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.)
One Illinois Integrity Fund mailing that Joe Tirio contends defamed him.
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.
Sincerely,
Natalie A. Harris
= = = = =
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.
It sounds to me like s/he/they are playing games to string things out and run up Mr Tirio’s legal bills in the hopes that he will be forced to give up on the case.
I hope Judge Costello continues to show some backbone and doesn’t go along with this nonsense.
Friendly contempt my dying ass.
These people have shown contempt for the entire population of McHenry County.
Lock them up.
The overused ole’ “Lock em up” by orville: the guy who should perhaps been lock up himself.
(720 ILCS 5/8-2) (from Ch. 38, par. 8-2)
Sec. 8-2. Conspiracy.
(a) Elements of the offense. A person commits the offense of conspiracy when, with intent that an offense be committed, he or she agrees with another to the commission of that offense. No person may be convicted of conspiracy to commit an offense unless an act in furtherance of that agreement is alleged and proved to have been committed by him or her or by a co-conspirator.
(b) Co-conspirators. It is not a defense to conspiracy that the person or persons with whom the accused is alleged to have conspired:
(1) have not been prosecuted or convicted,
(2) have been convicted of a different offense,
(3) are not amenable to justice,
(4) have been acquitted, or
(5) lacked the capacity to commit an offense.
(c) Sentence.
(1) Except as otherwise provided in this subsection
or Code, a person convicted of conspiracy to commit:
(A) a Class X felony shall be sentenced for a
Class 1 felony;
(B) a Class 1 felony shall be sentenced for a
Class 2 felony;
(C) a Class 2 felony shall be sentenced for a
Class 3 felony;
(D) a Class 3 felony shall be sentenced for a
Class 4 felony;
(E) a Class 4 felony shall be sentenced for a
Class 4 felony; and
(F) a misdemeanor may be fined or imprisoned or
both not to exceed the maximum provided for the offense that is the object of the conspiracy.
(2) A person convicted of conspiracy to commit any of
the following offenses shall be sentenced for a Class X felony:
(A) aggravated insurance fraud conspiracy when
the person is an organizer of the conspiracy (720 ILCS 5/46-4); or
(B) aggravated governmental entity insurance
fraud conspiracy when the person is an organizer of the conspiracy (720 ILCS 5/46-4).
(3) A person convicted of conspiracy to commit any
of the following offenses shall be sentenced for a Class 1 felony:
(A) first degree murder (720 ILCS 5/9-1); or
(B) aggravated insurance fraud (720 ILCS 5/46-3)
or aggravated governmental insurance fraud (720 ILCS 5/46-3).
(4) A person convicted of conspiracy to commit
insurance fraud (720 ILCS 5/46-3) or governmental entity insurance fraud (720 ILCS 5/46-3) shall be sentenced for a Class 2 felony.
(5) A person convicted of conspiracy to commit any of
the following offenses shall be sentenced for a Class 3 felony:
(A) soliciting for a prostitute (720 ILCS
5/11-14.3(a)(1));
(B) pandering (720 ILCS 5/11-14.3(a)(2)(A) or
5/11-14.3(a)(2)(B));
(C) keeping a place of prostitution (720 ILCS
5/11-14.3(a)(1));
(D) pimping (720 ILCS 5/11-14.3(a)(2)(C));
(E) unlawful use of weapons under Section
24-1(a)(1) (720 ILCS 5/24-1(a)(1));
(F) unlawful use of weapons under Section
24-1(a)(7) (720 ILCS 5/24-1(a)(7));
(G) gambling (720 ILCS 5/28-1);
(H) keeping a gambling place (720 ILCS 5/28-3);
(I) registration of federal gambling stamps
violation (720 ILCS 5/28-4);
(J) look-alike substances violation (720 ILCS
570/404);
(K) miscellaneous controlled substance violation
under Section 406(b) (720 ILCS 570/406(b)); or
(L) an inchoate offense related to any of the
principal offenses set forth in this item (5).
(Source: P.A. 96-710, eff. 1-1-10; 96-1551, eff. 7-1-11.)
(720 ILCS 5/8-2.1)
Sec. 8-2.1. Conspiracy against civil rights.
(a) Offense. A person commits conspiracy against civil rights when, without legal justification, he or she, with the intent to interfere with the free exercise of any right or privilege secured by the Constitution of the United States, the Constitution of the State of Illinois, the laws of the United States, or the laws of the State of Illinois by any person or persons, agrees with another to inflict physical harm on any other person or the threat of physical harm on any other person and either the accused or a co-conspirator has committed any act in furtherance of that agreement.
(b) Co-conspirators. It shall not be a defense to conspiracy against civil rights that a person or persons with whom the accused is alleged to have conspired:
(1) has not been prosecuted or convicted; or
(2) has been convicted of a different offense; or
(3) is not amenable to justice; or
(4) has been acquitted; or
(5) lacked the capacity to commit an offense.
(c) Sentence. Conspiracy against civil rights is a Class 4 felony for a first offense and a Class 2 felony for a second or subsequent offense.
(Source: P.A. 92-830, eff. 1-1-03.)
(720 ILCS 5/8-3) (from Ch. 38, par. 8-3)
Sec. 8-3. Defense.
It is a defense to a charge of solicitation or conspiracy that if the criminal object were achieved the accused would not be guilty of an offense.
(Source: Laws 1961, p. 1983.)
(720 ILCS 5/8-4) (from Ch. 38, par. 8-4)
Sec. 8-4. Attempt.
(a) Elements of the offense.
A person commits the offense of attempt when, with intent to commit a specific offense, he or she does any act that constitutes a substantial step toward the commission of that offense.
(b) Impossibility.
It is not a defense to a charge of attempt that because of a misapprehension of the circumstances it would have been impossible for the accused to commit the offense attempted.
(c) Sentence.
A person convicted of attempt may be fined or imprisoned or both not to exceed the maximum provided for the offense attempted but, except for an attempt to commit the offense defined in Section 33A-2 of this Code:
(1) the sentence for attempt to commit first degree
murder is the sentence for a Class X felony, except that
(A) an attempt to commit first degree murder when
at least one of the aggravating factors specified in paragraphs (1), (2), and (12) of subsection (b) of Section 9-1 is present is a Class X felony for which the sentence shall be a term of imprisonment of not less than 20 years and not more than 80 years;
(B) an attempt to commit first degree murder
while armed with a firearm is a Class X felony for which 15 years shall be added to the term of imprisonment imposed by the court;
(C) an attempt to commit first degree murder
during which the person personally discharged a firearm is a Class X felony for which 20 years shall be added to the term of imprisonment imposed by the court;
(D) an attempt to commit first degree murder
during which the person personally discharged a firearm that proximately caused great bodily harm, permanent disability, permanent disfigurement, or death to another person is a Class X felony for which 25 years or up to a term of natural life shall be added to the term of imprisonment imposed by the court; and
(E) if the defendant proves by a preponderance of
the evidence at sentencing that, at the time of the attempted murder, he or she was acting under a sudden and intense passion resulting from serious provocation by the individual whom the defendant endeavored to kill, or another, and, had the individual the defendant endeavored to kill died, the defendant would have negligently or accidentally caused that death, then the sentence for the attempted murder is the sentence for a Class 1 felony;
(2) the sentence for attempt to commit a Class X
felony is the sentence for a Class 1 felony;
(3) the sentence for attempt to commit a Class 1
felony is the sentence for a Class 2 felony;
(4) the sentence for attempt to commit a Class 2
felony is the sentence for a Class 3 felony; and
(5) the sentence for attempt to commit any felony
other than those specified in items (1), (2), (3), and (4) of this subsection (c) is the sentence for a Class A misdemeanor.
(Source: P.A. 96-710, eff. 1-1-10.)
(720 ILCS 5/8-5) (from Ch. 38, par. 8-5)
Sec. 8-5. Multiple convictions.
No person shall be convicted of both the inchoate and the principal offense.
(Source: Laws 1961, p. 1983.)
boy this Crook County lawyer has a lot of nerve treating our county Judge Costello like he’s some kind of Barney Fife.
I deplore this type of garbage political mail which attempts to dis-inform the voting public seeking to elect capable and honorable citizens to leadership positions.
People who commit such liable slander, and who damage our election process, must be exposed and held accountable.