Docket No. 109463.



### IN THE SUPREME COURT OF THE STA TE OF IL LINOIS

WRIGHT DEVELOPMENT GROUP, L LC, Appellee, v. JOHN WALSH et al. (John Walsh, Appellant).

Opinion filed October 21, 2010.

CHIEF JUSTICE FITZ GERALD delivered the judg ment o f the court, with opinion. Justices Kilbride, Garman, and K arm eier concurred in the judgment and opinion. Justice Freeman spec iall y concurr ed, with opinion, joined by Justices Thomas and Burke.

OPINION

Inthis appeal, we are asked if defenda nt John Walsh’s statement to a reporter made during a public f orum inside analderman’s office

was immunized fr om a de famation lawsuit under the Citizen Participa tion Act (735 IL CS 110/1 et seq. (West 2008)). The trial court found the

statemen t was not im

mune fro m suit. The

appell at e
co urt dismissed Walsh’s appeal as moot. No. 1–08 –278 3 (unpublished

order under Supreme Court Rule 23). For the following reasons, we reverse and re mand.-2- BACKGROUND The following facts are found in the rec ord and are not in dispute. Two limited liability companies, Sixty Thirty LL C and

Wr ight Manag ement, LL C, and two individuals, W. Andrew Wright and his

son James A. Wright, were involved in the conversion of a

22 -s to ry, 262-unit condominium building at 6030 North She rid an Road in Chica go. Andrew a

nd James Wrig

ht are me mbers of both Sixty

Thirty and Wright Managem ent. Andrew a nd James Wrig

ht are a lso members of a third

limited lia

bil i ty company

, the present plaintiff, Wright Develop ment Grou

p, LLC. W right Development, Wright Manag ement, and Sixty Thirty all share the same business a ddress in Palatine. Defendant John Walsh purchased a unit at 6030 North Sheridan Road (hereinafter 6030 building) and later became the 6 030 N. Sheridan Condominium Association’s president. On May 5, 20 06, th e Associationfiled a la

wsuit in the

circuit c ourt of Cook County allegi ng, inter alia , fraud a gain st va rious persons and entities responsi ble for the co nversio n of the bu ilding in to condomi

niums. The defen dant s i n t he 60 30 bu il di ng la ws ui t i nc lu de d S ix ty T hi rt y, Wright Management, and Andrew and James Wright. Wrig ht Development Group, LLC, was not a named defendant. OnJul y 10, 2007, a public meeting was held at the office of the local alderman, Mary

Ann Smith. The alder

man’s c hief of staff indicated the pu rpose of the meeti ng was to provide the local residen ts of the 48th ward with a public forum to communicate the problems they had experienc ed with developers and contractors building and renovating condominium bui ldin gs in the w ard. A pu blic notice stated the purpose of the meeting was to obtain public input for

a propo sal to re form the Municipal Code with respect to the sale of condominiums. Walsh at tende d the public meeting with another 6030 building residen t, Mark Hryc

ko. Walsh stated he attended the meeting for the purpose of providing information to his elec t ed representative and her staff regarding problems his condomini um a ssociation experienced with the developers of his condominium building. Out of the dozens inattendance, approximately 12 persons spoke at the meeting, which

was moderated by two a ldermanic representative s . During the meeti ng, Walsh raised

h is hand, stood up, and discussed the repairs-3- at his building and the lawsuit against the developer. Other ci tizens also shared

the ir experiences and problems with condominium constructionin the area. After the formal question and answer session had ended, the y remained a

t the office for approximately 15 or 20 minutes, standing with

the other participants in a “mingling” session with representatives from the alderman’s offic e. Durin g this mingl ing sess ion, Walsh s poke with

other ci tiz en s about the problems with their buildings. As he was wa lking to ward the e xit, Walsh was approached by a staf f reporter for a loca

l newspaper, Lorr

aine Swa nson. Acc ording t

o Wals h, th e reporter asked him and other citizens “f o llow up” questions relating to the earlier provided informat ion. Walsh

believed his discussions with the reporter were “continuing to further particip ate in wha

t the purp ose of the meeting was” because he disc ussed the problems

with his buil ding, including the association’s need to take out a $1.8 million loan, and the la

wsuit agains tthe developer. Walsh did not refer to the builders as Sixty

Thirty, but as the “Wright Development Group” or “the Wright Gr

oup ***. B ecause

that’s what it is. I

t’s the Wri g h t Group. It’ s the Wri ghts.” He stated, “whenever I think of the developer, I thin

k of the Wr

ights *** because

to me that’ s t he developer ***. Ithink of Andrew

and Jamie.” He was unaware of the full, specific name “Wright Development Group, LL C,” prior to the lawsuit. Walsh thenleft the meeting

with Hrycko while a

ldermanic staff remained in the office in discuss ion with oth er citize ns. Walsh later received a phone call from the reporter req u esting the developer’s telephone number. Walsh and Hryc ko met on another

date in front of the building with a photographer to take a picture which appeared with the reporter’s article. The topic of the building was not discussed at this session. The alde r man’s chief of staff stated, “The information provide d by 48th Ward r

esidents at the July

10, 2007, meeting was used by Alderman S mith and her staff for the purpose of developing legislative measure s to halt fraud and misconduct by developers and contractors bui lding or renovating condominium buildings.” Alderman Smith further asked a

special task force established by the City of Chicago’s law department to investigate the outstanding problems experienced with certain buildings discussed at the public-4- meeti ng. Th e C it y of Chi cago’ s law dep artment f iled suit a

gainst

severa l develop ers, ge

neral c ontract

ors, and l enders. Walsh’s statements to the reporter were republished on August 8, 2007, in th e Pione er Press by Pioneer Newspapers, Inc ., and SunTimes Media Group, Inc. Th e newspaper article, entitled “Condo boom creates glut of horror stories,” r eferred to “Wright Deve lopment Group.” The introductory paragraph to the article states: “A mong the signs of saturation in the city’s c ondominium marketis the barrage of complain ts f rom n ew condo owners disillusioned by w hat they say

are shoddy construction and shady

dea ls.” The Pioneer article further provides , in part:

“After racking up a $1.8 million special assessment, an Edgewater

condomini um association sued Wri gh t Development

Group, developers of a 22-story, 26 2 uni t conversion

bu ild ing at 6030 N. Sheridan Rd., for fraud. Residents said tha t when they boug ht their units, the developers told them t hat th e buil ding h ad a new roof and elevator system. ‘The roof was actual ly a liquid membrane placed over

seven layers of old, ba

d ro of. A ll of the roofing had to be

remo ved down to the

concre te deck, with a com

pletely ne w roof installed ,’ said

John Walsch [ sic ], president of the 6030 N. Sheridan Road Condominium Association. While the elev ator cabs were brand spanking new, the mechanical and

electrical equipment was the same from when the building was first built 50 years a go. The night before the condominium associationwas to take over the building from the develope

rs and as sume leg al responsibility for its maintenance and upkeep, the developers allege dly contracte d

a new management company and r etain ed an att

orney to represent the condominium association. ‘We said no, and fired the management co mp any and attorney,’ Walsch [

sic ] said.” The remaind

er of the article detailed oth er citizen complaints and a plan of action by the City ’s law department. OnOctober 4, 2007, Wright Development filed a complaint for defamation

action a gainst Joh n Walsh, Pi on eer Newspapers, I nc., and-5- Sun-Times Media Group, Inc., alleg in g defamation per se . The complaint allege s “at the

time Walsh

published

the false statemen ts to Ms. Swanson, Walsh, as the president of the Association, knew

the true identity of the developer of th e Bu il di ng t o be Si xt y Thi rty, LLC and not Wrigh

t [Development].” Wal sh and th e other defenda nts responded

to the complaint with v arious motions to dismiss under section2–615 of the Code of Civil Procedure (735 IL CS 5/2– 615 (West 2008)). Prior to the com p letion of the briefing schedule on those motions, Wal sh filed a separate motion to dismiss, entitled “Motio n t o Dismiss Plaintiff’s Complaint” pursuant to the Citizen ParticipationAct (735 IL CS 110/1 e t seq

. (West 2008 )). I n this motion, Walsh assert ed that Wrig ht Develo

pment’s la

wsuit was

a “strate gic lawsuit against public p artic ipation,” or “SLAPP” (735 IL CS 110/5 (West 2008)), which should be dismissed under the Act. Walsh sought a stay

of the briefing on the various previously filed section 2–615 motions. Walsh pres entedthis motion under the Act to the trial court on April21, 2008. Onthat date, the trial court stay ed all further

action, including br ie fi ng an d d is co ve ry, on the section 2–615 motions. The trial court, pursuant to section 20 of the Act, limited W rig ht Development’s discovery to “ the issue of whether Walsh’s acts are not immunize d, or wer

e not in further ance of acts immunized f

rom, liability under the Citizen Participation Act.” Discovery inc lude d depositions of Walsh and Hrycko. OnJuly 29, 2008, the trial court held a hearing on Walsh’s motion under the Act. A t the hea

rin g, the tr

ial cour t ruled in o

pen cour t in favor of Wright Development and denied Walsh’s motion. In a n oral statemen t, it held Walsh’s statement to the reporter fe ll beyond the scope of the Act: “Beca use I don ’t see the

Act a p plying to statements that

are made to a reporter after a mee ting becau s e the Act talks about giving y ou the right to address the government about your grievances, and it doesn’t give you the rig

ht to–it doesn’t immun ize you from eve

ry step that y

ou are e ver go ing to make o ut si de of

th e m ee ti ng , a nd th at ’s wh y I thought– because we had a ll this controversy about

whether or notthis reporter

should be depos ed. And that’s why I sai d just take this deposition of the defendant first because I kind of-6- suspected when he had

that photograph of him outside of the building that there was some communication that took place

over and above the meeting itself. And then as I re ad hi s entire de position a

nd there is plenty of commun

ication, in fact, most of it took place outside of the meeting. So I don’t think the Act really a

pplies here.” Ina subsequent colloquy with Walsh’s counsel , the circuit court explained its under standing

of the fa cts and of the Act: “[Cou nsel] : I want to make sure that y ou did have an opportuni ty to review the reply

brief because in the deposition [Walsh] s t ated that the conversations that he had with the repor ter were a t the end o f the mee

ting but w ere still

inth e Alderman’s office. COURT: Doesn’t matter. [Couns el]: *** And, finally , his depositio ns show tha t all of the state ments that were made to the reporter were made a t the Alderman’s office, and the picture wa s taken at a different time by a photographer. The

only other conver

sation that Mr. Walsh had with the reporter was when the reporte r called him to try to get the Wright’s telephone number. He gave them the telephone number. So it’s ou r belie f that the se were acts in furtherance of acts that are protected by–. COURT: Well, you look at the definition even of acts in furtherance and

it sa ys 735 IL CS 110/15 acts in furtherance
*** you are not e

ve n try ing to pr

ocure f avorabl e governmentalacti on at that point because the Alderman’s repres entative

has left t he room. [Counsel] : Y our Honor, that’s untrue. The deposition states that the Alderma

n’ s representative was still in the building when he l eft. COUR T: We ll he h ad adj ourne d the m eetin g. [Couns el]: Well, that is subject to dispute too your honor because our issue is that he was still at the Alderman’s office

as part of this public forum. There was a separate mingling session for whic

h the Alderman’s representatives were engaged in, and Ma

rk Hry cko also s ta ted that when he and Mr. Walsh left the building, c it izens were still there. They1 Curre ntly b eing c onsider ed is an amen dmen t to Sup reme Court R

ule 306 to al low a permi s sive i mm ediate a

ppeal o f the de

nial of a mot

ion to dispose under the Citiz ens Participation Act.

-7- were still discu ssing iss ues with the Alderman ’ s repres entative s. So we don’t believe the meeting ever ended. COURT: Shouldn’t t

his s tatu te–I mean, I

didn’t look up any statutory construction tenets, but the interpr etation of the common law, doesn’t it have to be strictly construed? [Counsel]: No, you

r honor, i n fact, i tactually say s that it should be liberally construe d. CO UR T: Oh , o ka y. [WrightDevelop ment’s Cou nsel]: I t does say th at, your honor.” The circuit court then asked Wright Development’s counsel if Wrig ht Development

deserved attorney

fees. After plaintiff’s counsel responded

in the ne gative, the trial court entered an or der reflecting its ruling s. OnAugust 1 2, 2008, Wa lsh filed a

motion to r econsider or, al te rn at iv el y, to enter Rul e 308 findings (155 Ill. 2d R. 308). Rule 308 fi ndin gs were requested because, w hile section 20(a) of the Act provides for an immediate right to appellate review of an order denying a motion to dismiss (735 ILCS 110/20(a) ( West 20 08)), a coordina te provision allowing an interl ocutory appe al within the supreme court r ul es does no t curre

ntly exist. 1 Accord

ingly , Walsh filed a motion requesting the trial court to reconsider its ruli ng, or, al te rn at iv el y, to enter

finding s consist e nt with Supr eme Court

Rule 308 so proper

jurisdict ion would b e confe

rred to o btain imme diate appella te review. The trial court denied these motions on August 19, 2008. The tria

l court a lso enter ed order s to resume

briefin g on th e section 2–615 motions. Shortly after ruling on

Walsh’s motion unde

r the Act , the cir

cuit court granted Walsh’s earlier filed section 2–615 motion to dis miss, and held Walsh’s statements were not actionable under the innocent construction rule. It stated,

“This court feels that the statements in the art ic le are-8- capable of an in nocen t constru

ction in tha

t they are simpl

y referring to what was alleged in a pending

lawsuit ***. What is clear, though, is thatthere we re at lea st three d

efenda nts in the lawsuit with the name Wright. Also, the article reference s ‘Wright Develop ment Grou

p’ and no t the actu

al plain tif f herein ‘Wright Development Group, LL C.’ Plaintiff cannot have it both ways. *** The ref erence in the article can be innocent ly const rued as referring to the gr oup of Wright entities and individuals who were involved in the lawsuit. As defenda nts correctly p oint o ut, the article consistently r efers to ‘developers ’ an d not to a single entity such a s plaintiff. Based upon this f

inding, it is irrelevant whether Walsh is or the media de fendant s are re sponsib le fo r the re ferenc e to ‘Wright Development Group’ in the article.” Ac co rd in gl y, the circ

uit c ourt dismissed Wright Development’s complaint with prejudice. After final judgmen

t was ente red in the circuit c ourt, Walsh

filed

anappeal before the appellate court of the two interlocutory orde rs denying re lief pursuant

to the Act . He asse

rted he w as denie d his statutory immu nity

and manda

tory attorne y’ s fees un

der the A ct. Becau se his section 2–615 motion was successful, Walsh did not appeal the findin

gs in the actual September 26, 2008, finaljudgment order. Wright Development requested cross-relief r egarding the September

26 section 2–615 dismissal orde r. The record does not reveal any

motion to dismiss the appeal. The ap pell ate court, sua sponte , entered a Rule 23 order dismissing Walsh’s appeal as moot. It stated, “In essence, Walsh g ot exactly the relie f he soug

ht ( i.e. , dismissal of the complaint), albeit on

a differe nt basis ( i.e. , pursuan

t to section 2–615 rather than the Act). Walsh’s issue is moot because he has already obtained the relief he sought and, any a

ct ion by th is court would constitute an advisory opinion.” No. 1–08–

2783 (unp

ubli shed order under Supreme Court Rule 23). We allowed Walsh’s petition for leave to appeal. 210 Ill. 2d R. 315. Wright

Develop ment has not reque sted cro ss-relie f from thi s court re gardin

g the dis missal of i

ts complai

nt.

ANA LYSIS-9- SLAPPs, or “S trategic La

wsuits Against Public Par ticipation,” ar e lawsuitsaime d at p reve

nting citiz e n s from exercising their political rightsor punishing those who have done so. See gener ally P. Canaan & G. Pring, Strategic

Lawsuits Aga inst Public

Participation , 35 Soc. Probs. 506(1988). S LAPPs u se the threat of money damages or

the prospect of the co st of def

ending agains t the suits t

o silence citizen part icipatio n. 735 IL CS 110/5 (West 2008). To guard against the chilling effec t of SL

APPs, at le ast 24 sta

tes have passed a nti-SL APP statutes. See L. L ong, Note, Slapping Around the First A mendme

nt: An Analysis o

f Oklahom a’s Anti–S

LAPP Statut

e and its Implications

on the R ight to Pet

i tion , 60 Okla. L. Rev. 419, 421 n.27, 422 n.28 (Summer 2007) (c itin g st atutes). In 2007, the Illinois General Assembly enacted anti-SLAPP legislation embodied in the Citizen Participation Act (735 IL CS 110/1 et seq . (West 2008)). Inthe Act’ s “publi c po licy” section, the leg islature states there has been “a distur bing inc rease” inSLAPPs i

n Illi nois. 735 I LCS 110

/5 (West 2008). The Leg islatur e observ ed, “The threat o f SLA

PPs signific antly

chills an d diminishes citizen pa

rticipat ion in gover nment, voluntary public service , and the exercise of thes e importantconstitutional rights.” 735 I LCS 110/5 (West 2008). The Act explains, “The info rm ation, re ports, opi nions, cla ims, arg uments, and other expressions provided by citizens are vital to effective law enforc ement, the operation of governmen t, t he making

of public policy and decisions, and the continuation of representative democracy .” 735 IL CS 110/5 (West 2008). The Act fur ther notes SLAPPsare an “abuse of

the judicial process” which “can and ha[ve] been used as a means of

intimidating, harassing, or punishing citizens and organizations for involving themselves in public affa ir s.” 735 IL CS 110/5 (West 2008). The Act state s four expl icit goa ls are in th e “public

interest.” 735 IL CS 110/5 (Wes t2008). First, the Act attempts “to strike a balance between the rights of persons to file lawsuits fo rinjury and the constitutional r ights of

persons t

o petition, speak fr

eely , associa

te fr ee ly, and otherwise participate in government.” 735 I LCS 110 /5 (West 2008). Se cond, it a

ttempts “t

o protec t and enc ourag e public participation

in gove rnment to t

he maximum exte nt pe rmitted by law.” 735 I LCS 110

/5 (West 200 8). The th

ird purpo se is “to establish

anefficient

process for identification and adjudication of SLAPPs.”-10- 735 IL CS 110/5 (We st 2008). F inall y , the Act “provide[s] for attorney ’s f

ees and c osts to pre

vailing movants.”

735 I LCS 110

/5 (West 2008). The Act seeks to exting uish SL APP s and protect citizen participation

by: (1) immunizing citizens from civil actions based on acts ma de in f

urthera nce of a citizen’s free sp eech ri ghts or r

ight to petition gover

nment (73 5 IL CS 110/15 (We st 2 00 8)); (2) establishing

anexpedited

legal process t

o dispose of SLA PPs both before the trial court and appellate court

(73 5 ILC S 110/20 (West 2008)); and (3) mandating a

prevailing movant be awarded re asonable attorney fees and costs incurred in connection with the motion (735 ILCS 110/25 (West 2008)). The le gislature provided the “Act shall be construed liberall y to effe ctuate it s purpose s and inte nt f u lly. ” 735 I

LCS 110/30(b) (West 2008).

Whether the Appeal Is Moot Illinois courts “do not decide moot questions, render advisory opin ions, or consider issues where the result will not be affec ted regar dless of how those issues are decided.” In re Alfred H.H. , 233 I ll. 2d 345, 351 (2009). Walsh argues the appellate cou rt’s dismissal should be reversed

because the legislature clea rly intended for

the Act to provid e an independent and substantive right to appellate revie w of final trial court orders deny ing a motion to dispose of a la wsuit brought pursuant to the A c t. Walsh co ntinues th at the ap pellate court’s dismissal order

ignored basic tenets of statutory construction be cause it f

ailed to address the new rights conferr ed by the Act and the legislature’ s in tent when it enacted the statute. Wright Development

asserts that Walsh’s sole basis to seek an appeal is the attorney fees; therefore, the case is moot beca u se there are no substantive issues left to decide and any decisionby t

his court would

mere ly be an advisory

opinion. We agree with Walsh. T h e determination

of wheth er an ap

peal is moot is a question of law to be reviewed de novo

. In re Alfred H.H. , 233 Ill. 2d at 350. The purpose

of the Act is to give relief, including monetary relief, to citizens who have been victimized by meritless , retalia

tory SLAPP lawsuits b ecause of their “act or acts” made “in furtherance of the constitutional rights to petition, speech, association, and participation-11- ingovernment.” 735 IL CS 110/15 (West 2008). As an expression of intentto “protect and encourage p ubli c participation in government to the maximum e

xtent permi

tted by law” (73 5 IL CS 1 10/5 (W est 2008)), the legislature deemed the mere dismissal o f SLA

PP lawsuits insuffic ient. The legislature has expre ss ly s tated it is in the “pu

blic interest ” to “esta

blish an e fficien

t proc ess for identification and adju dication of SLAPPs.” 735 IL CS 110/5 (West 2008). As part of this process, if a trial court denies a motion under the Act, the Act directs the appellate court to “expedite” an appeal of a c ircu it court order “whether interlocutory

or not.” 735 I LCS 110 /20(a) ( West 2008). The Act also d

irects the appellate court to provide expedited treatment of a trial court’s failure to rule on an Act mot

ion. 735 I LCS 110/20(a) (West 200 8) . The insta nt appell ate cour

t’s failu re to undertake the question of whethe r the plaintiff’s lawsuit could be identified as a SLAP P dir ectly con tradi cts th e legi s lature’ s explicit expression of public

policy reg ardingthe efficient process to identify and adjudica te SLA PPs. 735 I LCS 110 /5 (West 200 8). The mo otness finding also c ontra dicte d the l egisla ture’ s exp ress f indi ng of p ublic policy in favor of an award attorn ey fee s and costs to prevailing movants. 735 IL CS 110/5 (West 2008). Further, there was, in fact, a potential injury to Walsh. Walsh was denied the relief reque sted in his Act motion to identify Wright Dev elopment’s lawsuit as a SLAPP and for a statutory aw ard o f attorney fees and costs–an entitlement not avai lab le with the mere section2–615 dismi ssal. The appe llate cou rt there fore er

red whe n it stated Walsh “has already

obtained the relief h e sought and, any actionby this court would constitute an advisory opinion.” If indeed Wright Development’s action

was a SLAPP su

it, then the

appella te
co urt’s ruling a

lso relie ves Wrig ht Develo pment of the punish

men t whichthe Act imposes upon e ntities who chill the exercise of

co nstitutional rights by us e of mer itless and retalia tory lawsu its. Thus , the appellate court ruling frustrates the leg islature’s expression of the public interest, withholds the relief provided by the Act for true SLAPP defendants, and constitutes a nullification of a principal part of the anti-SLAPP legislation. According ly, Walsh’s appeal is not moot.

Immun ity-12- We next review the trial cou rt’s ruling regarding w hether defendant enjoy ed immunity

under the Act. The trial court’s denial of Walsh’s mot ion w as based upon an in

terpretation of t

he Act. Ac co rd in gl y, because a question of law is presented, we apply the de

novo standard of review. Carter v. SSC Odin Operating Co. , 237 I ll. 2d 30, 39 (2010). To trigger immunit

y, s ection 20

of the Act sets for

th specif ic procedu res for adjudicating a motion to dispose of a “claim” which is “based on, relates to, or is in r esponse t o” the exe rciseof a citizen’s constitutional rights. 735 IL CS 110/20 (West 2008). For purposes of the Act, a purpor

ted victim of a SLAPP is the “moving party ” (735 IL CS 110/10 (West 2008)) who files a “motion,” which includes “any motion to dismi ss , for summary judg ment, or to strike, or any othe r judicial pleading filed to dispose of a judici al cl aim.” 735 IL CS 110/10 (West 2008 ). The tr ial cour t must hold a hearing and render

a decisionon that

motion within 90 days after the date the responding party receives notice of the motion. 735 I LCS 110 /20(a) ( West 2008). Du ring t his time, discovery is suspended except on the issue of whether there is immunity under the Act. 735 I LCS 110/20(b) (West 2008). To overcome the immunity, a r esponding party

is required

to produce “clear and convinci ng” e vidence demonstrating the “act or acts” at issue were “not immunized from, or are not in furtherance of acts immunized f

rom, liability

by t his Act.” 735 I LCS 110

/20 (West 2008). Turning to the instant case, section 15 of the Act requires Walsh,

as the moving

part y, to sho w Wr ightDevelopment’s defamation compl aint is “base d on, rela tes to, or is in response to” a

cts Walsh made “in furtherance” of his “rig

hts of petition, speech, association, or to otherwis e partic ipate in gove rnment.” 735 I LCS 110

/15 (West 2008)

. Acts in “furtherance of the constitutional rights to petition, speech, association, and participation in govern men t are immune fromliabil ity, r egardless of intent or purpose, except when not genuin ely aimed at procuring favorable g overnment action, result, or outcome.” 735 I LCS 110 /15 (West 20 08). Acc ording t o the Act, “gove rnment”includes any “br anch, departm e nt, agency , in st ru me nt al it y, official, employe e , ag ent, or other person acting under color of law of the Uni ted States, a state, a subdivision of a stat e, or anot

he r p ub li c a ut ho ri ty including the elec torate .” (Empha sis-13- added.) 735 ILCS 110/10 (West 2008). The grava men of Wrig

ht Develo pment’s d efamati on claim is

the statement Walsh m ade in an alderman’s office to a reporter concerning

statements he had made at the of ficia l pub lic m eetin g. This is clearly immunized activity. Accor

ding to the uncontroverted deposition testimony of Walsh and Hry cko, the s tatement s regarding the building issues at 6030 N. Sheridan were ma de inside the alderma n’s office while the

alderma n’s staff continue d to conve

rse with meeting particip ants inthe ming ling ses sion. The statemen ts to the reporter addressed a public matter–the problems of

condominium conversion

and draft legislation–in furtherance of his right to petition the government. These statements were in re sponse to Alderman Smith’s public not

ice and a

ddresse d the subje ct matter of his testimony and the public meeting. At the very least, the se statements affected the 262 un

it owners at the 60 30 building . They also potentially affe cted citizens of the 48th Ward and the City at larg e. Therefore, Walsh’s sta

tements w ere “in

further ance of ” his rig hts to sp eech, association, petition or otherwise participate in governmen t because the Act expressly

encompa sses exer

cis es of political expression directed

at the elector

ateas well as gover

nment off icials. Cf. Global W

aste Rec ycling, I nc. v. Ma llette , 762 A .2d 1 208 (R. I. 2000) (rejecting the argume nt that stat emen ts must be made before

some type of g overn m ental body and not to the public via the pr int media); Alves v. Hometown Newspapers, Inc. , 857 A.2d 743 (R .I. 2004) (letters to the editor were prot ected by the Rhode

Island antislapp statute). We therefore turn to whether Wright Development met its burde n under the Act.

Wright Development’s Burden of Proof Under the Act Becau se Walsh, as the moving party, met h is burden under section 15 to show the c omplaint is “based on, relat

es to, or i s in response to” Walsh’s acts in

furtherance of

his constitutional rights, section 20(c) of the Act sh

ifts the burde

n of proof to the responding party , Wright Develop ment. See 735 IL CS 110/15, 20(a), (c) (West 2008). Section 20 requires the re s ponding party to produce “clear and convincing evidence” dem onstrating the defendant’s statements “are not immunized from, or

are not i n furthe rance o f acts immunized from,-14- liability by

this Act.” 735 IL CS 110/20 (West 2008). Wri ght Development principally a rgues Walsh’s petitioni n g activity was a “sham” or not “g enuinely

aimed at p

rocurin g favo rable government

action, r esult, or outcome.” Wright Development contends Walsh’s de

position tr

anscrip t constitut

e s clear and

co nvin cing evidence in support of this argument. Wright Development

repeat ed ly allege s throug hout its bri ef Walsh “admitted” that he “ lied” an d “knowin

gly ” and “in

tenti onal ly” defamed Wright Development by misnaming “Wright Development Group” instead of Sixt

y Thirty as the building developer when he spoke to the newspaper reporter. Wrigh t D evelopment has not met its burden. Rather, Wright Develop me nt pr esents a fraction of the truth. Walsh testified as follows in response to Wright D evelopme

nt’s coun sel’s que stions: “Q. And why did y

ou say it’s the g

roup of the W ri ghts

versus the Wright Grou

p when you knew that the de veloper of the bui lding wa s 6030 L LC? A. Because that’s the only thing I cou

l d think of when I was doing

it, when I

was say ing it. Q. You couldn’t think

of the developer being 6030, LL C? A. No. I just–Whenever I think of the developer , I think of the Wrig

hts. Q. Why is that? A. Because to me, that’s the developer. Q. Which Wrights do you think of? A. I think of Andrew and Jamie. Q. And when you ar

e speaking to the reporter, that’s who you were thinking of? A. Yes. Q

. That’s w

hat y ou were try ing to communicate

to th e reporter? A. Uh-huh, yes.” The unrebutted testimony by Walsh in his deposition esta blishes at the time Walsh ma

de refe rence t o the “Wright Development Group” inhis conversation

with the reporter, he was referring to the g roup of-15- individua ls and busi ness entities which were the defendants in the condominium -conv ersionlawsuit. Andrew and James Wright are members of Sixty Thirty

LL C and are the live persons who interacted with Walsh. Walsh’s deposition testimony further reve als that he was

unaware of the existence of the distinct corporate entity known as “Wright Development Group, LLC,” as he stood speaking wi t h the reporter during the m in gling session. Further, the rec ord shows the members of Wrigh

t Development are

functionally

enmeshe d with Wright Management LLC, and Andrew Wright and

James Wright are parties to the dispute o ver the Sixty Thirty project. Walsh’s descriptionof the developers of the Sixty Thirty

project appeared true on its face and turned out to be true in substance. When viewed in

this context, the natu

ral r ead ing of the Pioneer article is as a reference to the “g roup” involved in the condominium conversion

and not the separate corporate entity –“Wright Development

Group, LL C”–whi c h filed the defamation suit. The trial court ruled similarly whe

n it d ismissed Wright Development’s complaint under section 2–615. Thus, Wright Development has not p rodu ced “clear and convincing evidenc e” demonstrating Walsh’s statemen ts “are no t immunized f

rom, or are not in furtherance of acts im munized from, lia

bility by t his Act.” 735 I LCS 110

/20 (West 2008). We turn to the

trial cou rt’ s distin ction concerning the statement “after” the meeting. The Act makes no suchrestric tion. By its terms, the Act applies to “any

motion to dispose of a claim in a judicial proceeding

on the grounds that

the claim is based on, relat

es to, or i s inre sp onse to any act or

acts of the moving party in furtherance of the moving pa

rty ’s righ ts of petit

ion, spee ch, assoc iation, or to otherwis e participate in government.” (Em phasi s added. ) 735 I

LCS 110/15 ( West 2008). I

ncluded i n the def inition of “ gover

nment” is “the electorate.” 735 ILCS 110/10 (West 2008). Therefore, not hi ng inthe words “any

act or acts” suggests a r

equirement of direct appeal to a government official. Further, the Act does not

limit the pr

otected rightsto petitioning the government only . The Act plainly includes the rights to “speech” and “association” as well. 735 IL CS 110/15 (West 2008). As these rightsare to “be encouraged and sa feguarded with gre at diligence,” the legislature has provided that the Act is to be “construed liberally .”-16- 735 IL CS 110/30 (We st 2008). T his clea rly applies to Walsh’s statement to a reporter made during a public for um conc e rning proposed legislation targ eting condominium conversions. The trial court’s misre adi ng, based on its erroneous belief that the Act be

s tri ctly construe d, has no b asis in the statutory langua ge and is antithetical to the legislature’s express provisions. Each of Wright De

velopmen t’s rema ining ca se law citations are distingu ishable on thei r facts because they are based on Wright Development’s rejecte d and unsu bstantiat ed asser ti on t hat the Wal sh’s deposition shows he was intentionally ly ing. See, e.g. , Professional

Real Estate Investors, Inc. v

. Columbia Pictures Indus tries, Inc. , 508 U.S. 49, 123 L. Ed. 2d 611, 113 S. Ct. 1920 (1993); McDonal

d v. Smith , 472 U.S. 479, 86 L. Ed. 2d 384, 105 S. Ct. 2787 (198 5); Stahelin v. Forest Preserve District , 376 Ill. App. 3d 765 (2007). Accordingly , W r ight De velopmen t has fail ed in its burden under the Act.

Wright’s Separation of Powers Argument Wright Development argues that the Citizen Par ticipation Act is unconstitutional due to a separation of power s v iolation in that, for example, it

directs a trial cou rt to dispos e of a motionunder the Act within 90 days. Walsh re sponds tha t this arg ument is f

orfeit ed because the arg ument is rais ed fo r the

firs t time befo re this cou

rt. We agreewith Walsh. Wright De velopmen t did not ra

ise this claim in the circuit court. This clai m also does not appear in Wright Development’s appella

te court briefs . We find the issue is not properl y before us. See, e.g. , City of Champaign v. Torres , 214 Ill. 2d 234, 240 n.1 (2 005); In re Liquidations of Reserve Insurance

Co. , 122 Ill. 2d 555, 567-68 (1988); Shell Oil Co. v. Department of Revenue , 95 Ill. 2d 541, 550 (1983).

Whether Wa

lsh Is Entitled to

Fees a nd Costs The Act provides: “The court shall award a moving party who prevail s in a motion under this Act reasonable a ttorne y’s fee s and costs incurred in connection with the motion.” 735 IL CS 110/25 (West 2008). Walsh has prevailed. As Walsh isthe pr ev ai li ng pa rt y,
we remand to the trial court to determine all reasonable attorney fees-17- and costs incurred

in connec

tion with the motion as provided by the Act.

CONCLUSIO N The trial court erred when it denied the motion under the Act. The ap pellatec ourt e

rred when it dis misse d the

appe al asmoot. We therefore revers e the ju dgment o f the appellate court and the trial court orders entered on July 29, 2008, and Aug ust 19, 200 8, and hol d John Walsh enjoyed immunity from liability in this lawsuit under the Citizen Participa

tion Act. We remand

the caus e to the c ircuit co urt to award Walsh rea sonable attorne y f ees and c osts incur

red in connection with the motion.

Reversed and remanded.

JUS TICE FRE EMAN, speci ally conc urrin g: Iagree with the c ourt that t his case must be re

manded. I

write separa tely only to address how litiga tion und er the Citizen ParticipationAct must pr oceed, an importa

nt mat ter that i s unfortunately ove

rlooked in today’s opinion. The court correctly

holds that the Act seeks to immunize citizens fromcivil act

ions base d on actsmade in furtherance of a citizen’s free speech rights or right

to petition

gover nment. Slip op at 11. Statutory immunity prov isions are not uncommon–t he Tort Immunity

Act being

a prime exam

ple. Sect ion 15 of th e Act does not, however, create a “stand-alone” motion as the court i mplies. Se e slip op. at 5, 7, 11, 16 (refe r ring to the movant’s motion variously as a “motion under the Act or as an “Act motion”). Section 15 states in r elevant part: “This Act appli es to any

motion to dis

pose of a claim ***

on the grounds that the claim is based on, relates to, oris in response to any act or acts *** of the moving party’ s rights of p etit ion, speech, associa

tion, or to

otherwis e partic ipate in gover nment. Acts in furtherance of [those rights] are immune from liability ***.” 735 I

LCS 110/15 (West 2008).-18- Section 10 defin es “motio n” to include “any motion to dismiss, for

summar y judgment, or to strike, or any other judicial pleading filed to dispose of a judicial claim.” 735 ILCS 110/10 (W est 20 08). Section 20 then expressly addresse s considerations for disposition of suchmoti ons i nclud ing, for ex ample , when hearin gs must be held and the standard of proof the responding party must meet to defeat the motion. 735 I LCS 110/20 (We st 2008). Section 20 also provides that the appellate court “shall expedite any appeal or other writ, whether interlocut ory

ornot, from a trial court order deny ing that motion.” 735 IL CS 110/20(a) (West 2008). Thesestatutory provisions make cle ar that there is no such thing

as an“ Act motion,” as the court would have it. A movant can seek dismissal based on the immunity gr anted by the Ac

t under section 2–619(a)(9) for example. Such a motion allows for dismissal when the claim asserted against the def end ant is barred by

other “affirmative matter av oidin g the legal effec t of or defeating the claim.” 735 IL CS 5/2–619(a)(9) (West 2008). The affirmative matter referred to en compass es “all defenses which rely on allegations which

are not ne gations of the es sential a llegat ions of the

plaintiff ’s cause of action.” See 4 R. Michael, Illinois Prac tic e §41.7, at 331 (1989). The use of a section 2–619 mo tion here would be no different than the use of the motion to seek dismissal under the Tort I mmunity Act. See Midwest

Bank &Trust Co. v. Village of Lakewood , 113 Ill. App. 3 d 96 2 (1983) (and cases cited therein). Other examples of affirmative matter include, in de fam ation cases, defenses based on privilege, the innocent construction rule, fair comment and truth. See 4 R. Michael, Illinois Practice §41.7, at 331-32 (1989) ( collecting cases). Ac co rd in gl y, movants assertin g immunity

under the Act must do pursuant to the normal means provided under the Cod e of Civi l Procedure, as section 10 expressly directs. The movant here m i ght have availed himself of section 2–619(a)(9) to seek dismissal on the basis of immunity conferre d by section 15 of the Act. See Kedzie & 103rd Currency Exchange, Inc. v. Hodge , 156 Ill. 2d 112, 115 (1993) (noting practice under se ction 2–61 9 motions); 4 R. Michael , Illi nois Practice §41.8, at 333-35 (1989) (explaining that determination of a section2–619 motion can be made as a matter of law on affida vits alone or at the conclusion of an evidentiary hearing).-19- Inany section 2–619(a

)(9) motionto dismiss, once an affirmative matter is properly ra

ised which cou ld defeat the claim, the plaintiff must then come forward wi th some e viden ce at l east es tabli shin g a genuine issue of ma

terial f act, otherwis e the motion will be granted. The only additional

burden established by the Act on a plaintiff is that the plaintiff is required to come forward with clear a nd convincing evidence that a genuine issue of material fact e xists in order to defeat the motion. 735 IL CS 110/20(c ) (West 2008). If such a materia

l fact exists that can

not other wis e be r esolved within the statutory provisions of section 2–619, denial of the motion would be proper. The use of a section 2–619 motion wou ld also avoid questions concerning

appella te jurisdi ction. I f the motion is gra nted, att o r ney fees can then be awarded in furtherance of the legislative intent, and

anappeal can follow normally as an app ea l from a final judgment under Rule 302 ( 210 I ll. 2d R. 302 ). If the sect io n 2–6 19 motion is denied, however, the m ova nt should a sk the tria l judge f or a Rule 304(a ) find ing. See 210 Ill. 2d R. 304(a). Under that r ule, an appeal may be taken fr

om a fina l judgme nt as to one

or more c laims if th e trial judge expressly f

inds that there is no just reason to del a y the appeal. 210 Ill. 2d R. 304(a). The de nial of a section 2–619 motion based upon the Act

would be a final judgment as to the ability of the def e ndant to recover statutory

attorney fe es and costs, as the court

correc tly notes. Slip op. at 11. By g ranting such a request, trial judges would be givin g effe ct to the le gislative intent reflected in section 20(a) of the Act, i.e. , that interlocutory appe als arising under the Act be heard soo ner rather than later. This would further allevia te the need to amend the supreme court rules, in particu lar Rule 3 06, as is noted in today’s opinion. Slip op. at 7 n.1 T his case repres ents the c ourt’s fi rst oppor tunity to addre ss this relat ively new piece of legislation y et the court fails to make clear how the Act’ s provisio ns are to be prope rly incorpor ated into th e
course of a lawsuit. At oral argument, one member of this court

asked specific ally

about how the use of

a f ree-sta nding mot

ion fits wit

hin pretrial motion pra

ctice, p articula

rly wit h respect to appeals from denialsof such mo tions. That question is not answered today. I nstead, the court’s opinion virtually g uarantees the filing of more stand-alone “Act motions” in lawsuits such as this. This is problemat ic bec ause already the appellate court has called the constituti onality

of the Act’s-20- interlocutory

appeal pro v isions into question. Mund v. B rown , 393 I ll. App. 3d 994 (2009). In Mund v. B rown , the mo vant fileda standalone motion seeki ng dismis sal pursuant to the Act. The trial court denied the mo tion , and the m

ovant att empted to appeal t he denia l. The appellate court raised the issue of appellate jurisdiction sua sponte

. In responding to the cour t’s jurisdictional concerns, the movant argue d that section 20 of t he Act g ranted j uri sdi cti on. In rejecting the argument, the appellate court noted that a rti cle VI, section6, of the I

llinois Cons titution g

rants to the su

pre me court alone the power to make rules governing interlocutory

appeals . Thus,

a statute purporting to grant a right to an interloc utory would not only violate section 6of the Con stitutio n but would also violate the separation

of powers clause

containe d in artic le II , sectio n 1. The appeal was then

dismissed f

or la ck of ju

risdiction. Mund v. B rown , 393 Ill. App. 3d at 998-99 (petition for leave to a ppeal denied November 25, 2009). Mund raises serious constitutional questions. Those litigants who file the free-standing motion refer red to in today’s opinion will face the same jurisdictional hurdle that the movant in Mund di d. Pr es en tl y, and presuma bly until Rule 3 06 is offic ially amended, there is no supreme co ur t r ul e b y w h ich the denial of the free-standing motion

can be appeale d. If

a supreme court r

ule does n

ot gran t the rig ht to app eal from a nonfinal judgment, then there is no right to a n interlocutory

appeal and

the appellate court does not havejurisdiction to hear the appeal. Hawes v. Luhr Brothers, Inc. , 212 I ll

. 2d 93 (2004). Inmy view, this court should make explicit that the Act operates only in conjunction with normal practice under the Code of Civil P r ocedure. Doing so

avoids the

constituti onal ques tions that a rise with respec t to appel late juri sdiction in cases involving interlocutory appeals taken from so-called free-standing Act motion s. If

the Act is interpreted

as I suggest it mu st be, the se concer ns are of no moment. Throu gh Rule 304(a), such interlocutory or ders would be appealable, and the leg islative i

ntent for swift a ppeal s can easily be

achieved without constitutiona

l concer ns. In all other respects, I join in the court’s decision.-21- JUSTICES THOMAS and BURKE join in this special

concurrence.