No. 2-09-1015 Filed: 10-18-10

______________________________________________________________________________ IN THE AP PE LLATE COU RT OF ILLIN OIS SECOND DI STRICT

______________________________________________________________________________ STEVE SAND HOLM , ) Appeal from the Circuit Court ) of Lee Co un ty. Plaintiff-Appellant and ) Cross-Appellee, ) ) v. ) No. 08--L--19 ) RICHA RD KUECKER, ARDI S KUECKER, ) GLEN HUG HES , AL K NICK RE HM, TIM ) OLI VER, DAN B URKE, DAV ID D EETS, ) MARY MAHAN-DEATHERAGE, NRG ) MEDIA, L

LC, GREG DEATHERAGE, ) ROB ER T S HOM AKE R, and NEIL ) PETERSEN, ) ) Defendants-Appellees and ) Cross-Ap pellants ) Honorab le ) Da vi d L. Je ff

re y, (Michael Venier, Defendant-Appe llee). ) Judge , Pres idin g.

______________________________________________________________________________ JUSTICE BOWMAN de livered

the opinion of the c ourt: Plaintiff, Steve Sandholm, appeals the trial cou rt's dis missal of h

is complai

nt, which alleged various counts of

defama tion, fals e light, and tortio us interf erence , again st defen

dants, R ichard Kuecker, Ardis Kuecker, Glen Hughes, Micha el Venier, Al Kn ickrehm, Tim Oliver, Dan Burke, David Deets, Mary

Mahan-Deatherage , NRG Media, LL C, Greg Deatherag e, Robert Shomaker, and Neil Peterse

n. The tri al court

dismissed p laintiff

's compl aint upon f

inding that the C itize n ParticipationAct (Ac t) (735 IL CS 110/1 et seq. (West 2008 )) provi ded defe ndants immunity fromNo. 2--09--1015

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the claims alleged

b y plaintiff. Plaintiff appea ls, arguing that the Act is unconstitutional and, al te rn at iv el y, does not a

pply to the fa cts alleged in his complaint. Except Ve nier, de fendant s crossa ppeal the attor

ney fee aw ard, ar

guing that the tr

ial cour t improper

ly li mited the f

ees they could
recover to those connected to the motio n to di smiss . We affirm the judgment of the trial court on all points. I. BACKGROUND This is a case o f fi rst impre ssion invol ving inte rpreta tion of the

Act, I llinois's

anti-SL APP ("Stra tegic Law suit Aga

inst Public

P articipation") statute. The term "SL APP" was developed by Universi ty of Denver

professors George Pring a nd Penelope Canan, and the "Public Participation" referred to involves concerned citizens acting primaril y on matters r elating to the publ ic intere st. See M. Sobczak, SLAPPed in Illinois: The Scope and Applicability of the I

llinois Citizen Participation Act , 28 N. Ill. U. L . Rev. 559, 563 (S ummer 20 08). In a ty pical SLAPP case, citizens oppose a devel oper's plan and p etition the ir local governme nt to stop the

develope r in some way. Th e developer then sues the citizens for intentional interfe rence w ith prospe ctive bus iness and eventua lly the lawsuit is

thrown ou

t, but the c itizens ar

e financ ially

strained inthe proc ess of de fending the suit. While the Act's clear objective as an a nti-SLAPP statute i s to pro vide citizens with an immediate

way to dispose of such la wsuits, the Act

was written more broadly than suchstatutes i

n other states and

more bro adly

than Pring

and Cana n had def ined. SL APP lawsuit s were origina lly defined as involving a right to petition and a matter of public conce r n. M. Sobcz ak, SLAPPe d in Illinois: The Scope and Applicability of the I llinois Citizen Participation Act , 28 N. Ill. U. L. Rev. 559, 573 (Summe

r 2008). T

he Act exceeds tha

t definiti on by

including

the rig hts to spea k, assemble, or otherwise participate in gover nment, and it is not limited to matter s of socia l or civicNo. 2--09--1015

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concern. The ramifications of the Act are presented be fore this court in the context of a defamation lawsuit. T

he fact s below a

re deri ved from the rec ord before us. OnApril 25, 2008, plaintiff filed his initial complaint, which was later amended on May 9, 2008, June 27, 20 08, an d Nove mber 1 7, 200 8. The third amend ed com plain t all eged th e foll owing. Plaintiff was hire d as a tea

cher an d head ba sketball

coach at Dixon High School for the 1999-2000 school year. F or the 2003-04 school year , plaintiff was assig

ned the a dditional p osition of a

thletic director for Dixon High School. Plaintiff had alwa ys received positive performance eva luations during his time at

Dixon High

School. B eginnin

g in Februa ry 2008, def endantsstart ed a cam paign to have pla

intiff re moved as b asketba

ll coach and athle tic director due to th eir disag reemen t with his coaching style. Defendants approached principal Michael Grady , superintendent James Brown, and members of the

Dixo n School Di strict Board to complain about plaintiff's coaching style and performance. When the boa rd and schoo l administr ation did not remove

plaintiff from those positions, defenda

nts contin ued to ca mpaign a gainst him, formin

g a group known as the " Save Dixon Sports Committee." CountI alleged

defamation per

se against Richard Kuecker. Richar d published defamatory statemen ts concer ning p laint iff's abilities as a basketball coach and athletic director. Attached to the complaint was a February

28, 2008, letter

that Richard authored and published on the "Save Dixon Sports" Web site. The let ter made def amatory and fals e stateme

nts includ

ing that plaintiff only criticized athletes, badgered, humiliated, and bullied players, a nd was excessively abusive. Richard sent to the school boa

rd a peti tion making

similar a ccusati ons, which was also posted on the Web site
. On March 21, 2008, on WIXN radio, AM 1460, Richa rd, along with Michael Ve nier, Glen Hughes , and

Al Knickrehm, discussed his dissatisfaction with the school board's failure to re moveNo. 2--09--1015

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plaintiff as coach. Knickrehm was the ge neral manager of the

radio station, and he had requested that the others appear

on th e prog ram. Richard state d on the pr ogram t hat plain tiff adve rsely pe rfo rmed

his job, that his coaching philosophy wa s to verbally abuse, bully , discourage, and desecr ate players, and t hat plaintiff needed to be fired. Richard, along with other members of the "Save Dixon Sports Committee," posted the radio program on its Web site through April 10, 2008. Also posted on the W eb sitewere ad diti onal s tatem ents f rom R ichard and ot hers cr itic izin g plain tiff's coaching style and the school boar d's failure to remove him as coach and athletic director. Richard e-mailed to Matt Trowbridge, a rep ort er for the Rockford Regi ster Star , defama tory statemen ts, including that plaintiff was a bad coach and an embarrassment to the community and that his abusive behavior amounted to bullying
. AnApril 10, 2008, letter addressed to Doug L ee, the president of the Dixon school board,
was signed by Richa

rd and other members o f the "Sa

ve Dixon Spor

ts Committee" and published on the Web site. The letter described plaintiff as verbally a

busive and unfit to hold the positions that he held. The letter further described def endants'complaints about the school board and the administration not conducting a full inve stiga tion and th eir fail ure to ad dress the complain

ts at a March 19, 2008, school board meeting. On April 16, 2008, Richard told a reporter for the Rockford Register Star that the situation was not about plaintiff's coaching ability but about his verbal abuse. Co unt I alleg ed that Ric

hard' s defama

tory statemen ts: imputed

to plaintif

f an inab ility

to perform his job and/or a lack of

integr ity in the disc

harge of his dutie s; prejud

iced pla intiff' s ability to pe rf or m h is du ti es ; a nd im pl ie d t ha t h e e ng ag ed in cr im in al ac ti vi ty. Coun t II alle ged defamation per se agains t Glen Hug

hes and r eiterat ed much of

the same conduct al le ged against Richard. Count I II alleged defamation per se against Michael Venier andNo. 2--09--1015

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reiterated much of the same conduct alleged against Richard. An e -mail dated March 11, 2008, that Michael sent to a Dixon school board member was also attached. The e-mail criticized plaintiff for his "critic izing to the

brink of a

buse , de mands bordering on slavery, [and] serious void of true citizens hip." Count IV alleged de famation per se agains t Tim Olive

r, alleging much

of the sa me conduct alleged against Richard and the others. Counts V and VI alleged defamation per

se agains t Dan Burke and Mary

Mahan-Deatherage , respectively , alleging much of the same conduct alleged agains tRichard andthe others. In addition, on April 24, 2008, Mary was quoted in the Dixon Gazette, "Why does there have be an instance of where someone is shoved or pushed? Why can't all these inst ances of abuse o ver 10 years...isn't t hat enough to f ire him? " Counts V II and VIII alleged defamation per se

agains tDavid Deets and Greg Dea therage, respectively

, and alleged much of the same conduct alleged ag ainst the others. Additionally, G r eg was alleged to have

published Richa rd's Februa

ry 28 letter on the Nor

thern Illinois Spor

ts Beat Web site. On March 23, 2008, Greg published on that Web site statements that plaintiff was a "psy

co [ sic ] nut [who] talks in circles and is only coaching

for his glory " and

that he did not care about the play ers. On April 10, also on that site, Greg wrote about plaintiff, "I t is his twisted pshyco [ sic ] babble a nd his abus e of

power that we have had enough of" and that plaintiff was a tough, old school coach who tried to break the players down. Greg a

lso alleg edly

wrote on the Web site

sa u kvalley news.com that plai

ntiff abu sed his power, that plaintiff claimed that girls' spor ts w ere not really

sports, that plaintiff stated that the Dixon Boosters were a

bunch of losers, that plaintiff thought that any one who did not

play basketba ll was not loyal, and that plaintiff state d that he did not owe the people of Dixon anything
. CountIX allege d defamation per se against Ardis Ku ecker, allegi ng much of the sa me conduct allege d again st

the others. In addition, a letter to the editor written by Ardis was attached.No. 2--09--1015

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Ardis 's letter was published on March 26, 2008, and stated that plaintiff utilized verbal an d emotional abuse, bullying, a nd belittling in his coaching sty le. OnMarch 12 , 2008, Ar dis stated to superintendent

James Brown that

during t imeouts plaintiff

ye lled inste ad of pre

pared, t hat he wo uld pick out a "whipping boy " each y ear, that he was a negative person, and that she f eared retaliation from him. Count X alleged defamation pe r se agains t Robert Shomaker and alleged tha

t Shoma ker wrote a letter to school board member Caroly n Brechon. In the

April 10, 2008, letter, Shomaker stated that p laint iff ha d thre atened Shom aker's son that hi s bad attit ude would

prevent him fromm aking the vars ity team, and he a dded that many other pa rents had similar stories about plain tiff's threate

ning be haviors. Shomaker also e-mailed Brechon on Fe bruary 29, 2008, and stated that plaintiff 's ha lf-time speeches were profanity -laced, that he used profanity during practices as well, and th at he called hi s players "fucking moron s." Co unt XI allege d defamation per se against Al Knickrehm. Knickrehm was the g eneral manager of NRG Media, which operated AM and FM ra dio stations in Dixon. The count al leged that Knickrehm made defamatory statements by participating in the pet ition to the

school boa

rd to have plaintiff removed. Additionally, Knick rehm inv ited Michael Venier, Richard Kuecker, a nd GlenHughes to appear on the program on his radio station on March 21, 2008. During the prog ram, defamatory

statements were made about plaintiff, as summarized in the description of the c oun t agains tRichard. Knickre hm furthe r allowe d the "Sa

ve Dixon Spor

ts Committee " to post

the radio program on its Web site for repeated publication. On Apri l 16, 2008, Kn ickrehm told reporter Trowb ridge that plaintiff had "absolutely ripped the management of WIXN on its own radio station." CountXII alleged defamation per se against NRG Media, LL

C, making the same allegations as count XI.No. 2--09--1015

1 The motion to dismiss was a combined m otion under sections 2--615 and 2--619 of the Code, although the motion itself references only section 2--615. -7- Plaintiff al le ge d f al se li gh t a nd in va si on of

pr iv ac y, alleging the same conduct desc ribed in the defamat ion counts, in the following counts: count XII I (Michael Venier

); count XIV (Richard Kuecker); count XV (Glen Hughes); count XVI (Mary Ma

han- Death erage ); count X VII (David Deets); cou nt XVIII ( Dan Bur ke) ; co unt XIX (Tim Oliver); count XX (Greg Dea therage); count XXI (Al Knickrehm); count XXI I (NRG Media, L LC); and count XXVI

(Robert Shomaker). CountXXIII allege d i nterfe rence w ith plainti ff's bu siness expe ctancy , alleg ing the s ame conduct that supported the defamation per se and fals e light c laims. CountXXIV alleg ed slander per se against Neil Petersen. Petersen was a school board member who stated in a March 21, 2008, letter to other school board members that the sc hool board 's pro posed code-of-condu ct response t o the compl aints abou t plainti ff was a "slap in the face" t o parents and that the board's decision to retain plaintiff was jeopar dizing funding from

local bus iness entities for extracurricular activities. Count XXV alleged against Petersen intentional interf erence with plaintiff's business expectancy , for the same statements supporting count XXI V. OnApril 23, 2008, the school board re moved plai ntiff as basketball coach, but he was retained as the school's athletic director. OnJuly 3, 2008, in response to p lai ntiff's second amended complaint, NRG Media and Knickrehm

filed a motion to dismiss pursuant to sec tion 2 --615 of the Code of Civil Procedure (Code) 735 IL CS 5/2--615 (West 2008) 1 , argu ing that the Act ba

rred pla intiff' s cla ims, that the alleged statemen ts were protecte d opinions, that plain tiff fai led to allege facts supporting that any statement was made with actual malice, which was a required element b ecause

plaintiff was a pub licNo. 2--09--1015

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figure, and that plaintiff failed to state all elements of each claim. On July 7, 2008, Michael Venier filed a similar motion to dismiss. Also on J uly 7, Glen Hu

ghes, T im Oliver, Dan Bur ke, Davi d De ets, Ma ry Mahan-D eather age, a nd Greg Deathe rage f iled a simi lar motion

to dismiss. On July 8, Ri chard and Ardis K

uecker and Rober

t Shomaker

and Neil P eterse

n filed sim

ilar motio ns to dismiss. OnAugust 26, 2008, the tri al court heard the motions to

dismiss. Af

ter the p arties' argume nts, the trial court took the matter under advisement. On November 17, 2008, after a flurry of responses and

replies, plaintiff filed a motion for leave to file a third amended complaint, which ad dedcount XXV I. I

n the meantime, on December 10, 2008, the trial court issued a deta iled memorandum opinion and order on the matter. We summarize the trial court's order now, and we will further explore these issues in our analy sis section. The trial court acknowledged that defenda nts moved t

o dismiss under section 2--615 of the Code, attacking the legal sufficienc y of the complaint. Howe ver, defendants argue d th at the complai ntshould be d

ismissed f

or numer ous reas ons and tha

t the Act provided t

he most we ll

founded reason. In reviewing

the Act's history , public policy, intent, and broad-reaching languag e, the trial court determined

that the Act barred plaintiff's complaint. The trial cour t stated that the Act applied to any cla im bas ed on, re lated to, or in res ponse to a

ny a ct or ac ts of the moving pa rty in furtherance o f the movin g party 's rig hts to petit

ion, spea k, assemb le, or oth erwise p articipa te in gover nment. In thi s case, d

efenda nts first sought action at a school board meeting but were unha ppy with the resu lt. Defendants sought to gain support for their position by publicizing their gr ievances agains tplaintiff, and their condu ct did resul t in a reconsideration of the school board's initial decision.No. 2--09--1015

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The trial court acknowledged that section 15 of the Act appeared

ambiguo us in that it

both excluded inquiry as to the

subjectiv e intent or purpose of the acts in fur theran ce of th e movi ng part y's rightsand then included inquiry as to the g enuine aim of those acts. The trial court determined that the legislature's intent was to adopt the standard in City of Columbia v. Omni Outdoor Advertising , 499 U.S. 365, 113 L. Ed. 2d 382, 111 S. Ct. 1344 (1991), wh ich adopted the Noerr
- Pennington doctrine--derived

from Eastern

R.R. Presidents Conference v. Noerr Motor Freig ht, Inc. , 365 U.S. 127, 5 L. Ed. 2d 464 , 81 S. Ct. 523 (1961), and United Mine Workers of America v. Pennington , 381 U.S. 657, 1 4 L. E d. 2d 626, 8 5 S. Ct. 1585 ( 1965). The gist of this d octrine is that even if a speaker was motivated by an illeg al purpose in petitioning the government, aslong as the actions constituted

a genuine effort at

petitioning for

go ve rn me nt ac ti on , t he y we re im mu ne fr om li ab il it y. City of Columbia , 499 U.S. at 380, 113 L. Ed. 2d at 398, 111 S. Ct. at 1354. The only exception, knownas the "sham" exception, applies when the speake r's actions were not genui nely ai med at procuringgovernment action. City of Columbia , 499 U.S. at 380, 11 3 L. E d. 2d at 39 8, 111 S. Ct. at 1354. Thus, the trial court conclude d that the ambiguity wa s to be resolved by de termining whether the speaker's acts were genuinely aimed a t procuringfavorable government action and tha t
aninquiry into the subjective intent or malice is not allowed unless the objective test fails. Having determined

that defendant s here acted in furtherance of their desire that the school board remove plaintiff as coach

and athle tic direc tor, the tr ial cour t held that the Act barred plaintiff's complaint in its entir

ety . It di smissed al l 25 counts of plainti ff's se cond ame nded comp laint. OnDecember 29, 2008, plaintiff moved for reconsider ation. On January 2, 2009, defenda nts objected to plaintiff's motionfor le ave to file a third amended complaint. On March 30, 2009, defenda nts collectively moved

for reasonable attorney

fees under section 25 of

the Act. On May 15,No. 2--09--1015

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2009 , the trial court denied plaintiff's motion to reconsider. I t also addressed plaintiff's third amended complain

t, stati ng that much of the complaint was identical to the second amended complain t. The only

new alle gations

were c ontained

in counts X an d XXVI ag ainst Shomaker. Sp ec if ic al ly, the amendments addressed alleged de famatory conduct in May or June 2008. The court allowed the third a

mended c omplaint to

be filed as to coun

ts X and XX

VI. Sh omaker moved to dismiss both counts on May 18, 2009. On July 23, 2009, the trial court granted Shomaker's motion to dismiss counts X and XXVI on grounds the Ac t barred plaintiff's action. OnMay 18, 2009, Clark, Justen & Zucch i file d an affidavit in support of attorney fees totaling $15,991.28, for work performed on behalf of Ve nier. Dixon & Giesen filed an affida vit in support of attorney f

ees totaling $26,295.88, for work performed on behalf o f Oliver , Burke , Deets, the Deatherages, Hug

hes, Shomaker, and Petersen. Pignatelli & Mertes f iled an affidavit in support of attorney fe es totaling $11,811, for work performed on behalf of the Kueckers. McGuireWoods filed an affidavit in support of attorney fees totaling $212,192.32, for work performed on behalf of NRGMedia and Knickrehm. Plaintiff objected to the att orney fees cl aimed by

McGuireWoods, arguing that such fees we re unreasonable and unconscionable. OnJuly 15, 2009, the trial court rendere d a decision on attorney fees. The court noted

that it had advised the parties that requests for attorney fees should be limited to the portions of the ca se that dealt wit h the appl ication o f the Act . The par ties had s pent a sub stantial a

mount of time advocatingother potential defenses besides the Act, and there was no provision for attorney fees for those defense s. The co

urt further did not

accept cost s for tr avel time for attorney s who resided outside Lee Co un ty. The trial court noted the disparity in hourly

fees, which ranged from $140 pe r hour to $508 per hour. The court determined that the reasonable hourly

rate rested at $200 and thatNo. 2--09--1015

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any fees charged in excess of $200 per hour would not be granted. The court furthe r rejected McGuireWood s' ch arges

for assis tants, libr

arians, and WestLaw, as those wer e overhe ad costs; it also rejected McGuireW oods ' charges for a n attorney who wa s retained by a n insurance company and was not an attorney

with McGuireWoods. The cour t ordere d the parties to revise their fee petitions accordingly
. As ordered, counselfor the various defendants filed revised petitions as follow s: Pignat elli & Mertes, on behalf

of the Kueckers , $1,560; Cl ark, Just en & Zucchi, on behalf of Venier, $11 ,229.28; Dixo n & Gies en, on behal f of Ol iver, Burke, Deets , the D eather ages, Hu gh es , Shomaker, and Petersen, $8,771.50 ; and McG uireWoods , on beha

lf of NRG M edia and

Knickre hm, $32,940. All attorneys filed motions for re consideration of the trial court's decision to limit the fees to those incurred preparing the portions of the motions to dismiss based only on the Act. OnSeptember 18, 2009, the trial court issued its final order, stating that it believed $200 per hour was the reasonable hourly rate charged

by attorney

s in Lee County

for this type of leg al work. It also believed that section 25 of the Act limited a

ttorney fees to th ose incur red in connection

with the motions ba sed on the Act. Plain

ti ff d id not respond to the revised fee petitions. The court granted the fees contained in the r evised petitions. Plaintiff timely appealed, se eking reversal of the dismissal of his complaint and reversal of the award of attorney

fees . Excep t Venier , defend ants all ti mely filed noti ces of c

ross-ap peal, seekingexpansion of the attorney fee awards to include those fees assoc iated with the entire defense.

II. AN ALYS ISNo. 2--09--1015

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Onappeal, plaintiff

argue s that: (1)

the Act de

prives h im of his constitutiona l right to remedies for his injuries; (2) the Act is unconstit utional be cause it

violates the due process and equal protection

clauses; (3) defendants' conduct was not perfo r med with the genuine aim of procuring favorable government action; and (4) the trial court failed to strike a balance between the rights of persons to file lawsuits and the c o nstitutional rights of persons to petition and participate in the gover nment. Defendants counter that theAct is broad, applicable to the facts of the case at bar, and constituti onal, both facially and a s applied. Thus, the trial court did not err in apply ing the Act and dismissing plaintiff's complaint. At oral ar gument, the part

ies ackn owledg ed there

was some c onfusion a s to whether the trial court dismissed plaintiff's complaint under section 2--615 of the Code or under the Act. Despite the parties' and the tr

ial cour t's ref erence s to dismi ssal pursuant to section 2--615, the dismissal was pursuant to the Act. The Act provides a procedure for dismissal similar to section 2--619( a)(9) of the Code (735 IL CS 5/2--619(a)(9) (West 2008)), since it does not attack the leg al sufficiency of a claim but rather provides another method to defeat the c laim. See 735 I LCS 110/20 (West 2008). A moti on to dism iss u nder s ectio n 2--6 19 adm its t he legal suffi ciency of t he pla inti ff's complaint but asserts an affirmative defense or other matter that avoids or defeats the plaintiff's claims. River Plaza Homeo wner's Ass'n v. Healey , 389 I ll. App. 3d 268, 275 ( 2009). L

ikewise, we would

consider the facts legally

sufficient when considering dismissal under the Act. The Code allows for a c ombined motion to dismiss wi

th respe ct to sectio ns 2--615 and 2--619. 735 IL CS 5/2--619.1 (West 2008). "A combined

motion, how ever, shall be in parts. Ea ch part s hall be lim

ited to and shall specify tha t it is made un

der one o f Sectio ns 2--615, 2--619, or 2--1005." 735 I LCS 5/2--619.1 (West 2008). The Code fur

ther pro vides tha

t each pa rt shall clearly show

the points or grounds relied upon underNo. 2--09--1015

-13-

the section upon which it is based. 735 IL CS 5/2--619.1 (West 2008). Accordingly , it follows that
a motion under section 2--615 or 2--619 combined with a motion under the Act would be allowed. Alth ough "hybrid" motions are improper, a reviewing court will review the dismiss al if doing so would serve the interests of judicial economy and the nonmoving party was not prejudiced. Weatherman

v. Gary- Wheaton Bank of Fox Valley , N.A. , 28 6 Il l. App. 3d 4 8, 63 (1996). Here, altho ugh the g rounds for defendants' motions were somewha t intertwined, it does not appear that plaintiff was prejudiced, as there was no objection to the ma nner in w hich def endants presente d their motions and no party r

aises this issue on appeal. Further, the Act provides a new procedural method for dismissal, and def

endants' arguments pertaining to the Act were separated sufficie ntly to be understood. Therefore, we will revi ew the d ismissal pursuant to the Act, using section 2--619 principle s as guid

elines. The purpose o f a sect

ion 2--61 9 motion is to

dispose of issues of

law and easily pr

oved issues of fact early

in the litigation. Czarobski v . Lat a , 227 Ill. 2d

364, 369 (2008). When ruling on a section2--619 motion, the court must construe the pleadings and supporting documents in the light most favora ble to the nonmoving party
. Czarobski , 227 Ill. 2d at 369. The court must acce pt as true all well-pleaded facts in the plaintiff's complaint and a ll inferences that

can rea sonably

be draw n in the plaintiff's favor. Barber v. American Airlines, I nc. , 398 Ill. App. 3d 868, 878 (2010). I n ruling
onthe motio n to dismiss, the court may consider plea dings, depositions, and affidavits on record. Barb er , 398 Ill. App. 3d at 878. The reviewing court must consider whether the existence of a genuin e issue of ma

terial f act shoul d have pr

ecluded the dismiss al or, ab sent an is sue of ma teria l fact, whether dismissal was proper as a matter of law. Czarobski , 227 Ill. 2d at 369. Even if the trialNo. 2--09--1015

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court dismissed on an improper ground, wemay affirm t he dismissa

l on any proper b asis found in the record. Barber , 398 I ll. App. 3d at 878. Ou

r revie w is de novo
. Czarobski , 227 Ill. 2d at 369. The Act, which

became effec tive Aug

ust 28, 200 7, is rela

tively short. Section 5 declares the Act's p ublic polic

y, w hich we q uote in re levant pa

rt: "[I ]t is decla red to be the public policy of the State of Illinois that the constitutional rightsof citizens and org aniz ations to be involved and participate freely in the process of government must be encourage d and safeguarded with g reat diligence. *** Civil actions for money da mages have been

filed against citizens and organizations of this State as a result of

their valid exercise of

their constitutional rights to petition, speak fr ee ly, associa

te free ly, and other

wise par ticipate in and com

municate with gov ernment . There has been a d

isturbing increa se in

lawsuits te

rmed 'St rateg ic La wsuits Ag ainst Public Participation' in government or 'SL APPs' as they a

re popularly c alled. The threat

of SL APPs signi ficantly chills and

diminishes

citizen pa

rticipat ion in government

***. This abuse *** has been used as a means of intimid ating, harassing, or punishing citizens ** * for invo lving the mselves in

public af fairs. It is in the public interest and it is the purpose of this Act to strike a balance between the rights of persons to file lawsuits for injury and the constitutional ri ghts of p ersons to petition, sp ea k f

re el y, as so ci at e f

re el y, and otherwise participate in government; to protect and encourage public participation in government to the maximum extent permitted by law; to esta blish an efficient process for identification and adjudication of SL APPs; andt o provide for attorney's fees and costs to the prevailing mov ants." 7 35 IL CS 110/5 (We st 2008).No. 2--09--1015

-15-

Section 15 of the Act provide s: "A pp li ca bi li ty. This Act applies to any motion to d ispose of a claim in a judicial proceeding

on the ground s that the c laim is based on, relates to, or is in response to any act
or act s of the moving party in f urtherance of the moving party 's rights of petition, speech, associa tion, or to otherwis e partic ipate in g overnme nt. Acts in furtherance of the constitutional rights to petition, speech, associ ation , and part icipation in gove rnment are immune from liability, re gardless of intent or purpose, except when not gen uinely aimed at p

rocurin g favo rable government action, result, or outcome." 735 IL CS 110/15 (West 2008). Section20 guides motion practice relating to the Act. Section 20(a) provides that upon the filing of any motion under sec tion 15, "a hearing and decision on the motion must

occur within 90 da ys after notice of

the motion i s given t

o the resp ondent." 735 I LCS 110/2 0(a)(West 2008) . We note that plaintiff, in his motion for reconsideration, argued that the trial cour t lost jurisdiction to rule uponthe motion. That

argument was rejected by the trial court because the expedition of the ruling
was to benefit defendants, not plaintiff, and

because some of the delay s were due to plaintiff's filing amended complain ts. The pa

rties hav e not rai sed this iss ue on app eal. Section20(a) f

urther provides t

hat the " appella

te court shall expe dit e an y appea l or other writ, whether

interlocutory or not, fr

om a trial court order deny ing that motion or

from a trial court 's failure to rule." 735 ILCS 110/20(a) (West 2008). Here, the trial court grante d the motion; therefore, we need not address this section. Cf. Mund v. Brown , 393 Ill. App. 3d 994, 998-99 (2009) (holding this provision of section 20(a) in conflict with supreme court rules reg arding interlocutory jurisdiction and unenforceable).No. 2--09--1015

-16-

Section 20(c) provides that the "court shall grant the motion and dismiss the judicialclaim unless the court finds that the responding party has produc ed clear

and convincing evidence that the acts of the moving party

are not immunized from, or

are not i n furthe rance o f acts imm

unized fr om, liability by t his Act." 735 ILCS 110/20(c) (West 2008). Section 20(c), therefore, shifts the moving party's normal burden, to show that an affirmative defense ba rs the plaintiff' s claims, to the nonmoving party, who must show that the Act doe s not app ly. See Kedzie & 103rd Currency Exch ange v. Hod ge , 156 Ill. 2d 112, 116 (1993) (the defenda nt has the burden

o f proving the affirmative defense in a section 2--619 motion to dismiss). However, even when the defendant has the burden to prove that an affirmative defense applies, the burden then shifts to the plaintiff to show that the defense is unfounded or requires the re solution of an issue of material fac t before it i s proven. A. Overview of Defamation L aw Before progressing, we briefly discuss the general principles of defamation law, as the Act changes the commo

n-law ru les of de famati on by protecting othe rwise defamatory speech when made while exercising one's r

ight to pe tition go vernmen

t. A statement is defamatory if it tends to harm
a person's reputation to the extent that it lowe

rs that pe rson in the

eyes of the

community

or deters others fromassociating with that person. Tuite v. Corbitt , 224 Ill. 2d 490, 501 (2006). Statemen ts may be co ns id er ed de fa ma to ry per se or per quod
. Tuite , 224 Ill. 2 d at 501. A statemen t is defamatory per se

if it s d ef am at or y ch ar ac te r i s o bv io us an d a pp ar en t o n i ts fa ce an d i nj ur y t o th e plain tiff's reputa

tion may be presumed. Tuite , 224 I ll. 2d at 50 1. Plaintif f here a lleged only defamation per se . There are five categories of per se defamator

y st atements : (1) state

ments imputing the commis sion of a c rime; (2) statemen

ts imputing

infection wi th a loath someNo. 2--09--1015

-17-

co mmunicab le disease; (3) statements imputing an inability to perform or want of integrity i n p erforming

employ ment dutie s; (4) sta

tements im

puting a lack of a bility or other wise pre ju dicin g
a person in his or her

profess ion or busi

ness; and (5) state ments imput

ing adu lt e ry or for

nication. Tuite , 224 Ill. 2d at 501. Several situations

m ay rende

r otherwise per se

defamatory

statements not actionable. For instance, a

defenda nt is not lia

ble for a defama tory statemen t if the statement is true; only substantial truth is re quired f

or this de fense to

apply. J. Maki Construction Co. v. Chicago Regional Council of Carpenters , 379 Ill. App. 3d 189, 203 (2008). A per se defama

tory statemen t is not act

ionable i f it is reasonably

capable of an inno cent con str

uction. Sola ia Technology , LL C v. Specialty Publishing Co. , 221 Ill. 2d 558, 580 (2006). L ikewise, if the per se defamatory

statement constitutes an expression of an opinion, it may enjoy constitutional protection under the first amendment. Solaia , 221 Ill. 2d at 581. There are limitations, however, even when a statemen t implic ates fir st amendment

prote ction . Cou ching a factual assertion as an opinion will not free it from a defamation claim. J. Maki , 379 I ll. App. 3d at 200. Ot

her limita tions are also implic ated whe

n th e f irst amendment

is triggered

in certain situations. See Gertz v. Welch , 418 U.S. 323, 342-43, 41 L. Ed. 2d 789, 807, 9 4 S. Ct. 2997, 3008-09 ( 1974) (pu blic fig ures may recove r for inju ry to reputa tion only
onclear and convincing proof that the defamatory

falsehood was made with knowledg e of its fa

lsity
or reckless disregard for truth or w ith "actual malice," whe reas pr ivate ind ividuals d o not need

to show actual malice and are held to the less-stringent negligence standard (see also Troman v. Wood , 62 Ill. 2d 184, 194-198 (1976))). Certain privileges may

also make per se

defamatory

statements not actionable. Two classes of privileges exist: absolute privilege and conditional or qual ified pri vilege. Solaia , 221 Ill. 2d atNo. 2--09--1015

-18-

585. The fair report

privilege, which protects statements published about statements made in official court proceedings, is an absolute privilege. Solaia , 221 Ill. 2d at 588. Statements made by legislators or pri vate ci tize ns dur ing legi slati ve pro ceedin gs are absol utely privilege d ( Krueger v. Lewis , 359 Ill. App. 3d 515, 521-22 (2005)), as are statements made during the course of judicial or quasi-judicial proceedings, when the statements are related to the p roceed ings ( Bushell v. Caterpil lar, Inc. , 291 Ill. A

pp. 3d 559, 561-64 (1997)). An absolute privilege provides a c omplete bar to a defamation

claim, re gardle ss of the d efenda nt's motiv e or the u

nreasonablenes s of the c onduct. Naleway v. Agnich , 386 Ill. App. 3d 635, 639 (2008). "A qualifie d priv ilege protects communications that would normally be def

amatory and a

ctionable, in order to effect the policy of protectinghonest commu nications of misinformation in certain favored circumstances a nd thus facilita te the availability of cor

rect information ." Naleway , 386 Ill. App. 3d at 639. A qualified privilege, howe

ver, may be exc eeded and the privilege is defeated in circ umstances where the defendant makes fa lse state ments with

an intent to injure or wit

h reckl ess disregard for the truth. Naleway , 386 Ill. App. 3d at 639. Three t ypes of situa

tions in which a conditional or qualified privi lege exists are : (1) situa tions th at involve some interest of the person who publishes the defamatory

matter; (2) situati ons tha t involve s ome inter est of the person to

whom the ma

tter is published or of some third person; and (3) situations that involve a recognized intere st of the public. Myers v. Levy , 348 Ill. App. 3d 906, 914 (2004). Plaintiff also alleged

severa l false li ght cla

ims. A false light claim must allege that: (1) the defend ant's actions placed the plaintiff in a false light before the public; (2) the false light would be highly offensi ve to a re asonable

person; a nd (3) the defenda nt acted with actual malice, that

is, withNo. 2--09--1015

-19-

knowl edge of the falsity of the statement or with a reckless disregar d for whether the statement was true or false. Duncan v. Peterson , 359 Ill. App. 3d 1034, 1047 (2005). Withthis framework of defamation law in mind, the Act alters existing defamation law by providing a new, qualifie d privilege for an y de famator

y st atements communic ated in

furtherance of one's right to petition, speak, assemble, or otherwise pa rticipa te in gov ernment . The priv ilege i s qualified because it m ay be exc eeded if the statements are not made with the g enuine aim at procuringa favorable government ac tion. With this understanding of the Act , we pro ceed to consider plaintiff 's clai m that the Act is unconstitutiona l and, alt ernativ ely , that it doe s not apply to the facts of this case. B. Constitutionality of the Act Plaintiff first attacks the Act's constitutionality in two differ ent ways: (1) it violates

his right to a remedy

for his injuries; and (2) it violat es the due process and equal protection clauses of the Illinois and United States Constitutions. Article I, se ction 12, o f the I llinois Cons titution pr ovides: "Every perso n shal l find a certa in rem edy in the laws f or all inju ries a nd wro ngs whichhe receives to his person, privacy, pr operty or re

putation. He shall obtain justice by law, freely , completely, and promptly ." Ill. Const. 1970, art. I , §12. Plaintiff argue s, albeit

briefly and unsuppor

ted by case

law, that the Act provides bl an ke t i mm un it y, allowing violations

of his right to

privacy and allow

ing persistent per

se defama

tory statemen ts to be made about him with no remedy for the da mage to his rep utation. We

reject p laintiff

's arg ument. Article I, section 12, has been held to re present an expression of philosophy rather tha na mandat

e for a certain remedy

in any specific

form. Defend v. Lasce lles , 149 Ill. Ap p. 3d 630, 642 (1986).No. 2--09--1015

-20-

The Defend

court ac knowledg ed that pe

rsons def amed in judicial proceedings have been lef twithout redres s because of the public policy favoring the free and ope nadministration of justice, and it cited to Nolin v. No lin , 68 Ill. App. 2d 54 (1966), for support that article I, s ection 12, has never been interpreted

to abolish

immunit ies exten ded for t he prote ction of a

recog nized publi c intere st. Defend , 149 I ll. App. 3d

at 642-43 . Other privileg es or immunit ies have been determined

not to violate section 12 of article I, a s well. See Michigan Avenue National Bank v. County of Cook , 191 Ill. 2d 493, 519-20 (2000) (holding Tort I mmunity Ac t

did not violate constitutional right to remedy) ; Steffa v. Stanley , 39 Ill. App. 3d 915 (1976) (finding spousal imm

unity did not violate constitutional right to remedy). The

legislature has the inherent power to repeal or chang e the common law and may do away w

ith all or part of it. Michigan Avenue , 191 Ill . 2d at 519. Here, the legislature specific ally

stated that

the purpose of the Act was to protect the rig hts of citi zens to par

ticipate freely ingovernment and government proc esses . Contrary to plaintiff' s characterization that the Act provides "blanket immunity" f or persons to defame others, the Act provides protection for such statement s only when made " in furtherance of the moving party 's rights of petition, speech , association, or to otherwise participate in government." 735 IL CS 110/15 (West 2008). The Act provides a qualified privilege, granting more protection for spe ech than the common law pro vides, when the speec h occurs in th e exercise of the right to participate in gove rnment. Thus, the le gisla ture's enactme

nt of the A ct canno t be said to violate se ction 12 of

article I of t he I llinois Constitution. Next, plaintiff argues that the Act deprived him of hisdue proc ess and e qual prot ection r ights under both the Illinois and United States Constitutions. He argues tha t the A ct crea

tes a sep arate classification

of persons--public employe es--who, unlike others outside that class, are deprived ofNo. 2--09--1015

-21-

remedies for personal injuries. The guarantee of equa l protection requires that the government trea t similarly situated individuals in a similar manner. Jacobson v. Department of Publ ic Aid , 171 I ll. 2d 314, 322 (1996). While the State is not precluded from ena ctin g legislation that draws distinctions between different categ ories of people, the State is prohibited fromaccording different treatm ent to pers ons who ha ve been placed i n differ ent cate gories

on the bas is of crit

eria who lly unrelated to the purpose of the legislation. Jacobson , 171 Ill. 2d at 322. I n reviewing a claim that
a statute violates equal protection, the court applies different leve ls of scru tiny, depe nding on the nature of the statutory classific ation involved. Jacobson , 171 Ill. 2d at 322-23. Classifications based
onrace or national origin or aff ecting fundamental

rightsare strictly sc

rutinized. Jacobson , 171 I ll. 2d at 323. Intermediate scr utiny applies to discriminat or y c lassifications based on sex or il le gi ti ma cy. Jacobson , 171 Ill. 2d at 323. In all other cases, the c ourt employs only

a rational basis review. Jacobson , 171 Ill. 2d at 323. Inthis case, plaintiff argues that the A ct unequa lly a ffects p ublic employ

ees, whi ch would trigger ratio nal ba sis re view. Howev er, in readin g the pl ain la nguage of the statute, we cannot agree that the Act pl aces pub lic employ ees i n a speci al cate gory

at all. The Act applies to any moving party whose al leged a

cts were infurth erance o f the m ovin g party's rights to petition, speak, assemble,
or otherwis e partic ipatein government. Plaintiff himself, a government employ ee, may use

the Act
as a shield if he were

faci ng a simila r law suit f

or his part icipa tion i n a g over nmen t proc ess. We reject pla intiff' s allusion t

hat Jarrow Formulas, Inc. v. LaMarche , 31 Cal. 4th 728, 74 P.3d 7 37, 3 Cal. Rptr. 3d 63 6 (2003), somehow s upports hi s position that anti-SL APP statute s are m isused in protectingtortious misconduct. Jarrow merely held that a malicio

us prosec ution cla im, while covered by Ca lifornia's anti-SLAPP statute, was proper ly dismissed under the statute beca use theNo. 2--09--1015

-22-

plaintiff failed to prove tha

t it had a probabilit

y of p revailing on the claim. Jarrow , 31 Cal. 4th at 742-44, 74 P.3dat 746-47 , 3 Cal. Rptr. 3d at 646-48. Further, California's statute is much less broad thanthe Act a

nd thus its c ase law, while perhaps instructive, is not persuasive. See Cal. Civ. Proc. Code §425.16 (West 2010). Therefore, we reject plaintiff's equal protec tion argument because the Act applies to all citizens meeting the criteri a for its application. It is true that if plaintiff wer e employed by a private

school, the Act like ly would not ap ply because his removal would not involve
a gover nment pro cess or a

chieving a gove rnment re su lt, bu t that is because the intention of the statute is to prote ct citizen s' cons titutional rights t o p articipate in government, not to get involved in privately opera

ted businesses. At oral ar gument and in his re ply brief , plai ntiff reject ed defe ndant s' c laimthat the A ct is constitutional because

remedie s have be en remov ed by other sta tutes th at provide absolute or qualified privileg es, such a s judici al proceedings privileges or those provided by the L

ocal Governmental and Gove

rnmenta l Employ ees Tort I mm unity

Act (Tor t Immu nity Act) (74 5 IL CS 10/1--101 et seq. (West 2006)). Plaintiff raised Myersand McDonal d v. Smith , 472 U.S. 479, 86 L. Ed. 2d 384, 105 S. Ct. 2787 (1985), in support. These cases raise an interesting issue that plaintiff failed to raise in his opening brief. The facts of Myers are strikingly

similar to the facts of this case. In Myers , a pare

nt made pu

blic statemen

ts agains t a high s chool foo tball coa ch, seek ing his r emoval. Myers , 348 Ill. App. 3d at 910. The coach f iled a defamation lawsuit; the defendant moved for summary judgment; and the trial court granted summary judgment on the basis that the state ments
were privileged because they were directed toward the school, a governmental body
. Myers , 348 I ll. App. 3d at 912. The trial court further concluded that the defendant did not act with actual malice, because he gen uinely believed the veraci ty of his state ments , incl udin g state ments about the co ach'sNo. 2--09--1015

-23-

performance. Myers , 348 Ill. App. 3d at 912-13. The plaintiff appealed, and the defendant argued that summary judgment was appropriate under the Noerr
- Pennington doctrine. This court disagreed, stating that the Noerr
- Pennington doctrine did not app ly

in the context of defamation claims. Myers , 348 Ill. App. 3d at

918. Instead , this court applied McDonal d and dec lined to e levate the right to petition to an absolute immunity for defamatory statements. Myers , 348 Ill. App. 3d at 919. In McDonal d , the plaintiff sued the de fendant for sending libelous letters to President Reag an with the intention that he not hire the plaintiff for a United States Attorney position. McDonal d , 472 U.S. at 480, 86 L. Ed. 2d at 387, 105 S. Ct. at 2789. The defenda nt moved for a judgment on the pleading s, arguing that the petition clause of the first a mendment provided a

bs olute immunity for his statements. McDonal d , 472 U.S. at 481, 86 L. E d. 2d at 38 7, 105 S. Ct. a t 2789. The

Supreme Courtdisagr

eed, sta ting tha t it was not

prepar ed to conc lude that

"th e Framers of the Fi rst Amendment

understo od the rig

ht to petition to incl ude an unqualified right to express damaging falsehoods inexercise of t hat right." McDonal d , 472 U.S. a t 484, 86 L . Ed. 2d at

389, 105 S. Ct. at 2790. The Supre

me Court f

urther s tated tha

t "[t]o acc ept petiti oner' s claim of absolute immu n ity would elevate the Petition Clause to

sp ecial F irst Amendment status," despite the fact that the petition clause was "inspired by the same ide als of libe

rty and democ

racy that ga ve us the f

reedoms t o speak, publ ish, and ass emble." McDonal d , 472 U.S. a t 485, 86 L . Ed. 2d at 390, 105 S. Ct. a t 2791. The Supre

me Court f

ound "no so und basis f

or gra nting g reater constituti onal prot

ection to statemen ts m ade in

a petition " than ot

her firs t amendme

nt express ions, stati

ng that " the rig

ht to petition is guar

anteed; the rig

ht to commit

libel with i

mpunity is not." McDonal d , 472 U.S. at 485, 86 L. Ed. 2d at 390, 105 S. Ct. at 2791.No. 2--09--1015

-24-

Prior to Myers , the Noerr
- Pennington doctrine was extended to civil claims outside the antitrust arena. Kin g v. Le vin , 184 I ll . App. 3d 557, 560 (1989) . The Illinois Supreme Court addressed the extent to which acts petitioning a legislat iv e b od y w ere privileged, in Arlington Height s Nati onal Ba nk v. A rlingt on Hei ghts Fe deral S avings & Loan Ass 'n , 37 Ill. 2d 546 (1967), where, in the context of azoning ordinance situation, it determined that the right to petition was not absolute an d t ha t w ro ng fu l c on du ct by a person who had "actual malice" was not protected by the privilege. Arlingt

on Heig hts , 37 Ill. 2d at 551; King , 184 Ill . App. 3d at 5 60 (ap plying Arlington Height s standard

in real e state development situation). However, the doctrine has not been applied in the context of defamation. Afte r Myers , t he legislature acted, intentionally or unintentionally, to extend the Noerr
Pennington

doctrine bey ond the ar ena of a ntitrust or zoning

litigati on. Under

the Act, t he righ t to petition gover

nment is guaranteed and in so petitioning, one also has the right to commit lib el with im pu ni ty, as long a s he does s o with the g enuine a imof procuring government a ction. As stated, the le gislature has the in

herent p ower to r

epeal or chang e the com

mon law an

d provide privil eges o r im munities th at affe ct a plain tiff's r ight to a remedy . Here, in protecting the rights o f citizens

to particip ate in gove

rnment, the legis lature provided a qualifie d privilege to sp eak even with actual malice. While this c ourt may agree with plaintiff that the Act is broad, changing the landscape of defamation

law, it is not this court's role to rewrite the stat ute. That is the duty of the leg islature. See DeSmet v. County

of Rock I sland, I

llinois , 219 Ill. 2d 497, 510 (2006) ("This court may not legislate, rewrite

or extend l egisla

tion. I f a statut

e, as enacted, s eems to operate in certain cases unjustly or inapprop riately, the appeal m ust be to t he General Asse mbly, and not to t his court")
. Plaintiff has not provided us with a valid argument to strike down the Act on cons titutional ground s.No. 2--09--1015

-25-

To the extent plaintiff alludes to grounds that the A ct is unconstitutional other than those discussed here, we find those arguments forfeited for lac k of development and

citation to legal support. See 210 Ill. 2 d R. 341(h) (7); Bohne v. La Salle Na tional Bank , 399 Ill. App. 3d 485, 513 (2010). Having determined

th at pl ai nt if

f' s c on st it ut io na l a tt ac ks fa il , w e n ex t c on si de r t he Ac t' s a pp li ca bi li ty t o plaintiff's complaint. C. Applicability of the Act Plai ntiff 's last two a

rgumen ts involve the appli cability

of the Act t o the fac ts of this case. Plaintiff argues that

the trial cou

rt erre d in deter

mining th at the Act protec ted defe ndants'statemen

ts made outside the actual petition to the school board. Further, the trial court failed to strike a balance between plaintiff's right to file a lawsuit and defenda nts' right to participate i n gover nment. Defend ants argue

that the A ct was wr

itten broa dly enough that it applies to their statements made outside the petition and the school board meeting and that the trial court did not hav e the aut

hority to give more weig

ht to plaint

iff's r ight to f ile a law suit. We ag

ree with defenda nts. Considering plaintiff's arguments in turn, we are require d to interpret the Act, using gener al rules of statutory construction. The cardinal rule of statutory construction is to ascertain and give effe ct to the intent of the legislature. Abruz zo v. City of P ark Ri dge , 231 Ill. 2d 324, 332 (2008). The best indication of the legislature's intent is the statutory language, given its plain and ordinary meani ng. Abru

zzo , 231 Ill. 2d at 332. When the languag e of the statute is clear a nd unambig

uous, it must be applied without resorting to aids of construction. Abru zzo , 23 1 Il l. 2d a t 3 32. In determining intent, we consider the statute in its entirety , and words and phrases are not to be read inisolation. Abru

zzo , 231 I ll. 2d at 33 2-33. A st atute isamb iguous when it is capable of being understood

in two or more diffe

rent sen ses by

reasona bly well- inf ormed persons. Ready v.No. 2--09--1015

-26-

United/Goedecke Service s, Inc. , 232 I ll. 2d 369, 3 77 (2008) . When a sta tute is amb iguous, the court may use tools o f interpr

etation to ascert ain the meaning of a provision. Ready , 232 Ill. 2d at 379-80. According

to the plain

langua ge of th e Act, the pr ivil ege wil l appl y where: (1 ) the d efenda nt's acts were in furtherance of his rig hts to petition, speak, as soci ate, or o therwise particip ate in government

to obtain favorable government action; (2) the p laintiff 's clai m is based on, related to,
or in respon se to the defendant 's "acts in furth erance"; and (3) the plaintiff fails to produce clear a nd convincingevide nce t hat the defendant's acts were notgenuinely aimed at p

rocurin g favo rable government

action. As defendants argue, the plain langua ge of the Act provides tha t the Act " shall be construe d libera

lly to effectuate its purposes and intent fully." 735 I

LCS 110/30(b) (West 2008). Section 5 of the Act sets forth its purpose and intent in significant depth. As to the "a

cts in fur theranc e" port

ion of the Act, plaintiff argues that the Act should be read to cover only a

cts performed during a gove rnment proceeding. Acts or s tatement s m ade during legisl ative, j udicial, or quasi-judicial proceedings are already protected by a

bsolute or qualified p rivileg es, including

the prote ction of the right to petition

the gov ernment

as estab lish ed by

th e Noerr
- Pennington

doctrine. See K ing , 184 Ill . App. 3d at 5 59 (id entif ying the qu alifi ed pri vilege outlined by the Noerr
- Pe n nington doctrine for persons engag ed in activities designed to influence government

action). Considering the ge neral sta tutory construction rules , and the Act's pla in language, we cannot agree with plaintiff

that the A ct applie s only

to acts made during a governme nt procee ding. The Act states that it applies to " any ac t o r a ct s o f t he mo vi ng pa rt y infurtherance of the moving party' s rights of petition, speech, association, or to otherwise participate in government." (Emphasis added.) 735 ILCS 110/15 (West 2008).No. 2--09--1015

-27-

Rega rding the latter portion of section 15, the trial court concluded that the lang ua g e providing that

"[a]cts in furtherance ***are immune from liability , regardless of intent or purpose, except when not g enuinely

aimed at procuring favorable government action, result, or outcome" was ambiguo us. It the

n conclud

ed, base d on the le gislativ e history of the Act, that t

he leg islature intended to a dopt the Noerr
- Pennington doctrine , which includes th e "sham " except ion for a cts performed

without a genuine aim at procuring g overnment act ion. W e agre e that this clause i s ambiguo us. While this section removes any consider ation of intent or purpose, it then requires the court to consider intent as to whether the acts were made with the genuine aim of proc uring government

action. T

he directive on inte

nt is unclear as to whether the court should consider the intentof the defendant's acts on a subjective or an objective basis. Because we deem this section ambiguous on its fac e, we re so r t to statutory construction aids to determine whe ther to use a subjective or an objective basis in deciding whether the a cts were genuinely

aimed at procu

rin g government action. We first look to the legislative history of the Act. There was not muchdiscussion when the Act was passed, despite attempt s at get tin g anti-SLAPP statutes passed in previous y ears (see E. Madiar & T. Sheehan, Illinois' Ne w Anti-SL

APP Statute , 96 Ill. B.J. 620 (December 2008)). The Act was sponsored

by Senator John Cullerton. Senator Cullerton stated the following a bout the Act before the Senat e voted to pass the b ill: "This bill is in re sponseto a threat of what's called Strategic Lawsuits Against Public Policy [ sic ] (Participation). It's re ferred to as a SLAPP, l egislation that a number of other states have--have passed. And what it's about is to--address the conce rn that certain lawsuits that could be filed that significantly

would chill and

diminish citizen participation in governmentNo. 2--09--1015

-28-

orvolunta

ry public service

or the exercise of those constitutional rights. So, what the bi l l does is to f

irst decl are the

public policy that we

want to encourage, obviously , our citizens to--thei r constituti onal rig

hts--to exercise their cons titutional rightsof free speech and the right to petition and redress grievances. And then it provides f or a procedural protect

ion, if you will, whe n they

are sue d. And I 'll giv e you an examp le, let' s say a communi

ty organization

makes re commenda

tions to a lo cal alde

rman con cerning zoning changes . They just give advice, then theparty that m ight not agree with the decision, the vote of the alderman, they--that pe

rson, tha t landowner would

file a la wsuit, not j ust

agains t th e
mu ni ci pa li ty, but also a

gainst the community orga

nization that gave the advice. Even t hough all they were

doing was giving advice

to their elected officials. So, that's w hat the pu rpose of the bill is. We worke d out an-- an agr eement w iththe--the trial lawy

ers so they ar

e no--no longer in opposition. Municip al Le ague is in favor ." 95th I

ll. Gen. A ssem., Senate Proceedings, April 20, 2007, at 15-16 (statements of Senator Cullerton). Lik ewise, in the Hou se, ther e was littl e debate . Repres entative Jack Fra nks ma de th e following comments before the bill passed in the House: "This Bill has been ar

ound for a while. Now, Repre sentative Feige nholtz work

ed on it aw

hile ago, Senator Obama had it as well had Senator Dillard. This yea r we were fortunate in that
we got the p arties to gether and ther e's no longer a

ny o pposition. The ACL

U, the Illinois Municipal Lea

gue an d ITL A have.. .are al l propone

nts. And what t

his Bill does is it codifies the standard in a 1991 U.S. Supreme Court case , the City of Columbia v. Omni Outdoor Advertising when dealing with citizens participation lawsuits. And t he reasonwhy we're putting this Bill forward is that oftentimes folks who speak out whether they'

re running forNo. 2--09--1015

-29-

office or are in office are sued by people to try to g et them to shut up, t o try to chill thei r ability to sp eak and it's w rong an d it's not what we're about. And this Bill would take away many of those a

buses tha t we'd s ee. I

can tell y

ou in my county, it' d be in the Village of Richmond, there was two (2) gentlemen running for trustees who were...who won but they
were su ed by a developer, threatened with bankruptcy , not being able to pa

y th eir leg al fees , even though the...the developer's lawsuit was thrown out on three (3) separate occasions and that would

stop the ty

pe of abu se. I 'd be glad to answer any questions
. * * * Black: Representative, Represe ntative Sa cia brought a Bill up a few day s ago where
a constitue

nt had to pa

y se ven th ousand do lla rs ($7,000) to get out of being named a defendant in a lawsuit because he went to a he aring and signed in... Franks : Right. Black: ...in as an opponent and I don' t recall what the project or the i ssue was in Representative Sacia' s district . But any way , I me ntioned a t the time these sla p lawsuits

are often used to inhibit our participation. So, the bo ttom line is t his Bill wo

uld then ma

ke it easi er for someone who is hit with one of those suits to seek immediate relief and the re' d be...not name the defendant and

so not to chill public participation and expression when you want to spe ak out ag ainst some thing tha t's go ing on in y

our distri ct, corr

ect? Fr an ks : A bs ol ut el y. Black: A ll right. Great.No. 2--09--1015

-30- Franks : *** It's an expedited hear ing that they ha

ve to do within ninety (90) days and it also shifts the burden onthe pl ainti ff and s houl d the p laint iff lo se, th ey'd have to pay the defenda nt's att orney s fees. * * * Feige nholtz: I , too, rise

in support of this legislation. It is a remedy to anissue that also occurred in my

legislative district a few y ears ago. ** * I be lieve tha t we rea lly need to begin to put in these safeguards for peop le who spe ak out in pu b...in public forums and are endangered by

people who don't appreciate the F irst Amendment very much. ***

* * * Mathias: So, Representative Franks , I jus twant to make sure I g ot this right. You're trying to make

sure that people are not shut up at... Franks : Right. Mathias: . ..at boar

d meeting s and plac es like tha t. Is t hat corr ect? Franks : Or whet

her they 're ru nning for office , as well. Mathias: R

ight. Franks : Because what happened like in our area, in Richmond, these folks who were running for office were not inc luded in t he insurance that the village had and the ma yor wouldn' t include

them. Mathias: And

so, y ou're doing it by shutting up the people w ho are try ing to shut them up. I s that cor

rect?No. 2--09--1015

-31- Franks: I' m not...I'm not sure I understand the question. No, I' m not saying... Mathias: And

you'r e trying to shut up the people who are doing the lawsu

its, righ t? Franks: What I'm try

ing...I'm try

ing to bring some sanity

to it.. Ma th ia s: Ok ay. Franks : ...and if

they want to fi ...Any

body can file a lawsuit
. Mathias: Y es. Franks : Any

body with a pen

can file a lawsuit
. Mathias: Representative, I'm supporting your leg islation Franks: Good, good. Speaker Hannig: Any

further discussion? Representative Franks to close. Franks : I appreciate

the folks who spoke on this. And let's join the twenty- two (22) other states that

have this type of leg

islation, so we can kee

p the proc ess goin

g and no t stifle public discu ssio n and n ot pu t a chi llin g e ffect onpeople who want to speak their minds." 95th Ill. G en. Asse

m., House

Proceed in gs , M ay 3 1, 2007, at 58-61 (statements of Representatives Franks, Black, and Ma thias). Based on Representative Franks' refere nce to City

of Columbia , we agree

with the trial court that the legislature intended to adopt the Noerr
- Pennington doctrine. However, that doctrine is more complicated

thanthe leg islative d

ebates a nd the Ac t itself

provide. The Noerr
- Pennington doctrine originated

in the antitrust arena, presen ting a lim it on antitr

ust liabilit

y by protect ing comp anies' lobbying efforts, which

stem from first amendment guarantees of f ree speech

and freedom to petitionNo. 2--09--1015

-32-

the gover nment. D. Davis, The Fraud Exception to the Noerr-Pennington Doctrine in Judicial and Administrative Proce edings , 69 U. Chi. L. Rev. 325, 328 (Winter 2002). The Noerr case involved
a group of truckers who sued several railroad companies, alleg ing that they violate d the Sherman Act by engag ing in a negative publicity

campaign against the trucking industry in an

effort to damage the in du st ry. Noerr , 365 U.S. a t 129, 5 L. Ed. 2d at 466, 81 S. Ct. at 525. The railroads admitted conducting the cam paign i n an eff ort to influ ence th e pass age of cer tain s tate l aws aff ectin g t ruc k weight limi ts and tax r ates. The Su preme C ourt f ound i n favo r of th e rail roads , find ing t hat th e Sherman Act did no t regul ate political activity and would

otherwis e infringe on the r ailroad s' right to petition government. Noerr , 365 U.S. a t 144, 5 L . Ed. 2d at

475, 81 S. Ct. at 533. The Noerr Court limitedits holding, stating that there may be situations where c onduct is a "mere sham" to cover what is act u ally an attempt to interfe re with business relationships of a competitor, implicating the Sherman Act. Noerr , 365 U.S. at

144, 5 L. Ed. 2d at 475, 81 S. Ct. at 533. Pennington upheld the
same antitrust immunity doctrine where c oa l compan ies and unions persuaded the La bor Department to establ ish mi

nimum wag es fo r emp loy

ees o f con

tractors, whic h fru stra

ted the non -unionize d companie s' efforts to compete. Pennin gton , 381 U.S. at 660, 14 L. Ed. 2d at 630-31, 85 S. Ct. at 1588. The antitrust immunity was expanded to protect administrative proceedings in Californ ia Motor Transport Co. v. Trucking Unlimited , 40 4 U. S. 508 , 51 0-1 1, 3 0 L. Ed. 2d 642, 646, 92 S. Ct. 609, 611-12 (1972), where a group of highway carriers alleged a

conspiracy

by other ca

rriers to bring state and federal proceeding s before courts or agenc ies to prevent the m from recei ving operating rights. The "sham exception" to the Noerr
- Pennington protection was mentioned in Noerr and was discussed in grea ter deta il in City of Columbia , whichRepresentative Franks refer enced during theNo. 2--09--1015

-33-

legislative hearings. In City of Columbia , Omni, filed an antitrust lawsuit against Col umbi a Advert isin g, after

Columbia had petitioned the government to enact billboard zoning limitations that hampered Omni's ability

to compete with it. City

of Columbia , 499 U.S. at 367-68, 113 L. Ed. 2d at 390, 111 S. Ct. at 1347. The Supreme Court stat ed tha t the sham exception encompassed situations in which " persons u se the g overnme ntal process -- as oppose d to the outcome of the process--as an antic ompetitive weapon. " (Empha sis in original.) City of Columbia , 499 U.S. at 380, 113 L. Ed. 2d at 398, 111 S. Ct. at 135 4. The Court defin ed a sh am sit uatio n as on e invo lvin g a defendant whose activities are " 'not g enuinely aimed a t procuring favorable g overnment actio n,' " and not one who simply uses improper means to achieve the desired governmenta l result. City of Columbia , 499 U. S. at 380, 1 13 L. Ed. 2d at 3 98, 11 1 S. C t. at 1 354, q uoti ng Allied Tub e & Condu it Corp. v. Indian Head, I

nc. , 486 U.S. 492, 500 n.4, 100 L. Ed. 2d 497, 505 n.4, 108 S. Ct. 1931, 1937 n.4 (1988). The Court concluded that while Columbia had "indisputably set out t o dis rupt O mni's businessrelation ships, it sou ght to do s o not through the very process of

lobbying, or of

causing the city council to consider zoning measures, but ra t her through the ultimate product of that lobbying and consideration, viz., the zoning ordinances." (Emphasis in original.) City of Columbia , 499 U.S. at 381, 113 L. Ed. 2d at 398, 111 S. Ct. at 1354. The Supreme C ourt, however, further explained the sham exception approximately one y ear after City of Columbia , in Professional Real Estate Investors, I nc. v. Columbia Pic

tures I ndustrie s, Inc. , 508 U.S. 49, 60-61, 123 L. Ed. 2d 611, 62 3-24, 113 S. Ct. 1920, 1 928 (1993 ), in whic h it announced

a two-part test for the exception to apply. I n Professi onal Rea

l Estate , Columbia Pictures sued Profe ssio nal Re al Est ate Inves tors ( PRE) for an a lleged copyright infri nge ment; P RE countersued, charg ing Columb ia with antitrust violations and alleging that its copy right action wasNo. 2--09--1015

-34-

a mere sham that "cloaked underly ing acts of monopolization and conspiracy to res train trade." Professional Real Estate Investors , 508 U.S. at 52, 123 L. Ed . 2d at 618, 113 S. Ct. at 1924. Columbia argued that filing the copy

right lawsuit was immune under Noerr . The Supr eme Court , after a discussion about the

confusion in deter

mining a sham, set forth the two-par t test: "First , [Columbia's] lawsuit must be objectively baseless in the sense t hat no re asonable litigant could re alistica

lly e xpect succ ess on the

merits. I f an obje ctive litigant could
co nclude that the su

it is reas onably

calcula ted to elic it a favorable ou tcome, th e suit

i s immunized under

Noerr, and

an antitr ust claim premised on the sham exception

must fail. Only if ch al le ng ed li ti ga ti on is ob je ct iv el y me ri tl es s m ay a court exam ine th e lit igant's subjective motivation . Under t his secon d part of our defi nition of sham, the c ourt shoul d focus on w hether the baseless lawsuit conceals 'a n attempt to interfere directly with th e businessrelationships of a competitor' [citation] thro ugh th e 'use [of] the governmental process --as opposed to the ou tcomeof tha t proc ess-- as an an ticom petit ive we apon. ' " (Emphasi s in original.) Professi onal Rea l Estate , 508 U.S. at 60-61, 123 L. Ed. 2d at 624, 113 S. Ct . at 19 28, qu otin g City of Columbia , 499 U. S. at 380, 113 L. Ed. 2d at 398, 111 S. Ct. at 1354. Thus, the Court explained that this two-part test for the sham exception

require s a

plaintiff to disprove

a challe nged la wsuit' s legal

via bility (object ive motiva

tion) bef ore a co urt would enterta inevidenc e of the e conomic v iability (subjec tive motiva

tion), an d if that plaintiff succee ds, he still has to prove his antitrust claim. Professional Real Esta te , 50 8 U. S. at 6 1, 1 23 L. Ed. 2d at 624, 113 S. Ct. at 1928. Proving a sham "merely deprives the defendant of immunity ." Professional Real Estate , 508 U.S. at 61, 123 L. Ed. 2d at 624, 113 S. Ct. at 192 8. The Cou rt went on to explainNo. 2--09--1015

-35-

that confusion over deter

min ing whe ther t he sha m exc eptio n appl ied st emmed from t he Cou rt's previous use of the word "genuine" to denote the opposite of "sham." Professi onal Rea l Estate , 508 U.S. at 61, 123 L. Ed. 2d at 624, 113 S. Ct. at 1928. Th e Cou rt stated that "g enuine" had both subjective and objective conno tati ons, defining the word as meaning (1) " 'actually

having the reputed or apparent qualities or c ha racter '; and ( 2) 'sin cerely and hones tly felt o r exp erienc ed.' " Professional Real Esta

te , 508 U.S. at

61, 123 L . Ed. 2d at

624, 113 S. C t. at 192 9, quo ting W ebste r's Third New International Dictionary 948 (1986). Thu s, to be a sham, "litigation must fail to be 'genuine' in both

senses of th e word." Professi onal Rea l Estate , 508 U.S. at

61, 123 L. Ed. 2d at 624- 25, 113 S. Ct. at 1929. Turning to the Act, if th e legis lature' s intent wa s to adopt t he standa rds set forth in City of Columbia , then the Act is adopting the two-part analy sis employed to determine whether the party's acts in furtherance were " genuinely aimed at procuring favorable government action." The words of the Act in section 15, although ambiguously written, correspond with the S upremeCourt 's
ana lys is. Subjectiv e intent is consider ed only when one 's cond

uct is notgenuinely

aimed a t procuring favorable g overnment action. Applying the doc trine and its sham exceptionto the fa cts of this case require s th e court to first con sider whe ther obje ctive pe

rsons cou ld have r easonab ly expected to p rocure a favora

ble gov ernmen t out come (p laint iff's r emova l) thr ough a p ubli c campa ign like defendants' campaign a gainst plaintiff. If the a

nswer to that question is "ye s," the n the court need notconsider

the subje ctive inte

nt of def endants' conduct. If the answe

r is "no," then the court would consider whether defendants' subje ctive intent was not to achieve a government outcome that may interfere with plaintiff but rather to interf ere with plaintiff by u sing the

gover nmental process itself.No. 2--09--1015

2 Plaintiff argues at one point that NRG and Knickrehm have no protection because they are members of the media. However, the Act does not exclude media defendants from its protection.

-36- Here, defendants' acts did, in fact, lead to their de sired outcome that the school board remove plaintiff as coac h of the ba sketball t

eam. Regardless of the actual outcome, even plaintiff admitted that defendants continued to seek his removal after the s ch ool boa rd d eni ed t hei r pe ti ti on. In plain tiff's own words in his complaint, the statements alleged all surrounded

defend ants' "c ampai gn to have [plaintiff] removed as basketball coach and athletic director due [to] their dis agree

ment with hi s coaching sty

le." Defendants first complained to the Dixon High School principal, t h e superint endent, and

members of the school board. After a school boa

rd meetin g that di d not end in
a favorable result for defendants, def endants sought to gain more support through a Web site and speakingpublicly . This is pa rt of the p rocess o f influen

cing the gover nment to ma

ke a dec ision in
a petitioner's favor. Defendants had a right to partic ipate in th

is proce ss. The state

ments alle ged in plain tiff's complaint criticized plaintiff 's coach ing style and r

elated to the need for plaintiff to be removed from his po sitions. NRG and Knickrehm pa

rticipat ed in this processby providing a forum for defenda nts to spea

k about the ir positi on. 2 Some of the statements made were in the form of letters or comments posted on Web sites. Plainti ff argues that because the school board already heard defendants' complaints once, de fendants' ensuing campaig n was malicious and not intended at obtai ning a favorable government outcome. Plaintiff ig nores the possibility that the school board could hear defendants' co mplaints more than once and change its mind. Plaintiff also ignor es the reality that oftentimes governmental bodies react to increasing numbers or public pressure. Here, the trial court determined on an objectivebasis, and we agree using the same objective standard, thatNo. 2--09--1015

3 We need not a

ddress plai ntiff's argument that the trial court misapplied Scheidler v. -37- reasona ble perso ns cou ld ex pect t he sch ool b oard t o chan ge its i niti al deci sion after t he camp aign placed public pressure on the board. Whether a school board decision is a "governme nt process" is answered by the plain langu age of the Act. That defendants sought the removal of pla intiff as athletic director

and coach of

the Dixo n bask etbal l team is un disp uted. Dixo n High School wa s a public school, a nd plaintif

f was a public high school employe e. The A ct de fi ne s " go ve rn me nt " a s " a b ra nc h, de pa rt me nt , a ge nc y, in st ru me nt al it y, official, employe e, agent, or other person acting under co lor of law o f the United States, a state, a subd ivis ion of a state, or another public authority including the electorate." 735 IL CS 110/10 (West 2008). Defendants sought action by t he schoo l board, a

nd the school board

acts under the authority g

ranted to it by the laws of the state. See 105 IL CS 5/10 et seq. (We st 2008)
. Further, a federal court

has previously dee

med a campaign to remove a school pr incipal a s "clas sic political speech, " as "i

t is direct invo lvement in governance." Stevens v. Tillman , 855 F.2d 394, 403 (7th Cir. 1988). Therefore, with regar d to the first, objective test, plaintiff did not disprove th at objective persons in defendants' po si tion could reasona bly believe that they

could suc ceed in ach i eving their desired government outcome. Be cause the objective test was answered in the positive, we need

not consid

er the de fendant s' subjectiv e intent. As the Act states, defendants are "immune from liab ili ty, reg ar dless of intent or purpose, except when not genuinely aimed at procuringfavorable govern ment action ." 735 IL CS 110/15 (West 2008). "Intent or purpose" is not considered

unless a reasonable person could not expect a favorable government outcome. Thus, we agree with the trial court that defendants acted in furthera nce of their rights to participate i n government with the goal to obtain favorable government action. 3No. 2--09--1015

Tr om bl ey, No. 07--L--513 (Septembe r 2, 2008) , and

Shoreline Towers Condominium Association
v. Gassman, No. 07--CH--6273 (March 25, 2008), as those circuit court orders were not binding on the trial court and are not binding on this court. Further, those cases are factually

distinguishable:
cause No. 07-- L-- 513, Sche idler, did not involve

statemen ts other tha n a direct statement to a governmentalbody ; and cau se No. 07- -CH--06 273, Shore lin e, applied t he Act e xcept as to statements that were clearly unrelated to the defendant's g overnment participation.

-38- The Act ne xt req uires tha t plaintif f's cla im must be ba sed on, re lated to, or in res ponse to defenda nts' acts in furtherance of their rig hts to petit

ion, spea k, assemb le, or oth erwise p articipa te ingover nment. I t is undispu

ted that p laintiff

's laws uit was base d on or in r

esponse t o defend ants' "acts in furth erance." Fi na ll y, the Act mandates dismissal of plaintiff's complaint if plaintiff failed to produce clear and convincing evidence that the defendants' acts were notgenuinely aimed at procuri ng fav orable government

action. Plaint i ff arg

ues only that the A ct should n

ot apply because defenda nts' statemen ts at iss ue were not made directly to the Dixon school board or during any hearing or governmental proceeding . As discussed, the state ments did not need to

be made w

ithin a petition
or during a hearing, but neede d only to be made within defe ndants' participation in the government process , which includes acts of gaining public support to influence favorable gover nment action. Also, as we disc

ussed, pla intiff fa iled to disp

rove the objectiv e test-- that rea sonable p ersons c ould expect a favorable government outcome. Plaintiff briefly arg

ues that there is nothing in the Act eliminating his common-law causes of action. A plain reading of the Act provides that it applies to any motion to dis

pose of a "claim i n a judicial proceeding" and that the Act

defines "judicia l claim" or "cla

im" to inc lude "a

ny l awsuit,No. 2--09--1015

-39-

cause of action, claim, cross-claim, counterclaim, or other judicial plea ding or filing alleging

injury." 735 IL CS 110/10 (West 2008). Thus, the Act plainly applies to plaintif f's com plaint, which set out
ca us es of ac ti on th at al le ge d i nj ur y. Next, plaintiff

argue s that the t

rial cou rt faile d t o strike a balance, as section 5 of the Act require s, between the rights of persons to file lawsuits for injury and the constit

utional rights of persons to petition, speak, assemble, or other wise participate

in gove rnment. We

disagr ee with plaintiff. The public policy in section 5 states that the pur pose of the Act is to "strike a bal ance" between these competing

interest s, but section 20 man dates dis missal whe

n its requ irements are met. The trial cou

rt struck the intended bala

nce by properl y ap pl yi ng the provisions of the Act. The legislature presumably struck the balance by

passing the Act itself, and it is not the court' s role to rewrite a statute that appears to lead to unjust results when interpreted as written. See DeSmet , 219 Ill. 2d at 510. As defendant Venier arg ues in his brief, the legislature often strikes balances between competing interest s when enacti ng sta tutes, such as the Tort Immunity Act's balancing of the govern ment's need to provide necessary service s to the pub lic and a n injured citizen' s need toseek redres s for injuries sustained as a result of such service s. The courts, however, are bound to interpret statutes as written and not to strike balances that the legislature a lready struc

k. D. Attorney F ees Defend ants, with the exception of defendant Venier, cross-appea led the trial court's decision limiting the attorney

fees awarded. As stated ear lier, the trial court awarded attorney fees per section 25 of the Act (735 ILCS 110/25 (West 2008)), limiting the fees to those incurred prepari ng the portions of the moti ons to dismis s based on the Act. Defendants argue that they should have bee n able to collect fees associated with the defense of the case from t he fil ing of t he com plain t thro ughNo. 2--09--1015

-40-

the dismissal. A party may be awarded attorney

fees only whe

n the fees are specifically

allowed by statute or by a contra ct betwe en the pa

rti es. Grate v. Grzetich , 373 Ill. App. 3d 228, 231 (2007). When a court with proper statutory auth ority to award a

ttorney fee s exercises that authority, we review its decision under

an abuse-of-discretion standard. Grate , 373 Ill. App. 3d at 231. Whether
a court has the authority to g

rant attorney

fees is a question of law that we review de novo
. Grate , 373 Ill. App. 3d at 231. Section25 of

the Act provides that the "court shall award a moving party who prevails in a motion under this Act

reasona ble attorney' s fees and costs incurred in connection with the motion." 735 IL CS 110/25 (West 2008). Becau se the pa rties'dispute in

volves the

interpre tation of t

his statutory provision, we review de novo whether the Act' s langua

ge enc ompasses

abroad er range of attorney fees than the trial court awarded. We re view the reasonableness of the amount of fee s under an abuse-of-discretion standard. Plaintiff conceded during

trial court proceedings that section 25 mandated that the trial court grant attorney fe es for defendants. The parties dispute what fe es are covered by section 25. NRG and Knickrehm

argue that the unambiguous, plain lang uage of the Act provides that fees for all of their attorne ys' time spent

in defen ding the lawsuit should be inc luded as e xpenses inc

urred " in connection

with the motion." In the alternative, N RG and Knickrehm argue that if we f ind section 25 ambiguous, it should be interpreted broadly to avoid undermining the policy and purp ose of the Act, which is to prevent defendants from bearing the costs of such suits. Furt her, NRG and Knickrehm

argue that

courts have held in other contexts that when awarding attorne y fees, the fees
are not to be "cho pped" w here the attorney s are dealing with a common core of f acts and similar legal theories. Counsel for Hughes, Deets, the Dea therages , Peterse

n, and Shomaker ma

kes the sa meNo. 2--09--1015

-41-

argume nts as counsel for NRG and Knickrehm. Additionally , counsel argues that much of the fees that the trial court excluded

were c aused by

plaintiff 's acti ons, inclu

ding: (1 ) plaintif

f amende d his complaint three times, requiring defendants to analy

ze and respond

to four pleadings; (2) plaintiff sought d iscover y w hile the mo tions to dismiss were pending, requiring defe ndants to file motions t o quash subpoenas and objections to interrogatories; and (3) plaintiff objected to Shomak er's reques t to file an additional motion to dismiss in response to the new allegations pleaded in the third amended complaint, requiring additional time e x pended on the defense. The Kuecke rs' counsel argues that the tr

ial cour t improper

ly r elied upon an aff

idavit by attorney

Douglas Lee in determining that $200 p er hou r was a r eason able ra te for attor neys in Lee C ount y. Lee's affidavit was submitted by plaintiff. Counsel for the Kueckers submits that its affidavit asserting the rate of $215 per hour
was cons istent and

should hav e been a

ccepte d by

the cour t. Defend ants rely on Hensley v. Ec kerhart , 461 U.S. 424, 426, 76 L. Ed. 2d 40, 46, 103 S. Ct. 1933, 1935 (1983), to support their position that their fees may not be "chopped" by claim or leg al theory and that t hey are ent itled to fe es for th eir entir

e defen se. We re

ject that Hensley

is applica ble here, for two reasons: (1) the issue in Hensley involved different claims that were intertwined and factua lly and legally

related and proceeded to trial; and (2) the statute in Hensley

broadly stated that

" 'the court, in its discretion, may allow the pre vailing party , *** a reasonable attorney 's fee as part of the costs ,' " a

nd the Cour

t found tha

t it could not separate the costs among the claims. Hensley , 461 U.S. at 426, 76 L. E d. 2d at 46 , 103 S. Ct. at 1935, quoting 42 U.S.C. §1988 (1982). In Pi et rz yk
v. Oak Lawn Pavilion, I

nc . , 329 Ill. App. 3d 1043, 1051 (2002), the court distinguished Hensley when de termi ning whe

ther the plaintiff could re cover a

ttorney fees for her fa

iled wron gful de ath claim under the fee provision of her successful Nursing Home Care Act (210 IL CS 45/1--101 et seq.No. 2--09--1015

-42-

(West 1996)) c laim. The

court he ld that the

plaintiff could not seek refuge under Hensley 's "cl aimchopp ing" protection where there was no confu sion as t o what portion of fees went towards the Nursing Home Car

e Act claim

(the plaintiff's counsel was to receive one -third of the award). Pi et rz yk , 329 Ill. App. 3d at 1051. The court stated that since common law prohibited a prevailing party from recovering attorney fees, statutes that allow such fees are to be strictly construed. Pi et rz yk , 329 I ll. App. 3d at 1051. T

he court f urt her stated that while the Hensley "common core of fa ct s" do ct ri ne co ul d b e u se d a s a sh ie ld to pr ev en t t he re du ct io n o f a tt or ne y fe es by " claimchopp ing" based on the limited suc cess of recovery , the doct rine may not be use d as a sword to obtain fees that are not otherwise covere d by the statute that authorizes such fees. Pi et rz yk , 329 I ll. App. 3d at 1051. In t

his case, the m otions to dismiss and costs related to them may be separ ated fromother costs, such as costs for filing other motions and drafting other arguments not based on the Act within the motion to dismiss. Therefore, we do not find t ha t w e a re bo un d b y Hensley to accept any and all f ees submi tted by defenda nts. We u se the same statutory inter pretation rules stated earlier in this opinion. Section 2 5 contains the lang uage " in connec

tion with th e motion." The phra se "in connection with" has been deemed both ambig

uous ( Ness v. Ford Motor Co. , 835 F. Supp. 453, 4 58 (N .D. I ll. 19 93) ( in co ntext of insuranc e contra

ct and construing

ambigui ty broadly and

in favor of insured)) and unambiguous ( Fuja v. Bene fit Trust

Life I nsurance Co. , 18 F.3d 1405, 1410 (7th Cir. 1994) (in context of medical insurance provi sion, construed narrowly )). The phrase may

be read broadly , as defendants argue,
or narrowly, a s the trial court did. Under defendants' interpretation, re asonable fees may be collected for work performed researching and prepa

ring all parts of the motions to dismiss as well as other costs incurre d while the

motion wer

e pending , includin

g responding to p laintiff

's discovery

motions.No. 2--09--1015

-43-

The trial court interpreted section 25 narrowly to cover only the time it t

ook defe ndants to research and draft their moti ons to dismis s under the Act, excluding a ll other co sts relat

ed to othe r matter s. We find the phrase " in connec tion with" as used in

this statut

e to be am biguous because it is capa ble of being u nderstoo d in

two or mor

e diffe rent sen ses by

reasona bly well-inf ormed pe rsons. Certain work tasks, defendants argue, overla p between the Act and other defenses a nd are impo ssible to
se pa ra te be ca us e t he at to rn eys were faced with a common core of facts and law. Because we find section 25 to be ambiguous, we may look beyond its plain langua ge to determine its meaning. Defend ants cite to Cont ainment Technol ogies G roup, I nc. v. Ame

rican Soc iety

of Healt h System Pharmac ists , No. 1:07--CV--0997 (S.D. Ind. August 26, 2009) , whic h rejec ted th e plai ntiff 's argument that the fee award should be limited to time spent actually prepar ing the m otion to dism

iss under Indiana's a

nti-SLAPP statute. Howeve r, that c ase is distinguishable because the languag e of Indiana's fee provision stat es that t he preva iling de fendant

"is entit led to re cover r

easonab le attorney 's fees and costs." I nd. Code Ann. §34--7--7--7 (Michie 2008). The I ndiana fee-shi ftin g provision is void of the potentially limiting language in our state' s provision, and thus the defendant was entitled to recover for all time reasonably spent on the litigation, not just the motion itself. Califo rnia's interpretation of its anti-SLAPP statute provides some limited guidanc e . Cali forni a's anti-SL

APP fe e-shifting provision, which does not contain the potentially limiting langua ge "in connection with," states that "a preva iling defendant on a

special motion to strike shall be entitled to recover his or her attorney 's fees and

costs." Cal. Civ. Proc. Code §425.16 (Deering 2010). In Kearney

v. Foley &

Lardner , 553 F. Supp. 2d 1178 (S.D. Cal. 2008), the court considered whether a defen dant who s

ucceed ed in strik

ing the p laintiff

's state claims und

er the a nti-SL APP statute could re cover f

ees for his motion to

dismiss fe deral c laims unde r differ ent theor ies. The courtNo. 2--09--1015

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held that the defendant could recover fe es for the entirety of the motion to strike and fe es for t he portion of his motion to dismiss the federal claims that was based on the Noerr
- Pennington doctrine butno other f

ees for the rema ining se parate and distinct defenses. Kearney , 553 F. Supp. 2d at 1186- 87. Therefore, even under Cali forni a's broader fee-shifting provision, the court still limited recover y of fees to those associated directly with the anti-SLAPP motion. Reading the entirety of the Act, we know that its purpose, in part, is to identif y a nd adjudic ate SLAPPsin an eff

icient ma nner and to provide

for attor ney fees and costs for prevail ing mova nts. 735 IL CS 110/5 (2008). The Act also instructs

that it "shall be c onstrued liberall y to effec tuate its purposes and intent fully." 735 IL CS 110/30(b) (West 2008). From the legislative debates on the Act, we know that

the Ac t was i ntend ed to e limi nate o ngoin g, costly litigati on by

providing

a specia l, expedited means to dismiss such lawsuits. See 95th Ill. Gen. Assem., House Proceedings, May 31, 2007, at 59 ( state ments of Rep resent ative Franks ("It's an expedited hearing they have to do

within ninety (90) days a

nd it also shifts the burden on the plaintiff and should the plaintiff lose, they' d have to pay the def

endant's attorneys fees")). B ased on thi s history and on the lang uage of the Act, we conclude that the Act was intended to m inimize attorney fees and litig ation costs by providing defendants an avenue by

which to easily and

efficie ntly dispose of

these types of lawsuits. We do notfind that

the la ngu age " in connec tion with" encompa sses all costs of li tigation , as defe

ndants argue. Such a broad interpretation would defy logic where defendants pursue other de fenses that are notconnected t o a motion u nder the Act. Consi dering

the statut

e in its ent

irety , and the p lain meaningof "in connection with," read i n context of the statute and its purposes and intent, we believe that def

endants a re limited to recovering only

those fees associated with bringing the motion to dismiss on grounds based on the Act, as the trial court determined.No. 2--09--1015

-45-

That being said, we next consider whether the trial court's determination of "rea sonable" fees
was an abuse of discretion. In pa ragraph five o f their jo int motion f or clar ification of allow able attorney fees, defendants listed the following as "a ctivities" that did not "fit comfortably " in the court' s order t

o amend their fee

petitions t

o include only those ef forts dir ected a t the Act: "a) I ntake communicati ons with cl ients b) Status c ommunica

tions with c lients c) Fact investigation d) Witness and client interviews e) Responding to d

iscover y r equests f) Motion practice regarding staying discove

ry g) Gat hering and revi ewing d

ocuments h) Argume

nt of the motion to dismi ss, wherein numerous legal defense s are raised but not delineated i) Prepara tion for a rgumen t of the mot

ion to dismis s, for which

time spent on particular legal defenses is not delinea ted j) Attendance of status hearings and other hearings not specifically

devoted to any particular

legal defenses." The trial court , in re spons e to de fendan ts' joint motion, issued its clarifying order. The clarify

ing order stated that defendants' motions raised various de fenses, i ncluding the Act, t

he I llinois fa

irNo. 2--09--1015

4 These def

enses were contained in defendants' motions to dismiss pursuant to section 2-- 615 , arguin g that pl aintiff f

ailed to st ate a pr oper cla im. -46- reporting privil ege, opinion speech, and the need to show a ctual malice. 4 The court granted defenda nts relief pursuant to the Act, and the Act allowed for f ees associated with the motion. The court advised: "Thus, the only fees w hich the Courtcan allow are those which can specifically

be allocated to th e preparation and argument of the [Act] motion. Therefore, none of the act ivity set forth in parag raph 5 of the Defe ndants'joint motion

should be i

ncluded i n th e attor ney's fees ca

lculation unle ss itcan be specifically identified as pertaining to the preparation

and argument of the motion unde r the [Act ]. The Cour

t underst ands that this may mean that some general time which [is] incapable of being delineated may

not be compensa ble to the Def

endants. However, the statute li mits attorney 's fee s compens ation to that which can be specifically related to the motion under the [Act]." We do not find that the trial court's determination of fees and c osts associated with the
m otions brought under the Act was an abuse of discretion. A defendant bear s the burden o f pr esenti ng sufficient evidence from which the trial court ca n render a decision as to the
reasona blenessof his fees. Gambino v. Boulevard Mortgag e Corp. , 398 Ill. App. 3d 21, 66 (2009). Anappropr

iate fee consists of reasonable charg es for reasonable services. Gambino , 398 Ill. App. 3d at 66. Justification of fees requires more than a mere compilation of hours multiplied by a fixed hourly rate or bills issue d to client s, as this type of data doe s not provide the court with sufficient informationas to the fees' reasonablene ss. Gambino , 398 I ll. App. 3d at 66. A pe

tition for fees mus t specify the servi ces perform ed, who performed them, the time expended, and the hourly rate charged.No. 2--09--1015

5 The remaining defendants do not take issue with the trial court's determination that $200 was a reasonable hourly

rate. -47- Gambino , 398 Ill. App. 3d at 66. "[I ]t is incumbent upon the petitioner to present detailed records maintained

during the course of the litigation containing facts and computations upon which the charges are predicated. " Gambino , 398 Ill. App. 3d at 66. The trial court's clarification order me rely ordered defendants' attorney

s to provide such deta

ils in their fee pet itions. De fendant s counter that it is impossible

to se parate the time spent on work related to the Act from that re lated to other defenses. However, the burden wa s on the attorneys to trac k their work in a detailed fashion. Once a fee petition is sub mitt ed, the trial court considers factors including the skill and standing of the attorney s, the nature of the case , the nove lty or diffic ulty of the issues involved, the importance of

the matter, the degree of

responsibility required, the usua l and customary c

harges for compara ble service s, the benefit

to the client, and the reasonable connection of the fees to the amount involved in the litigation. Gambino , 398 I ll. App. 3d at 66. The trial court considered these factors and the aff idavits submitted by

the vari ous defe

nse at to rn eys and by plaintiff and de termined that the hourly rates ranged from $140 to over $500. It de termined that most of

the rate s were c lose to $200 per hour, and it determined that this was a reasonable hourly rate. We do not find that the trial court abused its discretion in setting the hourly ra te at $200. The Kueckers 5 argue s that the t rial cou rt did nothear testimony fr

om attorney Lee regarding the reasonableness of the $200 rate. However, the trial court i s not require d to hold an evidenti ary

hearing on the re asonable

ness of a ttorney fees. Aurora East School District v. Dover , 363 Ill. App. 3d 1048, 1058 (2006). A non evidentiary proceeding

is proper so long as the tri al courtcan determine from the available evidenc e what amount would be reasonable and the opposing party has an opportunity to be hea rd. Auro r a EastNo. 2--09--1015

-48-

School District , 363 Ill. App. 3d at 1058. In this case, the trial court ha d sufficient

evidence before it, and plain

tiff had a n opportun

ity t o be heard, to determine the reasonable f ees to be awarded. We, therefore, affirm t

he trial c ourt's j udgmen

t that the Act allo ws a prevailing defendant rec overy for only those attorney fe es associated with a motion based upon t he Act , and w e affir m the t rial c ourt's selection of a re asonable

hourly rate of $200 and i

ts award of reas onable f

ees. We further reject defendants' arguments that limiting fees would have a " chilling effec t" on citizens who desir

e to part icipate i ngover nment, be cause they

would risk

having to pay a majorit y of their attorney f

ees. Dixon & Giesen argues that "it is not rea sonable to expect that an attorney could file a motion to dismiss under the [Act] without first having to take the steps necessa ry to determine the applicability of the [Act]. Under the trial court's narrow definition the fees g enerated to do i ntake communications with the client; investigate the facts; interview witne sses; attend genera l status or oth er cour t requ ired ap pearan ces alo ng w it h numerous other necessary steps in effective representation

would notbe inc luded ." Thi s is n ot tru e unde r the t rial c ourt's or this court's order. If these ta sks were

perfor med in pre

paration of the mo tions to dism iss pursuant

to the Act, the fees charged were recoverable. If those tasks overlapped is su es , t he at to rn eys were required to adjust the fees sought to

reflect the time spent pursuing the motions based on the Act. While

it may seem in defenda nts' view that the Act is impractical because it does not take into ac co unt that de fense at to rn eys may

litigate other de fenses s imultaneo usly , we remi

nd defen dants tha t it is not t his co urt's place to rewrite the statute. III. CONCL USION We conclude that the trial court properly applied the Act and therefore properly dismissed plain tiff's complaint in its entirety. We further agree that the trial c ourt properly limited attorney feesNo. 2--09--1015

-49-

to tho se ass ociat ed wit h the m otio ns bro ught u nder t he Act and no thin g more. Accord ingl y, w e af fi rm th e j ud gm en t o f t he ci rc ui t c ou rt of Lee Co un ty. Affirmed. O'MALL EY and SCHOSTOK, JJ., concur.