SB2141sam001 97TH GENERAL ASSEMBLY

Sen. Don Harmon

Filed: 3/15/2011

09700SB2141sam001 LRB097 10174 AJO 52338 a

AMENDMENT TO SENATE BILL 2141

AMENDMENT NO. ______. Amend Senate Bill 2141 by replacing everything after the enacting clause with the following:

"Section 5. The Code of Civil Procedure is amended by changing Section 2-701 and by adding Section 2-701.5 as follows:

(735 ILCS 5/2-701) (from Ch. 110, par. 2-701)

Sec. 2-701. Declaratory judgments. (a) No action or proceeding is open to objection on the ground that a merely declaratory judgment or order is sought thereby. The court may, in cases of actual controversy, make binding declarations of rights, having the force of final judgments, whether or not any consequential relief is or could be claimed, including the determination, at the instance of anyone interested in the controversy, of the construction of any statute, municipal ordinance, or other governmental regulation, or of any deed, will, contract or other written instrument, and a declaration of the rights of the parties interested. The foregoing enumeration does not exclude other cases of actual controversy. Except as provided for in Section 2-701.5, the The court shall refuse to enter a declaratory judgment or order, if it appears that the judgment or order, would not terminate the controversy or some part thereof, giving rise to the proceeding. In no event shall the court entertain any action or proceeding for a declaratory judgment or order involving any political question where the defendant is a State officer whose election is provided for by the Constitution; however, nothing herein shall prevent the court from entertaining any such action or proceeding for a declaratory judgment or order if such question also involves a constitutional convention or the construction of a statute involving a constitutional convention.

(b) Declarations of rights, as herein provided for, may be obtained by means of a pleading seeking that relief alone, or as incident to or part of a complaint, counterclaim or other pleading seeking other relief as well, and if a declaration of rights is the only relief asked, the case may be set for early hearing as in the case of a motion.

(c) If further relief based upon a declaration of right becomes necessary or proper after the declaration has been made, application may be made by petition to any court having jurisdiction for an order directed to any party or parties whose rights have been determined by the declaration to show cause why the further relief should not be granted forthwith, upon reasonable notice prescribed by the court in its order.

(d) If a proceeding under this Section involves the determination of issues of fact triable by a jury, they shall be tried and determined in the same manner as issues of fact are tried and determined in other civil actions in the court in which the proceeding is pending.

(e) Unless the parties agree by stipulation as to the allowance thereof, costs in proceedings authorized by this Section shall be allowed in accordance with rules. In the absence of rules the practice in other civil actions shall be followed if applicable, and if not applicable, the costs may be taxed as to the court seems just.

(Source: P.A. 82-280.)

(735 ILCS 5/2-701.5 new)

Sec. 2-701.5. Declaratory judgment in an action involving defamation, slander, or libel.

(a) Findings. The General Assembly finds that defamation, slander, and libel can seriously damage a person's reputation and significantly distort the integrity of the democratic process. Defamatory, slanderous, and libelous statements against a person expose the person to ridicule, contempt, or reproach, and otherwise injure the person in the person's business or occupation. The General Assembly further finds that there are significant expenses and obstacles involved in actions seeking to restore a person's reputation. It is the intent of the General Assembly to expedite the process of restoring a person's reputation following a defamatory, slanderous, or libelous statement and to minimize the litigation expenses of all parties. The State of Illinois agrees with the U.S. Supreme Court's finding that "[t]he right of a man to the protection of his own reputation from unjustified invasion and wrongful hurt reflects no more than our basic concept of the essential dignity and worth of every human being – a concept at the root of any decent system of ordered liberty." Rosenblatt v. Baer, 383 U.S. 75, 92 (1966). There is a compelling state interest in (i) deterring the harm caused to innocent persons by false statements, (ii) promoting the vindication and protection of personal reputation, and (iii) minimizing the judicial resources and costs that are associated with restoring a person's reputation. The General Assembly seeks to protect the constitutionally recognized interest of a person in his or her reputation, as was discussed by the Illinois Supreme Court in Troman v. Wood, which stated that "[f]rom the outset it has been recognized that an individual is entitled to a remedy 'for all injuries and wrongs that he may receive in his person, property or character.' (Const. of 1818, art. VIII, sec. 12; Const. of 1848, art. XIII, sec. 12.) (In the most recent constitutions the word 'reputation' is substituted for 'character.' Const. of 1870, art. II, sec. 19; Const. of 1970, art. I, sec. 12.) The freedom of speech provisions of both our former and present constitutions (Const. of 1870, art. II, sec. 4; Const. of 1970, art. I, sec. 4) recognize the interest of the individual in the protection of his reputation, for they provide that the exercise of the right to speak freely shall not relieve the speaker from responsibility for his abuse of that right. The constitutionally recognized interest of the individual in his reputation is not and can not be measured solely in terms of monetary compensation. At the least, the individual has an interest in preserving and restoring his reputation through an authoritative and publicly known determination that an injurious statement about him is in fact false. To foreclose or restrict the availability of the judicial process as a means of securing such a determination prevents the individual from obtaining the effective vindication to which he is entitled." Troman v. Wood, 62 Ill.2d 184, 194-195 (1975).

(b) Legislative intent. The cause of action for declaratory judgment is hereby provided in this Section as an alternative to a defamation action for damages for any person who believes that his or her reputation has been damaged by a published false statement of fact. This alternative action is intended for the expeditious resolution with minimal costs of litigation due to the elimination of issues unrelated to the question of the truth or falsity of the statement at issue.

(c) Definitions. For purposes of this Section,

"Mass media" means, but is not limited to, a newspaper or periodical, or any broadcast, cable, or satellite means of mass communication, including an Internet website.

"Person" means a natural person.

(d) Action. Any person who has been defamed, slandered, or libeled may bring an action for declaratory judgment pursuant to Section 2-701. If an adverse party files a motion pursuant to Section 15 of the Citizen Participation Act in an action, then any person who is a party to the action may bring an action for declaratory judgment alleging defamation, slander, or libel pursuant to Section 2-701. An action for declaratory judgment alleging defamation, slander, or libel shall be brought by filing a verified complaint or other pleading setting forth facts showing the following:

(1) that the defendant made a statement of fact referring to the plaintiff that is damaging to the plaintiff's reputation;

(2) that the statement was published; and

(3) that the statement was false. If the statement at issue was published in writing, a copy of the published statement must be attached to the complaint. The provisions of this Section are in derogation of the common law.

(e) Pre-trial proceedings.

(1) Except for limitations on discovery as provided in this Section, pre-trial proceedings are governed by the Code of Civil Procedure and the Supreme Court Rules.

(2) A plaintiff shall be furnished, upon his or her request, from a defendant that is a mass media entity with a copy of each tape, film, or digital file of the alleged defamatory, slanderous, or libelous statement, or if a tape, film, or digital file is not available, any available transcript of the alleged statement. A defendant that is a mass media entity that has been served with a complaint under this Section identifying the statement at issue must preserve any tape, film, digital file, or transcript which contains that statement.

(3) Discovery is severely restricted. No discovery may take place without specific prior approval by the court in writing, after a hearing in which the party requesting discovery is able to demonstrate by clear and convincing evidence to the court's satisfaction that there is a compelling need for the particular information sought. Discovery is specifically prohibited with regard to the following matters due to their irrelevance:

(A) the status of the plaintiff;

(B) any malice, intention, knowledge, recklessness, or other mental state of the defendant, any agent of the defendant, or any employee of the defendant pertaining to the publication of the statement at issue.

(f) Affirmative defense. In addition to other common law defenses which may be applicable, it is an affirmative defense to an action for declaratory judgment alleging defamation, slander, or libel that the allegedly false statement referring to the plaintiff:

(1) appeared in a report of an official action or proceeding or of a meeting open to the public that dealt with a matter of public concern, if the report is accurate and complete or a fair abridgment of the occurrence reported; or

(2) was taken from remarks made by an identified governmental official or by an identified candidate for public office who has already filed his or her petitions of candidacy, if the published statement is an accurate and complete rendition of those remarks or a fair abridgment of the statement.

(g) Trial proceedings. Trial proceedings are governed by the Code of Civil Procedure and the Supreme Court Rules. The plaintiff has the burden of proving by clear and convincing evidence each of the allegations required to be pled in this Section. No damages may be awarded to a plaintiff who is granted a declaratory judgment that finds that the defendant made a defamatory, slanderous, or libelous statement against the plaintiff.

(h) Declaratory judgment; judicial declaration of falsity. The judgment to be entered on behalf of a plaintiff who prevails on his or her complaint alleging defamation, slander, or libel shall be entitled to a "Judicial Declaration of Falsity".

(i) Publication of a notice of a judicial declaration of falsity.

(1) A plaintiff who prevails on his or her action filed pursuant to this Section may petition the court for the publication of a Notice of Judicial Declaration of Falsity by a court-supervised method.

(2) Whether a Notice of Judicial Declaration of Falsity shall be published, and if published the contents of the notice, shall be determined by the court after a hearing that considers the following matters:

(A) if the nature of the statement, parties, and circumstances warrant, in the court's discretion, a Notice being published;

(B) a notice shall contain only factual statements which must pertain to the proceedings in which the Judicial Declaration of Falsity is sought;

(C) a notice may refer to the statement found to be false;

(D) a notice, consistent with the other criteria under this paragraph (2), it shall be as brief as possible;

(E) a notice shall be published at a time and in a manner so that the greatest number of people who saw or heard the false statement are likely to see or hear it;

(F) if requested by the plaintiff, the notice shall indicate that it is a compulsory statement; otherwise, that indication shall be left to the court's discretion; and

(G) the notice may be ordered to be published more than once if the statement found to be false was published more than once.

(3) The court may determine that the Notice of a Judicial Declaration of Falsity shall be published by a medium of mass communication by purchase of time or space, as for advertising. The medium shall be selected by the court after a hearing in which the parties may present their proposed choices. The court additionally shall attempt to choose a medium as close in form to the medium used by the defendant as possible. A court may order a mass media defendant to publish the Notice of a Judicial Declaration of Falsity in the defendant's own medium of mass communication only if the mass media defendant mutually agrees to such publication. In determining the method or form of publishing the Notice of a Judicial Declaration of Falsity, the court may, among other things, take into account case law and stare decisis of the United States Supreme Court and the Illinois Supreme Court dealing with freedom of speech and freedom of the press.

(4) All expenses arising from the publication of a Notice of a Judicial Declaration of Falsity ordered under this Section shall be reviewed and approved by the court and taxed against the defendant.

(5) Any order entered under this subsection (i) may be enforced through the court's contempt powers.

(j) Bar on actions for damages. A plaintiff who files a complaint for declaratory judgment action alleging defamation, slander, or libel is thereafter barred from ever asserting any other cause of action of any kind and from ever seeking damages based upon the statements or conduct of the defendant which are the subject of the action. No action for damages no matter how designated may be filed concurrently or joined with an action for declaratory judgment action alleging defamation, slander, or libel.

(k) Statute of limitations. An action for declaratory judgment action alleging defamation, slander, or libel shall be commenced within one year next after the cause of action accrued or within 30 days after a motion is filed pursuant to Section 15 of the Citizen Participation Act, whichever is later.

Section 10. The Citizen Participation Act is amended by changing Section 15 and by adding Section 21 as follows:

(735 ILCS 110/15)

Sec. 15. 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. However, this Act does not apply to any pleading filed in accordance with Section 2-701.5 of the Code of Civil Procedure.

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.

(Source: P.A. 95-506, eff. 8-28-07.)

(735 ILCS 110/21 new)

Sec. 21. Motion for declaratory judgment.

A natural person who is a party to an action in which an adverse party filed a motion pursuant to Section 15 may file a declaratory judgment action alleging defamation, slander, or libel, in accordance with Section 2-701.5 of the Code of Civil Procedure, so long as the person files the declaratory judgment action within 30 days after the moving party filed the Section 15 motion.

A party who files a declaratory judgment action pursuant to this Section and Section 2-701.5 shall voluntarily dismiss all claims that are the subject of the motion filed pursuant to Section 15. The court shall also dismiss any motions filed pursuant to Section 15 against the party who filed the action for a declaratory judgment under this Section.

Section 99. Effective date. This Act takes effect upon becoming law.".