first district decision that this court is that this case is moot second i ask that you reverse the trial court's decision that stated that john walsh was not entitled to immunity under the illinois citizen participation  before this court today are matters of first impression because no illinois court has reviewed the scope or the proper scope of immunity under this new act john walsh has raised three issues for review error when it tonight john walsh's motion to dismiss under the act and when it denied john walsh's motion to reconsider or alternatively for entry of a rule three or four order john walsh is the president a condo association for a building located at sixty thirty nor shared a road and in the city of chicago mr walsh exercised his constitutional rights when you appeared at a at alderman marion snus office pursuant to a public notice to discuss issues that were matters of public concern he got up at that meeting any discussed issues relating to the condo conversion in a lawsuit which is a condominium association had brought against the developers of his building his reward for participating in this government processes was to be slapped with a definite defamation lawsuit the plaintiffs goal in find this lawsuit was clear it was to silence was for her to supporting in his in the government process and exercising his free speech rights because the lawsuit was a classic slap john walsh brought a a motion under this new act no suit there is no question that this is a slap   it was promulgated in two thousand and seven in the in the purpose for this act it the stated purpose of the of the act under section one ten seven thirty five section one ten was to find that there's a disturbing in the government process for exercising there's the free speech rights slack lawsuits take different forms sick traditionally a slap lawsuit is a defamation lawsuit but there are other lawsuits which can be brought for you know abuse of my prosecution  was was it was experiencing and he increased number of these types of lawsuits and it weighed the best it decided to weigh the interests of protecting first amendment rights and not just put a protecting the  free speech rights but also to petition the government onselen least in this last us is there a claim for damages yes your honor it is damages for defamation section but also in a section for attorney's fees which state that all reasonable attorneys fees in connection with the with the motion to small those chaps shall be awarded sorts of mandatory attorney's fees as the activity damages this land that that that you can identify this case as a slap that you are a victim of a slat and that you then can recover your fees is a slap on the problem with the circuit court's ruling is that the entire discretion in not to deciding to take the appeal of well it's interesting your honor because it and i'm going to answer question but we have to have a little bit of procedural history to understand because what happened is when filed this motion i was denied the motion so i filed a motion to reconsider and then i filed alternatively rule three way fight you because under the act under section twenty eight of the act it actually provides that you have an it in a right to an immediate well it's a good question because according to that the act it's not a discretionary appeal so what happened is i understood the case law to mean and specifically this case is precedent album that you only way in which you can get jurors the only way the can get your stiction is either through a final order or through an exception that is outlined in the supreme court rules now those exceptions are you know rule three zero six three zero seven rule three zero seven at this point does not it's not in harmony with getting justice thomas getting to your question the month court found that to the extent that that a defendant is trying to use the two trying to get jurisdictions from the through the right it's outlined in our rules thinking it's a good idea as a suspect in this court and can decide that but are we still faced with the problem of maybe sending a message to the legislature even by amending the rules that there was no separation of powers problem with the legislature indicating there's an absolute right to an appeal in a case well your honor is it within their purview or no i think it's clearly within your purview under the constitution that the constitution states clearly states that all final orders are appealable any exception to that is in your purview your honor so to the extent that the court or susan the legislature unilaterally did that there could be a constitutional problem that's exactly one month found your honor however we are not before you on that issue and i can tell you that i raised that issue in fact with this court when i filed the rule throwing findings i was denied rule three i find it's at that point i was stuck in this legal act so what i did is i filed a motion of rule three eighty three motion before this court and if you look at the supplemental volume for the record on page forty s this court to do three things i asked the court to take it on a supervisory issue and in just rule  favor i also asked the court then to send it back to the trial court and order the trial court to give me jurisdiction under three away and thirty in to your issue justice thomas is i asked this court to amend rule three zero seven so that no future litigants would be stuck in this vortex and i knows i was really in a legal purgatory where i had nowhere to go and i had to wait to the end of the lawsuits to to file my appeal all i'm stuck in the perverse position that i don't have any right to appeal because now because i couldn't do it at the time that the act or the time that the order was entered because there's not because there's no harmony between the supreme court rules and rule twenty and then i wait until the end which was consistent with were found help held then i wait till the end and now the it be appellate court says well you are the one so you don't have a right to do it you've already got what you want it so basically we you look at mond rebound and you look at this a poker room in what what this what the you know the status of the laws right now is that no true slap victim who receives eight erroneous court order will ever have any  appellate right and that completely against not only the purpose of the act which is to identify and adjudicate the purpose of the act is to deter these lawsuits but it also goes against the plain language which is exactly you said justice that that that the legislature denied my rule three eighty three findings and i want to put that in context to what happened is this court allowed us to do due briefing we did considerable briefing on the issues then when we won on the innocent in structural which of course it's a slap you're going to win a purpose of a slap is it's a bogus frivolous lawsuit once we won on the under two six fifteen the other side filed the doc a request to this court he said now the case is moot it doesn't matter you don't have there's two ways in which to change supreme court rules under rule three you either do it through the rules committee or strictly by court order i asked you to do it through court order under my three three motion but that was denied and then i asked to do with through the rules  ee the rules committee its proposals are eight zero fashionable five i lined all the reasons why others been a public hearing the rules committee has decided that they're going to recommend to you and i believe there has been a public met recommendation that i'm sorry if you look at the procedural the the actually the process that's outlined in the act once you file a motion under this act there's there's new procedures and mechanisms because the point of this is to is to keep the cost down is to identify whether this is a slap immediately and to get this done within ninety days in the reasons behind that one is to keep the cost down that you don't go through the entire case like i did i didn't go through the entire case but you could go all the way through trial and then find think what you could do here is you could address empower court decision you can say we recognize a situation that mr walsh was in in order that nor the future lucas will have to deal with this and we and we don't find ourselves in the situation we were and then rule three  seven typically we don't allow the legislature to tell us what is appealable what's not appealable we given the fact that in fact the end of his brief outlined a couple of reasons why it's important to have this immediate appellate right and i'll line the reasons why  your continuing litigation you then have to go in and get the permission from the court which is going to increase fees unnecessarily because my view is if you know the the the other side of this is if if we allow this is that if it isn't a slap something to be just as easily to say this isn't to continue on  moot i'm asking you then to get to the merits and briefly i don't have much time on the merits this is a classic slap because mr walsh was exercising his first memory rights to free speech he was at a public meeting his comments to the reporter were based on the questions or the the the purpose of the meeting and we cited several cases supreme court cases cases throughout the country another slap case is that when you when you advocate for a position or when you speak to a reporter that is a valid way in which to effectuate change it is a valid way to get to the government and express your views to the government and  particularly when you have have in the statute it states that the government is defined as not only you know persons and agencies and elected officials but the electorate at large so you know there's there's there's tons of case law of not only my brief even u s supreme court case  that says that this is in the american experience this is absolutely way in which you can get your message out or is motion you have ninety days in which to take discovery particularly on the immunity whether or not you're immune and then the court in the trial court has to make a decision so that that's why the be expedited  framework of this is nice and that if you truly believe it's a slap you can file it you have the discovery it's going to be a decision and if it if it's against you you can immediately take it up the appellate court and they can quickly decide if you're wrong you don't get you're going to hear from the other side you're trying to say that he publicly defamed this man in any malicious or there was no defamation he never ever referred to the plaintiff so in a situation like this it's clear that the plaintiff is trying to chill john won in trying to prevent him from speaking up i mean that's that's the essence of the slap and that's what we have here you know there are you have all these chicken little scenarios at all if we do this what could happen that's not what happened here i'm not asking you to look at the outer controversy of this of the act thank you know this because this is what was actually reported we know what is at issue in this case not what mr walsh in the united said in a day and a hearing conducted on behalf of alterman smith we know what he said because it was in the report in the newspaper and we also know we also know that mr walsh himself acknowledged when he was deposed when he ultimately came talking about the lay we had to bring a motion to compel making this true walsh here for his bankruptcy in that state so that decision is currently on appeal but it's been stayed but whether or not the whether or not we agree with the alternate finding in that case we initially there was  we had a basis for bringing the claim mr walsh knew that right development group had nothing to do whatsoever actually of the sixty thirty kind of a name conversion he had he knew that it had nothing to do at all with the lawsuit that it wasn't a party that wasn't being sued for fraud that it didn't make any any representations to anybody relating relates to to the kind of money in development project it wasn't involved in any way shape or form  that was something that mr walsh was aware of and mr wallace also only when he was supposed to when he was asked by the reporter who is a developer he identified the developer as right development group again as to the merits  being forced to to proceeds for litigation i would go back to the to the history in this particular instance mr walsh filed a motion to dismiss or to pursue two to six fifteen cases been pending for five months it was fully br and then rather than proceeding on that he filed a new motion at that point he then sought you know he basically extended things ninety days inside a ruling as to whether or not his conduct fell within the expedient thing could have been to simply if you thought that he was right for c and get a ruling even after the court denied his motion could he have again sought a ruling on two six is denied and he's not happy because he has to go ahead litigate with the case at some point in time he may succeed the fact that he ultimately succeeds in the case doesn't mean that the case is meant was was without merit that it was frivolous and in fact this court's will rule one thirty he so so in this particular instance is he saying this must be a slap because the case was ultimately dismissed the fact that it was dismissed doesn't mean it was a slam and again we look back you want to look at the developer mr mr walsh has acknowledged that he was the source of that to the newspaper reporter he was the person who said right development group was the developer so again i i don't i think the  has acknowledged that he knew that the developer was sixty thirty i'll see so yes there are people named right who are involved in this case in this litigation but right management group is are you sure he said yes very so i don't think there's any dispute shouldn't be any dispute as to who he was what he said to her when she asked who the developer was that and in fact judge appointed in his opinion talks about why what he saw from the deposition what he saw from the allegations of the complaint that led him to believe that in fact this conduct did not fall within to the issue of mootness as i said this really this issue is really no different then seeking an interlocutory appeal on the now of any motion to dismiss i can't tell you i'm sure that you've all heard it is judges before you became justices people believe that the claim to certain against them are frivolous they're without merit how could this be true i mean clients always say you know better of course this is frivolous this is entirely without merit and we proceed litigate and sometimes we're successful on motions to dismiss and if we were successful on the motion to dismiss we avoid the expense associated with discovery in the case perhaps we avoid the risk in the litigation going forward and expense associated with litigation going forward litigation we may ultimately win but under our system we don't have these appeals from loser like a tory denials of motions to dismiss that's just not what our system is is where that does happen in places like new york where where you can appeal from all kinds of decisions and the but that's not our system as to how we do it and when i believe i don't agree with the construction of the act that suggests that there is a right of immediate appeal that's what the legislature was was seeking to do because if it were seeking to do it that would be unconstitutional i don't think you need to read if that way i think you could read it to the extent that an appellate court does take an appeal does accept a discretionary appeal if a trial court does believe that there is a reason to certify the question proceeded on his motion to dismiss and let the court rule on or parent lee he would have one that's what happened ultimately that would have been decided many many many months but before then senators motion issue of attorney fees would never be review about that they cited that say well really you should be able to pursue this relief because we think that we're being denied this right to pursue experiences if they really believe the third that their claim that our claim against them without merit they could have brought a motion under rule one thirty seven they can bring that after the after the resolution they can bring that after the motion to dismiss is granted if they thought there was no merit that it was a film this case there is already a mechanism that would allow that appeal because we believe the court got it wrong if the court is ultimately affirmed it doesn't mean that there was the better claim was frivolous was brought for the purpose of chilling mr walsh from this activity when they talk about the constitutionally protected right the cases that have addressed that have made it clear one does not have a constitutionally protected right to make misrepresent thought and false statements of facts so why there is no privilege that is not protected act it does not it in the constitution does not protect that there is a there is a distinction so and the act itself doesn't abrogate the common law with respect to was protected and what's not protected in fact the source of law because it doesn't identify representations knowing misrepresentations to soothe the reporter our contention our complaint isn't that he spoke with the reporter our complaint isn't that he spoke at the meeting our complaint is what he said to the reporter when he made these misrepresentations is the false attribution and again it's just as percs question we believed that to be the case when we read the paper when we saw the with respect i guess to the the concern the expressed concern about what would happen how does how does this what what happens to the slap victim  doesn't mean that the lawsuit was brought from him for improper purpose and in fact i think sitting here listening today to the cases before you out there there are you know there's a lot you bring different factions  issue of tourney's fees i figured on not certain that that's true its hands and what the court did so for example if the question was i mean it depends on the way in which the court looked at the trial court's decision whether or not the trial court you know the trial court in explaining why he ruled the way did made statements about the length of time and so forth it is is the product of actual malice is protected under the act is there are there factual questions then that we would be concerned with as opposed to leaving well yes because and in fact you are entitled to some discovery in this case there was guess that i would i would guess would be available i don't think again that this in this particular instance there is any reason to treat this particular litigant any different than any other litigant he was unsuccessful in bringing a motion they could have been should have i guess stuck with their guns and pursued the two sixteen motion it would have resolve the case much earlier and avoided substantial expense what what order do you want do you think we need  comma there is nothing left for the trial court to decide we filed the motion under the procedures a rule twenty we took discovery discovery closed both sides asked for discovery he made rulings they haven't they haven't our filed any i they haven't secured any objections they haven't raised any objections there's nothing left to decide what would happen your honour's that it would get sent back to the appellate or sydney sent back to the trial court only for because all of those i'm i'm troubled by something and you tell me why it shouldn't be trouble you know we spend a lot of time talking about the tension between the act and what happens out there in the real world with respect to li with respect to the appellate court and i appreciate that and you correctly state where the rules committee what they've been talking about doing but in this particular case i just think it's a procedural nightmare of sorts in our world are we going to be doing an injustice to our other rules of law by giving you the really fair request and now let me tell you why i say that you chose to file a two six fifteen motion to dismiss prior to filing the motion to dismiss based on the slips that we don't have a case in which there's a motion to dismiss based and slept in which you'd be entitled to attorney's  and per the legislation and in appeal we don't have a case in which the you file that motion first and the trial judge looks at he said i'm not going to rule and then and i'm going to rule on i don't i see innocent six fifteen first and before that could be decided the circuit court gave you the relief requested in your first motion name leave it there wasn't a sufficient complain for defamation and it's out so my problem and i know  long hand the question is we said oh yes he had a right to an immediate appeal we're going to change our rules we're going to do this and what happens to or move to a situation where you're getting exactly the trial court gave you exactly what you asked for first  says we're not going to address this i mean that's my problem ok your honor under the act these motions of procedures they don't they don't there's no timeline you know there are some acts some slap sanctions that so that you have to do within a certain time this is a brand new act and quite frankly i'll tell you the reason why i didn't do it is i didn't know about this act i filed to sixty days i said this is a frivolous lawsuit which turned out to be one the moment i read about this all i did was filed my my my motion it wasn't fully briefed it wasn't argue  motion head your ultimate prayer is for dismissal of the complaint not for attorneys your ultimate goal when somebody files a lawsuit is to get the lawsuit dismissed and i ask counsel that with respect to the fact that they found you're stating is that the appellate that i got everything i wanted and i didn't get everything i wanted what i didn't get or the substantive rights i didn't get this to be identified as a slap there are societal implications there's vindication for from your identity might not be there no defamation case you would have no right in that instance to go back into the trial court and say now i'm finally in the slab suit i'm filing a slap motion to dismiss because no i want to turn is i mean you know pick your poison here right you came you came in knowing it or not knowing about it you did file a motion that the trial court acted upon it gave you dismissal of the case but your honor in under the act if you file a motion you'll get attorney's fees in connection with found under this new procedure we have a pending six fifty motion i'm asking you to stay that i'm asking to stay discovery and resolve this under this new act because i have substantive rights out of this new act if i can if i can watch which case which rodgers ruled on the most was file a motion to strike which is the equivalent motion dispose under our act and then they withdrew it and then this is the defendant said well i want to go after my chinese fees and the appellate court said you know what you have a right they believe the whole purpose of this act is to prevent people from chilling your you're free speech rights so so by you really have to look at these as two separate things because i didn't get i cannot get under to six fifteen what i can get under the act it's two totally different vehicles in which to bring  but but but again your honor i am not bound by the ruins to six fifteen you're ending a lawsuit which is good but that's not that's not the rights i'm trying to get under the act and it's it's two different things in and there is there is i mean or not from a trial court ordered that denying that motion so if i can't get it under the in a walk a tory way there's only one other way or not which is upon final judgment upon final judgement i i'm asking the court or the now this court to vindicate those rights to say the court was wrong and the problem is if you don't do this then and every true slack case if you file a motion your honor taken your example if i go to file six fifty if i just came  slap in the courts is no you're wrong then i do it to six fifteen and then i win and if it's as if it's by any measure a a slap suit that person would not have a right to appeal which is which which is completely contrary to the purpose of this is which is to identify these cases if you look at that the general said we want to give you an immediate right to do it if you can't get that because of that because these things are in harmony that the supreme court rules and the section now understand it can't get on final while defendants motion for supervisory order was pending in the circuit court granted defendants section two six fifteen motion dismissed plaintiff lawsuit with prejudice was that was the trial judge an error to grant that motion to dismiss was that still supposed to be so so petty was petty because you said that he stated until there was a bill i'm sorry no he stayed a while we while we took the discovery and then he heard it and then he denied it and then he really brought it back up and said all right let's finish