2026 IL 131714
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
(Docket No. 131714)
NICHOLAS T. ANDERSON, Appellant, v. MEAGAN M. SMITH,
f/k/a Meagan M. Wohlfeil, Appellee.
Opinion filed June 25, 2026.
JUSTICE ROCHFORD delivered the judgment of the court, with opinion.
Chief Justice Neville and Justices Overstreet, Holder White, Cunningham,
O’Brien, and Tailor concurred in the judgment and opinion.
OPINION
¶1 The question presented is the appropriate framework for evaluating a motion to
dispose of a “Strategic Lawsuit Against Public Participation” (SLAPP) under the
Citizen Participation Act (Act) (735 ILCS 110/1 et seq. (West 2024)), for cases
filed before January 1, 2026. 1 The Appellate Court, First District, has been
applying a “meritless and retaliatory” standard to assess whether the plaintiff’s
claims are solely based on, related to, or in response to the movant’s exercise of his
or her right to participate in government (see Ryan v. Fox Television Stations, Inc.,
2012 IL App (1st) 120005, ¶ 21), which the trial court here also applied in denying
relief under the Act. The Appellate Court, Fourth District, below repudiated that
test in favor of what it labeled a “true goal” inquiry (2025 IL App (4th) 241076,
¶¶ 47-48), and it therefore reversed the trial court’s ruling and remanded for further
proceedings. We agree with the appellate court below that the “meritless and
retaliatory” standard does not accurately reflect the Act and controlling precedent,
though we disagree with aspects of the appellate court’s approach. We therefore
affirm the appellate court’s judgment as modified.
¶2 I. BACKGROUND
¶3 In 2017, plaintiff, Nicholas T. Anderson, and defendant, Meagan M. Smith,
formerly known as Meagan M. Wohlfeil, attended a press conference held in a park.
The press conference preceded a public hearing on a measure to approve a hog
farming operation. Anderson supported the measure, whereas Smith opposed it.
During an on-camera interview with another proponent of the measure, Smith stood
behind the speaker holding a sign that read, “[F]arms, yes; factory farms, no.”
Anderson approached Smith. Although the parties disagree as to the details of their
interaction, it is undisputed that Smith said, “I don’t know you” and “don’t touch
me.”
¶4 Smith asked a family member to call the police and told the responding officer
that Anderson had pushed her, specifically by bumping his chest into her to prevent
her from displaying her sign during the interview. The officer arrested Anderson
for assault. Anderson denied the allegations and told the officer that he “may have
brushed into [Smith’s] arm.” Anderson was later charged with battery but was
found not guilty after a bench trial on May 31, 2019.
1
The legislature amended the Act in 2025 to include, among other things, protections
for the press. However, the changes “apply only to actions commenced on or after January
1, 2026,” such that the amendments are inapplicable to the case before us. See Pub. Act
104-431, § 5 (eff. Aug. 21, 2025) (adding 735 ILCS 110/32).
-2-¶5 Shortly before the criminal trial, Anderson filed a defamation suit against Smith
on May 29, 2018. He claimed that he had attempted to hand Smith his business card
at the press conference, at which point she falsely and publicly accused him of
assault. Anderson subsequently filed an amended complaint and second amended
complaint alleging defamation and malicious prosecution. Smith filed a
countercomplaint for battery and intentional infliction of emotional distress.
¶6 On March 14, 2023, Smith filed a motion to dismiss under the Act pursuant to
section 2-619 of the Code of Civil Procedure (Code) (735 ILCS 5/2-619 (West
2022)). 2 She argued that her acts were in furtherance of her right to participate in
government and that Anderson’s complaint was clearly based on, related to, or in
response to her opposition to the hog farming operation and her report of what she
believed was a crime committed against her. Smith argued that Anderson was
advancing a meritless and retaliatory SLAPP subject to dismissal under the Act.
The Schuyler County circuit court denied Smith’s motion without prejudice in a
docket entry.
¶7 Smith later filed a motion for summary judgment that also requested relief
under the Act. The trial court denied the motion, ruling that there were triable issues
of fact for the jury. The appellate court granted Smith’s petition for leave to appeal
under Illinois Supreme Court Rule 306(a)(9) (eff. Oct. 1, 2020).
¶8 The appellate court extensively cited this court’s decisions in Sandholm v.
Kuecker, 2012 IL 111443, and Glorioso v. Sun-Times Media Holdings, LLC, 2024
IL 130137. It noted that in Glorioso, we adopted a three-part, “post-Sandholm” test
that the appellate court had been applying in the years following Sandholm to
determine whether a lawsuit was subject to dismissal under the Act. 2025 IL App
(4th) 241076, ¶ 25. The instant dispute involves the second prong of the test, for
which the movant has the burden to show that the plaintiff’s claims are solely based
on, related to, or in response to the movant’s exercise of his or her right to
participate in government. Id.
¶9 The appellate court noted that Ryan adopted a “meritless and retaliatory”
standard for the second prong following Sandholm, which other First District
decisions followed. Id. ¶ 33. However, the court determined that Ryan improperly
2
Smith did not specify a subsection of section 2-619.
-3-attempted to ascribe legal meaning to words that Sandholm was using in their
rhetorical sense. Id. ¶ 35. The appellate court reasoned that, instead, the inquiry
turns on whether the plaintiff is “genuinely seeking relief,” which requires the court
to determine the plaintiff’s subjective intent in bringing the claim. (Internal
quotation marks omitted.) Id. ¶ 48. According to the appellate court, if the plaintiff
creates a genuine factual issue about one of the prongs of the post-Sandholm test,
the trial court must conduct an evidentiary hearing to resolve the disputed factual
issues. Id. ¶ 75.
¶ 10 The appellate court held that the trial court improperly applied Ryan’s
“meritless and retaliatory” standard and further failed to resolve the factual issues.
Id. ¶ 83. It therefore reversed and remanded with directions. Id. ¶¶ 83-87.
¶ 11 This court allowed Anderson’s petition for leave to appeal. Ill. S. Ct. R. 315(a)
(eff. Dec. 7, 2023).
¶ 12 II. ANALYSIS
¶ 13 We begin by noting that the trial court denied Smith’s motion for summary
judgment, which included a request for relief under the Act. The denial of a
summary judgment motion is interlocutory and therefore ordinarily not appealable.
Arangold Corp. v. Zehnder, 187 Ill. 2d 341, 357 (1999). However, the Act permits
the moving party to seek to dispose of a SLAPP in any type of pleading filed to
dispose of a judicial claim, including summary judgment (see 735 ILCS 110/10, 15
(West 2024)), and Illinois Supreme Court Rule 306(a)(9) (eff. Oct. 1, 2020) allows
for permissive interlocutory appeals from orders denying a motion seeking to
dismiss a lawsuit under the Act.
¶ 14 That being said, Smith asserts that we should construe her request for relief
under the Act pursuant to the standards of section 2-619(a)(9) of the Code (735
ILCS 5/2-619(a)(9) (West 2024)). In Sandholm, the defendants moved to dismiss
under section 2-615 of the Code (735 ILCS 5/2-615 (West 2008)), but we
determined that a motion asserting immunity under the Act was more appropriately
brought in a section 2-619(a)(9) motion, which provides for dismissal where the
claim is barred by an affirmative matter avoiding the legal effect of or defeating the
claim. Sandholm, 2012 IL 111443, ¶ 54. “Immunity from tort liability pursuant to
-4-statute is an affirmative matter properly raised in a section 2-619 motion to
dismiss.” Id. As the review of a ruling on a motion for summary judgment is similar
to the review of a ruling on a motion to dismiss under section 2-619(a)(9) (Van
Meter v. Darien Park District, 207 Ill. 2d 359, 377 (2003)) and a section 2-619(a)(9) motion best reflects the immunity claimed via the Act (Sandholm, 2012
IL 111443, ¶ 54), we will apply that standard here, as did the appellate court. We
review de novo the denial of a motion to dismiss pursuant to section 2-619 in this
context. Glorioso, 2024 IL 130137, ¶ 49. This case also requires us to interpret the
Act, which is a question of law similarly subject to de novo review. Wright
Development Group, LLC v. Walsh, 238 Ill. 2d 620, 634 (2010).
¶ 15 SLAPPs are lawsuits that use the threat of monetary damages and/or substantial
defense costs to either deter individuals from exercising their political rights or
punish them for doing so. Id. at 630. To counter what it saw as a “disturbing
increase” in the number of SLAPPs, the legislature enacted the Act in 2007. 735
ILCS 110/5 (West 2024); Walsh, 238 Ill. 2d at 631. The Act lists four goals: (1) “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”; (2) to protect and encourage maximum
participation in government; (3) to create an efficient process to identify and
adjudicate SLAPPs; and (3) to provide attorney fees and costs to the prevailing
movants. 735 ILCS 110/5 (West 2024); Walsh, 238 Ill. 2d at 631-32.
¶ 16 The Act applies to
“any motion to dispose of a claim in a judicial proceeding on the grounds that
the claim is based on, relates to, or is in response to any act or acts of the moving
party in furtherance of the moving party’s rights of petition, speech, association,
or to otherwise participate in government.
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
-5-favorable government action, result, or outcome.” 735 ILCS 110/15 (West
2024). 3
¶ 17 A trial court must hold a hearing and rule on the motion under the Act within
90 days after the respondent is given notice. Id. § 20(a). Discovery is suspended
pending a decision on the motion, though the trial court may permit limited
discovery on whether the movant’s acts are immunized from liability. Id. § 20(b).
The trial court must grant the motion and dismiss the claim unless the responding
party produces clear and convincing evidence that the moving party’s acts are not
immunized from, or are not in furtherance of acts immunized from, liability by the
Act. Id. § 20(c). The Act is to be “construed liberally to effectuate its purposes and
intent fully.” Id. § 30(b).
¶ 18 After Sandholm, the appellate court began applying a test for motions under the
Act, which we adopted in Glorioso. Pursuant to this post-Sandholm test, which
incorporates the Act’s statutory requirements:
“the movant has the burden to show that (1) the movant’s acts were in
furtherance of his rights to petition, speak, associate, or otherwise participate in
government to obtain favorable government action and (2) plaintiff’s claims are
solely based on, related to, or in response to the movant’s exercise of these
rights. [Citation.] If the movant meets its burden under the first two prongs, in
order to defeat the motion, plaintiff must prove by clear and convincing
evidence what is considered the third prong of the test: that the movant’s acts
were not genuinely aimed at procuring favorable government action.”
(Emphases in original.) Glorioso, 2024 IL 130137, ¶ 55.
3
The amended version of section 15 states in the first paragraph:
“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, including freedom of the press.
The claim does not need to solely pertain to the moving party’s constitutional rights as
this Act applies regardless of the motives of the person who brought the claim that the
moving party is seeking to dispose of.” (Emphasis added.) Pub. Act 104-431, § 5 (eff.
Aug. 21, 2025) (amending 735 ILCS 110/15).
However, as stated, we do not consider the effect of the changes because the
amendments apply only to cases filed after January 1, 2026. Id. (adding 735 ILCS 110/32).
-6-¶ 19 For the first prong of the test, a defendant must show that his or her acts were
in furtherance of his or her rights to petition, speak, associate, or otherwise
participate in government to obtain favorable government action. Id. Glorioso
explained that it “requires a court to consider whether an objective person would
find the acts were reasonably calculated to elicit a favorable government action or
outcome.” Id. ¶ 67. The parties agree that the first prong is satisfied here.
¶ 20 The second prong is the main dispute. In Glorioso, the parties also disagreed on
the proper approach to the second prong, specifically whether it required the
defendants to show that the lawsuit was meritless, retaliatory, or both. Id. ¶ 56. This
topic was the focus of the appellate court dissent in Glorioso. Id. However, we
ultimately resolved the case on the first prong and did not reach the second prong.
Id. ¶¶ 56, 69.
¶ 21 Thus, we turn to Sandholm. There, we observed that “SLAPPs are, by
definition, meritless,” because the plaintiffs bringing such suits do not intend to win
but instead seek to chill a defendant’s participation in government and discourage
others from opposition through delay, expense, and distraction. Sandholm, 2012 IL
111443, ¶ 34. We agreed that, “if the plaintiff’s intent in bringing suit is to recover
damages for alleged defamation and not to stifle or chill defendants’ rights of
petition, speech, association, or participation in government, it is not a SLAPP and
does not fall under the purview of the Act.” Id. ¶ 42. We stated that it was “clear
that the legislation is aimed at discouraging and eliminating meritless, retaliatory
SLAPPs, as they traditionally have been defined” (id.), and not “where a plaintiff
files suit genuinely seeking relief for damages for the alleged defamation or
intentionally tortious acts of defendants” (id. ¶ 45). “In light of the clear legislative
intent *** to subject only meritless, retaliatory SLAPP suits to dismissal,” we
construed the phrase “ ‘based on, relates to, or is in response to’ in section 15 to
mean solely based on, relating to, or in response to ‘any act or acts of the moving
party in furtherance of the moving party’s rights of petition, speech, association, or
to otherwise participate in government.’ ” (Emphasis in original.) Id. (quoting 735
ILCS 110/15 (West 2008)). If the plaintiff filed suit “genuinely seeking relief for
damages,” the lawsuit was not solely based on the defendant’s right to participate
in government, and the suit would not be subject to dismissal under the Act. Id. We
concluded, “based on the parties’ pleadings,” that the plaintiff’s lawsuit did not
meet this standard because it was “apparent that the true goal of [the] plaintiff’s
-7-claims [was] not to interfere with and burden [the] defendants’ free speech and
petition rights, but to seek damages for the personal harm to his reputation from
[the] defendants’ alleged defamatory and tortious acts.” Id. ¶ 57.
¶ 22 Ryan cited Sandholm in concluding that, to satisfy the second prong of the test,
the movant must affirmatively demonstrate that the nonmovant’s claim was a
SLAPP in that “the claim [was] meritless and was filed in retaliation against the
movant’s protected activities” to deter the movant from those activities. Ryan, 2012
IL App (1st) 120005, ¶ 21. Ryan further cited the pre-Sandholm case Hytel Group,
Inc. v. Butler, 405 Ill. App. 3d 113, 125-26 (2010), which identified two potential
factors that may indicate a retaliatory motive: the time between the protected
activity and the complaint’s filing, and whether the amount of damages sought is
disproportionate to the alleged harm. Ryan, 2012 IL App (1st) 120005, ¶ 23. The
First District subsequently applied Ryan’s approach in numerous cases, narrowing
it to a second-prong test that examines only whether the suit is meritless and
retaliatory and adding that a claim is meritless if the movant can disprove an
essential element of the claim. See, e.g., Prakash v. Parulekar, 2020 IL App (1st)
191819, ¶ 38; Chadha v. North Park Elementary School Ass’n, 2018 IL App (1st)
171958, ¶¶ 92-93; Goral v. Kulys, 2014 IL App (1st) 133236, ¶¶ 37-40;
Samoylovich v. Montesdeoca, 2014 IL App (1st) 121545, ¶ 29; Stein v. Krislov,
2013 IL App (1st) 113806, ¶ 17; Garrido v. Arena, 2013 IL App (1st) 120466,
¶¶ 18-19.
¶ 23 Anderson argues that the appellate court’s departure from First District
precedent applying the “meritless and retaliatory” standard shifts procedural
protections in the movant’s favor. According to Anderson, a defendant can always
argue that the plaintiff’s true motive is retaliation, and the trial court must now
make dispositive factual findings on a limited record. He notes that anti-SLAPP
statutes in some other states first require a determination that the suit is objectively
baseless. Anderson further points out that the appellate court here determined that
“meritless” cannot mean lacking in legal merit in part because 10% to 20% of
SLAPP cases result in judgments for plaintiffs. See 2025 IL App (4th) 241076, ¶ 42
(citing Sandholm, 2012 IL 111443, ¶ 34). He disputes that statistic as overstated
based on the underlying studies and argues that, regardless, SLAPPs remain
overwhelmingly legally meritless. Anderson also argues that the Act is not
redundant of traditional dispositive motions, as it offers the additional protections
-8-of expedited proceedings, a stay of discovery, and an award of attorney fees to the
prevailing movant.
¶ 24 Smith responds that both the Act’s text and Sandholm focus on whether a
plaintiff genuinely seeks relief, rather than on whether the claims are legally
meritless. She argues that the Act targets lawsuits that chill protected activity and
not those that merely lack merit. In her view, nothing in the Act “indicates an
intention to regulate the reasonableness of defamation claims generally” but rather
to prevent the abuse of judicial process where the plaintiff’s purpose is to harass
individuals and organizations for participating in public affairs, which is a question
only a subjective standard can address. Smith further contends that the appellate
court’s reference to the disputed statistics was not central to its reasoning and that
it simply used the statistics to support two noncontroversial conclusions: that a
SLAPP claim is meritless because it does not warrant litigation on the merits and
that postponing this determination until after trial would deprive the movant of the
benefits that the Act was designed to provide.
¶ 25 We agree with Smith and the appellate court below that Ryan and its progeny
misinterpreted Sandholm as establishing a strict “meritless and retaliatory” test.
When using the phrase “meritless, retaliatory SLAPP” lawsuits, we used the terms
“meritless” and “retaliatory” as adjectives to describe SLAPPs, rather than as
elements that a movant must prove to establish that a lawsuit is a SLAPP. See
Sandholm, 2012 IL 111443, ¶¶ 44-45. Tellingly, we never stated that a defendant
was required to prove that a lawsuit was both meritless and retaliatory, nor did we
apply such a test in resolving the issue before us. See id. ¶ 57. This is consistent
with the Act itself, which contains no such requirements. Anderson acknowledged
at oral argument that Sandholm did not apply a “meritless and retaliatory” test to
resolve the issue of whether the case was a SLAPP. Indeed, the paragraph
encompassing our determination that the defendants did not meet their burden
under the Act does not use the terms “merit”/“meritless” or “retaliatory” at all. See
id.
¶ 26 Again, the second prong of the post-Sandholm test requires the defendant to
show that the plaintiff’s claims are solely based on, related to, or in response to the
movant’s exercise of the rights to petition, speak, associate, or otherwise participate
in government to obtain favorable government action. Glorioso, 2024 IL 130137,
-9-¶ 55. In Glorioso, we described “a defendant’s initial burden as the moving party”
as requiring the defendant “to show the true goal of the lawsuit is to ‘chill
participation in government or to stifle political expression,’ rather than to seek
damages for personal harm from the defendants’ tortious acts.” Id. ¶ 52 (quoting
Sandholm, 2012 IL 111443, ¶ 57). In applying this standard, the appellate court
concluded that Sandholm calls for a subjective inquiry into the plaintiff’s intent
behind litigating (2025 IL App (4th) 241076, ¶ 48), and we agree. In determining
whether the standard of the second prong was satisfied in Sandholm, we referenced
the “plaintiff’s intent in bringing suit” (Sandholm, 2012 IL 111443, ¶ 42), whether
“a plaintiff files suit genuinely seeking relief for damages” (id. ¶ 45), and the “true
goal” of the plaintiff’s claims (id. ¶ 57), in addition to stating that, if “a plaintiff’s
complaint genuinely seeks redress for damages,” it “does not constitute a SLAPP”
(id. ¶ 53). Further, as the appellate court highlighted, we have clearly stated that the
genuineness of the defendant’s acts under the third prong is assessed by a subjective
test (Glorioso, 2024 IL 130137, ¶ 67 n.3), and Sandholm compared genuineness
under the second prong with genuineness under the third prong (Sandholm, 2012
IL 111443, ¶ 53), supporting the appropriateness of a similar subjective approach.
2025 IL App (4th) 241076, ¶ 48. “Under the principles of stare decisis, we are duty
bound to follow the analysis set forth in Sandholm” (Glorioso, 2024 IL 130137,
¶ 53) for cases filed before the Act’s amendments apply.
¶ 27 We part ways with the appellate court on its holding that a factual dispute on
any prong of the post-Sandholm test requires the trial court to hold an evidentiary
hearing and decide the disputed factual issues. 2025 IL App (4th) 241076, ¶ 75.
The legislature chose to have claims of immunity under the Act raised in any type
of pleading that seeks to dispose of a judicial claim (see 735 ILCS 110/10 (West
2024)), rather than create an entirely new type of motion. Cf. Walsh, 238 Ill. 2d at
644 (Freeman, J., specially concurring, joined by Thomas and Burke, JJ.) (“[T]his
court should make explicit that the Act operates only in conjunction with normal
practice under the Code of Civil Procedure.”). In Sandholm, we noted that a motion
to dismiss under section 2-619(a) admits the legal sufficiency of the plaintiff’s
claim but asserts defects or defenses outside the pleadings that defeat the claim.
Sandholm, 2012 IL 111443, ¶ 55. In evaluating such a motion, we construe the
pleadings and supporting documents in the light most favorable to the nonmoving
party, accepting as true all well-pleaded facts in the plaintiff’s complaint and
reasonable inferences drawn from those facts. Id. We determine whether a genuine
- 10 -issue of material fact should preclude dismissal or, absent such an issue of fact,
whether dismissal is appropriate as a matter of law. Id.
¶ 28 We recognize that the Act sets forth a procedure that differs from a typical
section 2-619(a)(9) motion. However, an evidentiary hearing is contrary to the
Act’s suspension of discovery and its 90-day timeframe for a trial court to rule on
the motion. See 735 ILCS 110/20 (West 2024). Moreover, Glorioso, Sandholm,
and Walsh all stated without qualification that review was de novo (Glorioso, 2024
IL 130137, ¶ 49; Sandholm, 2012 IL 111443, ¶¶ 41, 55; Walsh, 238 Ill. 2d at 634),
which is inconsistent with a potential evidentiary hearing.
¶ 29 Additionally, if the legislature intended to allow an evidentiary hearing on the
motion, it could have so specified, as at least two states have done in their antiSLAPP statutes. See Ariz. Rev. Stat. Ann. § 12-751(C) (2022) (“In making its
determination [on an anti-SLAPP motion to dismiss], the court shall conduct an
evidentiary hearing or consider the pleadings and supporting and opposing
affidavits stating facts on which the liability, defense or action is based.”); Nev.
Rev. Stat. § 41.660(3)(d) (2015) (the court may “[c]onsider such evidence, written
or oral, by witnesses or affidavits” in ruling on special motion to dismiss pursuant
to anti-SLAPP statute). Other states without such statutory language have
specifically found that their anti-SLAPP statutes do not authorize a trial court to
conduct evidentiary hearings on a motion to dismiss. See, e.g., Talandar v.
Manchester-Murphy, 2024 VT 86, ¶ 40, 220 Vt. 403, 331 A.3d 1093 (holding that
the provision of Vermont’s anti-SLAPP statute did not permit the trial court to hold
an evidentiary hearing on the motion; the statute specifically contemplated
resolution of the motion based on pleadings and affidavits, and reading evidentiaryhearing requirement into the statute would counteract its statutory purpose of
imposing tight timeliness on each step in resolution of the motion); Aguilar v. Eick,
344 A.3d 263, 286 (Conn. App. Ct. 2025) (holding that anti-SLAPP statute did not
authorize trial court to conduct an evidentiary hearing on motion to dismiss and that
trial court’s reliance on testimony adduced at hearing constituted reversible error).
¶ 30 Rather, the trial court must determine the plaintiff’s subjective intent in bringing
the suit from the pleadings and other supporting documents, which, as in this case,
could include depositions obtained before discovery was suspended. The defendant
must show that the plaintiff’s subjective intent in bringing the suit is solely based
- 11 -on, related to, or in response to the movant’s exercise of the rights to petition, speak,
associate, or otherwise participate in government to obtain favorable government
action (Glorioso, 2024 IL 130137, ¶ 55), i.e., that “the true goal of the lawsuit is to
‘chill participation in government or to stifle political expression,’ rather than to
seek damages for personal harm from the defendants’ tortious acts” (id. ¶ 52
(quoting Sandholm, 2012 IL 111443, ¶ 57)). See Walsh, 238 Ill. 2d at 630 (SLAPPs
seek to deter people from exercising their political rights or punish them for doing
so). We note that in Sandholm we concluded that the plaintiff’s lawsuit was not
solely based on the defendants’ participation in government exclusively by
examining the parties’ pleadings. Sandholm, 2012 IL 111443, ¶ 57.
¶ 31 The two factors that the First District has been using to assess whether a lawsuit
was retaliatory, namely the timing of the complaint and whether the damages
sought are disproportionate to the injury alleged, could play a role in assessing
intent in some cases. See Symposium, “Strategic Lawsuits Against Public
Participation” (“SLAPPs”): An Introduction for Bench, Bar and Bystanders, 12
Bridgeport L. Rev. 937, 950 (1992) (one of the “classic indicators” of a SLAPP is
claims for large monetary damages, disproportionate to realistic losses). However,
even Ryan and Hytel recognized that such considerations are case-specific and not
to be applied in a blanket fashion. See Ryan, 2012 IL App (1st) 120005, ¶ 23; Hytel,
405 Ill. App. 3d at 126. Similarly, whether a complaint is meritless, because it is
frivolous or an essential element can be disproved, may bear on the plaintiff’s
intent, but it is not a prerequisite to satisfying the second prong of the test, as earlier
appellate court decisions required. A claim that could theoretically succeed on the
legal merits may therefore still be dismissed as a SLAPP, but only if the defendant
meets the difficult burden of showing that the plaintiff brought the claim solely to
deter or punish the defendant for participation in government. If, after reviewing
the pleadings and supporting documents, the trial court determines that a material
factual dispute remains regarding the plaintiff’s intent, the defendant has failed to
meet his or her burden, and the trial court must deny the motion to dismiss under
the Act with prejudice.
¶ 32 Conversely, if the trial court determines that the defendant has met the secondprong burden, the burden shifts to the plaintiff in the third prong of the test to prove
by clear and convincing evidence that the defendant’s acts were not genuinely
aimed at procuring a favorable government outcome, which is also a subjective
- 12 -inquiry. Glorioso, 2024 IL 130137, ¶ 67 n.3. If, after reviewing the pleadings and
supporting documents, the trial court determines that a material factual dispute
remains regarding whether the defendant’s acts were not seriously aimed at
procuring a favorable government outcome, the plaintiff has failed to meet his
burden, and the trial court must grant the motion to dismiss under the Act. As with
the second prong, however, the appellate court labeled this a factual determination
for the trial court to be made following an evidentiary hearing. That approach is
incorrect for the same reasons discussed for the second prong. We additionally note
that, although the burden is clear and convincing evidence, such a standard does
not preclude de novo review by a reviewing court. See Wanless v. Rothballer, 115
Ill. 2d 158, 168-69 (1986).
¶ 33 III. CONCLUSION
¶ 34 In sum, for cases filed before January 1, 2026, we agree with the appellate court
that the second prong of the post-Sandholm test requires determining the plaintiff’s
subjective intent in bringing the suit, rather than applying the rigid “meritless and
retaliatory” standard derived from Ryan. However, we disagree with the appellate
court that this inquiry can lead to a factfinding evidentiary hearing. Instead, the trial
court should base its ruling only on the pleadings and supporting documents.
¶ 35 For the reasons stated, we affirm the judgment of the appellate court as
modified, which reversed the trial court’s ruling and remanded for further
proceedings.
¶ 36 Appellate court judgment affirmed as modified.
¶ 37 Circuit court judgment reversed.
¶ 38 Cause remanded.
- 13 -