2016 IL App (5th) 140407
Ill. App. Ct.2016Background
- Kelly Henby (retired ISP, former supervisor of Richard White) filed a verified petition under the Stalking No Contact Order Act alleging White stalked and harassed him and his family, sought no-contact relief and FOID prohibition.
- Initial emergency order issued after Henby’s ex parte sworn testimony; subsequent plenary proceedings and multiple amended petitions followed.
- Key alleged acts: White’s presence at a funeral visitation where Henby told him to leave; earlier contacts at a nursing home; and dissemination (or causing dissemination) of Henby’s postarrest photo and arrest information to regional media.
- Trial court repeatedly found only one arguable act (the funeral-home encounter) and dismissed successive petitions for failure to plead the required “course of conduct” (two or more acts) and for failure to allege threats, intimidation, or conduct beyond protected free speech.
- Henby filed three amended petitions; the third added allegations that White encouraged a deputy to provide arrest information to a local publisher. The court dismissed the third amended petition with prejudice; Henby appealed.
- Appellate court affirmed: publication of truthful arrest information and a single funeral encounter—without threats or intimidation—did not state stalking under the Act; appeal sanctions were denied.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether petition alleged a "course of conduct" (≥2 acts) under the Act | Henby: funeral encounter plus overheard McDonald’s info or media dissemination constitute separate acts | White: only the funeral incident plausibly alleged; other facts are not separate, directed acts or are protected speech | No — petition alleged only one act (funeral); other allegations insufficient to show separate stalking acts |
| Whether dissemination of postarrest photo/info to media can constitute stalking | Henby: publication was intended to intimidate and cause emotional distress, thus an act of stalking | White: dissemination of truthful arrest information and photo is newsworthy, lawful speech not threats or intimidation | No — truthful, newsworthy dissemination lacking threats/intimidation is protected and insufficient for stalking |
| Whether speech alleged rose to unprotected threats/intimidation | Henby: argued press-related conduct was harassing and intended to intimidate | White: argued no threats or intimidating language; conduct was lawful speech | No — no allegations of threats or intimidating content; speech remained protected |
| Whether dismissal with prejudice was improper given leave to amend history | Henby: had newly obtained deposition material (Hanisch) to cure defects | White: repeated failures to plead required elements after multiple amendments | Affirmed — plaintiff given multiple opportunities; still failed to plead required course of conduct and threats; dismissal with prejudice proper |
Key Cases Cited
- Chandler v. Illinois Central R.R. Co., 207 Ill. 2d 331 (describing Illinois fact-pleading standard and section 2-615 review)
- Fields v. Lake Hillcrest Corp., 335 Ill. App. 3d 457 (discussing appellate sanctions standard and frivolous appeals)