Brennan v. Kadner

• Citation: 814 N.E.2d 951,351 Ill. App.3d 963,286 Ill.Dec. 725
• Decision Date: 11 August 2004
• Docket Number: No. 1-03-1476.,1-03-1476.
• Parties: Dennis BRENNAN, Plaintiff-Appellant v. Phil KADNER and Midwest Suburban Publishing, Inc. d/b/a Daily Southtown, Inc., Defendants-Appellees.
• Court: United States Appellate Court of Illinois

814 N.E.2d 951

351 Ill. App.3d 963

286 Ill.Dec. 725

Dennis BRENNAN, Plaintiff-Appellant v. Phil KADNER and Midwest Suburban Publishing, Inc. d/b/a Daily Southtown, Inc., Defendants-Appellees.

No. 1-03-1476.

Appellate Court of Illinois, First District, Third Division.

August 11, 2004.

Patrick J. O'Malley, Chicago, for Appellant.

Funkhouser Vegosen Liebman & Dunn Ltd. (Damon E. Dunn, of counsel), Chicago, for Appellee.

Justice HALL delivered the opinion of the court:

Plaintiff, Dennis A. Brennan, filed this defamation action against Midwest Suburban Publishing, Inc., d/b/a Daily Southtown, Inc., and Phil Kadner, a columnist for the Daily Southtown newspaper, for alleged damages arising from the publication of a column regarding plaintiff's appearance at an administrative hearing before the Illinois State Board of Elections (Election Board). Plaintiff's two-count complaint alleged defamation per se (count I) and false light invasion of privacy (count II).

The trial court dismissed the complaint pursuant to both section 2-615 and section 2-619 of the Illinois Code of Civil Procedure (Code) (735 ILCS 5/2-615, 2-619 (West 1996)), ruling that the alleged defamation was not a verifiable fact and was subject to an innocent construction. Plaintiff appeals from the trial court's order granting defendants' motion to dismiss.

On appeal, plaintiff contends that: (1) the published statement in defendants' column announcing that plaintiff used the United States mail to perpetrate a fraud constitutes defamation per se rather than constitutionally protected opinion; (2) the statement at issue is not reasonably capable of an innocent construction; (3) the statement is not substantially true; (4) his complaint sufficiently alleges actual malice; and (5) his complaint states a claim for false light invasion of privacy. For the reasons that follow, we affirm.

BACKGROUND

In February or early March of 2001, plaintiff and several other individuals formed a political committee referred to as the Committee to Stop the Hurckes Four. The committee was established to oppose the election of four candidates who were running for positions on the school board in Oak Lawn Community High School District 229 (District 229). See Brennan v. Illinois State Board of Elections, 336 Ill.App.3d 749, 754, 271 Ill.Dec. 300, 784 N.E.2d 854 (2002). The four candidates were endorsed by Jerry Hurckes, a village trustee, who some years before, had been accused of committing election fraud.

Plaintiff was legal counsel for District 229. It was established that if the four candidates Hurckes endorsed were elected to the school board, plaintiff would lose his contract as counsel for the school district. See Brennan, 336 Ill.App.3d at 754, 271 Ill.Dec. 300, 784 N.E.2d 854. Plaintiff personally loaned the committee funds to produce a professional videotape attacking the four candidates for being associated with Hurckes. Shortly before the election, copies of the videotape were mailed to over 7000 registered voters in the school district.

On August 7, 2001, the Election Board filed an amended complaint charging plaintiff and the committee with violation of various sections of the Illinois Election Code (Election Code) (10 ILCS 5/9-1 et seq. (West 2000)), pertaining to the disclosure of campaign contributions and expenditures. See Brennan, 336 Ill.App.3d at 752-55,271 Ill.Dec. 300,784 N.E.2d 854.

After several administrative hearings were held, an Election Board hearing officer issued a written report on October 5, 2001, finding, inter alia, that the committee and plaintiff failed to report contributions to the committee in excess of $500 within two business days; plaintiff failed to turn over to the acting committee chairman financial receipts and proofs of transactions to the committee; plaintiff filed a false D-1 statement of organization naming David Zapata as chairman and treasurer when, in fact, plaintiff was the committee's de facto chairman and treasurer; plaintiff allowed the committee to accept and expend funds at a time when the committee had vacancies in the offices of chairman and treasurer; plaintiff filed a false D-1 and amended D-1 by failing to list his name as a sponsoring entity; and plaintiff's actions were performed with the intent to violate the Election Code. Brennan, 336 Ill.App.3d at 758, 271 Ill.Dec. 300, 784 N.E.2d 854.

Six days later, on October 11, 2001, the Daily Southtown published a column authored by Kadner, entitled "State's election laws may be a paper tiger." The column focused on Kadner's concern that in light of a Will County circuit court's ruling that the State Gift Ban Act (5 ILCS 425/1 et seq. (West 2000)) was unconstitutional (see Flynn v. Ryan, 199 Ill.2d 430, 264 Ill.Dec. 710, 771 N.E.2d 414 (2002)), the Election Board might not have the statutory authority to financially penalize plaintiff for his conduct in violating the Election Code.

In the column, Kadner discussed a report published in a newsletter on state politics called "Capital Fax," which was produced by Rich Miller, a fellow columnist for the Daily Southtown. The column contained the following relevant passages:

"The hearing officer, in addition to recommending a fine for [plaintiff], also urged that the case be turned over to the Illinois attorney general or Cook County state's attorney for possible criminal prosecution.

Capital Fax reported that [Al Zimmer, the election board's general counsel] recommended that the election board forward its information to the Cook County state's attorney, but also recommended that the Illinois Attorney and Registration Disciplinary Commission be sent the information.

The Commission has the power to suspend a lawyer's license.

Beyond that, Zimmer recommended that the election board merely issue a decree forbidding [plaintiff] from misbehaving again, according to Capital Fax.

I asked Zimmer if the election board had ever urged a criminal prosecution of an individual, rather than a campaign committee, for violations of the election code.

`Not since I've worked here,' said Zimmer, who has worked for the election board for 16 years.

Another source said that the election board could refer [plaintiff's] case to the U.S. attorney's office, claiming that he used the U.S. mail in perpetrating a fraud."

On October 16, 2001, in a written order, the Election Board adopted the hearing officer's findings of fact and conclusions of law. The order directed plaintiff, the committee, and David Zapata, to cease and desist from the conduct complained of in the complaint; it levied a fine against the committee in the amount of $4,200, which was stayed until further order of the Election Board, and it directed the Election Board's general counsel to send a copy of the order to the Cook County State's Attorney's office and to the Illinois Attorney Registration and Disciplinary Commission.

Approximately a year later, on October 11, 2002, plaintiff filed a two-count defamation action against defendants. In the complaint, plaintiff alleged that the passage in Kadner's column stating that a source had declared that the Election Board could refer plaintiff's case to the United States attorney's office for prosecution for mail fraud imputed that plaintiff committed a federal crime and imputed to plaintiff a want of integrity in the discharge of his office or employment, which thereby constituted defamation per se and false light invasion of privacy.

On April 22, 2003, the trial court entered an order dismissing the complaint pursuant to both section 2-615 and section 2-619 of the Code (735 ILCS 5/2-615, 2-619 (West 1996)), ruling that the alleged defamatory statement was not a verifiable fact and was subject to an innocent construction. Plaintiff now appeals from the trial court's order granting defendants' motion to dismiss.

ANALYSIS

In the present case, the trial court dismissed plaintiff's complaint pursuant to both section 2-615 and section 2-619 of the Code, ruling that the alleged defamation was not a verifiable fact and was subject to an innocent construction. A section 2-615 motion challenges a complaint for failing to state a cause of action, while a section 2-619(a)(9) motion admits the legal sufficiency of a complaint but asserts that it is barred by some affirmative matter. Lawson v. City of Chicago, 278 Ill.App.3d 628, 634, 215 Ill.Dec. 237, 662 N.E.2d 1377 (1996).

Motions filed under either section admit all well-pleaded facts together with all reasonable inferences that can be drawn therefrom. Romanek v. Connelly, 324 Ill.App.3d 393, 398, 257 Ill.Dec. 436, 753 N.E.2d 1062 (2001). In ruling on either motion, all pleadings and supporting documents are construed in a light most favorable to the nonmoving party. Romanek, 324 Ill.App.3d at 398, 257 Ill.Dec. 436, 753 N.E.2d 1062. "The relevant inquiry for this court is `whether the existence of a genuine issue of material fact should have precluded the dismissal or, absent such an issue of fact, whether dismissal is proper as a matter of law.'" Romanek, 324 Ill.App.3d at 398, 257 Ill.Dec. 436, 753 N.E.2d 1062, quoting Kedzie & 103rd Currency Exchange, Inc. v. Hodge, 156 Ill.2d 112, 116-17, 189 Ill.Dec. 31, 619 N.E.2d 732 (1993). Since resolution of either motion involves only a question of law, our review is de novo. Romanek, 324 Ill.App.3d at 398, 257 Ill.Dec. 436, 753 N.E.2d 1062; LaSalle National Bank v. City Suites, Inc., 325 Ill.App.3d 780, 789, 259 Ill.Dec. 259, 758 N.E.2d 382 (2001).

I. Defamation

The defamation action provides redress for false statements of fact that harm reputation. Hopewell v. Vitullo, 299 Ill.App.3d 513, 517, 233 Ill.Dec. 456, 701 N.E.2d 99 (1998). A statement is considered defamatory if it tends to cause such harm to the reputation of another that it lowers that person in the eyes of the community or deters third persons from associating with him or her. Dubinsky v. United Airlines Master Executive Council, 303 Ill.App.3d 317, 323, 236...