Full Text of SB2141 97th General Assembly
SB2141 97TH GENERAL ASSEMBLY |
| | 97TH GENERAL ASSEMBLY
State of Illinois
2011 and 2012 SB2141 Introduced 2/10/2011, by Sen. Don Harmon SYNOPSIS AS INTRODUCED: |
| 735 ILCS 5/2-701 | from Ch. 110, par. 2-701 | 735 ILCS 5/2-701.5 new | | 735 ILCS 110/15 | | 735 ILCS 110/21 new | |
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Amends the Code of Civil Procedure. Provides for a declaratory judgment in an action concerning defamation, slander, or libel.
Makes findings concerning defamation, slander, and libel. Defines: "mass media" to include newspapers and periodicals and radio, television, satellite, and Internet broadcast media; and "person" to mean a natural person. Provides that a person alleging defamation may bring a declaratory judgment action by showing that: the defendant's statement damaged the plaintiff's reputation, was published, and was false. Provides that in these actions: (i) the court must find a compelling need for any discovery; and (ii) the plaintiff must prove his or her case by clear and convincing evidence. Provides that no damages may be awarded to a plaintiff. Provides that a plaintiff who prevails shall be awarded attorney's fees, not to exceed $10,000, but only after the court considers: plaintiff's endeavors to obtain a retraction; the information supplied by the plaintiff to the defendant; defendant's timely steps to provide a retraction; plaintiff's reasonable belief that the statement damaged his or her reputation; and the complexity of the litigation. Provides that if the defendant prevails and the court finds that it was a frivolous action, the defendant is entitled to recover reasonable attorney's fees in an amount not to exceed $10,000. Bars any other action based on the same allegations. Sets a one-year statute of limitations. Makes other changes. Amends the Citizen Participation Act. Provides that although the Act applies to a motion to dispose of a claim on the grounds that the claim is based on a party's First Amendment rights, the Act does not apply to a declaratory judgment action for defamation, slander, or libel. Provides that if a party files a motion to dispose of a claim on the grounds that the claim is based on a party's First Amendment rights and in response a declaratory judgment action concerning defamation, slander, or libel is filed, there must be a dismissal of that party's action brought under the Act. Makes other changes. Effective immediately.
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| | A BILL FOR |
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| 1 | | AN ACT concerning civil law.
| 2 | | Be it enacted by the People of the State of Illinois,
| 3 | | represented in the General Assembly:
| 4 | | Section 5. The Code of Civil Procedure is amended by | 5 | | changing Section 2-701 and by adding Section 2-701.5 as | 6 | | follows:
| 7 | | (735 ILCS 5/2-701) (from Ch. 110, par. 2-701)
| 8 | | Sec. 2-701. Declaratory judgments. (a) No action or | 9 | | proceeding is
open to objection on the ground that a merely | 10 | | declaratory judgment or
order is sought thereby. The court may, | 11 | | in cases of actual controversy,
make binding declarations of | 12 | | rights, having the force of final
judgments, whether or not any | 13 | | consequential relief is or could be
claimed, including the | 14 | | determination, at the instance of anyone
interested in the | 15 | | controversy, of the construction of any statute,
municipal | 16 | | ordinance, or other governmental regulation, or of any deed,
| 17 | | will, contract or other written instrument, and a declaration | 18 | | of the
rights of the parties interested. The foregoing | 19 | | enumeration does not
exclude other cases of actual controversy. | 20 | | Except as provided for in Section 2-701.5, the The court shall | 21 | | refuse to
enter a declaratory judgment or order, if it appears | 22 | | that the judgment
or order, would not terminate the controversy | 23 | | or some part thereof,
giving rise to the proceeding. In no |
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| 1 | | event shall the court entertain
any action or proceeding for a | 2 | | declaratory judgment or order involving
any political question | 3 | | where the defendant is a State officer whose
election is | 4 | | provided for by the Constitution; however, nothing herein
shall | 5 | | prevent the court from entertaining any such action or | 6 | | proceeding
for a declaratory judgment or order if such question | 7 | | also involves a
constitutional convention or the construction | 8 | | of a statute involving a
constitutional convention.
| 9 | | (b) Declarations of rights, as herein provided
for, may be | 10 | | obtained by means of a pleading seeking that relief alone,
or | 11 | | as incident to or part of a complaint, counterclaim or other | 12 | | pleading
seeking other relief as well, and if a declaration of | 13 | | rights is the only
relief asked, the case may be set for early | 14 | | hearing as in the case of a
motion.
| 15 | | (c) If further relief based upon a declaration of right | 16 | | becomes
necessary or proper after the declaration has been | 17 | | made, application may
be made by petition to any court having | 18 | | jurisdiction for an order
directed to any party or parties | 19 | | whose rights have been determined by
the declaration to show | 20 | | cause why the further relief should not be
granted forthwith, | 21 | | upon reasonable notice prescribed by the court in its
order.
| 22 | | (d) If a proceeding under this Section involves the | 23 | | determination of
issues of fact triable by a jury, they shall | 24 | | be tried and determined in
the same manner as issues of fact | 25 | | are tried and determined in other
civil actions in the court in | 26 | | which the proceeding is pending.
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| 1 | | (e) Unless the parties agree by stipulation as to the | 2 | | allowance
thereof, costs in proceedings authorized by this | 3 | | Section shall be
allowed in accordance with rules. In the | 4 | | absence of rules the practice
in other civil actions shall be | 5 | | followed if applicable, and if not
applicable, the costs may be | 6 | | taxed as to the court seems just.
| 7 | | (Source: P.A. 82-280.)
| 8 | | (735 ILCS 5/2-701.5 new) | 9 | | Sec. 2-701.5. Declaratory judgment in an action involving | 10 | | defamation, slander, or libel. | 11 | | (a) Findings. The General Assembly finds that defamation, | 12 | | slander, and libel can seriously damage a person's reputation | 13 | | and significantly distort the integrity of the democratic | 14 | | process. Defamatory, slanderous, and libelous statements | 15 | | against a person expose the person to ridicule, contempt, or | 16 | | reproach, and otherwise injure the person in the person's | 17 | | business or occupation. The General Assembly further finds that | 18 | | there are significant expenses and obstacles involved in | 19 | | actions seeking to restore a person's reputation. It is the | 20 | | intent of the General Assembly to expedite the process of | 21 | | restoring a person's reputation following a defamatory, | 22 | | slanderous, or libelous statement and to minimize the | 23 | | litigation expenses of all parties. | 24 | | (b) Legislative intent. The cause
of action for declaratory | 25 | | judgment is hereby provided in this Section as
an alternative |
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| 1 | | to a defamation action for damages for any person
who believes | 2 | | that his or her reputation has been damaged by a
published | 3 | | false statement of fact. This alternative action is intended | 4 | | for
the expeditious resolution with minimal costs of litigation | 5 | | due
to the elimination of issues unrelated to the question of | 6 | | the
truth or falsity of the statement at issue. | 7 | | (c) Definitions. For purposes of this Section, | 8 | | "Mass media" means, but is not limited to, a newspaper or | 9 | | periodical, or any broadcast, cable, or satellite means of mass | 10 | | communication, including an Internet website. | 11 | | "Person" means a natural person. | 12 | | (d) Action. Any person who has been defamed, slandered, or | 13 | | libeled may bring an action for declaratory judgment pursuant | 14 | | to Section 2-701. If an adverse party files a motion pursuant | 15 | | to Section 15 of the Citizen Participation Act in an action, | 16 | | then any person who is a party to the action may bring an | 17 | | action for declaratory judgment alleging defamation, slander, | 18 | | or libel pursuant to Section 2-701. An action for declaratory | 19 | | judgment alleging defamation, slander, or libel shall be | 20 | | brought by filing a verified complaint or other pleading | 21 | | setting forth facts showing the following: | 22 | | (1) that the defendant made a statement referring to | 23 | | the plaintiff that is damaging to the plaintiff's | 24 | | reputation; | 25 | | (2) that the statement was published; and | 26 | | (3) that the statement was false. |
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| 1 | | If the statement at issue was published in writing,
a copy of | 2 | | the published statement must be attached to the
complaint. | 3 | | (e) Pre-trial proceedings. | 4 | | (1) Except
for limitations on discovery as provided in | 5 | | this Section,
pre-trial proceedings are
governed by the | 6 | | Code of Civil Procedure and the Supreme Court Rules. | 7 | | (2) A plaintiff shall be furnished, upon his or her | 8 | | request,
from a defendant that is a mass media entity with | 9 | | a copy of each tape, film, or digital file of the alleged | 10 | | defamatory, slanderous, or libelous statement, or if a | 11 | | tape, film, or digital file is not available, any available | 12 | | transcript of the alleged statement. A defendant that is a | 13 | | mass media entity that has been served with a complaint | 14 | | under
this Section identifying the statement at issue must | 15 | | preserve
any tape, film, digital file, or transcript which | 16 | | contains that statement. | 17 | | (3) Discovery is severely restricted. No discovery may | 18 | | take place without specific prior approval by the court in | 19 | | writing, after a hearing in which the party requesting | 20 | | discovery is able to demonstrate by clear and convincing | 21 | | evidence to the court's satisfaction that there is a | 22 | | compelling need for the particular information sought. | 23 | | Discovery is
specifically prohibited with regard to the | 24 | | following matters
due to their irrelevance: | 25 | | (A) the status of the plaintiff; | 26 | | (B) any malice, intention, knowledge, |
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| 1 | | recklessness, or
other mental state of the defendant, | 2 | | any agent of the
defendant, or any employee of the | 3 | | defendant pertaining to the
publication of the | 4 | | statement at issue. | 5 | | (f) Affirmative defense. In addition to other
common law | 6 | | defenses which may be applicable, it is an
affirmative defense | 7 | | to an action for declaratory judgment alleging defamation, | 8 | | slander, or libel that the allegedly false statement referring | 9 | | to
the plaintiff: | 10 | | (1) appeared in a report of an official action or
| 11 | | proceeding or of a meeting open to the public that dealt | 12 | | with
a matter of public concern, if the report is accurate | 13 | | and
complete or a fair abridgment of the occurrence | 14 | | reported; or | 15 | | (2) was taken from remarks made by an identified
| 16 | | governmental official or by an identified candidate for
| 17 | | public office who has already filed his or her petitions of
| 18 | | candidacy, if the published statement is an accurate and
| 19 | | complete rendition of those remarks or a fair abridgment
of | 20 | | the statement. | 21 | | (g) Trial proceedings. Trial proceedings are governed by | 22 | | the Code of Civil Procedure and the Supreme Court Rules. The | 23 | | plaintiff has the burden of proving by clear and
convincing | 24 | | evidence each of the allegations required to be
pled in this | 25 | | Section. No damages may be awarded to a plaintiff who is | 26 | | granted a declaratory judgment that finds that the defendant |
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| 1 | | made a defamatory, slanderous, or libelous statement against | 2 | | the plaintiff. | 3 | | (h) Attorney's fees. The court shall award reasonable | 4 | | attorney's fees, when requested, in an amount not to exceed | 5 | | $10,000 to counsel for the plaintiff if the plaintiff is the | 6 | | prevailing party. In exercising its discretion to determine the | 7 | | amount of attorney's fees, the court shall consider, among | 8 | | other factors, the following: | 9 | | (1) any action taken by the plaintiff prior to filing | 10 | | the action to obtain a retraction or other appropriate | 11 | | response from the defendant, and the timeliness of that | 12 | | action; | 13 | | (2) the nature, extent, and quality of information | 14 | | supplied by the plaintiff to the defendant prior to filing | 15 | | the action when the plaintiff took the action described in | 16 | | paragraph (1); | 17 | | (3) any action taken by the defendant, and the | 18 | | timeliness of that action, to provide the plaintiff with a | 19 | | retraction or other appropriate response; | 20 | | (4) the extent to which the plaintiff reasonably | 21 | | believed that the statement found to be false was damaging | 22 | | to his or her reputation; and | 23 | | (5) the complexity of the litigation. | 24 | | (i) Declaratory judgment; judicial declaration of falsity. | 25 | | The
judgment to be entered on behalf of a plaintiff who | 26 | | prevails
on his or her complaint alleging defamation, slander, |
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| 1 | | or libel shall be entitled to a "Judicial Declaration of
| 2 | | Falsity". | 3 | | (j) Publication of a notice of a judicial declaration of
| 4 | | falsity. | 5 | | (1) A plaintiff who prevails on his or her action filed | 6 | | pursuant to this Section may
petition the court for the | 7 | | publication of a Notice of Judicial Declaration of
Falsity | 8 | | by a court-supervised method. | 9 | | (2) Whether a Notice of Judicial Declaration of Falsity | 10 | | shall be published, and if published the contents of the | 11 | | notice, shall be determined by the court after a hearing | 12 | | that considers the following matters: | 13 | | (A) if the nature of the statement, parties, and | 14 | | circumstances warrant, in the court's discretion, a | 15 | | Notice being published; | 16 | | (B) a notice shall contain only factual statements | 17 | | which must
pertain to the proceedings in which the | 18 | | Judicial Declaration
of Falsity is sought; | 19 | | (C) a notice may refer to the statement found to be | 20 | | false; | 21 | | (D) a notice, consistent with the other criteria | 22 | | under this
paragraph (2), it shall be as brief as | 23 | | possible; | 24 | | (E) a notice shall be published at a time and in a | 25 | | manner so
that the greatest number of people who saw or | 26 | | heard the false
statement are likely to see or hear it; |
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| 1 | | (F) if requested by the plaintiff, the notice shall | 2 | | indicate
that it is a compulsory statement; otherwise, | 3 | | that indication
shall be left to the court's | 4 | | discretion; and | 5 | | (G) the notice may be ordered to be published more | 6 | | than once if the
statement found to be false was | 7 | | published more than once. | 8 | | (3) The court may determine that the
Notice of a | 9 | | Judicial Declaration of Falsity shall be published by a
| 10 | | medium of mass communication by purchase of time or space, | 11 | | as
for advertising. The medium shall be selected by the
| 12 | | court after a hearing in which the parties may present | 13 | | their
proposed choices. The court additionally shall | 14 | | attempt to choose a medium as
close in form to the medium | 15 | | used by the defendant as possible. | 16 | | (4) All expenses arising from the publication of a | 17 | | Notice of a Judicial Declaration of Falsity ordered under
| 18 | | this Section shall be reviewed and approved by the court | 19 | | and
taxed against the defendant. | 20 | | (5) Any order entered under this subsection (j) may be | 21 | | enforced
through the court's contempt powers. | 22 | | (k) If the defendant is the prevailing party and the court | 23 | | finds the plaintiff brought or maintained a frivolous | 24 | | declaratory judgment action alleging defamation, slander, or | 25 | | libel, the defendant upon request is entitled to recover | 26 | | reasonable attorney's fees in an amount not to exceed $10,000. |
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| 1 | | In determining the amount of attorney's fees, the court may | 2 | | consider the actions of plaintiff and plaintiff's counsel under | 3 | | the factors identified in paragraphs (1) through (5) in | 4 | | subsection (h). | 5 | | (l) Bar on actions for damages. A plaintiff
who files a | 6 | | complaint for declaratory judgment action alleging defamation, | 7 | | slander, or libel is
thereafter barred from ever asserting any | 8 | | other cause of
action of any kind and from ever seeking damages | 9 | | based upon
the statements or conduct of the defendant which are | 10 | | the
subject of the action. No action for damages no
matter how | 11 | | designated may be filed concurrently or joined
with an action | 12 | | for declaratory judgment action alleging defamation, slander, | 13 | | or libel. | 14 | | (m) Statute of limitations. An action for
declaratory | 15 | | judgment action alleging defamation, slander, or libel shall be | 16 | | commenced within one year
next after the cause of action | 17 | | accrued or within 30 days after a motion is filed pursuant to | 18 | | Section 15 of the Citizen Participation Act, whichever is | 19 | | later. | 20 | | Section 10. The Citizen Participation
Act is amended by | 21 | | changing Section 15 and by adding Section 21 as follows: | 22 | | (735 ILCS 110/15)
| 23 | | Sec. 15. Applicability.
| 24 | | This Act applies to any motion to dispose of a claim in a |
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| 1 | | judicial proceeding on the grounds that the claim is based on, | 2 | | relates to, or is in response to any
act or acts of the moving | 3 | | party in furtherance of the moving party's rights of
petition, | 4 | | speech, association, or to otherwise participate in | 5 | | government.
However, this Act does not apply to any pleading | 6 | | filed in accordance with Section 2-701.5 of the Code of Civil | 7 | | Procedure.
| 8 | | Acts in furtherance of the constitutional rights to | 9 | | petition, speech,
association, and participation in government | 10 | | are immune from liability,
regardless of intent or purpose, | 11 | | except when not genuinely aimed at procuring
favorable | 12 | | government action, result, or outcome.
| 13 | | (Source: P.A. 95-506, eff. 8-28-07.) | 14 | | (735 ILCS 110/21 new) | 15 | | Sec. 21. Motion for declaratory judgment. | 16 | | A natural person who is a party to an action in which an | 17 | | adverse party filed a motion pursuant to Section 15 may file a | 18 | | declaratory judgment action alleging defamation, slander, or | 19 | | libel, in accordance with Section 2-701.5 of the Code of Civil | 20 | | Procedure, so long as the person files the declaratory judgment | 21 | | action within 30 days after the moving party filed the Section | 22 | | 15 motion. | 23 | | A party who files a declaratory judgment action pursuant to | 24 | | this Section and Section 2-701.5 shall voluntarily dismiss all | 25 | | claims that are the subject of the motion filed pursuant to |
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| 1 | | Section 15. The court shall also dismiss any motions filed | 2 | | pursuant to Section 15 against the party who filed the action | 3 | | for a declaratory judgment under this Section.
| 4 | | Section 99. Effective date. This Act takes effect upon | 5 | | becoming law.
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