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Full Text of SB2141  97th General Assembly

SB2141sam001 97TH GENERAL ASSEMBLY

Sen. Don Harmon

Filed: 3/15/2011

 

 


 

 


 
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1
AMENDMENT TO SENATE BILL 2141

2    AMENDMENT NO. ______. Amend Senate Bill 2141 by replacing
3everything after the enacting clause with the following:
 
4    "Section 5. The Code of Civil Procedure is amended by
5changing Section 2-701 and by adding Section 2-701.5 as
6follows:
 
7    (735 ILCS 5/2-701)  (from Ch. 110, par. 2-701)
8    Sec. 2-701. Declaratory judgments. (a) No action or
9proceeding is open to objection on the ground that a merely
10declaratory judgment or order is sought thereby. The court may,
11in cases of actual controversy, make binding declarations of
12rights, having the force of final judgments, whether or not any
13consequential relief is or could be claimed, including the
14determination, at the instance of anyone interested in the
15controversy, of the construction of any statute, municipal
16ordinance, or other governmental regulation, or of any deed,

 

 

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1will, contract or other written instrument, and a declaration
2of the rights of the parties interested. The foregoing
3enumeration does not exclude other cases of actual controversy.
4Except as provided for in Section 2-701.5, the The court shall
5refuse to enter a declaratory judgment or order, if it appears
6that the judgment or order, would not terminate the controversy
7or some part thereof, giving rise to the proceeding. In no
8event shall the court entertain any action or proceeding for a
9declaratory judgment or order involving any political question
10where the defendant is a State officer whose election is
11provided for by the Constitution; however, nothing herein shall
12prevent the court from entertaining any such action or
13proceeding for a declaratory judgment or order if such question
14also involves a constitutional convention or the construction
15of a statute involving a constitutional convention.
16    (b) Declarations of rights, as herein provided for, may be
17obtained by means of a pleading seeking that relief alone, or
18as incident to or part of a complaint, counterclaim or other
19pleading seeking other relief as well, and if a declaration of
20rights is the only relief asked, the case may be set for early
21hearing as in the case of a motion.
22    (c) If further relief based upon a declaration of right
23becomes necessary or proper after the declaration has been
24made, application may be made by petition to any court having
25jurisdiction for an order directed to any party or parties
26whose rights have been determined by the declaration to show

 

 

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1cause why the further relief should not be granted forthwith,
2upon reasonable notice prescribed by the court in its order.
3    (d) If a proceeding under this Section involves the
4determination of issues of fact triable by a jury, they shall
5be tried and determined in the same manner as issues of fact
6are tried and determined in other civil actions in the court in
7which the proceeding is pending.
8    (e) Unless the parties agree by stipulation as to the
9allowance thereof, costs in proceedings authorized by this
10Section shall be allowed in accordance with rules. In the
11absence of rules the practice in other civil actions shall be
12followed if applicable, and if not applicable, the costs may be
13taxed as to the court seems just.
14(Source: P.A. 82-280.)
 
15    (735 ILCS 5/2-701.5 new)
16    Sec. 2-701.5. Declaratory judgment in an action involving
17defamation, slander, or libel.
18    (a) Findings. The General Assembly finds that defamation,
19slander, and libel can seriously damage a person's reputation
20and significantly distort the integrity of the democratic
21process. Defamatory, slanderous, and libelous statements
22against a person expose the person to ridicule, contempt, or
23reproach, and otherwise injure the person in the person's
24business or occupation. The General Assembly further finds that
25there are significant expenses and obstacles involved in

 

 

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1actions seeking to restore a person's reputation. It is the
2intent of the General Assembly to expedite the process of
3restoring a person's reputation following a defamatory,
4slanderous, or libelous statement and to minimize the
5litigation expenses of all parties. The State of Illinois
6agrees with the U.S. Supreme Court's finding that "[t]he right
7of a man to the protection of his own reputation from
8unjustified invasion and wrongful hurt reflects no more than
9our basic concept of the essential dignity and worth of every
10human being – a concept at the root of any decent system of
11ordered liberty." Rosenblatt v. Baer, 383 U.S. 75, 92 (1966).
12There is a compelling state interest in (i) deterring the harm
13caused to innocent persons by false statements, (ii) promoting
14the vindication and protection of personal reputation, and
15(iii) minimizing the judicial resources and costs that are
16associated with restoring a person's reputation. The General
17Assembly seeks to protect the constitutionally recognized
18interest of a person in his or her reputation, as was discussed
19by the Illinois Supreme Court in Troman v. Wood, which stated
20that "[f]rom the outset it has been recognized that an
21individual is entitled to a remedy 'for all injuries and wrongs
22that he may receive in his person, property or character.'
23(Const. of 1818, art. VIII, sec. 12; Const. of 1848, art. XIII,
24sec. 12.) (In the most recent constitutions the word
25'reputation' is substituted for 'character.' Const. of 1870,
26art. II, sec. 19; Const. of 1970, art. I, sec. 12.) The freedom

 

 

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1of speech provisions of both our former and present
2constitutions (Const. of 1870, art. II, sec. 4; Const. of 1970,
3art. I, sec. 4) recognize the interest of the individual in the
4protection of his reputation, for they provide that the
5exercise of the right to speak freely shall not relieve the
6speaker from responsibility for his abuse of that right. The
7constitutionally recognized interest of the individual in his
8reputation is not and can not be measured solely in terms of
9monetary compensation. At the least, the individual has an
10interest in preserving and restoring his reputation through an
11authoritative and publicly known determination that an
12injurious statement about him is in fact false. To foreclose or
13restrict the availability of the judicial process as a means of
14securing such a determination prevents the individual from
15obtaining the effective vindication to which he is entitled."
16Troman v. Wood, 62 Ill.2d 184, 194-195 (1975).
17    (b) Legislative intent. The cause of action for declaratory
18judgment is hereby provided in this Section as an alternative
19to a defamation action for damages for any person who believes
20that his or her reputation has been damaged by a published
21false statement of fact. This alternative action is intended
22for the expeditious resolution with minimal costs of litigation
23due to the elimination of issues unrelated to the question of
24the truth or falsity of the statement at issue.
25    (c) Definitions. For purposes of this Section,
26    "Mass media" means, but is not limited to, a newspaper or

 

 

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1periodical, or any broadcast, cable, or satellite means of mass
2communication, including an Internet website.
3    "Person" means a natural person.
4    (d) Action. Any person who has been defamed, slandered, or
5libeled may bring an action for declaratory judgment pursuant
6to Section 2-701. If an adverse party files a motion pursuant
7to Section 15 of the Citizen Participation Act in an action,
8then any person who is a party to the action may bring an
9action for declaratory judgment alleging defamation, slander,
10or libel pursuant to Section 2-701. An action for declaratory
11judgment alleging defamation, slander, or libel shall be
12brought by filing a verified complaint or other pleading
13setting forth facts showing the following:
14        (1) that the defendant made a statement of fact
15    referring to the plaintiff that is damaging to the
16    plaintiff's reputation;
17        (2) that the statement was published; and
18        (3) that the statement was false.
19If the statement at issue was published in writing, a copy of
20the published statement must be attached to the complaint. The
21provisions of this Section are in derogation of the common law.
22    (e) Pre-trial proceedings.
23        (1) Except for limitations on discovery as provided in
24    this Section, pre-trial proceedings are governed by the
25    Code of Civil Procedure and the Supreme Court Rules.
26        (2) A plaintiff shall be furnished, upon his or her

 

 

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1    request, from a defendant that is a mass media entity with
2    a copy of each tape, film, or digital file of the alleged
3    defamatory, slanderous, or libelous statement, or if a
4    tape, film, or digital file is not available, any available
5    transcript of the alleged statement. A defendant that is a
6    mass media entity that has been served with a complaint
7    under this Section identifying the statement at issue must
8    preserve any tape, film, digital file, or transcript which
9    contains that statement.
10        (3) Discovery is severely restricted. No discovery may
11    take place without specific prior approval by the court in
12    writing, after a hearing in which the party requesting
13    discovery is able to demonstrate by clear and convincing
14    evidence to the court's satisfaction that there is a
15    compelling need for the particular information sought.
16    Discovery is specifically prohibited with regard to the
17    following matters due to their irrelevance:
18            (A) the status of the plaintiff;
19            (B) any malice, intention, knowledge,
20        recklessness, or other mental state of the defendant,
21        any agent of the defendant, or any employee of the
22        defendant pertaining to the publication of the
23        statement at issue.
24    (f) Affirmative defense. In addition to other common law
25defenses which may be applicable, it is an affirmative defense
26to an action for declaratory judgment alleging defamation,

 

 

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1slander, or libel that the allegedly false statement referring
2to the plaintiff:
3        (1) appeared in a report of an official action or
4    proceeding or of a meeting open to the public that dealt
5    with a matter of public concern, if the report is accurate
6    and complete or a fair abridgment of the occurrence
7    reported; or
8        (2) was taken from remarks made by an identified
9    governmental official or by an identified candidate for
10    public office who has already filed his or her petitions of
11    candidacy, if the published statement is an accurate and
12    complete rendition of those remarks or a fair abridgment of
13    the statement.
14    (g) Trial proceedings. Trial proceedings are governed by
15the Code of Civil Procedure and the Supreme Court Rules. The
16plaintiff has the burden of proving by clear and convincing
17evidence each of the allegations required to be pled in this
18Section. No damages may be awarded to a plaintiff who is
19granted a declaratory judgment that finds that the defendant
20made a defamatory, slanderous, or libelous statement against
21the plaintiff.
22    (h) Declaratory judgment; judicial declaration of falsity.
23The judgment to be entered on behalf of a plaintiff who
24prevails on his or her complaint alleging defamation, slander,
25or libel shall be entitled to a "Judicial Declaration of
26Falsity".

 

 

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1    (i) Publication of a notice of a judicial declaration of
2falsity.
3        (1) A plaintiff who prevails on his or her action filed
4    pursuant to this Section may petition the court for the
5    publication of a Notice of Judicial Declaration of Falsity
6    by a court-supervised method.
7        (2) Whether a Notice of Judicial Declaration of Falsity
8    shall be published, and if published the contents of the
9    notice, shall be determined by the court after a hearing
10    that considers the following matters:
11            (A) if the nature of the statement, parties, and
12        circumstances warrant, in the court's discretion, a
13        Notice being published;
14            (B) a notice shall contain only factual statements
15        which must pertain to the proceedings in which the
16        Judicial Declaration of Falsity is sought;
17            (C) a notice may refer to the statement found to be
18        false;
19            (D) a notice, consistent with the other criteria
20        under this paragraph (2), it shall be as brief as
21        possible;
22            (E) a notice shall be published at a time and in a
23        manner so that the greatest number of people who saw or
24        heard the false statement are likely to see or hear it;
25            (F) if requested by the plaintiff, the notice shall
26        indicate that it is a compulsory statement; otherwise,

 

 

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1        that indication shall be left to the court's
2        discretion; and
3            (G) the notice may be ordered to be published more
4        than once if the statement found to be false was
5        published more than once.
6        (3) The court may determine that the Notice of a
7    Judicial Declaration of Falsity shall be published by a
8    medium of mass communication by purchase of time or space,
9    as for advertising. The medium shall be selected by the
10    court after a hearing in which the parties may present
11    their proposed choices. The court additionally shall
12    attempt to choose a medium as close in form to the medium
13    used by the defendant as possible. A court may order a mass
14    media defendant to publish the Notice of a Judicial
15    Declaration of Falsity in the defendant's own medium of
16    mass communication only if the mass media defendant
17    mutually agrees to such publication. In determining the
18    method or form of publishing the Notice of a Judicial
19    Declaration of Falsity, the court may, among other things,
20    take into account case law and stare decisis of the United
21    States Supreme Court and the Illinois Supreme Court dealing
22    with freedom of speech and freedom of the press.
23        (4) All expenses arising from the publication of a
24    Notice of a Judicial Declaration of Falsity ordered under
25    this Section shall be reviewed and approved by the court
26    and taxed against the defendant.

 

 

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1        (5) Any order entered under this subsection (i) may be
2    enforced through the court's contempt powers.
3    (j) Bar on actions for damages. A plaintiff who files a
4complaint for declaratory judgment action alleging defamation,
5slander, or libel is thereafter barred from ever asserting any
6other cause of action of any kind and from ever seeking damages
7based upon the statements or conduct of the defendant which are
8the subject of the action. No action for damages no matter how
9designated may be filed concurrently or joined with an action
10for declaratory judgment action alleging defamation, slander,
11or libel.
12    (k) Statute of limitations. An action for declaratory
13judgment action alleging defamation, slander, or libel shall be
14commenced within one year next after the cause of action
15accrued or within 30 days after a motion is filed pursuant to
16Section 15 of the Citizen Participation Act, whichever is
17later.
 
18    Section 10. The Citizen Participation Act is amended by
19changing Section 15 and by adding Section 21 as follows:
 
20    (735 ILCS 110/15)
21    Sec. 15. Applicability.
22    This Act applies to any motion to dispose of a claim in a
23judicial proceeding on the grounds that the claim is based on,
24relates to, or is in response to any act or acts of the moving

 

 

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1party in furtherance of the moving party's rights of petition,
2speech, association, or to otherwise participate in
3government. However, this Act does not apply to any pleading
4filed in accordance with Section 2-701.5 of the Code of Civil
5Procedure.
6    Acts in furtherance of the constitutional rights to
7petition, speech, association, and participation in government
8are immune from liability, regardless of intent or purpose,
9except when not genuinely aimed at procuring favorable
10government action, result, or outcome.
11(Source: P.A. 95-506, eff. 8-28-07.)
 
12    (735 ILCS 110/21 new)
13    Sec. 21. Motion for declaratory judgment.
14    A natural person who is a party to an action in which an
15adverse party filed a motion pursuant to Section 15 may file a
16declaratory judgment action alleging defamation, slander, or
17libel, in accordance with Section 2-701.5 of the Code of Civil
18Procedure, so long as the person files the declaratory judgment
19action within 30 days after the moving party filed the Section
2015 motion.
21    A party who files a declaratory judgment action pursuant to
22this Section and Section 2-701.5 shall voluntarily dismiss all
23claims that are the subject of the motion filed pursuant to
24Section 15. The court shall also dismiss any motions filed
25pursuant to Section 15 against the party who filed the action

 

 

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1for a declaratory judgment under this Section.
 
2    Section 99. Effective date. This Act takes effect upon
3becoming law.".