Below is the court transcript of Judge Kevin Costello’s decision on allowing McHenry County Clerk Joe Tirio to proceed with his court efforts to learn which of Jack Franks’ allies were behind the defamatory mailings made by Breaker Press and attributed to the anonymous the so-called Illinois Integrity Fund.
(I was inspired by Woodstock Independent Editor Cheryl Wormley’s editorial attacking Joe Tirio for filing the suit. Having read her editorial, I got the distinct feeling that she had not read the decision. Now she can easily do so on this snow-bound day.)
THE COURT:· All right.· Thank you very much.· Okay.
Obviously a lot to digest here but let me go through it.
First of all, I want to thank the counsel for their oral arguments.
I’ve considered that.
I’ve also considered the — all of the briefs that were filed and all applicable portions of the court file including the amended petition, it should thought to be filed.
This action was brought under a Supreme Court Rule 224 which allows — is a procedure to allow parties to attempt to gain information for potential defendants in actions.
The reason it appears to be applicable here, and there’s really no dispute about the fact that it’s the proper mechanism in this particular case, is that Mr. Tirio is alleging he was defamed by fliers that were sent in a political campaign that he was running in, in that the party or parties that disseminated the fliers are unknown to him.
So Supreme Court Rule 224 allows a procedure for him to attempt to discover that.
As Mr. Prossnitz alluded to, the case law in regard to defamation has evolved to the point where respondents or defendants have the right to seek to dismiss the action under 2-615, and the Court has to look at the petition at issue to see if it passes muster under 2-615.
So — And the Court has certainly done that.
The respondents have raised a number of issues.
I’ll try and address them all, but if I don’t put them on the record I will state for the record I have considered them all.
But they — excuse me – they allege that essentially these fliers are political opinion and nonactionable and not statements of fact and they’re protected.
As the Court has alluded to earlier, there are certain statements made within the fliers which the Court agrees with counsel for defendants are statements of political opinions, specifically the term “crooked” in referring to Mr. Tirio.
While that has a derogatory meaning, it is also vague and a statement of opinion and I don’t think in and of itself it would be actionable in a defamatory action.
Likewise, the depiction of Mr. Tirio with a mask on could also have a derogatory term, connotation, but, again, I think that is protected whether we call it political speech or political satire.
I think that in and of itself falls into opinion rather than fact and, again, would be protected if that was all that was at issue.·
There are also other statements that really haven’t been addressed or become an issue but I’ll just give an example.
One — One of the fliers says that he is — referring to Mr. Tirio — “destroying the GOP with Chicago style sleaze.”
Again, that’s vague and undefined and I think it’s more a matter of opinion.
But there is repeated throughout the fliers almost all of them have very similar terms.
One says, “Has a secret taxpayer-funded slush fund.”
Another one says “Crooked Joe Tirio claims to be a straight shooter but his crooked taxpayer-funded slush fund proves he’s just another crooked politician.”
It goes on to say “Crooked Joe Tirio is using a taxpayer-funded slush fund.”
And it goes on to say “Crooked Joe hired four cronies out of his slush fund,” and “Crooked Joe paid for his vacation in New Mexico with the slush fund.”
Again, the term “cronies” in and of itself I don’t think is actionable but the significance here is that it’s referenced that he paid these people out of the so-called slush fund.
Again, the next flier says — it’s got a number of arrows or bullet points, one of which is “slush fund.”
Another one has arrows where it says “We know about his secret slush fund.”
And the last one does not, the second to last one does not appear to reference the slush fund itself.
And the last one says “Checks off a secret slush fund.”
So with the exception of one of the fliers, all of them refer to “slush fund,” most of them refer to the term “secret slush fund.”
The Court finds that that is not a statement of opinion but rather a statement of alleged fact and therefore would not be protected under the First — First Amendment in and of itself by that and can be argued to be defamatory.
The next argument from the respondents is that any references to the slush fund should be innocently construed.
There certainly is that doctrine in the law that if a statement can be construed innocently, it should be.
Here as alleged, and it does not appear to be rebutted, the dictionary definition of “slush fund” as alleged in the petition filed by Mr. Tirio has two definitions:
- “A fund for bribing public officials or carrying on corruptive propaganda,” and,
- “An unregulated fund often used for illicit purposes.”
Respondents do not contend that number 1 applies but that number 2, the second definition should be innocently construed, so the term “An unregulated fund often used for illicit purposes.”
First of all, the Court is not convinced that that is all that innocent of a construction.
But be that as it may, the case law in the Hadley case, which has been cited by both sides and was provided to the Court, I’ll give the official cite here, Hadley versus Doe, Illinois Supreme Court case 2015 IL 118000.
It discusses the issue of innocent construction and in referring to that it states at paragraph 31: “When a defamatory meaning was clearly intended and conveyed, this Court will not strain to interpret allegedly defamatory words in their mildest and most inoffensive sense in order to hold them nonlibellous under the innocent construction rule.”·
It goes on to say “The innocent construction rule does not require courts to espouse a naivete unwarranted under the circumstances.
If the likely intended meaning of a statement is defamatory, a Court should not dismiss the plaintiff’s claim under the innocent construction rule.”
So what the respondents here are asking the Court to do is to construe that the use of the term “slush fund” or “secret slush fund” really should only be construed as
meaning an unregulated fund, that he is in charge of an unregulated fund.
Again, the case law is clear that the Court has to consider that statement in its entire context.
If we look at the various statements — if you bear with me for a moment.
The first one I think is really kind of dispositive, the other one has just similar language.·
“Crooked Joe Tirio has a secret taxpayer-funded slush fund,” and it depicts him dressed essentially in dark with a mask on.·
I don’t know how the Court could innocently construe that to mean that he’s simply in charge of an unregulated fund.
As indicated in the Hadley case, the Court is not too naive in these situations that I think the Court would be naive if one looks at these various fliers that they are simply trying to convey that he is in charge of an unregulated fund.
I think it’s clear that the meaning conveyed is either the definition number one, a fund for bribing public officials or carrying on corruptive propaganda, or two, an unregulated fund in this case used for illicit purposes.
I think it’s clear that the context and meaning here is that this fund that he allegedly is in charge of is for the purpose of illicit purposes.
So I think those — those statements are – cannot reasonably be innocently construed.
I think they also can be defined as defamation per se both for commission of a crime and also a lack of integrity in carrying out public office.
So I think those arguments fail.
There’s an argument that there — that the statements about the slush fund are substantially true.
I don’t think it was really addressed too much in the oral argument, it is in the written motion.
Again, that — that — that would have to be determined by the trier of fact in this case.
I’m just looking at it from a 2-615 perspective of whether it’s been sufficiently pled, and I think that it has for that purpose and I don’t think that the Court could determine at this point that it’s substantially true or not true.
The last issue has to do with the pleading of actual malice.
The argument from the respondents is that it has not been properly pled.
Specifically it looks like the only portion of the petition that, although may be repeated in various counts, but paragraph 45 says “The representations and statements in flier number 1 were published by an unknown defendant, parentheses S, with actual malice knowing the statements was, parentheses, were, false or with a reckless disregard for the truth or falsity of the statement.”
Now the issue is whether that is sufficiently a proper pleading of actual malice.·
We discussed earlier this afternoon the Weber case that was cited in the petitioner’s brief which quoted from the Arlington Heights case.
The argument from petitioner is that in that case the simple, I guess, bare allegation in one paragraph of actual malice was sufficient.
However, as referenced further on in the brief, it says “Paragraph 1 of the complaint states that the plaintiff was a person of good repute and credit and had been a police officer in the City of Chicago with 34 years honorable service.”
Paragraph 4 states that “The defendants well knowing the facts set forth in paragraph 1 hereof but maliciously intending to injure plaintiff and to bring him into public scandal, disrepute and disgrace falsely and maliciously published concerning the plaintiff false, scandalous, malicious and defamatory words.”
So in that complaint there was a specific reference that the defendants knew what they were saying was false, that specific reference is not in this amended petition.
The Court is cognizant of the fact that as I refer to it earlier a catch-22 in the sense that you are attempting to discover who it is that published this, and also presumably as part of that discovery you may glean more information as to their motives or reasons.
However, you did allude to, Mr. Prossnitz, in argument which I think does make some logical sense in your oral argument that the statements about — that you made in your petition about the two separate funds and the source of those funds, the money source of those funds, and that the knowledge is public record and knowledge, I think is something that can and should be pled to argue in your petition that the unknown defendants essentially knew or should have known of the falsity of the statement.
So I agree with counsel for the respondents that I think under these circumstances — and, again, it’s a difficult situation because the law says I have to look at your petition under 2-615 but I’m cognizant of the fact that you — you don’t have the knowledge base that maybe other defamation cases would have at that point, but it still says it has to pass muster under 2-615.
So I think if you pled those type of facts, I think they would be sufficient to meet the criteria under 2-615, and I appreciate the argument that you made that — it’s inferred but I don’t think it’s clear enough in the petition.
So I’m going to deny the motion to dismiss in part and grant it in part in a sense that I am going to require you to replead your allegations of actual malice but in all other matters the motion to dismiss is denied.
How long do you need to replead your petition?
MR. PROSSNITZ:· Just a few weeks. If I could come back here on September 14th I will have a second amended verified complaint, Your Honor.
THE COURT:· All right.· So you want to come back on that day on a status?
MR. PROSSNITZ:· That would be fine, Judge.
THE COURT:· So what we can do is either at that point you can then tell me how long you need to answer, otherwise plead to it or we can incorporate that now, so
it’s up to you.
MS. HARRIS:· Let me wait and see.
THE COURT:· So — Okay.· If you can prepare an order. What day do you want to come back, September —
MR. PROSSNITZ:· Friday, September 14, if that’s convenient.
THE COURT:· Will that work for you, Ms. Harris?
MS. HARRIS:· Friday, September 14th, yes, that will work for me.
And just to be clear procedurally, he’s repleading the petition and I will have an
opportunity — I don’t know what he’s going to say – but to object to the new petition.·
Today there was not a ruling with respect to whether or not any identity – any portion of anyone’s identity must be turned over, that he still has –
THE COURT:· I’m not making that ruling yet, but as long as we understand each other that I have ruled on all aspects of your motion and I’ve denied it in all respects other than the argument that he has not sufficiently pled actual malice.
So I don’t think you can raise the same arguments again, but I’m not ordering
you to respond at this point.
MS. HARRIS:· Fair enough, Your Honor.
THE COURT:· Okay?· All right.· Anything else?
MR. PROSSNITZ:· No, Your Honor.
THE COURT:· Okay.· Thank you both for your time.
MS. HARRIS:· Thank you.
THE COURT:· Prepare an order.