Judge Kevin Costello put McHenry County Recorder of Deeds and County Clerk candidate Joe Tirio one court date away form bring able to find out who is behind the anonymous Illinois Integrity Fund.
Thursday afternoon there was a hard-fought battle between Breaker Press attorney Natalie Harris and Joe Tirio attorney Philip Prossnitz.
Breaker Press is the company that printed and mailed six hit pieces depicting Tirio as a masked and gloved “crook” with “a secret taxpayer funded slush fund” during the Republican Primary Election last spring.
After hearing forceful arguments from Harris, Judge Costello ruled from the bench that there was sufficient reason to allow Tirio to have subpoena power to find out who was behind the Illinois Integrity Fund mailings.
However, the Court ruled that Prossnitz would have to modify his pleasings to meet legal standards.
Harris argued that words in political mailings had to be used in their most innocent construction.
She said that “slush fund’s” most innocent meaning was “an unregulated fund.”
Here are the two definitions in Merriam-Webster:
- a fund for bribing public officials or carrying on corruptive propaganda
- an unregulated fund often used for illicit purposes
The Recorder’s office has an Automation Fund coming from fees paid by those recording documents.
From that fund, he hired four employees and financed a trip to New Mexico to attend an automation conference.
Another argument was that all the statements on the mailings were “opinion,” not “fact.”
Harris quoted cases that said facts had to be presented that showed “an imputation of a criminal offense.”
She argued nothing in the post cards did meet that standard.
“We are missing the critical element. There has to be an indictable [offense or] moral turpitude punishable by prison or death.”
Judge Costello noted that Breaker Press alleges that the flyers are opinion, not factual.
He agreed that the word “crooked” in and of itself was not a factual statement in a political campaign, but more an epitaph.
He found the mast “derogatory, but also vague, a connotation protected by political speech.”
Going through five of the six mailings, the Court told the wording related to the slush fund and that it was financed by tax money.
Referring to the two definitions of slush fund, Judge Costello said, “The Court is not convinced that is an innocent construction”
Focusing on the second definition, he said the “unregulated fund” should “consider in its entire context.”
Referring to the photoshopped masked candidate, he continued: “I don’t know how the Court could construe that as an ‘unregulated fund.'”
The implication, he continued, was that the slush fund was “used for illicit purposes.
“It cannot be innocently construed.”
He referred to the piece’s message as “defamation per se, a lack of integrity in carrying out [Tirio’s] public office.”
However, he ruled that Breaker Press Attorney Harris had a good point with regard to the case’s pleading.
The Judge noted that the case had a Catch-22 aspect.
Tirio needed subpoena power to discover who is published the mailings and find their motive.
On the other hand, Tirio was supposed to show how “unknown defendants knew or should have know” of the nature of the fund.
Adding to the pleading that all of this information was a matter of public record and that a failure to look at the public record is indicative of the actual malice is what the Judge requested.
“We view it as a solid victory,”Prossnitz said, “and the result of a well-reasoned and through opinion by Judge Costello.”
The next court date is September 14th, by which time Prossnitz will have re-written the pleading to conform with the Judge’s wishes.