{ "id": 3630771, "name": "WRIGHT DEVELOPMENT GROUP, LLC, Appellee, v. JOHN WALSH et al. (John Walsh, Appellant)", "name_abbreviation": "Wright Development Group, LLC v. Walsh", "decision_date": "2010-10-21", "docket_number": "No. 109463", "first_page": "620", "last_page": "645", "citations": [ { "type": "official", "cite": "238 Ill. 2d 620" } ], "court": { "name_abbreviation": "Ill.", "id": 8772, "name": "Illinois Supreme Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "60 Okla. L. Rev. 419", "category": "journals:journal", "reporter": "Okla. L. Rev.", "opinion_index": 0 }, { "cite": "233 Ill. 2d 345", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3621581 ], "weight": 2, "year": 2009, "pin_cites": [ { "page": "351" }, { "page": "350" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/233/0345-01" ] }, { "cite": "237 Ill. 2d 30", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3629698 ], "year": 2010, "pin_cites": [ { "page": "39" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/237/0030-01" ] }, { "cite": "762 A.2d 1208", "category": "reporters:state_regional", "reporter": "A.2d", "case_ids": [ 11162891 ], "year": 2000, "pin_cites": [ { "parenthetical": "rejecting the argument that statements must be made before some type of governmental body and not to the public via the print media" } ], "opinion_index": 0, "case_paths": [ "/a2d/762/1208-01" ] }, { "cite": "857 A.2d 743", "category": "reporters:state_regional", "reporter": "A.2d", "case_ids": [ 9183483 ], "year": 2004, "pin_cites": [ { "parenthetical": "letters to the editor were protected by the Rhode Island anti-SLAPP statute" } ], "opinion_index": 0, "case_paths": [ "/a2d/857/0743-01" ] }, { "cite": "508 U.S. 49", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11789 ], "weight": 3, "year": 1993, "opinion_index": 0, "case_paths": [ "/us/508/0049-01" ] }, { "cite": "472 U.S. 479", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1512567 ], "weight": 3, "year": 1985, "opinion_index": 0, "case_paths": [ "/us/472/0479-01" ] }, { "cite": "376 Ill. App. 3d 765", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4273586 ], "year": 2007, "opinion_index": 0, "case_paths": [ "/ill-app-3d/376/0765-01" ] }, { "cite": "214 Ill. 2d 234", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 8450936 ], "year": 2005, "opinion_index": 0, "case_paths": [ "/ill-2d/214/0234-01" ] }, { "cite": "122 Ill. 2d 555", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5549696 ], "year": 1988, "pin_cites": [ { "page": "567-68" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/122/0555-01" ] }, { "cite": "95 Ill. 2d 541", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3111376 ], "year": 1983, "pin_cites": [ { "page": "550" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/95/0541-01" ] }, { "cite": "113 Ill. App. 3d 962", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3626580 ], "year": 1983, "pin_cites": [ { "parenthetical": "and cases cited therein" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/113/0962-01" ] }, { "cite": "156 Ill. 2d 112", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 777542 ], "year": 1993, "pin_cites": [ { "page": "115", "parenthetical": "noting practice under section 2 - 619 motions" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/156/0112-01" ] }, { "cite": "393 Ill. App. 3d 994", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4289256 ], "weight": 2, "year": 2009, "pin_cites": [ { "page": "998-99" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/393/0994-01" ] }, { "cite": "212 Ill. 2d 93", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2444492 ], "year": 2004, "opinion_index": 1, "case_paths": [ "/ill-2d/212/0093-01" ] } ], "analysis": { "cardinality": 1481, "char_count": 43726, "ocr_confidence": 0.842, "pagerank": { "raw": 6.536943893385641e-08, "percentile": 0.4009438388106797 }, "sha256": "6646ae8dab8cfe87bd652f9cf7b715b9817e56d37d47aa5e97e437821da824c0", "simhash": "1:bff3812c0e3bee74", "word_count": 7051 }, "last_updated": "2023-07-14T20:45:32.940545+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "WRIGHT DEVELOPMENT GROUP, LLC, Appellee, v. JOHN WALSH et al. (John Walsh, Appellant)." ], "opinions": [ { "text": "CHIEF JUSTICE FITZGERALD\ndelivered the judgment of the court, with opinion.\nJustices Kilbride, Garman, and Karmeier concurred in the judgment and opinion.\nJustice Freeman specially concurred, with opinion, joined by Justices Thomas and Burke.\nOPINION\nIn this appeal, we are asked if defendant John Walsh\u2019s statement to a reporter made during a public forum inside an alderman\u2019s office was immunized from a defamation lawsuit under the Citizen Participation Act (735 ILCS 110/1 et seq. (West 2008)). The trial court found the statement was not immune from suit. The appellate court dismissed Walsh\u2019s appeal as moot. No. 1 \u2014 08\u20142783 (unpublished order under Supreme Court Rule 23). For the following reasons, we reverse and remand.\nBACKGROUND\nThe following facts are found in the record and are not in dispute. Two limited liability companies, Sixty Thirty LLC and Wright Management, LLC, and two individuals, W. Andrew Wright and his son James A. Wright, were involved in the conversion of a 22-story, 262-unit condominium building at 6030 North Sheridan Road in Chicago. Andrew and James Wright are members of both Sixty Thirty and Wright Management. Andrew and James Wright are also members of a third limited liability company, the present plaintiff, Wright Development Group, LLC. Wright Development, Wright Management, and Sixty Thirty all share the same business address in Palatine.\nDefendant John Walsh purchased a unit at 6030 North Sheridan Road (hereinafter 6030 building) and later became the 6030 N. Sheridan Condominium Association\u2019s president. On May 5, 2006, the Association filed a lawsuit in the circuit court of Cook County alleging, inter alia, fraud against various persons and entities responsible for the conversion of the building into condominiums. The defendants in the 6030 building lawsuit included Sixty Thirty, Wright Management, and Andrew and James Wright. Wright Development Group, LLC, was not a named defendant.\nOn July 10, 2007, a public meeting was held at the office of the local alderman, Mary Ann Smith. The alderman\u2019s chief of staff indicated the purpose of the meeting was to provide the local residents of the 48th Ward with a public forum to communicate the problems they had experienced with developers and contractors building and renovating condominium buildings in the ward. A public notice stated the purpose of the meeting was to obtain public input for a proposal to reform the Municipal Code with respect to the sale of condominiums.\nWalsh attended the public meeting with another 6030 building resident, Mark Hrycko. Walsh stated he attended the meeting for the purpose of providing information to his elected representative and her staff regarding problems his condominium association experienced with the developers of his condominium building. Out of the dozens in attendance, approximately 12 persons spoke at the meeting, which was moderated by two aldermanic representatives. During the meeting, Walsh raised his hand, stood up, and discussed the repairs at his building and the lawsuit against the developer. Other citizens also shared their experiences and problems with condominium construction in the area. After the formal question and answer session had ended, they remained at the office for approximately 15 or 20 minutes, standing with the other participants in a \u201cmingling\u201d session with representatives from the alderman\u2019s office.\nDuring this mingling session, Walsh spoke with other citizens about the problems with their buildings. As he was walking toward the exit, Walsh was approached by a staff reporter for a local newspaper, Lorraine Swanson. According to Walsh, the reporter asked him and other citizens \u201cfollow up\u201d questions relating to the earlier provided information. Walsh believed his discussions with the reporter were \u201ccontinuing to further participate in what the purpose of the meeting was\u201d because he discussed the problems with his building, including the association\u2019s need to take out a $1.8 million loan, and the lawsuit against the developer. Walsh did not refer to the builders as Sixty Thirty, but as the \u201cWright Development Group\u201d or \u201cthe Wright Group ***. Because that\u2019s what it is. It\u2019s the Wright Group. It\u2019s the Wrights.\u201d He stated, \u201cwhenever I think of the developer, I think of the Wrights *** because to me that\u2019s the developer ***. I think of Andrew and Jamie.\u201d He was unaware of the full, specific name \u201cWright Development Group, LLC,\u201d prior to the lawsuit.\nWalsh then left the meeting with Hrycko while aldermanic staff remained in the office in discussion with other citizens. Walsh later received a phone call from the reporter requesting the developer\u2019s telephone number. Walsh and Hrycko met on another date in front of the building with a photographer to take a picture which appeared with the reporter\u2019s article. The topic of the building was not discussed at this session.\nThe alderman\u2019s chief of staff stated, \u201cThe information provided by 48th Ward residents at the July 10, 2007, meeting was used by Alderman Smith and her staff for the purpose of developing legislative measures to halt fraud and misconduct by developers and contractors building or renovating condominium buildings.\u201d Aider-man Smith further asked a special task force established by the City of Chicago\u2019s law department to investigate the outstanding problems experienced with certain buildings discussed at the public meeting. The City of Chicago\u2019s law department filed suit against several developers, general contractors, and lenders.\nWalsh\u2019s statements to the reporter were republished on August 8, 2007, in the Pioneer Press by Pioneer Newspapers, Inc., and Sun-Times Media Group, Inc. The newspaper article, entitled \u201cCondo boom creates glut of horror stories,\u201d referred to \u201cWright Development Group.\u201d The introductory paragraph to the article states: \u201cAmong the signs of saturation in the city\u2019s condominium market is the barrage of complaints from new condo owners disillusioned by what they say are shoddy construction and shady deals.\u201d The Pioneer article further provides, in part:\n\u201cAfter racking up a $1.8 million special assessment, an Edgewater condominium association sued Wright Development Group, developers of a 22-story, 262 unit conversion building at 6030 N. Sheridan Rd., for fraud. Residents said that when they bought their units, the developers told them that the building had a new roof and elevator system.\n\u2018The roof was actually a liquid membrane placed over seven layers of old, bad roof. All of the roofing had to be removed down to the concrete deck, with a completely new roof installed,\u2019 said John Walsch [sic], president of the 6030 N. Sheridan Road Condominium Association.\nWhile the elevator cabs were brand spanking new, the mechanical and electrical equipment was the same from when the building was first built 50 years ago. The night before the condominium association was to take over the building from the developers and assume legal responsibility for its maintenance and upkeep, the developers allegedly contracted a new management company and retained an attorney to represent the condominium association.\n\u2018We said no, and fired the management company and attorney,\u2019 Walsch [sic] said.\u201d\nThe remainder of the article detailed other citizen complaints and a plan of action by the City\u2019s law department.\nOn October 4, 2007, Wright Development filed a complaint for defamation action against John Walsh, Pioneer Newspapers, Inc., and Sun-Times Media Group, Inc., alleging defamation per se. The complaint alleges \u201cat the time Walsh published the false statements to Ms. Swanson, Walsh, as the president of the Association, knew the true identity of the developer of the Building to be Sixty Thirty, LLC and not Wright [Development].\u201d Walsh and the other defendants responded to the complaint with various motions to dismiss under section 2 \u2014 615 of the Code of Civil Procedure (735 ILCS 5/2\u2014 615 (West 2008)). Prior to the completion of the briefing schedule on those motions, Walsh filed a separate motion to dismiss, entitled \u201cMotion to Dismiss Plaintiff\u2019s Complaint\u201d pursuant to the Citizen Participation Act (735 ILCS 110/1 et seq. (West 2008)). In this motion, Walsh asserted that Wright Development\u2019s lawsuit was a \u201cstrategic lawsuit against public participation,\u201d or \u201cSLAPP\u201d (735 ILCS 110/5 (West 2008)), which should be dismissed under the Act. Walsh sought a stay of the briefing on the various previously filed section 2 \u2014 615 motions.\nWalsh presented this motion under the Act to the trial court on April 21, 2008. On that date, the trial court stayed all further action, including briefing and discovery, on the section 2 \u2014 615 motions. The trial court, pursuant to section 20 of the Act, limited Wright Development\u2019s discovery to \u201cthe issue of whether Walsh\u2019s acts are not immunized, or were not in furtherance of acts immunized from, liability under the Citizen Participation Act.\u201d Discovery included depositions of Walsh and Hrycko.\nOn July 29, 2008, the trial court held a hearing on Walsh\u2019s motion under the Act. At the hearing, the trial court ruled in open court in favor of Wright Development and denied Walsh\u2019s motion. In an oral statement, it held Walsh\u2019s statement to the reporter fell beyond the scope of the Act:\n\u201cBecause I don\u2019t see the Act applying to statements that are made to a reporter after a meeting because the Act talks about giving you the right to address the government about your grievances, and it doesn\u2019t give you the right to \u2014 it doesn\u2019t immunize you from every step that you are ever going to make outside of the meeting, and that\u2019s why I thought \u2014 because we had all this controversy about whether or not this reporter should be deposed. And that\u2019s why I said just take this deposition of the defendant first because I kind of suspected when he had that photograph of him outside of the building that there was some communication that took place over and above the meeting itself. And then as I read his entire deposition and there is plenty of communication, in fact, most of it took place outside of the meeting. So I don\u2019t think the Act really applies here.\u201d\nIn a subsequent colloquy with Walsh\u2019s counsel, the circuit court explained its understanding of the facts and of the Act:\n\u201c[Counsel]: I want to make sure that you did have an opportunity to review the reply brief because in the deposition [Walsh] stated that the conversations that he had with the reporter were at the end of the meeting but were still in the Alderman\u2019s office.\nCOURT: Doesn\u2019t matter.\n[Counsel]: *** And, finally, his depositions show that all of the statements that were made to the reporter were made at the Alderman\u2019s office, and the picture was taken at a different time by a photographer. The only other conversation that Mr. Walsh had with the reporter was when the reporter called him to try to get the Wrights\u2019 telephone number. He gave them the telephone number. So it\u2019s our belief that these were acts in furtherance of acts that are protected by \u2014 .\nCOURT: Well, you look at the definition even of acts in furtherance and it says 735 ILCS 110/15 acts in furtherance *** you are not even trying to procure favorable governmental action at that point because the Alderman\u2019s representative has left the room.\n[Counsel]: Your Honor, that\u2019s untrue. The deposition states that the Alderman\u2019s representative was still in the building when he left.\nCOURT: Well he had adjourned the meeting.\n[Counsel]: Well, that is subject to dispute too your honor because our issue is that he was still at the Alderman\u2019s office as part of this public forum. There was a separate mingling session for which the Alderman\u2019s representatives were engaged in, and Mark Hrycko also stated that when he and Mr. Walsh left the building, citizens were still there. They were still discussing issues with the Alderman\u2019s representatives. So we don\u2019t believe the meeting ever ended.\nCOURT: Shouldn\u2019t this statute \u2014 I mean, I didn\u2019t look up any statutory construction tenets, but the interpretation of the common law, doesn\u2019t it have to be strictly construed?\n[Counsel]: No, your honor, in fact, it actually says that it should be liberally construed.\nCOURT: Oh, okay.\n[Wright Development\u2019s Counsel]: It does say that, your honor.\u201d\nThe circuit court then asked Wright Development\u2019s counsel if Wright Development deserved attorney fees. After plaintiff\u2019s counsel responded in the negative, the trial court entered an order reflecting its rulings.\nOn August 12, 2008, Walsh filed a motion to reconsider or, alternatively, to enter Rule 308 findings (155 Ill. 2d R. 308). Rule 308 findings were requested because, while section 20(a) of the Act provides for an immediate right to appellate review of an order denying a motion to dismiss (735 ILCS 110/20(a) (West 2008)), a coordinate provision allowing an interlocutory appeal within the supreme court rules does not currently exist. Accordingly, Walsh filed a motion requesting the trial court to reconsider its ruling, or, alternatively, to enter findings consistent with Supreme Court Rule 308 so proper jurisdiction would be conferred to obtain immediate appellate review. The trial court denied these motions on August 19, 2008. The trial court also entered orders to resume briefing on the section 2 \u2014 615 motions.\nShortly after ruling on Walsh\u2019s motion under the Act, the circuit court granted Walsh\u2019s earlier filed section 2 \u2014 615 motion to dismiss, and held Walsh\u2019s statements were not actionable under the innocent construction rule. It stated,\n\u201cThis court feels that the statements in the article are capable of an innocent construction in that they are simply referring to what was alleged in a pending lawsuit ***. What is clear, though, is that there were at least three defendants in the lawsuit with the name Wright. Also, the article references \u2018Wright Development Group\u2019 and not the actual plaintiff herein \u2018Wright Development Group, LLC.\u2019 Plaintiff cannot have it both ways. *** The reference in the article can be innocently construed as referring to the group of Wright entities and individuals who were involved in the lawsuit. As defendants correctly point out, the article consistently refers to \u2018developers\u2019 and not to a single entity such as plaintiff. Based upon this finding, it is irrelevant whether Walsh is or the media defendants are responsible for the reference to \u2018Wright Development Group\u2019 in the article.\u201d\nAccordingly, the circuit court dismissed Wright Development\u2019s complaint with prejudice.\nAfter final judgment was entered in the circuit court, Walsh filed an appeal before the appellate court of the two interlocutory orders denying relief pursuant to the Act. He asserted he was denied his statutory immunity and mandatory attorney fees under the Act. Because his section 2 \u2014 615 motion was successful, Walsh did not appeal the findings in the actual September 26, 2008, final judgment order. Wright Development requested cross-relief regarding the September 26 section 2 \u2014 615 dismissal order. The record does not reveal any motion to dismiss the appeal.\nThe appellate court, sua sponte, entered a Rule 23 order dismissing Walsh\u2019s appeal as moot. It stated, \u201cIn essence, Walsh got exactly the relief he sought (i.e., dismissal of the complaint), albeit on a different basis (i.e., pursuant to section 2 \u2014 615 rather than the Act). Walsh\u2019s issue is moot because he has already obtained the relief he sought and, any action by this court would constitute an advisory opinion.\u201d No. 1 \u2014 08\u20142783 (unpublished order under Supreme Court Rule 23). We allowed Walsh\u2019s petition for leave to appeal. 210 Ill. 2d R. 315. Wright Development has not requested cross-relief from this court regarding the dismissal of its complaint.\nANALYSIS\nSLAPPs, or \u201cStrategic Lawsuits Against Public Participation,\u201d are lawsuits aimed at preventing citizens from exercising their political rights or punishing those who have done so. See generally E Canan & G. Pring, Strategic Lawsuits Against Public Participation, 35 Soc. Probs. 506 (1988). SLAPPs use the threat of money damages or the prospect of the cost of defending against the suits to silence citizen participation. 735 ILCS 110/5 (West 2008). To guard against the chilling effect of SLAPPs, at least 24 states have passed anti-SLAPP statutes. See L. Long, Note, Slapping Around the First Amendment: An Analysis of Oklahoma\u2019s Anti-SLAPP Statute and Its Implications on the Right to Petition, 60 Okla. L. Rev. 419, 421 n.27, 422 n.28 (Summer 2007) (citing statutes). In 2007, the Illinois General Assembly enacted anti-SLAPP legislation embodied in the Citizen Participation Act (735 ILCS 110/1 et seq. (West 2008)).\nIn the Act\u2019s \u201cpublic policy\u201d section, the legislature states there has been \u201ca disturbing increase\u201d in SLAPPs in Illinois. 735 ILCS 110/5 (West 2008). The legislature observed, \u201cThe threat of SLAPPs significantly chills and diminishes citizen participation in government, voluntary public service, and the exercise of these important constitutional rights.\u201d 735 ILCS 110/5 (West 2008). The Act explains, \u201cThe information, reports, opinions, claims, arguments, and other expressions provided by citizens are vital to effective law enforcement, the operation of government, the making of public policy and decisions, and the continuation of representative democracy.\u201d 735 ILCS 110/5 (West 2008). The Act further notes SLAPPs are an \u201cabuse of the judicial process\u201d which \u201ccan and ha[ve] been used as a means of intimidating, harassing, or punishing citizens and organizations for involving themselves in public affairs.\u201d 735 ILCS 110/5 (West 2008).\nThe Act states four explicit goals are in the \u201cpublic interest.\u201d 735 ILCS 110/5 (West 2008). First, the Act attempts \u201cto strike a balance between the rights of persons to file lawsuits for injury and the constitutional rights of persons to petition, speak freely, associate freely, and otherwise participate in government.\u201d 735 ILCS 110/5 (West 2008). Second, it attempts \u201cto protect and encourage public participation in government to the maximum extent permitted by law.\u201d 735 ILCS 110/5 (West 2008). The third purpose is \u201cto establish an efficient process for identification and adjudication of SLAPPs.\u201d 735 ILCS 110/5 (West 2008). Finally, the Act \u201cprovide[s] for attorney\u2019s fees and costs to prevailing movants.\u201d 735 ILCS 110/5 (West 2008).\nThe Act seeks to extinguish SLAPPs and protect citizen participation by: (1) immunizing citizens from civil actions based on acts made in furtherance of a citizen\u2019s free speech rights or right to petition government (735 ILCS 110/15 (West 2008)); (2) establishing an expedited legal process to dispose of SLAPPs both before the trial court and appellate court (735 ILCS 110/20 (West 2008)); and (3) mandating a prevailing movant be awarded reasonable attorney fees and costs incurred in connection with the motion (735 ILCS 110/25 (West 2008)). The legislature provided the \u201cAct shall be construed liberally to effectuate its purposes and intent fully.\u201d 735 ILCS 110/30(b) (West 2008).\nWhether the Appeal Is Moot\nIllinois courts \u201cdo not decide moot questions, render advisory opinions, or consider issues where the result will not be affected regardless of how those issues are decided.\u201d In re Alfred H.H., 233 Ill. 2d 345, 351 (2009). Walsh argues the appellate court\u2019s dismissal should be reversed because the legislature clearly intended for the Act to provide an independent and substantive right to appellate review of final trial court orders denying a motion to dispose of a lawsuit brought pursuant to the Act. Walsh continues that the appellate court\u2019s dismissal order ignored basic tenets of statutory construction because it failed to address the new rights conferred by the Act and the legislature\u2019s intent when it enacted the statute. Wright Development asserts that Walsh\u2019s sole basis to seek an appeal is the attorney fees; therefore, the case is moot because there are no substantive issues left to decide and any decision by this court would merely be an advisory opinion. We agree with Walsh. The determination of whether an appeal is moot is a question of law to be reviewed de novo. In re Alfred H.H., 233 Ill. 2d at 350.\nThe purpose of the Act is to give relief, including monetary relief, to citizens who have been victimized by meritless, retaliatory SLAPP lawsuits because of their \u201cact or acts\u201d made \u201cin furtherance of the constitutional rights to petition, speech, association, and participation in government.\u201d 735 ILCS 110/15 (West 2008). As an expression of intent to \u201cprotect and encourage public participation in government to the maximum extent permitted by law\u201d (735 ILCS 110/5 (West 2008)), the legislature deemed the mere dismissal of SLAPP lawsuits insufficient. The legislature has expressly stated it is in the \u201cpublic interest\u201d to \u201cestablish an efficient process for identification and adjudication of SLAPPs.\u201d 735 ILCS 110/5 (West 2008). As part of this process, if a trial court denies a motion under the Act, the Act directs the appellate court to \u201cexpedite\u201d an appeal of a circuit court order \u201cwhether interlocutory or not.\u201d 735 ILCS 110/20(a) (West 2008). The Act also directs the appellate court to provide expedited treatment of a trial court\u2019s failure to rule on an Act motion. 735 ILCS 110/20(a) (West 2008). The instant appellate court\u2019s failure to undertake the question of whether the plaintiff\u2019s lawsuit could be identified as a SLAPP directly contradicts the legislature\u2019s explicit expression of public policy regarding the efficient process to identify and adjudicate SLAPPs. 735 ILCS 110/5 (West 2008). The mootness finding also contradicted the legislature\u2019s express finding of public policy in favor of an award of attorney fees and costs to prevailing movants. 735 ILCS 110/5 (West 2008).\nFurther, there was, in fact, a potential injury to Walsh. Walsh was denied the relief requested in his Act motion to identify Wright Development\u2019s lawsuit as a SLAPP and for a statutory award of attorney fees and costs \u2014 an entitlement not available with the mere section 2 \u2014 615 dismissal. The appellate court therefore erred when it stated Walsh \u201chas already obtained the relief he sought and, any action by this court would constitute an advisory opinion.\u201d If indeed Wright Development\u2019s action was a SLAPP suit, then the appellate court\u2019s ruling also relieves Wright Development of the punishment which the Act imposes upon entities who chill the exercise of constitutional rights by use of meritless and retaliatory lawsuits. Thus, the appellate court ruling frustrates the legislature\u2019s expression of the public interest, withholds the relief provided by the Act for true SLAPP defendants, and constitutes a nullification of a principal part of the anti-SLAPP legislation. Accordingly, Walsh\u2019s appeal is not moot.\nImmunity\nWe next review the trial court\u2019s ruling regarding whether defendant enjoyed immunity under the Act. The trial court\u2019s denial of Walsh\u2019s motion was based upon an interpretation of the Act. Accordingly, because a question of law is presented, we apply the de novo standard of review. Carter v. SSC Odin Operating Co., 237 Ill. 2d 30, 39 (2010).\nTo trigger immunity, section 20 of the Act sets forth specific procedures for adjudicating a motion to dispose of a \u201cclaim\u201d which is \u201cbased on, relates to, or is in response to\u201d the exercise of a citizen\u2019s constitutional rights. 735 ILCS 110/20 (West 2008). For purposes of the Act, a purported victim of a SLAPP is the \u201cmoving party\u201d (735 ILCS 110/10 (West 2008)) who files a \u201cmotion,\u201d which includes \u201cany motion to dismiss, for summary judgment, or to strike, or any other judicial pleading filed to dispose of a judicial claim.\u201d 735 ILCS 110/10 (West 2008). The trial court must hold a hearing and render a decision on that motion within 90 days after the date the responding party receives notice of the motion. 735 ILCS 110/20(a) (West 2008). During this time, discovery is suspended except on the issue of whether there is immunity under the Act. 735 ILCS 110/20(b) (West 2008). To overcome the immunity, a responding party is required to produce \u201cclear and convincing\u201d evidence demonstrating the \u201cact or acts\u201d at issue were \u201cnot immunized from, or are not in furtherance of acts immunized from, liability by this Act.\u201d 735 ILCS 110/20 (West 2008).\nTurning to the instant case, section 15 of the Act requires Walsh, as the moving party, to show Wright Development\u2019s defamation complaint is \u201cbased on, relates to, or is in response to\u201d acts Walsh made \u201cin furtherance\u201d of his \u201crights of petition, speech, association, or to otherwise participate in government.\u201d 735 ILCS 110/15 (West 2008). Acts in \u201cfurtherance of the constitutional rights to petition, speech, association, and participation in government are immune from liability, regardless of intent or purpose, except when not genuinely aimed at procuring favorable government action, result, or outcome.\u201d 735 ILCS 110/15 (West 2008). According to the Act, \u201cgovernment\u201d includes any \u201cbranch, department, agency, instrumentality, official, employee, agent, or other person acting under color of law of the United States, a state, a subdivision of a state, or another public authority including the electorate.\u201d (Emphasis added.) 735 ILCS 110/10 (West 2008).\nThe gravamen of Wright Development\u2019s defamation claim is the statement Walsh made in an alderman\u2019s office to a reporter concerning statements he had made at the official public meeting. This is clearly immunized activity. According to the uncontroverted deposition testimony of Walsh and Hrycko, the statements regarding the building issues at 6030 N. Sheridan were made inside the alderman\u2019s office while the alderman\u2019s staff continued to converse with meeting participants in the mingling session. The statements to the reporter addressed a public matter \u2014 the problems of condominium conversion and draft legislation \u2014 in furtherance of his right to petition the government. These statements were in response to Alderman Smith\u2019s public notice and addressed the subject matter of his testimony and the public meeting. At the very least, these statements affected the 262 unit owners at the 6030 building. They also potentially affected citizens of the 48th Ward and the City at large.\nTherefore, Walsh\u2019s statements were \u201cin furtherance of\u2019 his rights to speech, association, petition or otherwise participate in government because the Act expressly encompasses exercises of political expression directed at the electorate as well as government officials. Cf Global Waste Recycling, Inc. v. Mallette, 762 A.2d 1208 (R.I. 2000) (rejecting the argument that statements must be made before some type of governmental body and not to the public via the print media); Alves v. Hometown Newspapers, Inc., 857 A.2d 743 (R.I. 2004) (letters to the editor were protected by the Rhode Island anti-SLAPP statute). We therefore turn to whether Wright Development met its burden under the Act.\nWright Development\u2019s Burden of Proof Under the Act\nBecause Walsh, as the moving party, met his burden under section 15 to show the complaint is \u201cbased on, relates to, or is in response to\u201d Walsh\u2019s acts in furtherance of his constitutional rights, section 20(c) of the Act shifts the burden of proof to the responding party, Wright Development. See 735 ILCS 110/15, 20(a), (c) (West 2008). Section 20 requires the responding party to produce \u201cclear and convincing evidence\u201d demonstrating the defendant\u2019s statements \u201care not immunized from, or are not in furtherance of acts immunized from, liability by this Act.\u201d 735 ILCS 110/20 (West 2008).\nWright Development principally argues Walsh\u2019s petitioning activity was a \u201csham\u201d or not \u201cgenuinely aimed at procuring favorable government action, result, or outcome.\u201d Wright Development contends Walsh\u2019s deposition transcript constitutes clear and convincing evidence in support of this argument. Wright Development repeatedly alleges throughout its brief Walsh \u201cadmitted\u201d that he \u201clied\u201d and \u201cknowingly\u201d and \u201cintentionally\u201d defamed Wright Development by misnaming \u201cWright Development Group\u201d instead of Sixty Thirty as the building developer when he spoke to the newspaper reporter.\nWright Development has not met its burden. Rather, Wright Development presents a fraction of the truth. Walsh testified as follows in response to Wright Development\u2019s counsel\u2019s questions:\n\u201cQ. And why did you say it\u2019s the group of the Wrights versus the Wright Group when you knew that the developer of the building was 6030 LLC?\nA. Because that\u2019s the only thing I could think of when I was doing it, when I was saying it.\nQ. You couldn\u2019t think of the developer being 6030, LLC?\nA. No. I just \u2014 Whenever I think of the developer, I think of the Wrights.\nQ. Why is that?\nA. Because to me, that\u2019s the developer.\nQ. Which Wrights do you think of?\nA. I think of Andrew and Jamie.\nQ. And when you are speaking to the reporter, that\u2019s who you were thinking of?\nA. Yes.\nQ. That\u2019s what you were trying to communicate to the reporter?\nA. Uh-huh, yes.\u201d\nThe unrebutted testimony by Walsh in his deposition establishes at the time Walsh made reference to the \u201cWright Development Group\u201d in his conversation with the reporter, he was referring to the group of individuals and business entities which were the defendants in the condominium-conversion lawsuit. Andrew and James Wright are members of Sixty Thirty LLC and are the five persons who interacted with Walsh. Walsh\u2019s deposition testimony further reveals that he was unaware of the existence of the distinct corporate entity known as \u201cWright Development Group, LLC,\u201d as he stood speaking with the reporter during the mingling session. Further, the record shows the members of Wright Development are functionally enmeshed with Wright Management LLC, and Andrew Wright and James Wright are parties to the dispute over the Sixty Thirty project. Walsh\u2019s description of the developers of the Sixty Thirty project appeared true on its face and turned out to be true in substance.\nWhen viewed in this context, the natural reading of the Pioneer article is as a reference to the \u201cgroup\u201d involved in the condominium conversion and not the separate corporate entity \u2014 \u201cWright Development Group, LLC\u201d \u2014 which filed the defamation suit. The trial court ruled similarly when it dismissed Wright Development\u2019s complaint under section 2 \u2014 615. Thus, Wright Development has not produced \u201cclear and convincing evidence\u201d demonstrating Walsh\u2019s statements \u201care not immunized from, or are not in furtherance of acts immunized from, liability by this Act.\u201d 735 ILCS 110/20 (West 2008).\nWe turn to the trial court\u2019s distinction concerning the statement \u201cafter\u201d the meeting. The Act makes no such restriction. By its terms, the Act applies to \u201cany motion to dispose of a claim in a judicial proceeding on the grounds that the claim is based on, relates to, or is in response to any act or acts of the moving party in furtherance of the moving party\u2019s rights of petition, speech, association, or to otherwise participate in government.\u201d (Emphasis added.) 735 ILCS 110/15 (West 2008). Included in the definition of \u201cgovernment\u201d is \u201cthe electorate.\u201d 735 ILCS 110/10 (West 2008). Therefore, nothing in the words \u201cany act or acts\u201d suggests a requirement of direct appeal to a government official.\nFurther, the Act does not Emit the protected rights to petitioning the government only. The Act plainly includes the rights to \u201cspeech\u201d and \u201cassociation\u201d as well. 735 ILCS 110/15 (West 2008). As these rights are to \u201cbe encouraged and safeguarded with great diligence,\u201d the legislature has provided that the Act is to be \u201cconstrued Eberally.\u201d 735 ILCS 110/30 (West 2008). This clearly applies to Walsh\u2019s statement to a reporter made during a public forum concerning proposed legislation targeting condominium conversions. The trial court\u2019s misreading, based on its erroneous belief that the Act be strictly construed, has no basis in the statutory language and is antithetical to the legislature\u2019s express provisions.\nEach of Wright Development\u2019s remaining case law citations are distinguishable on their facts because they are based on Wright Development\u2019s rejected and unsubstantiated assertion that the Walsh\u2019s deposition shows he was intentionaHy lying. See, e.g., Professional Real Estate Investors, Inc. v. Columbia Pictures Industries, Inc., 508 U.S. 49, 123 L. Ed. 2d 611, 113 S. Ct. 1920 (1993); McDonald v. Smith, 472 U.S. 479, 86 L. Ed. 2d 384, 105 S. Ct. 2787 (1985); Stahelin v. Forest Preserve District, 376 Ill. App. 3d 765 (2007). Accordingly, Wright Development has failed in its burden under the Act.\nWright\u2019s Separation of Powers Argument\nWright Development argues that the Citizen Participation Act is unconstitutional due to a separation of powers violation in that, for example, it directs a trial court to dispose of a motion under the Act within 90 days. Walsh responds that this argument is forfeited because the argument is raised for the first time before this court. We agree with Walsh. Wright Development did not raise this claim in the circuit court. This claim also does not appear in Wright Development\u2019s appellate court briefs. We find the issue is not properly before us. See, e.g., City of Champaign v. Torres, 214 Ill. 2d 234, 240 n.l (2005); In re Liquidations of Reserve Insurance Co., 122 Ill. 2d 555, 567-68 (1988); Shell Oil Co. v. Department of Revenue, 95 Ill. 2d 541, 550 (1983).\nWhether Walsh Is Entitled to Fees and Costs\nThe Act provides: \u201cThe court shall award a moving party who prevails in a motion under this Act reasonable attorney\u2019s fees and costs incurred in connection with the motion.\u201d 735 ILCS 110/25 (West 2008). Walsh has prevailed. As Walsh is the prevailing party, we remand to the trial court to determine all reasonable attorney fees and costs incurred in connection with the motion as provided by the Act.\nCONCLUSION\nThe trial court erred when it denied the motion under the Act. The appellate court erred when it dismissed the appeal as moot. We therefore reverse the judgment of the appellate court and the trial court orders entered on July 29, 2008, and August 19, 2008, and hold John Walsh enjoyed immunity from liability in this lawsuit under the Citizen Participation Act. We remand the cause to the circuit court to award Walsh reasonable attorney fees and costs incurred in connection with the motion.\nReversed and remanded.\nCurrently being considered is an amendment to Supreme Court Rule 306 to allow a permissive immediate appeal of the denial of a motion to dispose under the Citizens Participation Act.", "type": "majority", "author": "CHIEF JUSTICE FITZGERALD" }, { "text": "JUSTICE FREEMAN,\nspecially concurring:\nI agree with the court that this case must be remanded. I write separately only to address how litigation under the Citizen Participation Act must proceed, an important matter that is unfortunately overlooked in today\u2019s opinion.\nThe court correctly holds that the Act seeks to immunize citizens from civil actions based on acts made in furtherance of a citizen\u2019s free speech rights or right to petition government. 238 Ill. 2d at 633. Statutory immunity provisions are not uncommon \u2014 the Tort Immunity Act being a prime example. Section 15 of the Act does not, however, create a \u201cstand-alone\u201d motion as the court implies. See 238 Ill. 2d at 627, 629, 633, 640 (referring to the movant\u2019s motion variously as a \u201cmotion under the Act\u201d or as an \u201cAct motion\u201d). Section 15 states in relevant part:\n\u201cThis Act applies to any motion to dispose of a claim *** on the grounds that the claim is based on, relates to, or is in response to any act or acts *** of the moving party\u2019s rights of petition, speech, association, or to otherwise participate in government.\nActs in furtherance of [those rights] are immune from liability ***.\u201d 735 ILCS 110/15 (West 2008).\nSection 10 defines \u201cmotion\u201d to include \u201cany motion to dismiss, for summary judgment, or to strike, or any other judicial pleading filed to dispose of a judicial claim.\u201d 735 ILCS 110/10 (West 2008). Section 20 then expressly addresses considerations for disposition of such motions including, for example, when hearings must be held and the standard of proof the responding party must meet to defeat the motion. 735 ILCS 110/20 (West 2008). Section 20 also provides that the appellate court \u201cshall expedite any appeal or other writ, whether interlocutory or not, from a trial court order denying that motion.\u201d 735 ILCS 110/20(a) (West 2008).\nThese statutory provisions make clear that there is no such thing as an \u201cAct motion,\u201d as the court would have it. A movant can seek dismissal based on the immunity granted by the Act under section 2 \u2014 619(a)(9) for example. Such a motion allows for dismissal when the claim asserted against the defendant is barred by other \u201caffirmative matter avoiding the legal effect of or defeating the claim.\u201d 735 ILCS 5/2 \u2014 619(a)(9) (West 2008). The affirmative matter referred to encompasses \u201call defenses which rely on allegations which are not negations of the essential allegations of the plaintiff\u2019s cause of action.\u201d See 4 R. Michael, Illinois Practice \u00a741.7, at 331 (1989). The use of a section 2 \u2014 619 motion here would be no different than the use of the motion to seek dismissal under the Tort Immunity Act. See Midwest Bank & Trust Co. v. Village of Lakewood, 113 Ill. App. 3d 962 (1983) (and cases cited therein). Other examples of affirmative matter include, in defamation cases, defenses based on privilege, the innocent construction rule, fair comment and truth. See 4 R Michael, Illinois Practice \u00a741.7, at 331-32 (1989) (collecting cases).\nAccordingly, movants asserting immunity under the Act must do so pursuant to the normal means provided under the Code of Civil Procedure, as section 10 expressly directs. The movant here might have availed himself of section 2 \u2014 619(a)(9) to seek dismissal on the basis of immunity conferred by section 15 of the Act. See Kedzie & 103rd Currency Exchange, Inc. v. Hodge, 156 Ill. 2d 112, 115 (1993) (noting practice under section 2 \u2014 619 motions); 4 R. Michael, Illinois Practice \u00a741.8, at 333-35 (1989) (explaining that determination of a section 2 \u2014 619 motion can be made as a matter of law on affidavits alone or at the conclusion of an evidentiary hearing).\nIn any section 2 \u2014 619(a)(9) motion to dismiss, once an affirmative matter is properly raised which could defeat the claim, the plaintiff must then come forward with some evidence at least establishing a genuine issue of material fact, otherwise the motion will be granted. The only additional burden established by the Act on a plaintiff is that the plaintiff is required to come forward with clear and convincing evidence that a genuine issue of material fact exists in order to defeat the motion. 735 ILCS 110/20 (c) (West 2008). If such a material fact exists that cannot otherwise be resolved within the statutory provisions of section 2 \u2014 619, denial of the motion would be proper.\nThe use of a section 2 \u2014 619 motion would also avoid questions concerning appellate jurisdiction. If the motion is granted, attorney fees can then be awarded in furtherance of the legislative intent, and an appeal can follow normally as an appeal from a final judgment under Rule 302 (210 Ill. 2d R. 302). If the section 2 \u2014 619 motion is denied, however, the movant should ask the trial judge for a Rule 304(a) finding. See 210 Ill. 2d R. 304(a). Under that rule, an appeal may be taken from a final judgment as to one or more claims if the trial judge expressly finds that there is no just reason to delay the appeal. 210 Ill. 2d R. 304(a). The denial of a section 2 \u2014 619 motion based upon the Act would be a final judgment as to the ability of the defendant to recover statutory attorney fees and costs, as the court correctly notes. 238 Ill. 2d at 633-34. By granting such a request, trial judges would be giving effect to the legislative intent reflected in section 20(a) of the Act, i.e., that interlocutory appeals arising under the Act be heard sooner rather than later. This would further alleviate the need to amend the supreme court rules, in particular Rule 306, as is noted in today\u2019s opinion. 238 Ill. 2d at 629 n.l.\nThis case represents the court\u2019s first opportunity to address this relatively new piece of legislation yet the court fails to make clear how the Act\u2019s provisions are to be properly incorporated into the course of a lawsuit. At oral argument, one member of this court asked specifically about how the use of a freestanding motion fits within pretrial motion practice, particularly with respect to appeals from denials of such motions. That question is not answered today. Instead, the court\u2019s opinion virtually guarantees the filing of more stand-alone \u201cAct motions\u201d in lawsuits such as this. This is problematic because already the appellate court has called the constitutionality of the Act\u2019s interlocutory appeal provisions into question. Mund v. Brown, 393 Ill. App. 3d 994 (2009). In Mund v. Brown, the movant filed a stand-alone motion seeking dismissal pursuant to the Act. The trial court denied the motion, and the movant attempted to appeal the denial. The appellate court raised the issue of appellate jurisdiction sua sponte. In responding to the court\u2019s jurisdictional concerns, the movant argued that section 20 of the Act granted jurisdiction. In rejecting the argument, the appellate court noted that article VI, section 6, of the Illinois Constitution grants to the supreme court alone the power to make rules governing interlocutory appeals. Thus, a statute purporting to grant a right to an interlocutory appeal would not only violate section 6 of the Constitution but would also violate the separation of powers clause contained in article II, section 1. The appeal was then dismissed for lack of jurisdiction. Mund v. Brown, 393 Ill. App. 3d at 998-99 (petition for leave to appeal denied November 25, 2009).\nMund raises serious constitutional questions. Those litigants who file the freestanding motion referred to in today\u2019s opinion will face the same jurisdictional hurdle that the movant in Mund did. Presently, and presumably until Rule 306 is officially amended, there is no supreme court rule by which the denial of the freestanding motion can be appealed. If a supreme court rule does not grant the right to appeal from a nonfinal judgment, then there is no right to an interlocutory appeal and the appellate court does not have jurisdiction to hear the appeal. Hawes v. Luhr Brothers, Inc., 212 Ill. 2d 93 (2004).\nIn my view, this court should make explicit that the Act operates only in conjunction with normal practice under the Code of Civil Procedure. Doing so avoids the constitutional questions that arise with respect to appellate jurisdiction in cases involving interlocutory appeals taken from so-called freestanding Act motions. If the Act is interpreted as I suggest it must be, these concerns are of no moment. Through Rule 304(a), such interlocutory orders would be appealable, and the legislative intent for swift appeals can easily be achieved without constitutional concerns.\nIn all other respects, I join in the court\u2019s decision.\nJUSTICES THOMAS and BURKE join in this special concurrence.", "type": "concurrence", "author": "JUSTICE FREEMAN," } ], "attorneys": [ "Terrence J. Sheahan, Michael T. Franz and Joseph D. Newbold, of Freeborn & Peters LLI> of Chicago, for appellant.", "David B. Goodman and Joseph L. Cohen, of Shaw Gussis Fishman Glantz Wolfson & Towbin LLC, of Chicago, for appellee.", "Julie A. Bauer and Lindsay M. Beyer, of Winston & Strawn LLT^ of Chicago, and Christopher T. Bavitz, of Cambridge, Massachusetts, for amici curiae Citizen Media Law Project et al." ], "corrections": "", "head_matter": "(No. 109463.\nWRIGHT DEVELOPMENT GROUP, LLC, Appellee, v. JOHN WALSH et al. (John Walsh, Appellant).\nOpinion filed October 21, 2010.\nTerrence J. Sheahan, Michael T. Franz and Joseph D. Newbold, of Freeborn & Peters LLI> of Chicago, for appellant.\nDavid B. Goodman and Joseph L. Cohen, of Shaw Gussis Fishman Glantz Wolfson & Towbin LLC, of Chicago, for appellee.\nJulie A. Bauer and Lindsay M. Beyer, of Winston & Strawn LLT^ of Chicago, and Christopher T. Bavitz, of Cambridge, Massachusetts, for amici curiae Citizen Media Law Project et al." }, "file_name": "0620-01", "first_page_order": 632, "last_page_order": 657 }