Mehalko v. Doe

• Decision Date: 10 July 2018
• Docket Number: No. 2–17–0788,2–17–0788
• Citation: 2018 IL App (2d) 170788,110 N.E.3d 328
• Parties: Kathy MEHALKO, Plaintiff–Appellant, v. Jane DOE, Kathy Miller Whitney, a/k/a Opposing Voices of Kathy Mehalko Puppymill Agenda, and Matthew Caleb Williams, a/k/a Caleb Matthew Williams, a/k/a Caleb–Matthew Williams, a/k/a Pet Owners Beware, Defendants (Jane Doe, Defendant–Appellee).
• Court: United States Appellate Court of Illinois

2018 IL App (2d) 170788
110 N.E.3d 328

Kathy MEHALKO, Plaintiff–Appellant,
v.
Jane DOE, Kathy Miller Whitney, a/k/a Opposing Voices of Kathy Mehalko Puppymill Agenda, and Matthew Caleb Williams, a/k/a Caleb Matthew Williams, a/k/a Caleb–Matthew Williams, a/k/a Pet Owners Beware, Defendants

(Jane Doe, Defendant–Appellee).

No. 2–17–0788

Appellate Court of Illinois, Second District.

Opinion filed July 10, 2018

Jeffrey P. Orduno, of Rockford, for appellant.

Joel M. Huotari, of WilliamsMcCarthy, LLP, of Rockford, for appellee.

JUSTICE SPENCE delivered the judgment of the court, with opinion.

¶ 1 Plaintiff, Kathy Mehalko, appeals from the trial court's order imposing postjudgment sanctions on her under Illinois Supreme Court Rule 219 (eff. July 1, 2002). Mehalko argues that Rule 219 sanctions were improper because (1) the trial court lacked jurisdiction to impose such sanctions as the case was already closed, (2) the sanctions' purpose was not to further discovery as required by the rule,

110 N.E.3d 331

and (3) no "abuse of discovery procedures" occurred. She further argues that the hearings did not include the procedural safeguards necessary for contempt proceedings.

¶ 2 We conclude that the trial court had jurisdiction to sanction Mehalko under both Rule 219 and its inherent authority to enforce its orders through contempt proceedings. However, although the trial court found Mehalko in indirect civil contempt, it failed to specify what Mehalko must do to purge herself of the contempt. We therefore remand the cause.

¶ 3 I. BACKGROUND

¶ 4 Mehalko is an animal rights activist. On July 29, 2016, she filed a three-count complaint against various defendants alleging defamation, violation of the Right of Publicity Act ( 765 ILCS 1075/1 et seq. (West 2016) ), and intentional infliction of emotional distress. The claims arose from photographs and comments about her that were posted on the Facebook pages "Opposing Voices of Kathy Mehalko Puppymill Agenda" (Opposing Voices) and "Pet Owners Beware." Mehalko did not know who was responsible for creating the Facebook pages or posting the comments, so she nominally filed the case against various Jane and John Does.

¶ 5 In a related action, Mehalko obtained an order requiring Facebook to disclose to Mehalko's attorney the individual(s) behind Opposing Voices. Jane Doe was named to counsel and then served in the instant case.

¶ 6 Mehalko was granted leave to file an amended complaint on September 1, 2016. On September 21, 2016, Doe filed a motion to dismiss the complaint.

¶ 7 Mehalko thereafter sought to depose Doe. On November 8, 2016, the trial court granted Mehalko leave to conduct a limited deposition of Doe. Its order stated that Mehalko's attorney could reveal Doe's identity to Mehalko, who could attend the deposition. It further stated that Mehalko was "ordered not to disclose Doe's identity to anyone and may be subject to contempt of court if she [did]." (Emphasis in original.)

¶ 8 On January 19, 2017, the trial court allowed Mehalko leave to file a second amended complaint.

¶ 9 On February 22, 2017, the trial court granted Doe's motion to dismiss, and it dismissed all claims as to all parties with prejudice under section 2–619.1 of the Code of Civil Procedure ( 735 ILCS 5/2–619.1 (West 2016) ). Shortly afterward, on March 2, 2017, Mehalko filed a motion to lift the November 8, 2016, protective order prohibiting her from disclosing Doe's identity. The trial court denied Mehalko's motion on March 23, 2017.

¶ 10 More than 30 days later, on May 4, 2017, Doe filed a petition for a rule to show cause and for reconsideration. She alleged that she had proceeded under a pseudonym in the case because Mehalko's Internet followers, who did not know Doe's identity, had made veiled threats against her. Doe alleged that Mehalko had violated the protective order by revealing Doe's identity to them, resulting in escalating "online taunts and menacing behavior." Doe alleged that Mehalko's conduct constituted contempt of court. Doe asked the court to order Mehalko to remove all Facebook posts referring to her and pay her attorney fees.

¶ 11 On June 20, 2017, the trial court granted Doe's petition for a rule to show cause. An evidentiary hearing took place on August 10, 2017. On August 14, 2017, Doe amended her petition "[p]ursuant to the direction of the" trial court to state that it was brought pursuant to

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Illinois Supreme Court Rule 219(c) and (d) (eff. July 1, 2002).

¶ 12 The trial court issued a written order on August 30, 2017, making the following findings. Mehalko did not know the person behind the Opposing Voices Facebook page before the entry of the November 8, 2016, protective order. That order allowed Mehalko to attend Doe's deposition and learn her identity, but it prohibited Mehalko from disclosing Doe's identity to anyone. Mehalko was present in court when the protective order was entered and knew its terms. Mehalko attended Doe's deposition on November 15, 2016, and learned her identity. On July 25, 2016, Mehalko and her Facebook friends had expressed that they were looking forward to the exposure of Doe's identity, which they thought could result in a class action lawsuit against her. Mehalko was present in court with her counsel on March 23, 2017, when she unsuccessfully moved to lift the protective order. On April 24, 2017, Mehalko alluded to Doe's identity on Mehalko's own Facebook page by describing the person behind Opposing Voice as a female resident of Belvidere who bred a certain type of dog. Within hours of that post, Mehalko used the alias "Justin Guy" to post comments on her Facebook page revealing Doe's first name, the name of her kennel, and her city of residence. Mehalko's disclosures directly led to online harassment, taunting, insults, and threats against Doe from third parties posting on Mehalko's Facebook page. On or about May 29, 2017, Mehalko created a new Facebook page that showed a photo of Doe's recently deceased mother-in-law, which Mehalko copied from her obituary. The page disclosed the name of Doe's kennel and associated Doe with bestiality.

¶ 13 The trial court quoted Rule 219(c) and (d) and stated that Mehalko knowingly and intentionally revealed Doe's identity to others in direct violation of the trial court's November 8, 2016, protective order. The trial court awarded Doe attorney fees and costs from the date the case was closed to the date of its current order, totaling $7,329.02.¹ It stated that Mehalko was free to speak out about the issues addressed on the Opposing Voices Facebook page, but it enjoined Mehalko from referring to or identifying Doe in any manner.

¶ 14 This appeal followed.

¶ 15 II. ANALYSIS

¶ 16 Mehalko's arguments on appeal involve the interpretation and application of an Illinois Supreme Court rule, which is a question of law that we review de novo . See People v. Cole , 2017 IL 120997, ¶ 20, 422 Ill.Dec. 758, 104 N.E.3d 325. Questions relating to a trial court's jurisdiction are similarly reviewed de novo . J & J Ventures Gaming, LLC v. Wild, Inc. , 2016 IL 119870, ¶ 25, 409 Ill.Dec. 31, 67 N.E.3d 243. We construe Illinois Supreme Court rules according to the same principles that govern the interpretation of statutes. Ferris, Thompson & Zweig, Ltd. v. Esposito , 2017 IL 121297, ¶ 22, 418 Ill.Dec. 242, 90 N.E.3d 400. Our primary goal is to ascertain and give effect to the drafters' intent, which is best indicated by the language used, when given its plain and ordinary meaning. Id. We will interpret the rule such that no part of it is rendered meaningless or superfluous, and we will not depart from the rule's plain language by reading into it exceptions, limitations, or conditions that conflict with the drafters' expressed intent. Id.

¶ 17 Rule 219 provides, in relevant part:

"(c) Failure to Comply with Order or Rules. If a party, or any person at the

110 N.E.3d 333

instance of or in collusion with a party, unreasonably fails to comply with any provision of part E of article II of the rules of this court (Discovery, Requests for Admission, and Pretrial Procedure) or fails to comply with any order entered under these rules , the court, on motion, may enter, in addition to remedies elsewhere specifically provided, such orders as are just, including, among others, the following:

* * *

In lieu of or in addition to the foregoing, the court, upon motion or upon its own initiative, may impose upon the offending party or his or her attorney, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of reasonable expenses incurred as a result of the misconduct, including a reasonable attorney fee, and when the misconduct is wilful, a monetary penalty. When appropriate, the court may, by contempt proceedings, compel obedience by any party or person to any subpoena issued or order entered under these rules. Notwithstanding the entry of a judgment or an order of dismissal, whether voluntary or involuntary, the trial court shall retain jurisdiction to enforce, on its own motion or on the motion of any party, any order imposing monetary sanctions, including such orders as may be entered on motions which were pending hereunder prior to the filing of a notice

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