Yesterday, Natalie Harris of Mendel Menkes LLC, attorney for Breaker Press and losing Republican County Clerk candidate Janice Dalton blew off Judge Kevin Costello’s court order by refusing to provide the identities of who was responsible for the hit pieces against then-McHenry County Clerk candidate Joe Tirio.
Instead she filed the following letter, which admits she also represents the Illinois Integrity Fund (“the anonymous persons…s/he/they”):
Re: Tirio v. Dalton, et al. / Case No.: 18MR000302
Dear Mr. Prossnitz,
As you know, I represent Respondents Janice Dalton and Breaker Press in the above-referenced Rule 224 Petition filed by your client McHenry County Clerk and Recorder Joe Tirio.
Tirio’s Petition asserts that certain political campaign advertising flyers published by the Illinois Integrity Fund in the run up to the March 2018 Republican primary in Tirio’s race for McHenry County Clerk (“Flyers”) are defamatory per se, and Tirio seeks the identity of the individual(s)behind the Illinois Integrity Fund responsible for the Flyers. (Second Am. R. 224 Pet., ¶¶ 8-9,11,15.)
The Respondents objected to, and moved to dismiss, Tirio’s Rule 224 Petition, asserting various arguments in support of their position that the allegedly defamatory statements constitute anonymous speech protected by the First Amendment.
On November 29, 2018, the Court granted Tirio’s Rule 224 Petition, and ordered Respondents to disclose the name and address of the person(s) who created the Flyers.
On December 6, 2018, Respondents filed a Notice of Appeal and a Motion to Stay the November 29, 2018 order pending resolution of the appeal.
Earlier this week on December 11, 2018, the Court entered an order denying Respondents’ Motion to Stay the November 29 Order, and requiring Respondents to comply with the November 29, 2018 by December 13, 2018 at 12:00 p.m.
I am writing to inform you that Respondents respectfully decline to comply with the November 29, 2018 order and the December 11, 2018 order for the sole purpose of preserving the status quo pending resolution of the appeal.
If necessary, Respondents shall make a good-faith request for entry of a “friendly contempt” strictly to ensure that there is appellate jurisdiction to test the December 11, 2018 order pursuant to Ill. Sup. Ct. R. 304(b)(5).
The friendly contempt procedure is appropriate where contemnor’s “conduct in advocating for her
client’s position [is] neither contumacious [or] subject[s] the court to distain or scorn.” In re All Asbestos Litigation, 385 Ill. App. 3d 386, 392, 895 N.E.2d 1155, 1160 (1st Dist. 2008).
“Whenever a noncompliance of a court order is based on ‘a good-faith effort to secure an interpretation of an issue without direct precedent, the contempt will be considered friendly.” Pensler v. Fox TV Stations, Inc., 2016 IL App (1st) 142694-U, ¶ 37.
In addition, as a follow up to the discussions held on the record during the December 11, 2018 hearing, I want to inform you that I represent all of the individual(s) referenced in Par. 3 of this Court’s November 29, 2018 order, namely the anonymous person(s) at whose direction the subject Flyers at issue were created and Breaker Press was paid to print and mail the Flyers.
For ease of reference, I will refer to the anonymous person(s) as the Illinois Integrity Fund (“IIF”) because that is the anonymous name s/he/they adopted for use on the Flyers.
Upon consultation with my client IIF, s/he/they have agreed to authorize me to accept service of process on his/her/their behalf.
This disclosure should address your concern that the
- “Illinois Integrity Fund is a total ghost” to you;
- IIF might have nothing to do with the Flyers and
- statute of limitations on Tirio’s alleged defamation claim against IIF might expire if the Court stays the November 29, 2018 order pending resolution of the appeal. (12/11/18 Rough TOP, 52:19-53:6).
In addition, this disclosure solves the Court’s concern that staying the November 29, 2018 order pending resolution of the appeal would force Tirio to wait until after the one-year statute of limitations expires to file his alleged claims against IIF. (12/11/18 Rough TOP, 17:17-19, 34:16-19).
In other words, staying the November 29, 2018 order will not “result [in Tirio’s] losing any viable cause of action against the  person or persons they contend defamed Mr. Tirio.” (12/11/18 Rough TOP, 58:15-19).
Tirio knows that IIF made the subject statements in the Flyers.
Therefore, at any time before the expiration of the applicable statute of limitations, Tirio may sue the known defendant(s) IIF using IIF’s undisputed adopted alias, and may serve process on IIF through disclosed counsel. See, Hadley v. Doe, 2015 IL 118000, ¶¶ 17-1.
These facts eliminate any potential harm to Tirio in connection with staying the November 29, 2018 order pending resolution of the appeal.
Natalie A. Harris
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At 4:03 PM Tirio attorney Phil Prossnitz filed a motion to show cause why the defendants should not be cited for contempt of court.