WRIGHT DEVELOPMENT GROUP, LLC, Appellee, v. JOHN WALSH et al. (John Walsh, Appellant).
No. 109463
Supreme Court of Illinois
Opinion filed October 21, 2010.
238 Ill. 2d 620
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 LLP, of Chicago, and Christopher T. Bavitz, of Cambridge, Massachusetts, for amici curiae Citizen Media Law Project et al.
CHIEF JUSTICE FITZGERALD delivered the judgment of the court, with opinion.
Justices Kilbride, Garman, and Karmeier concurred in the judgment and opinion.
Justice Freeman specially concurred, with opinion, joined by Justices Thomas and Burke.
OPINION
In this appeal, we are asked if defendant John Walsh‘s statement to a reporter made during a public forum inside an alderman‘s office was immunized from a defamation lawsuit under the Citizen Participation Act (
BACKGROUND
The 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
Defendant John Walsh purchased a unit at 6030 North Sheridan Road (hereinafter 6030 building) and later became the 6030 N. Sheridan Condominium Association‘s 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.
On July 10, 2007, a public meeting was held at the office of the local alderman, Mary Ann Smith. The alderman‘s 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.
Walsh 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
During 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 “follow up” questions relating to the earlier provided information. Walsh believed his discussions with the reporter were “continuing to further participate in what the purpose of the meeting was” because he discussed the problems with his building, including the association‘s 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 “Wright Development Group” or “the Wright Group ***. Because that‘s what it is. It‘s the Wright Group. It‘s the Wrights.” He stated, “whenever I think of the developer, I think of the Wrights *** because to me that‘s the developer ***. I think of Andrew and Jamie.” He was unaware of the full, specific name “Wright Development Group, LLC,” prior to the lawsuit.
Walsh 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‘s telephone number.
The alderman‘s chief of staff stated, “The 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.” Alderman Smith further asked a special task force established by the City of Chicago‘s law department to investigate the outstanding problems experienced with certain buildings discussed at the public meeting. The City of Chicago‘s law department filed suit against several developers, general contractors, and lenders.
Walsh‘s 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 “Condo boom creates glut of horror stories,” referred to “Wright Development Group.” The introductory paragraph to the article states: “Among the signs of saturation in the city‘s condominium market is the barrage of complaints from new condo owners disillusioned by what they say are shoddy construction and shady deals.” The Pioneer article further provides, in part:
“After 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.
‘The 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,’ said John Walsch [sic], president of the 6030 N. Sheridan Road Condominium Association.
While 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.
‘We said no, and fired the management company and attorney,’ Walsch [sic] said.”
The remainder of the article detailed other citizen complaints and a plan of action by the City‘s law department.
On 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 “at 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].” Walsh and the other defendants responded to the complaint with various motions to dismiss under section
Walsh 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 July 29, 2008, the trial court held a hearing on Walsh‘s motion under the Act. At the hearing, the trial court ruled in open court in favor of Wright Development and denied Walsh‘s motion. In an oral statement, it held Walsh‘s statement to the reporter fell beyond the scope of the Act:
“Because I don‘t 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‘t give you the right to—it doesn‘t immunize you from every step that you are ever going to make outside of the meeting, and that‘s why I thought—because we had all this controversy about whether or not this reporter should be deposed. And that‘s 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‘t think the Act really applies here.”
In a subsequent colloquy with Walsh‘s counsel, the circuit court explained its understanding of the facts and of the Act:
“[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‘s office.
COURT: Doesn‘t matter.
[Counsel]: *** And, finally, his depositions show that all of the statements that were made to the reporter were
made at the Alderman‘s 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’ telephone number. He gave them the telephone number. So it‘s our belief that these were acts in furtherance of acts that are protected by—. COURT: 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‘s representative has left the room.[Counsel]: Your Honor, that‘s untrue. The deposition states that the Alderman‘s representative was still in the building when he left.
COURT: Well he had adjourned the meeting.
[Counsel]: Well, that is subject to dispute too your honor because our issue is that he was still at the Alderman‘s office as part of this public forum. There was a separate mingling session for which the Alderman‘s 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‘s representatives. So we don‘t believe the meeting ever ended.
COURT: Shouldn‘t this statute—I mean, I didn‘t look up any statutory construction tenets, but the interpretation of the common law, doesn‘t it have to be strictly construed?
[Counsel]: No, your honor, in fact, it actually says that it should be liberally construed.
COURT: Oh, okay.
[Wright Development‘s Counsel]: It does say that, your honor.”
The circuit court then asked Wright Development‘s counsel if Wright Development deserved attorney fees. After plaintiff‘s counsel responded in the negative, the trial court entered an order reflecting its rulings.
On August 12, 2008, Walsh filed a motion to reconsider or, alternatively, to enter Rule 308 findings (155 Ill.
Shortly after ruling on Walsh‘s motion under the Act, the circuit court granted Walsh‘s earlier filed section 2-615 motion to dismiss, and held Walsh‘s statements were not actionable under the innocent construction rule. It stated,
“This 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 ‘Wright Development Group’ and not the actual plaintiff herein ‘Wright Development Group, LLC.’ 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 ‘developers’ 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 ‘Wright Development Group’ in the article.”
After 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 2-615 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 2-615 dismissal order. The record does not reveal any motion to dismiss the appeal.
The appellate court, sua sponte, entered a Rule 23 order dismissing Walsh‘s appeal as moot. It stated, “In essence, Walsh got exactly the relief he sought (i.e., dismissal of the complaint), albeit on a different basis (i.e., pursuant to section 2-615 rather than the Act). Walsh‘s issue is moot because he has already obtained the relief he sought and, any action by this court would constitute an advisory opinion.” No. 1-08-2783 (unpublished order under Supreme Court Rule 23). We allowed Walsh‘s 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.
ANALYSIS
SLAPPs, or “Strategic Lawsuits Against Public Participation,” are lawsuits aimed at preventing citizens from exercising their political rights or punishing those who have done so. See generally P. 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.
In the Act‘s “public policy” section, the legislature states there has been “a disturbing increase” in SLAPPs in Illinois.
The Act states four explicit goals are in the “public interest.”
The 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‘s free speech rights or right to petition government (
Whether the Appeal Is Moot
Illinois courts “do not decide moot questions, render advisory opinions, or consider issues where the result will not be affected regardless of how those issues are decided.” In re Alfred H.H., 233 Ill. 2d 345, 351 (2009). Walsh argues the appellate court‘s 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‘s dismissal order ignored basic tenets of statutory construction because it failed to address the new rights conferred by the Act and the legislature‘s intent when it enacted the statute. Wright Development asserts that Walsh‘s sole basis to seek an appeal is the attorney fees; therefore, the case is moot 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
The 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 “act or acts” made “in furtherance of the constitutional rights to petition, speech, association, and participation in government.”
Further, there was, in fact, a potential injury to Walsh. Walsh was denied the relief requested in his Act motion to identify Wright Development‘s lawsuit as a SLAPP and for a statutory award of attorney fees and costs—an entitlement not available with the mere sec-
Immunity
We next review the trial court‘s ruling regarding whether defendant enjoyed immunity under the Act. The trial court‘s denial of Walsh‘s 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).
To trigger immunity, section 20 of the Act sets forth specific procedures for adjudicating a motion to dispose of a “claim” which is “based on, relates to, or is in response to” the exercise of a citizen‘s constitutional rights.
Turning to the instant case, section 15 of the Act requires Walsh, as the moving party, to show Wright Development‘s defamation complaint is “based on, relates to, or is in response to” acts Walsh made “in furtherance” of his “rights of petition, speech, association, or to otherwise participate in government.”
The gravamen of Wright Development‘s defamation claim is the statement Walsh made in an alderman‘s 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‘s office while the alderman‘s staff continued to converse with meeting participants in the mingling session. The statements to the reporter ad-
Therefore, Walsh‘s statements were “in furtherance of” 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.
Wright Development‘s Burden of Proof Under the Act
Because Walsh, as the moving party, met his burden under section 15 to show the complaint is “based on, relates to, or is in response to” Walsh‘s 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
Wright Development principally argues Walsh‘s petitioning activity was a “sham” or not “genuinely
Wright Development has not met its burden. Rather, Wright Development presents a fraction of the truth. Walsh testified as follows in response to Wright Development‘s counsel‘s questions:
“Q. And why did you say it‘s the group of the Wrights versus the Wright Group when you knew that the developer of the building was 6030 LLC?
A. Because that‘s the only thing I could think of when I was doing it, when I was saying it.
Q. You couldn‘t think of the developer being 6030, LLC?
A. No. I just—Whenever I think of the developer, I think of the Wrights.
Q. Why is that?
A. Because to me, that‘s the developer.
Q. Which Wrights do you think of?
A. I think of Andrew and Jamie.
Q. And when you are speaking to the reporter, that‘s who you were thinking of?
A. Yes.
Q. That‘s what you were trying to communicate to the reporter?
A. Uh-huh, yes.”
The unrebutted testimony by Walsh in his deposition establishes at the time Walsh made reference to the “Wright Development Group” 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 live
When viewed in this context, the natural reading of the Pioneer article is as a reference to the “group” involved in the condominium conversion and not the separate corporate entity—“Wright Development Group, LLC“—which filed the defamation suit. The trial court ruled similarly when it dismissed Wright Development‘s complaint under section 2-615. Thus, Wright Development has not produced “clear and convincing evidence” demonstrating Walsh‘s statements “are not immunized from, or are not in furtherance of acts immunized from, liability by this Act.”
We turn to the trial court‘s distinction concerning the statement “after” the meeting. The Act makes no such restriction. By its terms, the Act applies to “any motion to dispose of a claim in a judicial proceeding on the grounds that the claim is based on, relates to, or is in response to any act or acts of the moving party in furtherance of the moving party‘s rights of petition, speech, association, or to otherwise participate in government.” (Emphasis added.)
Each of Wright Development‘s remaining case law citations are distinguishable on their facts because they are based on Wright Development‘s rejected and unsubstantiated assertion that the Walsh‘s deposition shows he was intentionally 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.
Wright‘s Separation of Powers Argument
Wright 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‘s 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.1 (2005);
Whether Walsh Is Entitled to Fees and Costs
The Act provides: “The court shall award a moving party who prevails in a motion under this Act reasonable attorney‘s fees and costs incurred in connection with the motion.”
CONCLUSION
The 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.
Reversed and remanded.
JUSTICE FREEMAN, specially concurring:
I 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‘s opinion.
The court correctly holds that the Act seeks to immunize citizens from civil actions based on acts made in furtherance of a citizen‘s free speech rights or right to petition government. 238 Ill. 2d at 633. Statutory immunity provisions are not uncommon—the Tort Im-
“This 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‘s rights of petition, speech, association, or to otherwise participate in government.
Acts in furtherance of [those rights] are immune from liability ***.”
735 ILCS 110/15 (West 2008).
Section 10 defines “motion” to include “any motion to dismiss, for summary judgment, or to strike, or any other judicial pleading filed to dispose of a judicial claim.”
These statutory provisions make clear that there is no such thing as an “Act motion,” as the court would have it. A movant can seek dismissal based on the immunity granted by the Act under section 2-619(a)(9) for example. Such a motion allows for dismissal when the claim asserted against the defendant is barred by other “affirmative matter avoiding the legal effect of or defeating the claim.”
Accordingly, 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 2-619(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 2-619 motions); 4 R. Michael, Illinois Practice §41.8, at 333-35 (1989) (explaining that determination of a section 2-619 motion can be made as a matter of law on affidavits alone or at the conclusion of an evidentiary hearing).
In any section 2-619(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.
The use of a section 2-619 motion would also avoid questions concerning appellate jurisdiction. If the motion
This case represents the court‘s first opportunity to address this relatively new piece of legislation yet the court fails to make clear how the Act‘s 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‘s opinion virtually guarantees the filing of more stand-alone “Act motions” in lawsuits such as this. This is problematic because already the appellate court has called the constitutionality of the Act‘s 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
Mund raises serious constitutional questions. Those litigants who file the freestanding motion referred to in today‘s 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).
In 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.
JUSTICES THOMAS and BURKE join in this special concurrence.