this one while not quite the gettysburg address he announces some pretty important principles for citizens of illinois the right to speak freely the right to not have to fear the chilling effect of a lawsuit when you decide you want to participate in government when you decide you want to go to a school school board meeting and say that you don't think the school is being run correctly when you want to go to the zoning board and say i don't want to highrise built two doors down from me you shouldn't have to face a lawsuit for that and that's exactly what my clients have had to face and the other  lose in this instance the legislature was deciding the rights of people who allege defamation allege that there are rec patients have been harmed the right of them to seek financial recourse for the harm to their reputation versus the right of illinois citizens to participate freely in government without fear of being sued they had to put those two on the scale and one was going to win out the legislature struck the balance mr sam home has said his briefs here and below that each court has to strike a balance but the legislature itself struck the balance i do want to take just a moment to discuss the fees issue because it's very important to my client my clients and my clients the act says says in section thirty b that it is to be construed liberally when the trial court decided to grant just a very narrow sliver of fees just those fees related to the drafting an argument of the c p a portions of the dismissal motion it did the exact opposite it construed the c p a as narrowly as possible on the on the attorney's fees issue  the point one of the main points of the c p a is to allow people to feel free in participating in government and to avoid the chilling effect of these suits now if we look to the legislature of  decide that the in connection with the filing of the motion language is ambiguous and the appellate court believe that it did and there's now a district a split between the first district in the shoreline opinion that takes a broader reading of what in connection with means to mean more than simply the motion to dismiss itself but other things as well versus the second district which has taken this very narrow approach both in our case and in the heigh you if you look at those if you look at that language in connection with and you look at the legislative history all the examples of abuse that are to about not only the state representatives talking about people being sued for speaking out to talk about being sued for running because they ran for public office because they were fighting some zoning issue they talked about the fees that people would face and they didn't talk about the fuse that they were facing on that narrow sliver of a portion of their motion to dismiss they're talking about the fees that people face when they face these lawsuits that is what drives the c p a that is what has driven and to slap statutes now in twenty six states and one territory that is the purpose it's to make people whole because of the trial court's decisions my clients are recovering would recover about fifteen percent of our fees other co defendants would require you get up to about thirty percent but i will work backward from the fee issue first that is a creature statute in this case and in the american rule generally speaking the parties are responsible for their own attorney's fees if you' to start applying the statutory language you have to comply with it in this statute it says that the determination of this motion is to be read within and ninety twenty first somewhere in that neighborhood of two thousand and eight there's no jurisdiction first attorneys fees in this case the court asked to follow the statute i don't care  fifteen thousand separate motions about the constitutionality of the statute during the course of trying to protect my client's rights in this situation that's my prerogative as an attorney it's the court who is required by the express statutory language to render the decision in ninety days it didn't there is no grounds for an award of attorney's fees at all based on the statutory language rather this corps is bound to consider the consequences that result from construe in the statute in the manner in which the defendant and the state argues here in both all one versus midwest medical records and hassen vs reading this court has held that when the literal and foresman of a statute would result in great injustice and lead to consequences which the legislature would not could not have contemplated the courts are bound to presume that such consequences are were not intended and will adopt a construction which it may be reasonable to presume was contemplated by the legislature the legislative history in this case is completely silent as to the discussion of doing away with the rights of public employees to pursue their state constitutionally protected rights to be free of defamation to be free of interference with their employment and to be free from an unreasonable invasion of their right to privacy the reasonable interpretation that this court can give to this statute as a whole is to the effectuate the balancing test is to give the person harm the right to show that he has the meritorious clay and proceed wit a two sixteenth it motion to dismiss i have no right to discovery in fact if you look at the record in this case i asked for and served written discovery on the defendants in this case and an order was entered barring me from doing i had no right under the six fifteen motion to conduct any discovery at all then i'm being whipped sawed on them two sixteen suit two six fifteen motion by saying well you can't prove a sham therefore you're out that's not what the legislature intended here the legislature intended a balancing test between the rights of citizens to speak freely and go to the public versus the rights of that citizen being affected by it to protect his or her reputation the interpretation urged by the state and urged by these defend completely obliterate slate in this case some of the other problems i have with this argument is what if for example i just went and started doing letters to the editor and i never participate in going to a governmental  i start a campaign against the rock island chairman of the board and just start writing letters to the editor in the in the quad city times to the chicago tribune accusing him of being a sata missed well i never went to a board meeting i never went and filed a petition husing him that now asking for is really all i did was write to the editor and accuse them falsely of that under their interpretation of this law that's absolutely protected because i was attempting in that situation to genuinely affect government change that can't be what ami stands for further they flunked the test under  let's create say dixon sports and start telling them how he abuses children let's write a letter to the editor of the rockford register star and say this is not about his coaching ability it's about robel of years embroiled tearing down players telling them they're no good humiliating them getting in their face from inches away and shaking his finger  tension to government was ever made i also point out that after mr say in one was removed as a coach from dixon high school that another gentleman went forward and phyllis evaded coaches in the grade school level telling them false words about mr sam home in late may or june of two thousand and eight there was no petitioning at that stage he'd already been removed as as the head basketball coach yet their interpretation and the trial court in the second district interpretation is that's absolutely them because we're just going to raise section fifty show me in the legislation legislative discussions that representative frank intended to eliminate the rights of public employees in this state to pursue a defamation action show me in the written legislative history where anybody decided that they thought that the rights of the individual were going to be trumped by the right to petition government it's completely silent under the decisions i decided to you earlier you have the right as the the court to interpret the statute to prevent these in incredible consequences that could happen down the road you have the right to say in this situation we're not going to tolerate people going in and lying about other people if their interpretation is true throughout the school cut completely throw it out there is not a teacher who's who's not protected that they have all these rights and everything but then the citizen can keep coming back and coming back and coming back and same falso day after false hit after falshood and they're all new in this situation there is no protection for illinois public employees based on the interpretation of the statute in this man thank you thank you mr