Sandholm v. Kuecker

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

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT
______________________________________________________________________________

STEVE SANDHOLM, ) Appeal from the Circuit Court
) of Lee County.
Plaintiff-Appellant and )
Cross-Appellee, )
)
v. ) No. 08--L--19
)
RICHARD KUECKER, ARDIS KUECKER, )
GLEN HUGHES, AL KNICKREHM, TIM )
OLIVER, DAN BURKE, DAVID DEETS, )
MARY MAHAN-DEATHERAGE, NRG )
MEDIA, LLC, GREG DEATHERAGE, )
ROBERT SHOMAKER, and NEIL )
PETERSEN, )
)
Defendants-Appellees and )
Cross-Appellants ) Honorable
) David L. Jeffrey,
(Michael Venier, Defendant-Appellee). ) Judge, Presiding.
______________________________________________________________________________

JUSTICE BOWMAN delivered the opinion of the court:

Plaintiff, Steve Sandholm, appeals the trial court's dismissal of his complaint, which alleged

various counts of defamation, false light, and tortious interference, against defendants, Richard

Kuecker, Ardis Kuecker, Glen Hughes, Michael Venier, Al Knickrehm, Tim Oliver, Dan Burke,

David Deets, Mary Mahan-Deatherage, NRG Media, LLC, Greg Deatherage, Robert Shomaker, and

Neil Petersen. The trial court dismissed plaintiff's complaint upon finding that the Citizen

Participation Act (Act) (735 ILCS 110/1 et seq. (West 2008)) provided defendants immunity from
No. 2--09--1015

the claims alleged by plaintiff. Plaintiff appeals, arguing that the Act is unconstitutional and,

alternatively, does not apply to the facts alleged in his complaint. Except Venier, defendants cross-

appeal the attorney fee award, arguing that the trial court improperly limited the fees they could

recover to those connected to the motion to dismiss. We affirm the judgment of the trial court on

all points.

I. BACKGROUND

This is a case of first impression involving interpretation of the Act, Illinois's anti-SLAPP

("Strategic Lawsuit Against Public Participation") statute. The term "SLAPP" was developed by

University of Denver professors George Pring and Penelope Canan, and the "Public Participation"

referred to involves concerned citizens acting primarily on matters relating to the public interest. See

M. Sobczak, SLAPPed in Illinois: The Scope and Applicability of the Illinois Citizen Participation

Act, 28 N. Ill. U. L. Rev. 559, 563 (Summer 2008). In a typical SLAPP case, citizens oppose a

developer's plan and petition their local government to stop the developer in some way. The

developer then sues the citizens for intentional interference with prospective business and eventually

the lawsuit is thrown out, but the citizens are financially strained in the process of defending the suit.

While the Act's clear objective as an anti-SLAPP statute is to provide citizens with an

immediate way to dispose of such lawsuits, the Act was written more broadly than such statutes in

other states and more broadly than Pring and Canan had defined. SLAPP lawsuits were originally

defined as involving a right to petition and a matter of public concern. M. Sobczak, SLAPPed in

Illinois: The Scope and Applicability of the Illinois Citizen Participation Act, 28 N. Ill. U. L. Rev.

559, 573 (Summer 2008). The Act exceeds that definition by including the rights to speak,

assemble, or otherwise participate in government, and it is not limited to matters of social or civic

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concern. The ramifications of the Act are presented before this court in the context of a defamation

lawsuit. The facts below are derived from the record before us.

On April 25, 2008, plaintiff filed his initial complaint, which was later amended on May 9,

2008, June 27, 2008, and November 17, 2008. The third amended complaint alleged the following.

Plaintiff was hired as a teacher and head basketball coach at Dixon High School for the 1999-2000

school year. For the 2003-04 school year, plaintiff was assigned the additional position of athletic

director for Dixon High School. Plaintiff had always received positive performance evaluations

during his time at Dixon High School. Beginning in February 2008, defendants started a campaign

to have plaintiff removed as basketball coach and athletic director due to their disagreement with his

coaching style. Defendants approached principal Michael Grady, superintendent James Brown, and

members of the Dixon School District Board to complain about plaintiff's coaching style and

performance. When the board and school administration did not remove plaintiff from those

positions, defendants continued to campaign against him, forming a group known as the "Save Dixon

Sports Committee."

Count I alleged defamation per se against Richard Kuecker. Richard published defamatory

statements concerning plaintiff'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 letter made defamatory and false statements including that plaintiff only

criticized athletes, badgered, humiliated, and bullied players, and was excessively abusive. Richard

sent to the school board a petition making similar accusations, which was also posted on the Web

site. On March 21, 2008, on WIXN radio, AM 1460, Richard, along with Michael Venier, Glen

Hughes, and Al Knickrehm, discussed his dissatisfaction with the school board's failure to remove

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plaintiff as coach. Knickrehm was the general manager of the radio station, and he had requested

that the others appear on the program. Richard stated on the program that plaintiff adversely

performed his job, that his coaching philosophy was to verbally abuse, bully, discourage, and

desecrate players, and that 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 Web site were additional statements from Richard and others criticizing plaintiff's

coaching style and the school board's failure to remove him as coach and athletic director. Richard

e-mailed to Matt Trowbridge, a reporter for the Rockford Register Star, defamatory statements,

including that plaintiff was a bad coach and an embarrassment to the community and that his abusive

behavior amounted to bullying.

An April 10, 2008, letter addressed to Doug Lee, the president of the Dixon school board,

was signed by Richard and other members of the "Save Dixon Sports Committee" and published on

the Web site. The letter described plaintiff as verbally abusive and unfit to hold the positions that

he held. The letter further described defendants' complaints about the school board and the

administration not conducting a full investigation and their failure to address the complaints 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.

Count I alleged that Richard's defamatory statements: imputed to plaintiff an inability to

perform his job and/or a lack of integrity in the discharge of his duties; prejudiced plaintiff's ability

to perform his duties; and implied that he engaged in criminal activity.

Count II alleged defamation per se against Glen Hughes and reiterated much of the same

conduct alleged against Richard. Count III alleged defamation per se against Michael Venier and

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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 "criticizing to the brink of abuse, demands bordering on slavery, [and] serious void of true

citizenship." Count IV alleged defamation per se against Tim Oliver, alleging much of the same

conduct alleged against Richard and the others. Counts V and VI alleged defamation per se against

Dan Burke and Mary Mahan-Deatherage, respectively, alleging much of the same conduct alleged

against Richard and the 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 instances of abuse over 10 years...isn't that enough to fire him?" Counts VII and VIII

alleged defamation per se against David Deets and Greg Deatherage, respectively, and alleged much

of the same conduct alleged against the others. Additionally, Greg was alleged to have published

Richard's February 28 letter on the Northern Illinois Sports Beat Web site. On March 23, 2008, Greg

published on that Web site statements that plaintiff was a "psyco [sic] nut [who] talks in circles and

is only coaching for his glory" and that he did not care about the players. On April 10, also on that

site, Greg wrote about plaintiff, "It is his twisted pshyco [sic] babble and his abuse 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 also allegedly wrote on the Web site saukvalleynews.com that plaintiff abused his

power, that plaintiff claimed that girls' sports were not really sports, that plaintiff stated that the

Dixon Boosters were a bunch of losers, that plaintiff thought that anyone who did not play basketball

was not loyal, and that plaintiff stated that he did not owe the people of Dixon anything.

Count IX alleged defamation per se against Ardis Kuecker, alleging much of the same

conduct alleged against the others. In addition, a letter to the editor written by Ardis was attached.

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Ardis's letter was published on March 26, 2008, and stated that plaintiff utilized verbal and

emotional abuse, bullying, and belittling in his coaching style. On March 12, 2008, Ardis stated to

superintendent James Brown that during timeouts plaintiff yelled instead of prepared, that he would

pick out a "whipping boy" each year, that he was a negative person, and that she feared retaliation

from him. Count X alleged defamation per se against Robert Shomaker and alleged that

Shomaker wrote a letter to school board member Carolyn Brechon. In the April 10, 2008, letter,

Shomaker stated that plaintiff had threatened Shomaker's son that his bad attitude would prevent him

from making the varsity team, and he added that many other parents had similar stories about

plaintiff's threatening behaviors. Shomaker also e-mailed Brechon on February 29, 2008, and stated

that plaintiff's half-time speeches were profanity-laced, that he used profanity during practices as

well, and that he called his players "fucking morons."

Count XI alleged defamation per se against Al Knickrehm. Knickrehm was the general

manager of NRG Media, which operated AM and FM radio stations in Dixon. The count alleged

that Knickrehm made defamatory statements by participating in the petition to the school board to

have plaintiff removed. Additionally, Knickrehm invited Michael Venier, Richard Kuecker, and

Glen Hughes to appear on the program on his radio station on March 21, 2008. During the program,

defamatory statements were made about plaintiff, as summarized in the description of the count

against Richard. Knickrehm further allowed the "Save Dixon Sports Committee" to post the radio

program on its Web site for repeated publication. On April 16, 2008, Knickrehm told reporter

Trowbridge that plaintiff had "absolutely ripped the management of WIXN on its own radio station."

Count XII alleged defamation per se against NRG Media, LLC, making the same allegations as count

XI.

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Plaintiff alleged false light and invasion of privacy, alleging the same conduct described in

the defamation counts, in the following counts: count XIII (Michael Venier); count XIV (Richard

Kuecker); count XV (Glen Hughes); count XVI (Mary Mahan-Deatherage); count XVII (David

Deets); count XVIII (Dan Burke); count XIX (Tim Oliver); count XX (Greg Deatherage); count XXI

(Al Knickrehm); count XXII (NRG Media, LLC); and count XXVI (Robert Shomaker).

Count XXIII alleged interference with plaintiff's business expectancy, alleging the same

conduct that supported the defamation per se and false light claims.

Count XXIV alleged 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 school board's

proposed code-of-conduct response to the complaints about plaintiff was a "slap in the face" to

parents and that the board's decision to retain plaintiff was jeopardizing funding from local business

entities for extracurricular activities. Count XXV alleged against Petersen intentional interference

with plaintiff's business expectancy, for the same statements supporting count XXIV.

On April 23, 2008, the school board removed plaintiff as basketball coach, but he was

retained as the school's athletic director.

On July 3, 2008, in response to plaintiff's second amended complaint, NRG Media and

Knickrehm filed a motion to dismiss pursuant to section 2--615 of the Code of Civil Procedure

(Code) 735 ILCS 5/2--615 (West 2008)1, arguing that the Act barred plaintiff's claims, that the

alleged statements were protected opinions, that plaintiff failed to allege facts supporting that any

statement was made with actual malice, which was a required element because plaintiff was a public

1
The motion to dismiss was a combined motion under sections 2--615 and 2--619 of the

Code, although the motion itself references only section 2--615.

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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 July 7, Glen Hughes, Tim Oliver, Dan Burke, David

Deets, Mary Mahan-Deatherage, and Greg Deatherage filed a similar motion to dismiss. On July

8, Richard and Ardis Kuecker and Robert Shomaker and Neil Petersen filed similar motions to

dismiss.

On August 26, 2008, the trial court heard the motions to dismiss. After the parties'

arguments, 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

added count XXVI. In the meantime, on December 10, 2008, the trial court issued a detailed

memorandum opinion and order on the matter. We summarize the trial court's order now, and we

will further explore these issues in our analysis section.

The trial court acknowledged that defendants moved to dismiss under section 2--615 of the

Code, attacking the legal sufficiency of the complaint. However, defendants argued that the

complaint should be dismissed for numerous reasons and that the Act provided the most well-

founded reason. In reviewing the Act's history, public policy, intent, and broad-reaching language,

the trial court determined that the Act barred plaintiff's complaint. The trial court stated that the Act

applied to any claim based on, related to, or in response to any act or acts of the moving party in

furtherance of the moving party's rights to petition, speak, assemble, or otherwise participate in

government. In this case, defendants first sought action at a school board meeting but were unhappy

with the result. Defendants sought to gain support for their position by publicizing their grievances

against plaintiff, and their conduct did result in a reconsideration of the school board's initial

decision.

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The trial court acknowledged that section 15 of the Act appeared ambiguous in that it both

excluded inquiry as to the subjective intent or purpose of the acts in furtherance of the moving party's

rights and then included inquiry as to the genuine 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), which adopted the Noerr-Pennington

doctrine--derived from Eastern R.R. Presidents Conference v. Noerr Motor Freight, 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, 14 L. Ed. 2d 626, 85 S. Ct. 1585 (1965). The gist of this doctrine is that even if a

speaker was motivated by an illegal purpose in petitioning the government, as long as the actions

constituted a genuine effort at petitioning for government action, they were immune from liability.

City of Columbia, 499 U.S. at 380, 113 L. Ed. 2d at 398, 111 S. Ct. at 1354. The only exception,

known as the "sham" exception, applies when the speaker's actions were not genuinely aimed at

procuring government action. City of Columbia, 499 U.S. at 380, 113 L. Ed. 2d at 398, 111 S. Ct.

at 1354. Thus, the trial court concluded that the ambiguity was to be resolved by determining

whether the speaker's acts were genuinely aimed at procuring favorable government action and that

an inquiry into the subjective intent or malice is not allowed unless the objective test fails. Having

determined that defendants here acted in furtherance of their desire that the school board remove

plaintiff as coach and athletic director, the trial court held that the Act barred plaintiff's complaint

in its entirety. It dismissed all 25 counts of plaintiff's second amended complaint.

On December 29, 2008, plaintiff moved for reconsideration. On January 2, 2009, defendants

objected to plaintiff's motion for leave to file a third amended complaint. On March 30, 2009,

defendants collectively moved for reasonable attorney fees under section 25 of the Act. On May 15,

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2009, the trial court denied plaintiff's motion to reconsider. It also addressed plaintiff's third

amended complaint, stating that much of the complaint was identical to the second amended

complaint. The only new allegations were contained in counts X and XXVI against Shomaker.

Specifically, the amendments addressed alleged defamatory conduct in May or June 2008. The court

allowed the third amended complaint to be filed as to counts X and XXVI. Shomaker 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 Act barred plaintiff's action.

On May 18, 2009, Clark, Justen & Zucchi filed an affidavit in support of attorney fees

totaling $15,991.28, for work performed on behalf of Venier. Dixon & Giesen filed an affidavit in

support of attorney fees totaling $26,295.88, for work performed on behalf of Oliver, Burke, Deets,

the Deatherages, Hughes, Shomaker, and Petersen. Pignatelli & Mertes filed an affidavit in support

of attorney fees 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

NRG Media and Knickrehm. Plaintiff objected to the attorney fees claimed by McGuireWoods,

arguing that such fees were unreasonable and unconscionable.

On July 15, 2009, the trial court rendered 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 case

that dealt with the application of the Act. The parties had spent a substantial amount of time

advocating other potential defenses besides the Act, and there was no provision for attorney fees for

those defenses. The court further did not accept costs for travel time for attorneys who resided

outside Lee County. The trial court noted the disparity in hourly fees, which ranged from $140 per

hour to $508 per hour. The court determined that the reasonable hourly rate rested at $200 and that

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any fees charged in excess of $200 per hour would not be granted. The court further rejected

McGuireWoods' charges for assistants, librarians, and WestLaw, as those were overhead costs; it

also rejected McGuireWoods' charges for an attorney who was retained by an insurance company

and was not an attorney with McGuireWoods. The court ordered the parties to revise their fee

petitions accordingly.

As ordered, counsel for the various defendants filed revised petitions as follows: Pignatelli

& Mertes, on behalf of the Kueckers, $1,560; Clark, Justen & Zucchi, on behalf of Venier,

$11,229.28; Dixon & Giesen, on behalf of Oliver, Burke, Deets, the Deatherages, Hughes,

Shomaker, and Petersen, $8,771.50; and McGuireWoods, on behalf of NRG Media and Knickrehm,

$32,940. All attorneys filed motions for reconsideration 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.

On September 18, 2009, the trial court issued its final order, stating that it believed $200 per

hour was the reasonable hourly rate charged by attorneys in Lee County for this type of legal work.

It also believed that section 25 of the Act limited attorney fees to those incurred in connection with

the motions based on the Act. Plaintiff did not respond to the revised fee petitions. The court

granted the fees contained in the revised petitions.

Plaintiff timely appealed, seeking reversal of the dismissal of his complaint and reversal of

the award of attorney fees. Except Venier, defendants all timely filed notices of cross-appeal,

seeking expansion of the attorney fee awards to include those fees associated with the entire defense.

II. ANALYSIS

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On appeal, plaintiff argues that: (1) the Act deprives him of his constitutional right to

remedies for his injuries; (2) the Act is unconstitutional because it violates the due process and equal

protection clauses; (3) defendants' conduct was not performed 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 constitutional rights of persons to petition and participate in the

government. Defendants counter that the Act is broad, applicable to the facts of the case at bar, and

constitutional, both facially and as applied. Thus, the trial court did not err in applying the Act and

dismissing plaintiff's complaint.

At oral argument, the parties acknowledged there was some confusion as 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 trial court's references to dismissal 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 ILCS 5/2--619(a)(9) (West 2008)), since it does not attack the legal sufficiency of a

claim but rather provides another method to defeat the claim. See 735 ILCS 110/20 (West 2008).

A motion to dismiss under section 2--619 admits the legal sufficiency of the plaintiff's complaint but

asserts an affirmative defense or other matter that avoids or defeats the plaintiff's claims. River Plaza

Homeowner's Ass'n v. Healey, 389 Ill. App. 3d 268, 275 (2009). Likewise, we would consider the

facts legally sufficient when considering dismissal under the Act. The Code allows for a combined

motion to dismiss with respect to sections 2--615 and 2--619. 735 ILCS 5/2--619.1 (West 2008).

"A combined motion, however, shall be in parts. Each part shall be limited to and shall specify that

it is made under one of Sections 2--615, 2--619, or 2--1005." 735 ILCS 5/2--619.1 (West 2008).

The Code further provides that each part shall clearly show the points or grounds relied upon under

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the section upon which it is based. 735 ILCS 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.

Although "hybrid" motions are improper, a reviewing court will review the dismissal 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., 286 Ill. App. 3d 48, 63 (1996). Here,

although the grounds for defendants' motions were somewhat intertwined, it does not appear that

plaintiff was prejudiced, as there was no objection to the manner in which defendants presented their

motions and no party raises this issue on appeal. Further, the Act provides a new procedural method

for dismissal, and defendants' arguments pertaining to the Act were separated sufficiently to be

understood. Therefore, we will review the dismissal pursuant to the Act, using section 2--619

principles as guidelines.

The purpose of a section 2--619 motion is to dispose of issues of law and easily proved issues

of fact early in the litigation. Czarobski v. Lata, 227 Ill. 2d 364, 369 (2008). When ruling on a

section 2--619 motion, the court must construe the pleadings and supporting documents in the light

most favorable to the nonmoving party. Czarobski, 227 Ill. 2d at 369. The court must accept as true

all well-pleaded facts in the plaintiff's complaint and all inferences that can reasonably be drawn in

the plaintiff's favor. Barber v. American Airlines, Inc., 398 Ill. App. 3d 868, 878 (2010). In ruling

on the motion to dismiss, the court may consider pleadings, depositions, and affidavits on record.

Barber, 398 Ill. App. 3d at 878. The reviewing court must consider whether the existence of a

genuine issue of material fact should have precluded the dismissal or, absent an issue of material

fact, whether dismissal was proper as a matter of law. Czarobski, 227 Ill. 2d at 369. Even if the trial

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court dismissed on an improper ground, we may affirm the dismissal on any proper basis found in

the record. Barber, 398 Ill. App. 3d at 878. Our review is de novo. Czarobski, 227 Ill. 2d at 369.

The Act, which became effective August 28, 2007, is relatively short. Section 5 declares the

Act's public policy, which we quote in relevant part:

"[I]t is declared to be the public policy of the State of Illinois that the constitutional

rights of citizens and organizations to be involved and participate freely in the process of

government must be encouraged and safeguarded with great diligence. ***

Civil actions for money damages have been filed against citizens and organizations

of this State as a result of their valid exercise of their constitutional rights to petition, speak

freely, associate freely, and otherwise participate in and communicate with government.

There has been a disturbing increase in lawsuits termed 'Strategic Lawsuits Against Public

Participation' in government or 'SLAPPs' as they are popularly called.

The threat of SLAPPs significantly chills and diminishes citizen participation in

government ***. This abuse *** has been used as a means of intimidating, harassing, or

punishing citizens *** for involving themselves in public affairs.

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 rights of persons to

petition, speak freely, associate freely, and otherwise participate in government; to protect

and encourage public participation in government to the maximum extent permitted by law;

to establish an efficient process for identification and adjudication of SLAPPs; and to

provide for attorney's fees and costs to the prevailing movants." 735 ILCS 110/5 (West

2008).

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Section 15 of the Act provides:

"Applicability. This 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.

Acts in furtherance 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."

735 ILCS 110/15 (West 2008).

Section 20 guides motion practice relating to the Act. Section 20(a) provides that upon the

filing of any motion under section 15, "a hearing and decision on the motion must occur within 90

days after notice of the motion is given to the respondent." 735 ILCS 110/20(a) (West 2008). We

note that plaintiff, in his motion for reconsideration, argued that the trial court lost jurisdiction to rule

upon the 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 delays were due to plaintiff's filing

amended complaints. The parties have not raised this issue on appeal.

Section 20(a) further provides that the "appellate court shall expedite any appeal or other

writ, whether interlocutory or not, from a trial court order denying that motion or from a trial court's

failure to rule." 735 ILCS 110/20(a) (West 2008). Here, the trial court granted 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 regarding interlocutory

jurisdiction and unenforceable).

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Section 20(c) provides that the "court shall grant the motion and dismiss the judicial claim

unless the court finds that the responding party has produced clear and convincing evidence that the

acts of the moving party are not immunized from, or are not in furtherance of acts immunized from,

liability by this 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 bars the plaintiff's claims, to the

nonmoving party, who must show that the Act does not apply. See Kedzie & 103rd Currency

Exchange v. Hodge, 156 Ill. 2d 112, 116 (1993) (the defendant has the burden of 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 resolution of an issue of material fact before it is

proven.

A. Overview of Defamation Law

Before progressing, we briefly discuss the general principles of defamation law, as the Act

changes the common-law rules of defamation by protecting otherwise defamatory speech when made

while exercising one's right to petition government. A statement is defamatory if it tends to harm

a person's reputation to the extent that it lowers that person in the eyes of the community or deters

others from associating with that person. Tuite v. Corbitt, 224 Ill. 2d 490, 501 (2006). Statements

may be considered defamatory per se or per quod. Tuite, 224 Ill. 2d at 501. A statement is

defamatory per se if its defamatory character is obvious and apparent on its face and injury to the

plaintiff's reputation may be presumed. Tuite, 224 Ill. 2d at 501. Plaintiff here alleged only

defamation per se. There are five categories of per se defamatory statements: (1) statements

imputing the commission of a crime; (2) statements imputing infection with a loathsome

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communicable disease; (3) statements imputing an inability to perform or want of integrity in

performing employment duties; (4) statements imputing a lack of ability or otherwise prejudicing

a person in his or her profession or business; and (5) statements imputing adultery or fornication.

Tuite, 224 Ill. 2d at 501.

Several situations may render otherwise per se defamatory statements not actionable. For

instance, a defendant is not liable for a defamatory statement if the statement is true; only substantial

truth is required for this defense to apply. J. Maki Construction Co. v. Chicago Regional Council

of Carpenters, 379 Ill. App. 3d 189, 203 (2008). A per se defamatory statement is not actionable if

it is reasonably capable of an innocent construction. Solaia Technology, LLC v. Specialty Publishing

Co., 221 Ill. 2d 558, 580 (2006). Likewise, 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 statement implicates first

amendment protection. Couching a factual assertion as an opinion will not free it from a defamation

claim. J. Maki, 379 Ill. App. 3d at 200. Other limitations are also implicated when the first

amendment is triggered in certain situations. See Gertz v. Welch, 418 U.S. 323, 342-43, 41 L. Ed.

2d 789, 807, 94 S. Ct. 2997, 3008-09 (1974) (public figures may recover for injury to reputation only

on clear and convincing proof that the defamatory falsehood was made with knowledge of its falsity

or reckless disregard for truth or with "actual malice," whereas private individuals do 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 qualified privilege. Solaia, 221 Ill. 2d at

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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 private citizens during legislative proceedings are absolutely privileged (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 proceedings (Bushell v. Caterpillar,

Inc., 291 Ill. App. 3d 559, 561-64 (1997)). An absolute privilege provides a complete bar to a

defamation claim, regardless of the defendant's motive or the unreasonableness of the conduct.

Naleway v. Agnich, 386 Ill. App. 3d 635, 639 (2008). "A qualified privilege protects

communications that would normally be defamatory and actionable, in order to effect the policy of

protecting honest communications of misinformation in certain favored circumstances and thus

facilitate the availability of correct information." Naleway, 386 Ill. App. 3d at 639. A qualified

privilege, however, may be exceeded and the privilege is defeated in circumstances where the

defendant makes false statements with an intent to injure or with reckless disregard for the truth.

Naleway, 386 Ill. App. 3d at 639. Three types of situations in which a conditional or qualified

privilege exists are: (1) situations that involve some interest of the person who publishes the

defamatory matter; (2) situations that involve some interest of the person to whom the matter is

published or of some third person; and (3) situations that involve a recognized interest of the public.

Myers v. Levy, 348 Ill. App. 3d 906, 914 (2004).

Plaintiff also alleged several false light claims. A false light claim must allege that: (1) the

defendant's actions placed the plaintiff in a false light before the public; (2) the false light would be

highly offensive to a reasonable person; and (3) the defendant acted with actual malice, that is, with

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knowledge of the falsity of the statement or with a reckless disregard for whether the statement was

true or false. Duncan v. Peterson, 359 Ill. App. 3d 1034, 1047 (2005).

With this framework of defamation law in mind, the Act alters existing defamation law by

providing a new, qualified privilege for any defamatory statements communicated in furtherance of

one's right to petition, speak, assemble, or otherwise participate in government. The privilege is

qualified because it may be exceeded if the statements are not made with the genuine aim at

procuring a favorable government action. With this understanding of the Act, we proceed to

consider plaintiff's claim that the Act is unconstitutional and, alternatively, that it does not apply to

the facts of this case.

B. Constitutionality of the Act

Plaintiff first attacks the Act's constitutionality in two different ways: (1) it violates his right

to a remedy for his injuries; and (2) it violates the due process and equal protection clauses of the

Illinois and United States Constitutions.

Article I, section 12, of the Illinois Constitution provides:

"Every person shall find a certain remedy in the laws for all injuries and wrongs

which he receives to his person, privacy, property or reputation. He shall obtain justice by

law, freely, completely, and promptly." Ill. Const. 1970, art. I, §12.

Plaintiff argues, albeit briefly and unsupported by case law, that the Act provides blanket immunity,

allowing violations of his right to privacy and allowing persistent per se defamatory statements to

be made about him with no remedy for the damage to his reputation. We reject plaintiff's argument.

Article I, section 12, has been held to represent an expression of philosophy rather than a mandate

for a certain remedy in any specific form. Defend v. Lascelles, 149 Ill. App. 3d 630, 642 (1986).

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The Defend court acknowledged that persons defamed in judicial proceedings have been left without

redress because of the public policy favoring the free and open administration of justice, and it cited

to Nolin v. Nolin, 68 Ill. App. 2d 54 (1966), for support that article I, section 12, has never been

interpreted to abolish immunities extended for the protection of a recognized public interest.

Defend, 149 Ill. App. 3d at 642-43. Other privileges or immunities have been determined not to

violate section 12 of article I, as well. See Michigan Avenue National Bank v. County of Cook, 191

Ill. 2d 493, 519-20 (2000) (holding Tort Immunity Act did not violate constitutional right to remedy);

Steffa v. Stanley, 39 Ill. App. 3d 915 (1976) (finding spousal immunity did not violate constitutional

right to remedy). The legislature has the inherent power to repeal or change the common law and

may do away with all or part of it. Michigan Avenue, 191 Ill. 2d at 519. Here, the legislature

specifically stated that the purpose of the Act was to protect the rights of citizens to participate freely

in government and government processes. Contrary to plaintiff's characterization that the Act

provides "blanket immunity" for persons to defame others, the Act provides protection for such

statements only when made "in furtherance of the moving party's rights of petition, speech,

association, or to otherwise participate in government." 735 ILCS 110/15 (West 2008). The Act

provides a qualified privilege, granting more protection for speech than the common law provides,

when the speech occurs in the exercise of the right to participate in government. Thus, the

legislature's enactment of the Act cannot be said to violate section 12 of article I of the Illinois

Constitution.

Next, plaintiff argues that the Act deprived him of his due process and equal protection rights

under both the Illinois and United States Constitutions. He argues that the Act creates a separate

classification of persons--public employees--who, unlike others outside that class, are deprived of

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remedies for personal injuries. The guarantee of equal protection requires that the government treat

similarly situated individuals in a similar manner. Jacobson v. Department of Public Aid, 171 Ill.

2d 314, 322 (1996). While the State is not precluded from enacting legislation that draws

distinctions between different categories of people, the State is prohibited from according different

treatment to persons who have been placed in different categories on the basis of criteria wholly

unrelated to the purpose of the legislation. Jacobson, 171 Ill. 2d at 322. In reviewing a claim that

a statute violates equal protection, the court applies different levels of scrutiny, depending on the

nature of the statutory classification involved. Jacobson, 171 Ill. 2d at 322-23. Classifications based

on race or national origin or affecting fundamental rights are strictly scrutinized. Jacobson, 171 Ill.

2d at 323. Intermediate scrutiny applies to discriminatory classifications based on sex or

illegitimacy. Jacobson, 171 Ill. 2d at 323. In all other cases, the court employs only a rational basis

review. Jacobson, 171 Ill. 2d at 323.

In this case, plaintiff argues that the Act unequally affects public employees, which would

trigger rational basis review. However, in reading the plain language of the statute, we cannot agree

that the Act places public employees in a special category at all. The Act applies to any moving

party whose alleged acts were in furtherance of the moving party's rights to petition, speak, assemble,

or otherwise participate in government. Plaintiff himself, a government employee, may use the Act

as a shield if he were facing a similar lawsuit for his participation in a government process. We

reject plaintiff's allusion that Jarrow Formulas, Inc. v. LaMarche, 31 Cal. 4th 728, 74 P.3d 737, 3

Cal. Rptr. 3d 636 (2003), somehow supports his position that anti-SLAPP statutes are misused in

protecting tortious misconduct. Jarrow merely held that a malicious prosecution claim, while

covered by California's anti-SLAPP statute, was properly dismissed under the statute because the

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No. 2--09--1015

plaintiff failed to prove that it had a probability of prevailing on the claim. Jarrow, 31 Cal. 4th at

742-44, 74 P.3d at 746-47, 3 Cal. Rptr. 3d at 646-48. Further, California's statute is much less broad

than the Act and thus its case law, while perhaps instructive, is not persuasive. See Cal. Civ. Proc.

Code §425.16 (West 2010). Therefore, we reject plaintiff's equal protection argument because the

Act applies to all citizens meeting the criteria for its application. It is true that if plaintiff were

employed by a private school, the Act likely would not apply because his removal would not involve

a government process or achieving a government result, but that is because the intention of the

statute is to protect citizens' constitutional rights to participate in government, not to get involved

in privately operated businesses.

At oral argument and in his reply brief, plaintiff rejected defendants' claim that the Act is

constitutional because remedies have been removed by other statutes that provide absolute or

qualified privileges, such as judicial proceedings privileges or those provided by the Local

Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (745 ILCS

10/1--101 et seq. (West 2006)). Plaintiff raised Myers and McDonald 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 parent made public statements against a high school football coach, seeking his removal.

Myers, 348 Ill. App. 3d at 910. The coach filed a defamation lawsuit; the defendant moved for

summary judgment; and the trial court granted summary judgment on the basis that the statements

were privileged because they were directed toward the school, a governmental body. Myers, 348 Ill.

App. 3d at 912. The trial court further concluded that the defendant did not act with actual malice,

because he genuinely believed the veracity of his statements, including statements about the coach's

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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 apply in the context of defamation claims. Myers,

348 Ill. App. 3d at 918. Instead, this court applied McDonald and declined to elevate the right to

petition to an absolute immunity for defamatory statements. Myers, 348 Ill. App. 3d at 919.

In McDonald, the plaintiff sued the defendant for sending libelous letters to President Reagan

with the intention that he not hire the plaintiff for a United States Attorney position. McDonald, 472

U.S. at 480, 86 L. Ed. 2d at 387, 105 S. Ct. at 2789. The defendant moved for a judgment on the

pleadings, arguing that the petition clause of the first amendment provided absolute immunity for

his statements. McDonald, 472 U.S. at 481, 86 L. Ed. 2d at 387, 105 S. Ct. at 2789. The Supreme

Court disagreed, stating that it was not prepared to conclude that "the Framers of the First

Amendment understood the right to petition to include an unqualified right to express damaging

falsehoods in exercise of that right." McDonald, 472 U.S. at 484, 86 L. Ed. 2d at 389, 105 S. Ct. at

2790. The Supreme Court further stated that "[t]o accept petitioner's claim of absolute immunity

would elevate the Petition Clause to special First Amendment status," despite the fact that the

petition clause was "inspired by the same ideals of liberty and democracy that gave us the freedoms

to speak, publish, and assemble." McDonald, 472 U.S. at 485, 86 L. Ed. 2d at 390, 105 S. Ct. at

2791. The Supreme Court found "no sound basis for granting greater constitutional protection to

statements made in a petition" than other first amendment expressions, stating that "the right to

petition is guaranteed; the right to commit libel with impunity is not." McDonald, 472 U.S. at 485,

86 L. Ed. 2d at 390, 105 S. Ct. at 2791.

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Prior to Myers, the Noerr-Pennington doctrine was extended to civil claims outside the

antitrust arena. King v. Levin, 184 Ill. App. 3d 557, 560 (1989). The Illinois Supreme Court

addressed the extent to which acts petitioning a legislative body were privileged, in Arlington

Heights National Bank v. Arlington Heights Federal Savings & Loan Ass'n, 37 Ill. 2d 546 (1967),

where, in the context of a zoning ordinance situation, it determined that the right to petition was not

absolute and that wrongful conduct by a person who had "actual malice" was not protected by the

privilege. Arlington Heights, 37 Ill. 2d at 551; King, 184 Ill. App. 3d at 560 (applying Arlington

Heights standard in real estate development situation). However, the doctrine has not been applied

in the context of defamation.

After Myers, the legislature acted, intentionally or unintentionally, to extend the Noerr-

Pennington doctrine beyond the arena of antitrust or zoning litigation. Under the Act, the right to

petition government is guaranteed and in so petitioning, one also has the right to commit libel with

impunity, as long as he does so with the genuine aim of procuring government action. As stated, the

legislature has the inherent power to repeal or change the common law and provide privileges or

immunities that affect a plaintiff's right to a remedy. Here, in protecting the rights of citizens to

participate in government, the legislature provided a qualified privilege to speak even with actual

malice. While this court 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 statute. That is the duty of the legislature.

See DeSmet v. County of Rock Island, Illinois, 219 Ill. 2d 497, 510 (2006) ("This court may not

legislate, rewrite or extend legislation. If a statute, as enacted, seems to operate in certain cases

unjustly or inappropriately, the appeal must be to the General Assembly, and not to this court").

Plaintiff has not provided us with a valid argument to strike down the Act on constitutional grounds.

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To the extent plaintiff alludes to grounds that the Act is unconstitutional other than those discussed

here, we find those arguments forfeited for lack of development and citation to legal support. See

210 Ill. 2d R. 341(h)(7); Bohne v. La Salle National Bank, 399 Ill. App. 3d 485, 513 (2010). Having

determined that plaintiff's constitutional attacks fail, we next consider the Act's applicability to

plaintiff's complaint.

C. Applicability of the Act

Plaintiff's last two arguments involve the applicability of the Act to the facts of this case.

Plaintiff argues that the trial court erred in determining that the Act protected defendants' statements

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 defendants' right to participate in government.

Defendants argue that the Act was written broadly enough that it applies to their statements made

outside the petition and the school board meeting and that the trial court did not have the authority

to give more weight to plaintiff's right to file a lawsuit. We agree with defendants.

Considering plaintiff's arguments in turn, we are required to interpret the Act, using general

rules of statutory construction. The cardinal rule of statutory construction is to ascertain and give

effect to the intent of the legislature. Abruzzo v. City of Park Ridge, 231 Ill. 2d 324, 332 (2008).

The best indication of the legislature's intent is the statutory language, given its plain and ordinary

meaning. Abruzzo, 231 Ill. 2d at 332. When the language of the statute is clear and unambiguous,

it must be applied without resorting to aids of construction. Abruzzo, 231 Ill. 2d at 332. In

determining intent, we consider the statute in its entirety, and words and phrases are not to be read

in isolation. Abruzzo, 231 Ill. 2d at 332-33. A statute is ambiguous when it is capable of being

understood in two or more different senses by reasonably well-informed persons. Ready v.

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United/Goedecke Services, Inc., 232 Ill. 2d 369, 377 (2008). When a statute is ambiguous, the court

may use tools of interpretation to ascertain the meaning of a provision. Ready, 232 Ill. 2d at 379-80.

According to the plain language of the Act, the privilege will apply where: (1) the defendant's

acts were in furtherance of his rights to petition, speak, associate, or otherwise participate in

government to obtain favorable government action; (2) the plaintiff's claim is based on, related to,

or in response to the defendant's "acts in furtherance"; and (3) the plaintiff fails to produce clear and

convincing evidence that the defendant's acts were not genuinely aimed at procuring favorable

government action. As defendants argue, the plain language of the Act provides that the Act "shall

be construed liberally to effectuate its purposes and intent fully." 735 ILCS 110/30(b) (West 2008).

Section 5 of the Act sets forth its purpose and intent in significant depth.

As to the "acts in furtherance" portion of the Act, plaintiff argues that the Act should be read

to cover only acts performed during a government proceeding. Acts or statements made during

legislative, judicial, or quasi-judicial proceedings are already protected by absolute or qualified

privileges, including the protection of the right to petition the government as established by the

Noerr-Pennington doctrine. See King, 184 Ill. App. 3d at 559 (identifying the qualified privilege

outlined by the Noerr-Pennington doctrine for persons engaged in activities designed to influence

government action). Considering the general statutory construction rules, and the Act's plain

language, we cannot agree with plaintiff that the Act applies only to acts made during a government

proceeding. The Act states that it applies 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.) 735 ILCS 110/15 (West 2008).

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Regarding the latter portion of section 15, the trial court concluded that the language

providing that "[a]cts in furtherance ***are immune from liability, regardless of intent or purpose,

except when not genuinely aimed at procuring favorable government action, result, or outcome" was

ambiguous. It then concluded, based on the legislative history of the Act, that the legislature

intended to adopt the Noerr-Pennington doctrine, which includes the "sham" exception for acts

performed without a genuine aim at procuring government action. We agree that this clause is

ambiguous. While this section removes any consideration of intent or purpose, it then requires the

court to consider intent as to whether the acts were made with the genuine aim of procuring

government action. The directive on intent is unclear as to whether the court should consider the

intent of the defendant's acts on a subjective or an objective basis. Because we deem this section

ambiguous on its face, we resort to statutory construction aids to determine whether to use a

subjective or an objective basis in deciding whether the acts were genuinely aimed at procuring

government action.

We first look to the legislative history of the Act. There was not much discussion when the

Act was passed, despite attempts at getting anti-SLAPP statutes passed in previous years (see E.

Madiar & T. Sheehan, Illinois' New Anti-SLAPP Statute, 96 Ill. B.J. 620 (December 2008)). The

Act was sponsored by Senator John Cullerton. Senator Cullerton stated the following about the Act

before the Senate voted to pass the bill:

"This bill is in response to a threat of what's called Strategic Lawsuits Against Public Policy

[sic] (Participation). It's referred to as a SLAPP, legislation that a number of other states

have--have passed. And what it's about is to--address the concern that certain lawsuits that

could be filed that significantly would chill and diminish citizen participation in government

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or voluntary public service or the exercise of those constitutional rights. So, what the bill

does is to first declare the public policy that we want to encourage, obviously, our citizens

to--their constitutional rights--to exercise their constitutional rights of free speech and the

right to petition and redress grievances. And then it provides for a procedural protection, if

you will, when they are sued. And I'll give you an example, let's say a community

organization makes recommendations to a local alderman concerning zoning changes. They

just give advice, then the party that might not agree with the decision, the vote of the

alderman, they--that person, that landowner would file a lawsuit, not just against the

municipality, but also against the community organization that gave the advice. Even though

all they were doing was giving advice to their elected officials. So, that's what the purpose

of the bill is. We worked out an--an agreement with the--the trial lawyers so they are no--no

longer in opposition. Municipal League is in favor." 95th Ill. Gen. Assem., Senate

Proceedings, April 20, 2007, at 15-16 (statements of Senator Cullerton).

Likewise, in the House, there was little debate. Representative Jack Franks made the

following comments before the bill passed in the House:

"This Bill has been around for awhile. Now, Representative Feigenholtz worked on it awhile

ago, Senator Obama had it as well had Senator Dillard. This year we were fortunate in that

we got the parties together and there's no longer any opposition. The ACLU, the Illinois

Municipal League and ITLA have...are all proponents. And what this 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 the reason why we're

putting this Bill forward is that oftentimes folks who speak out whether they're running for

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No. 2--09--1015

office or are in office are sued by people to try to get them to shut up, to try to chill their

ability to speak and it's wrong and it's not what we're about. And this Bill would take away

many of those abuses that we'd see. I can tell you 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 sued by a developer, threatened with bankruptcy, not being able to pay their legal fees,

even though the...the developer's lawsuit was thrown out on three (3) separate occasions and

that would stop the type of abuse. I'd be glad to answer any questions.

***

Black: Representative, Representative Sacia brought a Bill up a few days ago where

a constituent had to pay seven thousand dollars ($7,000) to get out of being named a

defendant in a lawsuit because he went to a hearing and signed in...

Franks: Right.

Black: ...in as an opponent and I don't recall what the project or the issue was in

Representative Sacia's district. But anyway, I mentioned at the time these slap lawsuits are

often used to inhibit our participation. So, the bottom line is this Bill would then make it

easier for someone who is hit with one of those suits to seek immediate relief and there'd

be...not name the defendant and so not to chill public participation and expression when you

want to speak out against something that's going on in your district, correct?

Franks: Absolutely.

Black: All right. Great.

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Franks: *** It's an expedited hearing that they have to do within ninety (90) days and

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

defendant's attorneys fees.

***

Feigenholtz: I, too, rise in support of this legislation. It is a remedy to an issue that

also occurred in my legislative district a few years ago. *** I believe that we really need to

begin to put in these safeguards for people who speak out in pub...in public forums and are

endangered by people who don't appreciate the First Amendment very much. ***

***

Mathias: So, Representative Franks, I just want to make sure I got this right. You're

trying to make sure that people are not shut up at...

Franks: Right.

Mathias: ...at board meetings and places like that. Is that correct?

Franks: Or whether they're running for office, as well.

Mathias: Right.

Franks: Because what happened like in our area, in Richmond, these folks who were

running for office were not included in the insurance that the village had and the mayor

wouldn't include them.

Mathias: And so, you're doing it by shutting up the people who are trying to shut them

up. Is that correct?

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Franks: I'm not...I'm not sure I understand the question. No, I'm not saying...

Mathias: And you're trying to shut up the people who are doing the lawsuits, right?

Franks: What I'm trying...I'm trying to bring some sanity to it..

Mathias: Okay.

Franks: ...and if they want to fi...Anybody can file a lawsuit.

Mathias: Yes.

Franks: Anybody with a pen can file a lawsuit.

Mathias: Representative, I'm supporting your legislation

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 legislation, so we can keep the process going and not stifle

public discussion and not put a chilling effect on people who want to speak their minds."

95th Ill. Gen. Assem., House Proceedings, May 31, 2007, at 58-61 (statements of

Representatives Franks, Black, and Mathias).

Based on Representative Franks' reference 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 than the legislative debates and the Act itself provide. The Noerr-Pennington doctrine

originated in the antitrust arena, presenting a limit on antitrust liability by protecting companies'

lobbying efforts, which stem from first amendment guarantees of free speech and freedom to petition

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the government. D. Davis, The Fraud Exception to the Noerr-Pennington Doctrine in Judicial and

Administrative Proceedings, 69 U. Chi. L. Rev. 325, 328 (Winter 2002). The Noerr case involved

a group of truckers who sued several railroad companies, alleging that they violated the Sherman Act

by engaging in a negative publicity campaign against the trucking industry in an effort to damage the

industry. Noerr, 365 U.S. at 129, 5 L. Ed. 2d at 466, 81 S. Ct. at 525. The railroads admitted

conducting the campaign in an effort to influence the passage of certain state laws affecting truck

weight limits and tax rates. The Supreme Court found in favor of the railroads, finding that the

Sherman Act did not regulate political activity and would otherwise infringe on the railroads' right

to petition government. Noerr, 365 U.S. at 144, 5 L. Ed. 2d at 475, 81 S. Ct. at 533. The Noerr Court

limited its holding, stating that there may be situations where conduct is a "mere sham" to cover what

is actually an attempt to interfere 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 coal companies and unions persuaded the Labor Department

to establish minimum wages for employees of contractors, which frustrated the non-unionized

companies' efforts to compete. Pennington, 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 California

Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508, 510-11, 30 L. Ed. 2d 642, 646, 92 S. Ct.

609, 611-12 (1972), where a group of highway carriers alleged a conspiracy by other carriers to bring

state and federal proceedings before courts or agencies to prevent them from receiving operating

rights.

The "sham exception" to the Noerr-Pennington protection was mentioned in Noerr and was

discussed in greater detail in City of Columbia, which Representative Franks referenced during the

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legislative hearings. In City of Columbia, Omni, filed an antitrust lawsuit against Columbia

Advertising, 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 stated that the sham exception encompassed

situations in which "persons use the governmental process--as opposed to the outcome of the

process--as an anticompetitive weapon." (Emphasis in original.) City of Columbia, 499 U.S. at 380,

113 L. Ed. 2d at 398, 111 S. Ct. at 1354. The Court defined a sham situation as one involving a

defendant whose activities are " 'not genuinely aimed at procuring favorable government action,' "

and not one who simply uses improper means to achieve the desired governmental result. City of

Columbia, 499 U.S. at 380, 113 L. Ed. 2d at 398, 111 S. Ct. at 1354, quoting Allied Tube & Conduit

Corp. v. Indian Head, Inc., 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 to disrupt Omni's

business relationships, it sought to do so not through the very process of lobbying, or of causing the

city council to consider zoning measures, but rather 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 Court, however, further explained the sham exception approximately one year

after City of Columbia, in Professional Real Estate Investors, Inc. v. Columbia Pictures Industries,

Inc., 508 U.S. 49, 60-61, 123 L. Ed. 2d 611, 623-24, 113 S. Ct. 1920, 1928 (1993), in which it

announced a two-part test for the exception to apply. In Professional Real Estate, Columbia Pictures

sued Professional Real Estate Investors (PRE) for an alleged copyright infringement; PRE

countersued, charging Columbia with antitrust violations and alleging that its copyright action was

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a mere sham that "cloaked underlying acts of monopolization and conspiracy to restrain 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 copyright lawsuit was immune under Noerr. The Supreme Court,

after a discussion about the confusion in determining a sham, set forth the two-part test:

"First, [Columbia's] lawsuit must be objectively baseless in the sense that no reasonable

litigant could realistically expect success on the merits. If an objective litigant could

conclude that the suit is reasonably calculated to elicit a favorable outcome, the suit is

immunized under Noerr, and an antitrust claim premised on the sham exception must fail.

Only if challenged litigation is objectively meritless may a court examine the litigant's

subjective motivation. Under this second part of our definition of sham, the court should

focus on whether the baseless lawsuit conceals 'an attempt to interfere directly with the

business relationships of a competitor' [citation] through the 'use [of] the governmental

process--as opposed to the outcome of that process--as an anticompetitive weapon.' "

(Emphasis in original.) Professional Real Estate, 508 U.S. at 60-61, 123 L. Ed. 2d at 624,

113 S. Ct. at 1928, quoting 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 requires a plaintiff

to disprove a challenged lawsuit's legal viability (objective motivation) before a court would

entertain evidence of the economic viability (subjective motivation), and if that plaintiff succeeds,

he still has to prove his antitrust claim. Professional Real Estate, 508 U.S. at 61, 123 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 1928. The Court went on to explain

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that confusion over determining whether the sham exception applied stemmed from the Court's

previous use of the word "genuine" to denote the opposite of "sham." Professional Real Estate, 508

U.S. at 61, 123 L. Ed. 2d at 624, 113 S. Ct. at 1928. The Court stated that "genuine" had both

subjective and objective connotations, defining the word as meaning (1) " 'actually having the

reputed or apparent qualities or character'; and (2) 'sincerely and honestly felt or experienced.' "

Professional Real Estate, 508 U.S. at 61, 123 L. Ed. 2d at 624, 113 S. Ct. at 1929, quoting Webster's

Third New International Dictionary 948 (1986). Thus, to be a sham, "litigation must fail to be

'genuine' in both senses of the word." Professional Real Estate, 508 U.S. at 61, 123 L. Ed. 2d at 624-

25, 113 S. Ct. at 1929.

Turning to the Act, if the legislature's intent was to adopt the standards set forth in City of

Columbia, then the Act is adopting the two-part analysis 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 Supreme Court's

analysis. Subjective intent is considered only when one's conduct is not genuinely aimed at

procuring favorable government action. Applying the doctrine and its sham exception to the facts

of this case requires the court to first consider whether objective persons could have reasonably

expected to procure a favorable government outcome (plaintiff's removal) through a public campaign

like defendants' campaign against plaintiff. If the answer to that question is "yes," then the court

need not consider the subjective intent of defendants' conduct. If the answer is "no," then the court

would consider whether defendants' subjective intent was not to achieve a government outcome that

may interfere with plaintiff but rather to interfere with plaintiff by using the governmental process

itself.

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No. 2--09--1015

Here, defendants' acts did, in fact, lead to their desired outcome that the school board remove

plaintiff as coach of the basketball team. Regardless of the actual outcome, even plaintiff admitted

that defendants continued to seek his removal after the school board denied their petition. In

plaintiff's own words in his complaint, the statements alleged all surrounded defendants' "campaign

to have [plaintiff] removed as basketball coach and athletic director due [to] their disagreement with

his coaching style." Defendants first complained to the Dixon High School principal, the

superintendent, and members of the school board. After a school board meeting that did not end in

a favorable result for defendants, defendants sought to gain more support through a Web site and

speaking publicly. This is part of the process of influencing the government to make a decision in

a petitioner's favor. Defendants had a right to participate in this process. The statements alleged in

plaintiff's complaint criticized plaintiff's coaching style and related to the need for plaintiff to be

removed from his positions. NRG and Knickrehm participated in this process by providing a forum

for defendants to speak about their position.2 Some of the statements made were in the form of

letters or comments posted on Web sites. Plaintiff argues that because the school board already

heard defendants' complaints once, defendants' ensuing campaign was malicious and not intended

at obtaining a favorable government outcome. Plaintiff ignores the possibility that the school board

could hear defendants' complaints more than once and change its mind. Plaintiff also ignores the

reality that oftentimes governmental bodies react to increasing numbers or public pressure. Here,

the trial court determined on an objective basis, and we agree using the same objective standard, that

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.

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No. 2--09--1015

reasonable persons could expect the school board to change its initial decision after the campaign

placed public pressure on the board.

Whether a school board decision is a "government process" is answered by the plain language

of the Act. That defendants sought the removal of plaintiff as athletic director and coach of the

Dixon basketball team is undisputed. Dixon High School was a public school, and plaintiff was a

public high school employee. The Act defines "government" as "a branch, 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." 735

ILCS 110/10 (West 2008). Defendants sought action by the school board, and the school board acts

under the authority granted to it by the laws of the state. See 105 ILCS 5/10 et seq. (West 2008).

Further, a federal court has previously deemed a campaign to remove a school principal as "classic

political speech," as "it is direct involvement in governance." Stevens v. Tillman, 855 F.2d 394, 403

(7th Cir. 1988). Therefore, with regard to the first, objective test, plaintiff did not disprove that

objective persons in defendants' position could reasonably believe that they could succeed in

achieving their desired government outcome. Because the objective test was answered in the

positive, we need not consider the defendants' subjective intent. As the Act states, defendants are

"immune from liability, regardless of intent or purpose, except when not genuinely aimed at

procuring favorable government action." 735 ILCS 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 furtherance of their rights to participate in

government with the goal to obtain favorable government action.3

3
We need not address plaintiff's argument that the trial court misapplied Scheidler v.

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No. 2--09--1015

The Act next requires that plaintiff's claim must be based on, related to, or in response to

defendants' acts in furtherance of their rights to petition, speak, assemble, or otherwise participate

in government. It is undisputed that plaintiff's lawsuit was based on or in response to defendants'

"acts in furtherance."

Finally, the Act mandates dismissal of plaintiff's complaint if plaintiff failed to produce clear

and convincing evidence that the defendants' acts were not genuinely aimed at procuring favorable

government action. Plaintiff argues only that the Act should not apply because defendants'

statements at issue were not made directly to the Dixon school board or during any hearing or

governmental proceeding. As discussed, the statements did not need to be made within a petition

or during a hearing, but needed only to be made within defendants' participation in the government

process, which includes acts of gaining public support to influence favorable government action.

Also, as we discussed, plaintiff failed to disprove the objective test--that reasonable persons could

expect a favorable government outcome.

Plaintiff briefly argues 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 dispose of a "claim in

a judicial proceeding" and that the Act defines "judicial claim" or "claim" to include "any lawsuit,

Trombley, No. 07--L--513 (September 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, Scheidler, did not involve statements other than a direct statement to a

governmental body; and cause No. 07--CH--06273, Shoreline, applied the Act except as to

statements that were clearly unrelated to the defendant's government participation.

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No. 2--09--1015

cause of action, claim, cross-claim, counterclaim, or other judicial pleading or filing alleging injury."

735 ILCS 110/10 (West 2008). Thus, the Act plainly applies to plaintiff's complaint, which set out

causes of action that alleged injury.

Next, plaintiff argues that the trial court failed to strike a balance, as section 5 of the Act

requires, between the rights of persons to file lawsuits for injury and the constitutional rights of

persons to petition, speak, assemble, or otherwise participate in government. We disagree with

plaintiff. The public policy in section 5 states that the purpose of the Act is to "strike a balance"

between these competing interests, but section 20 mandates dismissal when its requirements are met.

The trial court struck the intended balance by properly applying 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 argues in his brief, the legislature often strikes balances between

competing interests when enacting statutes, such as the Tort Immunity Act's balancing of the

government's need to provide necessary services to the public and an injured citizen's need to seek

redress for injuries sustained as a result of such services. The courts, however, are bound to interpret

statutes as written and not to strike balances that the legislature already struck.

D. Attorney Fees

Defendants, with the exception of defendant Venier, cross-appealed the trial court's decision

limiting the attorney fees awarded. As stated earlier, the trial court awarded attorney fees per section

25 of the Act (735 ILCS 110/25 (West 2008)), limiting the fees to those incurred preparing the

portions of the motions to dismiss based on the Act. Defendants argue that they should have been

able to collect fees associated with the defense of the case from the filing of the complaint through

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No. 2--09--1015

the dismissal. A party may be awarded attorney fees only when the fees are specifically allowed by

statute or by a contract between the parties. Grate v. Grzetich, 373 Ill. App. 3d 228, 231 (2007).

When a court with proper statutory authority to award attorney fees 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 grant attorney fees is a question of law that we review de novo. Grate,

373 Ill. App. 3d at 231.

Section 25 of the Act provides that 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."

735 ILCS 110/25 (West 2008). Because the parties' dispute involves the interpretation of this

statutory provision, we review de novo whether the Act's language encompasses a broader range of

attorney fees than the trial court awarded. We review the reasonableness of the amount of fees under

an abuse-of-discretion standard.

Plaintiff conceded during trial court proceedings that section 25 mandated that the trial court

grant attorney fees for defendants. The parties dispute what fees are covered by section 25. NRG

and Knickrehm argue that the unambiguous, plain language of the Act provides that fees for all of

their attorneys' time spent in defending the lawsuit should be included as expenses incurred "in

connection with the motion." In the alternative, NRG and Knickrehm argue that if we find section

25 ambiguous, it should be interpreted broadly to avoid undermining the policy and purpose of the

Act, which is to prevent defendants from bearing the costs of such suits. Further, NRG and

Knickrehm argue that courts have held in other contexts that when awarding attorney fees, the fees

are not to be "chopped" where the attorneys are dealing with a common core of facts and similar

legal theories. Counsel for Hughes, Deets, the Deatherages, Petersen, and Shomaker makes the same

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No. 2--09--1015

arguments as counsel for NRG and Knickrehm. Additionally, counsel argues that much of the fees

that the trial court excluded were caused by plaintiff's actions, including: (1) plaintiff amended his

complaint three times, requiring defendants to analyze and respond to four pleadings; (2) plaintiff

sought discovery while the motions to dismiss were pending, requiring defendants to file motions

to quash subpoenas and objections to interrogatories; and (3) plaintiff objected to Shomaker's request

to file an additional motion to dismiss in response to the new allegations pleaded in the third

amended complaint, requiring additional time expended on the defense. The Kueckers' counsel

argues that the trial court improperly relied upon an affidavit by attorney Douglas Lee in determining

that $200 per hour was a reasonable rate for attorneys in Lee County. Lee's affidavit was submitted

by plaintiff. Counsel for the Kueckers submits that its affidavit asserting the rate of $215 per hour

was consistent and should have been accepted by the court.

Defendants rely on Hensley v. Eckerhart, 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 legal

theory and that they are entitled to fees for their entire defense. We reject that Hensley is applicable

here, for two reasons: (1) the issue in Hensley involved different claims that were intertwined and

factually and legally related and proceeded to trial; and (2) the statute in Hensley broadly stated that

" 'the court, in its discretion, may allow the prevailing party, *** a reasonable attorney's fee as part

of the costs,' " and the Court found that it could not separate the costs among the claims. Hensley,

461 U.S. at 426, 76 L. Ed. 2d at 46, 103 S. Ct. at 1935, quoting 42 U.S.C. §1988 (1982). In Pietrzyk

v. Oak Lawn Pavilion, Inc., 329 Ill. App. 3d 1043, 1051 (2002), the court distinguished Hensley

when determining whether the plaintiff could recover attorney fees for her failed wrongful death

claim under the fee provision of her successful Nursing Home Care Act (210 ILCS 45/1--101 et seq.

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No. 2--09--1015

(West 1996)) claim. The court held that the plaintiff could not seek refuge under Hensley's "claim-

chopping" protection where there was no confusion as to what portion of fees went towards the

Nursing Home Care Act claim (the plaintiff's counsel was to receive one-third of the award).

Pietrzyk, 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.

Pietrzyk, 329 Ill. App. 3d at 1051. The court further stated that while the Hensley "common core

of facts" doctrine could be used as a shield to prevent the reduction of attorney fees by "claim-

chopping" based on the limited success of recovery, the doctrine may not be used as a sword to

obtain fees that are not otherwise covered by the statute that authorizes such fees. Pietrzyk, 329 Ill.

App. 3d at 1051. In this case, the motions to dismiss and costs related to them may be separated

from other 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 that we are bound by Hensley to

accept any and all fees submitted by defendants.

We use the same statutory interpretation rules stated earlier in this opinion. Section 25

contains the language "in connection with the motion." The phrase "in connection with" has been

deemed both ambiguous (Ness v. Ford Motor Co., 835 F. Supp. 453, 458 (N.D. Ill. 1993) (in context

of insurance contract and construing ambiguity broadly and in favor of insured)) and unambiguous

(Fuja v. Benefit Trust Life Insurance Co., 18 F.3d 1405, 1410 (7th Cir. 1994) (in context of medical

insurance provision, construed narrowly)). The phrase may be read broadly, as defendants argue,

or narrowly, as the trial court did. Under defendants' interpretation, reasonable fees may be collected

for work performed researching and preparing all parts of the motions to dismiss as well as other

costs incurred while the motion were pending, including responding to plaintiff's discovery motions.

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No. 2--09--1015

The trial court interpreted section 25 narrowly to cover only the time it took defendants to research

and draft their motions to dismiss under the Act, excluding all other costs related to other matters.

We find the phrase "in connection with" as used in this statute to be ambiguous because it is capable

of being understood in two or more different senses by reasonably well-informed persons. Certain

work tasks, defendants argue, overlap between the Act and other defenses and are impossible to

separate because the attorneys were faced with a common core of facts and law. Because we find

section 25 to be ambiguous, we may look beyond its plain language to determine its meaning.

Defendants cite to Containment Technologies Group, Inc. v. American Society of Health

System Pharmacists, No. 1:07--CV--0997 (S.D. Ind. August 26, 2009), which rejected the plaintiff's

argument that the fee award should be limited to time spent actually preparing the motion to dismiss

under Indiana's anti-SLAPP statute. However, that case is distinguishable because the language of

Indiana's fee provision states that the prevailing defendant "is entitled to recover reasonable

attorney's fees and costs." Ind. Code Ann. §34--7--7--7 (Michie 2008). The Indiana fee-shifting

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.

California's interpretation of its anti-SLAPP statute provides some limited guidance.

California's anti-SLAPP fee-shifting provision, which does not contain the potentially limiting

language "in connection with," states that "a prevailing 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 defendant who succeeded in striking the plaintiff's state claims under the anti-SLAPP

statute could recover fees for his motion to dismiss federal claims under different theories. The court

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No. 2--09--1015

held that the defendant could recover fees for the entirety of the motion to strike and fees for the

portion of his motion to dismiss the federal claims that was based on the Noerr-Pennington doctrine

but no other fees for the remaining separate and distinct defenses. Kearney, 553 F. Supp. 2d at 1186-

87. Therefore, even under California's broader fee-shifting provision, the court still limited recovery

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 identify and adjudicate

SLAPPs in an efficient manner and to provide for attorney fees and costs for prevailing movants.

735 ILCS 110/5 (2008). The Act also instructs that it "shall be construed liberally to effectuate its

purposes and intent fully." 735 ILCS 110/30(b) (West 2008). From the legislative debates on the

Act, we know that the Act was intended to eliminate ongoing, costly litigation by providing a special,

expedited means to dismiss such lawsuits. See 95th Ill. Gen. Assem., House Proceedings, May 31,

2007, at 59 (statements of Representative Franks ("It's an expedited hearing they have to do within

ninety (90) days and it also shifts the burden on the plaintiff and should the plaintiff lose, they'd have

to pay the defendant's attorneys fees")). Based on this history and on the language of the Act, we

conclude that the Act was intended to minimize attorney fees and litigation costs by providing

defendants an avenue by which to easily and efficiently dispose of these types of lawsuits. We do

not find that the language "in connection with" encompasses all costs of litigation, as defendants

argue. Such a broad interpretation would defy logic where defendants pursue other defenses that are

not connected to a motion under the Act. Considering the statute in its entirety, and the plain

meaning of "in connection with," read in context of the statute and its purposes and intent, we

believe that defendants are limited to recovering only those fees associated with bringing the motion

to dismiss on grounds based on the Act, as the trial court determined.

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No. 2--09--1015

That being said, we next consider whether the trial court's determination of "reasonable" fees

was an abuse of discretion. In paragraph five of their joint motion for clarification of allowable

attorney fees, defendants listed the following as "activities" that did not "fit comfortably" in the

court's order to amend their fee petitions to include only those efforts directed at the Act:

"a) Intake communications with clients

b) Status communications with clients

c) Fact investigation

d) Witness and client interviews

e) Responding to discovery requests

f) Motion practice regarding staying discovery

g) Gathering and reviewing documents

h) Argument of the motion to dismiss, wherein numerous legal defenses are

raised but not delineated

i) Preparation for argument of the motion to dismiss, for which time spent on

particular legal defenses is not delineated

j) Attendance of status hearings and other hearings not specifically devoted

to any particular legal defenses."

The trial court, in response to defendants' joint motion, issued its clarifying order. The clarifying

order stated that defendants' motions raised various defenses, including the Act, the Illinois fair

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No. 2--09--1015

reporting privilege, opinion speech, and the need to show actual malice.4 The court granted

defendants relief pursuant to the Act, and the Act allowed for fees associated with the motion. The

court advised:

"Thus, the only fees which the Court can allow are those which can specifically be

allocated to the preparation and argument of the [Act] motion. Therefore, none of the

activity set forth in paragraph 5 of the Defendants' joint motion should be included in the

attorney's fees calculation unless it can be specifically identified as pertaining to the

preparation and argument of the motion under the [Act]. The Court understands that this

may mean that some general time which [is] incapable of being delineated may not be

compensable to the Defendants. However, the statute limits attorney's fees compensation 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 costs associated with the

motions brought under the Act was an abuse of discretion. A defendant bears the burden of

presenting sufficient evidence from which the trial court can render a decision as to the

reasonableness of his fees. Gambino v. Boulevard Mortgage Corp., 398 Ill. App. 3d 21, 66 (2009).

An appropriate fee consists of reasonable charges 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 issued to clients, as this type of data does not provide the court with sufficient

information as to the fees' reasonableness. Gambino, 398 Ill. App. 3d at 66. A petition for fees must

specify the services performed, who performed them, the time expended, and the hourly rate charged.

4
These defenses were contained in defendants' motions to dismiss pursuant to section 2--615,

arguing that plaintiff failed to state a proper claim.

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No. 2--09--1015

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 merely

ordered defendants' attorneys to provide such details in their fee petitions. Defendants counter that

it is impossible to separate the time spent on work related to the Act from that related to other

defenses. However, the burden was on the attorneys to track their work in a detailed fashion.

Once a fee petition is submitted, the trial court considers factors including the skill and

standing of the attorneys, the nature of the case, the novelty or difficulty of the issues involved, the

importance of the matter, the degree of responsibility required, the usual and customary charges for

comparable services, the benefit to the client, and the reasonable connection of the fees to the amount

involved in the litigation. Gambino, 398 Ill. App. 3d at 66. The trial court considered these factors

and the affidavits submitted by the various defense attorneys and by plaintiff and determined that the

hourly rates ranged from $140 to over $500. It determined that most of the rates were close 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 rate at $200. The Kueckers5 argues that the trial court did

not hear testimony from attorney Lee regarding the reasonableness of the $200 rate. However, the

trial court is not required to hold an evidentiary hearing on the reasonableness of attorney fees.

Aurora East School District v. Dover, 363 Ill. App. 3d 1048, 1058 (2006). A nonevidentiary

proceeding is proper so long as the trial court can determine from the available evidence what

amount would be reasonable and the opposing party has an opportunity to be heard. Aurora East

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

was a reasonable hourly rate.

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No. 2--09--1015

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

it, and plaintiff had an opportunity to be heard, to determine the reasonable fees to be awarded. We,

therefore, affirm the trial court's judgment that the Act allows a prevailing defendant recovery for

only those attorney fees associated with a motion based upon the Act, and we affirm the trial court's

selection of a reasonable hourly rate of $200 and its award of reasonable fees.

We further reject defendants' arguments that limiting fees would have a "chilling effect" on

citizens who desire to participate in government, because they would risk having to pay a majority

of their attorney fees. Dixon & Giesen argues that "it is not reasonable to expect that an attorney

could file a motion to dismiss under the [Act] without first having to take the steps necessary to

determine the applicability of the [Act]. Under the trial court's narrow definition the fees generated

to do intake communications with the client; investigate the facts; interview witnesses; attend general

status or other court required appearances along with numerous other necessary steps in effective

representation would not be included." This is not true under the trial court's or this court's order.

If these tasks were performed in preparation of the motions to dismiss pursuant to the Act, the fees

charged were recoverable. If those tasks overlapped issues, the attorneys were required to adjust the

fees sought to reflect the time spent pursuing the motions based on the Act. While it may seem in

defendants' view that the Act is impractical because it does not take into account that defense

attorneys may litigate other defenses simultaneously, we remind defendants that it is not this court's

place to rewrite the statute.

III. CONCLUSION

We conclude that the trial court properly applied the Act and therefore properly dismissed

plaintiff's complaint in its entirety. We further agree that the trial court properly limited attorney fees

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No. 2--09--1015

to those associated with the motions brought under the Act and nothing more. Accordingly, we

affirm the judgment of the circuit court of Lee County.

Affirmed.

O'MALLEY and SCHOSTOK, JJ., concur.

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