n a petition to appeal that was really filed because there was a split on the on the critical issue that was decided by the court of law here between the fifth district in the second district those courts disagree with respect to the question whether two provisions of the nursing home care act were preempted by the federal arbitration act the first provision in section three does six zero six and that provision voids waivers  basis for the petition for leave to appeal i'd like to focus at least initially on that question and then to the extent that it's necessary to discuss the other questions that were raised in the in the reply br upon the question of the neutrality the question whether interstate commerce was present volved and it also addressed the public policy question but there was no hearing held before the trial court however on the on those issues of this decided  is save upon such grounds as exist at all or inequity for the revocation of any contract because the case turns on that phrase i think it's important at the outset emphasize two things about the supreme court stores for consumer on this issue with respect to what are such grounds as exist at the for the revocation of any contract the first point is that it isn't phatic in the supreme court's decisions that any contract means any contract in fact most of the supreme court's more recent decisions i tell resize the word in section to the word any to overlaps to some extent is that when the supreme court has interpreted any contract clause it's made two points explicit as i said any contract means any contract not a contract that arises under a particular state law the second point is that the defense doesn't just have to apply to any contract it must apply generally to any clause in a contract it cannot opinion and royce measured that's where the appellate court went wrong because if you look at southland and look at the obviously look at the majority opinion but look at the dispute between that dissenters in the majority if you look at the dissenting opinion the dissenting opinion makes the point that the franchise investment law is bodies state policy and that it franchisees special rights and the assertion that choice to be dissent in other words makes annoyed commit the closely tracks the appellate court's public policy argument here but what the majority says is that yes we recognize that contract offenses that are generally  conferred arbitration agreements but then it goes on and it says however the waiver provision in the franchise investment law is not a ground that exists at all or in equity for the revocation words franchise investment lot out and substitute nursing home care act and that ruling would be for school with the situation that we have here and require a reversal of the appellate court's decision and the poll court's decision erroneous three major respects in most respects overlap the first is that the appellate court fails to recognize that the type waiver provisions apply only to contracts under the nursing home care preemption under the f a a required a state law that specifically targeted arbitration and the third place is that the public policy that he would tell a court based its conclusion prohibited by statute that language expressly limits the anti waiver provisions only to contracts arising under the nursing home care act in self land it makes clear that a prohibition that applies only to contracts under one state statute is no ground under state law that applies to any contract and therefore it's preempted by the f a a and as i say  state laws that mention or quote specifically target arbitration agreements again so close to commence as i indicated the entitled provision in southland was a generic not mention arbitration is preempted by the f a a they meet the problem or as the courts specifically target analysis is that th agreements on equal footing with any other contract and a rule that says that he f a a pre amps only way it specifically target arbitration agreements is not consistent with with that policy code court statement that he there's no preemption here because the effect on arbitration agreements was indirect and intangible and it wasn't there's nothing in the supremacy clause that says the incidental tangential effect the secondary purpose of the statute use exempt from from preemption and to the contrary the court's decisions the supreme court's decisions in the decisions of this court make clear that what the f a a does is that you know whether to prohibit judicial or legislative attempts and the word they use is to under cut enforceability of arbitration contracts withdraws power from the states to require claims to be committed to a judicial form just a step from perry by the way that that quote comes that virtually the same thing the court came at it from the other perspective but it helps virtually the same thing it said that does the roles of the right to jury trial is a necessary and fairly obvious consequence of an that much is made in the poll court's opinion you know opponents place of the fact that the anti waiver provisions would also void agreement to submit to a bench trial or to some other alternative dispute resolution as if that makes the anti waiver provisions generally applicable to any contract in fact remains of workable only two nursing home care act contracts overstated its conclusion that public policy is a generally a political contract defense the fruits of arbitration contract permissibly under the f a a the problem with the court's rationale is this the court the certs the general proposition that violation of public policy is a legitimate state law contract defense that's generally applicable to search that is dispositive but the appellate court never looks at the arbitration clause and again when agreement that would be honored for support because the contract as a whole the prohibition on gambling applies to any contract and it applies to every provision in the contract unconscionably is also public policy derived he applied for the product unconscionably applies to every contract and it applies to every clause in every contract that's the problem that that we have here you polk or just simply did not look at the public policy again this court's decision and believe it compare commands that when you identify the public policy you have to make you have to measure the impact of the public policy makes the point perfectly clear that such provisions are preempted in fact as i said southland pre empted the rejected i should say similar public policy argument that franchisees forget special because it applies generically to all contracts and all close that's the problem here is that the public policy that the court applied was grounded in the nursing home care act specifically and the co appropriate for this court to consider these because the procedural posture of this case the mutuality agreement was passed upon by the circuit court the park court declined to answer it the state was not even brought into this case until the second position re or the unconscionably issue but in light of the i think in light of the arguments that i've seen in the reply brief that there are issue as to what whether this god had the ability to rescind this agreement whether she  consult a lawyer i think that raises certainly issues of her state of mind about whether she was when she signed this agreement so i think it certainly would certainly be appropriate i think and i think it's counsel i think i believe agreed on his opening argument that liability by a goodly declaims less which exempted from arbitration claims of less than two hundred thousand dollars realistically this meant that only residents suffer would suffer severe personal your injury injury death would ever be in a position where they would have to arbitrate well whereas it is highly speculative that a nursing home like gold would ever have a claim against what more than two hundred thousand dollars against a red or resident like choice at most likely claim that they would have you for nonpayment but under illinois law eight nursing homes it is permitted to discharge a resident after seventy five days so they can certainly had it was certainly within their control to bring it to either discharge fact if you look at the reply brief in response to our two arguments the only citation by own healthcare is turned a newspaper article which says nothing about a lawsuit i think if there were if if i think if there were lawsuits in which see homes that sued residents i think those would be reported decisions i've looked at the case well i've seen i see hundreds of cases where residents of nursing homes it's just not something that happens on a regular basis and or it's not was not the intent of this agreement to protect a resident against the high value lawsuit by the nursing home that oh didn't listen number of other matters they claim were consideration for this agreement for example that they pay the fees of of arbitration up to five thousand dollars but again that doesn't really alter the case that this was it agreement for mutual i betray should not unilateral arbitration and that once the contract for neutral arbitration fails the proper understood that there are any like a likely claim brought by them against nursing home was going to be was going to go to arbitration whereas a claim by the nursing home against them would likely came would still end up in court the fact and again and here's where some of the facts questions which were arose in the in reply brief own contends you remit was not procedural unconscionably cut because she knew she was signing an arbitration agreement and had an opportunity to rescind in fact this cat was admitted to the nursing home on january twelfth she signed the agreement six days later and died on january thirty first of never really may not have had the opportunity to rescind you even thirty days as it remains provided we don't know what her state of mind was we don't know how ill she was we don't know what the circumstances under which she signed this arbitration agreement but in any event i think as a matter of law you can look at this clause and see that it was so well hidden and so  i would say not comprehensible to an average a reasonable person that it's it's unconscionable on its face as to the public policy defense that is that that is the thrust of this appeal we have to an issue and it does not regulate arbitration contracts in a manner different from other countries the sections three six of six and three six zero seven work in tandem to safeguard the constitutional jury rate whether that means of waiting or agreement the class of contracts unconscionable contracts to waive the jury trial it's just it doesn't make sense that courts could decide on a case by case basis that these contracts are unconscionable but that the  regulations so i'm not sure what sort of deference we can give to this letter what we can really conclude from it but it certainly doesn't support the own healthcare's position that this arbitration a to this section of our brief in the specifically this case is much like the case out of believe with south carolina the thames case in some of the same factors were put insufficient to form the basis of the contract between the parties because i can this case we're talking about an agreement between a resident of a nursing home being in this state in the illinois and nursing home in this state the most in home i'd like to address one point about the preemption argument that's been that's been raised and then move on to the other issues one of the things that's been suggested preemption is that  something that has to be decided based on this pacifically targeting language in other words in the in the brave the state in particular i'd use the preemption analysis is not one that looks at  heat as applied and that is just simply wrong there's a supreme court precedent that cited in our reply brief the rat pack itchin case that specifically says that the court has to look at the raw as written and  applied secondly with respect to the claim that the social security act clearly intended to protect the right to a jury trial frankly there is no basis for that whatsoever and evaluating that enforcement remedies the enforcement remedies being the ones that enforce the regulations against nursing homes not preempt the president's rights to bring russets in other words it was a clause that was designed to save the common law and statutory grandbabies from preemption by an argument that the regulatory scheme had occupied the field and there was no room for private private a documents find fact at least independent with respect to the claim that the nursing home doesn't have to trade anything the point that was to be made by including me are from me they should cover newspaper back to nursing home fire is that have to be equality into consideration as long as there are classes of cases that would be submitted to arbitrate that's sufficient but the but beyond that both the plaintiff in the state make the argument as is the is a second provision that says that the facility will pay up to five thousand dollars of the residents attorney's fees if they go to the tray should we use now it's been argued that that's a cap on the attorney's fees that the facility could unconscionably look at the terms of the contract it says on its face in capital letters fact it says three times once in capital letters that you're waiving the right to jury trial its is that it could be rescinded within thirty on the specific transaction here the specific contract but if you have the persistence case from alabama the supreme court says that's not the appropriate focus it's not of the specific transaction  connection to interstate commerce but it's the economic activity in question in the aggregate economic activity is defined by gun sales the reach of the production dissemination and consumption of