position but i'd like to add on to this that the defendant appellant in this case described my quote is misleading and it is not and it's because of the structure of the toby decision what the lower courts said in rejection of the appellant's position then the high court over rule those lower courts essentially affirming the appellant's position that makes it for a hard read but what it amounts to is that the the position that was quoted on page sixteen appears to represent what the court was endorsing second i'd like to address how i structured my argument regarding the illinois fire nuisance act the defendant's appellants here said that i've used the blockquote and didn't support it i'd like to draw the court's attention to the way my state my argument is structured and as in two parts part a party part a laid out what the  of the court it and then in the nd part i showed how the circuit court followed that standard and i'm not going to repeat it here because it's there in f it the way i did i made it very efficient it consisted of just slightly over three pages and laid out all of the salient point i'd like to point out that throughout my arguments in the main my arguments were based on the application and law and constitution and it's based on the highest courts of the jurisdiction the illinois supreme court and the united states supreme court the defendant appellants make liberal use a decision of courts foreign to illinois and lower non presidential the wisconsin farm nuisance acts statute and it's in the case and if you look at those purposes they're different i'm going to just direct this to the illinois statute because the  statute expressly recognizes non agricultural encroachments as a source of the problem that the statute is intended to solve was constant statute technology and that in the development of farms now those are different and more importantly the defendant did not show this court references to other foreign authority and i'm not to go through them because they liberally use foreign authority but uniformly they don't establish how that authority specifically applies to this case in hand i'm going to turn to federal court authority on the the constitutional issues under the united states supreme court the court should look at my briefs and see again that i rely exclusively on united states supreme court authority and the defended appellants who accuse us of not paying attention to their authority  federal cases that they cite i'd like to direct this court to look at it and see all of them are from federal district court decision federal district court decisions do not have presidential authority and i didn't cite that in my brief because i don't believe i had to do that but i'll provide you with the citation today that shows that there is no presidential authority  that case cites messenger vi gehring in supreme court case saying that one must have sustained or and it's the emphasis in the case be a danger of sustaining direct injury as a result in the forstmann of a challenge statute in order for a rule nineteen to come into effect for us to give notice to the attorney general their petition for face and his file within days that's got to be timely for safety purposes once the court decided that th their notice of appeal again within days we gave another notice to the obj at the attorney general's office the st acknowledgment of the attorney general's receipt of there's another thing question that if this court were to accept the defendant appel his proposal will about how to construe hope construe rule nineteen it would really be a  poor public policy because if all of this were follow the rule as defendants apple and say that we should it would cause multiple resources would in part be used to have to respond to these notices as they did with ours but if reffing never materialize and they never become something that places the person giving or the party giving notice to either sustained an injury or be an immediate danger sustaining direct injury then it would be a waste of the government's time next i'd like to argue that the defendant's position that the constitutional questions are ripe for review they will only be right for review if this court does not arrive upon a resolution that does not implicate you know united states constitution if this court decides either on the basis of our appeal that there should be a new trial order remanded back to the circuit court or this court finds a resolution of the application of and it would also coincided with the basic rule of constitutional lawyers it's also important that in constitutional cases if there is no constitutional case controversy there's no rightness and so there's got to be a case in controversy and if this court moots the constitutional issue before we reach them there's no case in controversy i'd like to highlight some other points about our direct appeal our st big issue is regarding kelly howard a juror  defendant's opponents now argue that there was no authentic ation of her facebook entry but if you look at the record as a supplied and as we pointed out they feel they didn't object at the circuit court level and a lack of an objection constitutes a waiver and i cited this in the case  expression in that facebook entry she established that she should have been a jury and should have been on the jury and the plaintiffs were denied a jury of twelve now who nobody is ever going to time after the juror had heard the evidence you know deliberated and obviously rendered a verdict those that had any place in our consideration well to the extent that it happened afterwards or of course it's something that you would consider but what it does is it reflects on what she did while she was a jerk if you know i'll know if you look at her quote she says it's been saying for the last three weeks her entry was made within a couple of hours of the time the jury verdict was entered which means that the three weeks prior she was talking to somebody by your own admission well what she knew route to trial not necessarily communicating that to someone thinking that well i'm i'm not going to deny that she may have been thinking it but what she said in the facebook entry literally what she expressed was that that's what she'd been saying all along now if she'd been saying it all on there must be a recipient so her speaking not who that is whether it's fellow jurors people at home we don't know but if you look at that there is an admission that she was talking about the case during the pendency of the case and so that's why you know i think the fact that she did it afterwards if it was merely that she said well i think it was decided the right way or things like that but she expressed her own views that that show prejudiced and she did it within a period of time that was during the trial trial as a juror well we know some of the things that she said in that faith facebook post could not have come from the trial specifically she makes reference to the wealth of the players why was that mentioned at all during opening statements or anything from the attorneys i believe there is some indication and  i think this is one opposing counsel mentioned in his brief that there was some discussion about that well it wasn't about their wealth but there was discussion about one couple two of the plaintiffs who have a business and are employers in that county so there was that but he likes his and the have substantial landholding in that area the amount of their acreage and things like that were not discussed their wealth their income was not discussed and so but if you take her expression at face value it looks to me as though she's making reference to a number of the plaintiffs and in that that in that section of the country you know farmland along the river but that isn't sandy is worth a lot of money now whether she came to that conclusion on her own it was not part of the reversing that verdict all the pious arguments are governed by the abuse of discretion standard and there is nothing in their reasoning that would indicate judge perry abuse of discretion when he denied their motion for a new trial if we turn to the face authenticated no not follow up but this court always has the ability to affirm on any basis supported by the record and if you follow the can decision from the nd district the facebook post is not go send a kid and it was never admitted into evidence so there is no basis to argue whether or not it should have been admitted into evidence numbness or davis says well the court could have had a hearing yes the court should have had a hearing they should have argued and tried to admit the post into evidence and they should have had a post if you look the can it says anybody with an email address who's thirteen years old can create a baseball account you need other indicia of authorship before you consider and so we don't think that this court can even twenty two days she's been talking to the jurors about the case in fact the last twenty two days she has been strictly adhering to her civic duty of ignoring outside influence not reading the newspaper a putting her life on hold  vacation her attention was on this case and that's exactly what judge terry had asked her to do now when judge perry excused the jurors after they render their verdict that prohibition no longer applied their st amendment rights facebook is a looser style of communication and so when she describes for comments of the rant that may be what it was the best that's her expressing what she found the case to be and i think she expresses that she said  that you know paraphrasing the case may have been long on days but short on evidence and that's that's how she came to her the determination so there's no evidence of any bias in that post and i think mr davis is confusing the issues when he says where she was prejudice towards certain issues that's not what president means the president to the outcome so he has to show that she was biased and that there was a resulting prejudice from that and there's never been any showing of prejudice to the outcome of this it's significant when a pace of growth comes after the verdict and that's exactly because when the jurors are listening to the evidence they're not to be on facebook they're not to be looking at other news outlets but once the verdict is rendered they have every right to discuss the case look online and read the newspapers and that's exactly what judge judge howard juror was allegedly doing ok to read into the statute exceptions or limitations that are not found within the statute plain language the court of appeals duty is to simply interpret the language within the four corners of the bench and if we start with the statue itself and looking to case made it a nuisance action every iteration of the planet's complaints began with the st allegation this is a private temporary nuisance case brought by ten plaintiffs and with the planets now the nuisance  struction went that went to the jurors related to whether or not there was a private temper a nuisance the testimony of trial related to the plaintiffs have them describing how the defendants farming operation and or fared with their enjoyment of their property they testified to how the the been progress made aberrations interfered with their ability to garden have cookouts to socialize with neighbors those are all nuisance there is those are not negligent theories they're describing the ways in which the defendants property allegedly interfered with their ability to enjoy their property those are all nuisance there is there's some reference to negligence and  instructions but that is in the definitional sense because part of the farm nuisance to the act section three has a the st of the coming the new doctrine which would bar players from coming to a nuisance and complaining of the news as long as the arming operation has been in operation for a year now there's an exception to section three and that is in cases where the defendant pog farming operations are being operated negligently so there is a place for negligence because provisions illinois has mandatory fee shifting in favor of the defendant when they prevail texas and wisconsin also have those two provisions oklahoma and oregon for instance have mandatory fee shifting to either prevailing party indiana and louisiana and missouri all have requirements so those very different iterations of the statute and all fifty dollars states have a right arm statute but because illinois right to arm statute in the village of chadwick decision that paragraph seventeen when they're interpreting section three of illinois farm through the act they look to the far right to form statutes from other states including iowa and other related factually and unsupported and legally irrelevant at trial the plaintiff testified that they had lost the enjoyment of the right to farmer i'm tired of the right to cook the gardener socialize with neighbors there was never any testimony that the defendant hog farming operations had interfered with their ability to engage in their agricultural pursuits they were complaining about enjoying their property but they were never complaining that they were unable to engage and their own agricultural pursuit now this is also legally irrelevant because that exceptions not of care anywhere in the statute and the wisconsin court of appeals and think interpreting centrally the same statutory says that when the plaintiff complains about non harming uses there's no exception to that you cannot create a plaintiff form exceptions four and judge perry was in error when he did that in denying our motion for  the purpose of the right to form statute is to promote and protect illinois agricultural resources that's in section one of the statute and farming is a difficult business with ben margins the average farmer does not have a legal budget they don't have reserves for litigation are meekest knows the bible port case where legal fees in a nuisance case were in the two million dollars the average is it would be a rare farmer that had that kind of reserve objective from the general assembly as some of the confusion may be coming from section three which does include that reference to negligence but as i noted earlier section three its purpose is to cause fire the coming to the new doctrine it doesn't create or doesn't make a nuisance case into a negligence and so all the pieces of the united farm nuisance to actually fit together and section four dollars was passed fourteen years after the general provisions of the rights aren't acra path it is consistent with general statute exceptions they're not are not there and the statute reads coherently in cohesively together all the provision build off of each other section four and back references section three section  four five does not it stand on its own and it says in any decent action and we think that language and then use an action stands on its own this is a nuisance action the plaintiff brought a nuisance and they they are now having brought this nuisance action and having lost under the plain language of section four point five they must now essentially suffer the consequences that there is no  permissive approach here that a fear ward is absolutely obligatory and that this court should remand to the circuit court to determine what exactly was a reasonable there's there's argument that and i think the douceur books opinion and the premier electric cases particularly where he says the very notion that the constitution has anything to say about the shipping is too far fetched to be given  and just looking back we start from a we start from a premise that a statute is constitutional and the party opposing a statute on constitutional grounds as a very heavy burden  against that presumption and there is no indication that the plans that met that byrd one of the things they would like to do is to say that section four dollars burdens the fundamental rights that is not the case now if you burden a fundamental right is subject to strict scrutiny and that's what the plants are going for rather than the more lenient rational basis review but if you look to the marks decision from the illinois supreme court that's where they explicitly state that  there is no fundamental right to property that is not subject to strict scrutiny and that's a that's a recent decision from the supreme court so this court doesn't need to look back you know hundreds of years to you know the one thousand century general assembly doesn't have to do it in the best possible way they can do it by half measures they can do in ways that this court repealed may think don't make any sense but as long as the goals are rationally related to the underlying purpose of the making a finding and the finding that it did make usurped the job of the jury namely he found brian bracha the operator of sandstone north and south as being credible as a witness but that's really the jury function because paragraph four of instruction five one these are to the jury to decide whether there was a reasonable excuse for the failure one opportunity to inspect the property and that's where the hogs had been giving thrown off orders there was other evidence showing that there were hugs lying on top of the ground at an earlier time and we asked for an inspection it was delayed two or three times when we got there they had cleaned up the entire property and what what  what is telling is that they picked up bones now while it's true that bones themselves don't throw off an odor it's circumstantial evidence that those bones belong to a live animal as a decomposed and then that would have given off orders and it would have contributed to the evidence and since it was under the x glues of control of brian bracha his cleaning out the operation and saying oh we just want to make it nice for when we ha about that st element is that the evidence was under the control of the party and could have been produced by the exercise of reasonable doubt what james what evidence was under the control of the defendants that couldn't been produced trial by the exercise agrees reasonable diligence well it's it's not the evidence that the evidence we were after was the opportunity to look at the property to see what the conditions were and that would have been evidence at trial that evidence was taken away and so that was deprived of the point is to produce evidence at trial and it was not like you're describing a supposed claim of sorts o sorts yes but that's different and distinct from bud point one which was a missing evidence obstruction it had they not cleaned up the property we would have had an opportunity to see evidence of decayed carcass was there in order directing them to preserve the promises in a certain condition we there was no or was there a discovery by lation where you requested some sort of evidence photographic evidence of the conditions as they existed at the time of the ok thank you i don't know how much time i have left but a minute a minute yes well in that case one of the instructions has an absolute  misstatement of the law and that instruction is i believe struction number th and in there it states as one of five factors that coming t nuisance is to be a factor to be considered in that instruction that's incorrect under illinois law section three of the fire nuisance act it is a bar to  to a nuisance action so it's not just a factor and so i think it's important for the court to know that there was an absolute mistake in their own and the judge special legislation clause the nd was under equal protection and the rd was under the separation of powers the special legislation because that generally prohibits laws that would impact one group and one group only to exclusion of others the melissa choice section four dollars does not exclude anybody similarly situated it would apply to any farming operation anywhere in the state and that a how big or a matter how small one of the arguments that cla is made was that it favors nuisance action over other types of action but that is not a special legislation problem fetchit may certainly favor or fee shifting provision made certainly favor one dollar cause of action over another allowed between the different branches of government and we see this all the time there are mandatory minimum fine for civil penalties and violations ordinances there are mandatory minimum sentences for criminal penalties and cruel statutes my statutes dictate what can be admitted into evidence so there are numerous examples where the general assembly is as the statute that can find the courts to certain decision that can process now there's still the relief valve because the circuit court will ultimately have the discretion to determine what is a reasonable fee under section four dollars and so there is no separation of powers problem