JAMES RYAN, Plаintiff-Appellee, v. FOX TELEVISION STATIONS, INC., FOX TELEVISION HOLDINGS, INC., LARRY YELLEN, DANE PLACKO, MARSHA BARTEL, CAROL FOWLER, BETTER GOVERNMENT ASSOCIATION, INC., and ANDY SHAW, Defendants-Appellants.
Docket Nos. 1-12-0005, 1-12-0007 cons.
Appellate Court of Illinois, First District, Second Division
October 23, 2012
November 19, 2012
2012 IL App (1st) 120005
Held In an action for defamation, false-light invasion of privacy, intentional infliction of emotional distress and invasion of privacy by intrusion upon seclusion filed by a circuit court judge in response to an investigative report that certain judges were leaving the courthouse before the end of the business day, defendants failed to sustain their burden of establishing that the complaint was barred by the SLAPP Act.
(Note: This syllabus constitutes no part of the opinion of the court but has been prepared by the Reporter of Decisions for the convenience of the reader.)
Appeal from the Circuit Court of Cook County, No. 10-L-006258; the Hon. James Egan, Judge, presiding.
Judgment Affirmed.
Counsel on Appeal
John S. Fotopoulos, of Orland Park, for appellee.
Panel JUSTICE CONNORS delivered the judgment of the court, with opinion. Presiding Justice Harris and Justice Quinn concurred in the judgment and opinion.
OPINION
¶ 1 In 2010, WFLD Fox News Chicago aired an investigative report on the working hours of judges in the circuit court of Cook County. The report presented information
¶ 2 The investigative report originally aired in installments over four nights starting on May 24, 2010. The report was a collaborative effort between WFLD, which is owned by some of the defendants, and defendant Better Government Association, Inc., a nonprofit advocacy group. (The remaining individual defendants were involvеd in some aspect of the investigation or the presentation of the report.) The report‘s first installment detailed the basic findings of the investigation. According to the report, unofficial logs prepared by the Cook County sheriff‘s office revealed that a large number of courtrooms in the Daley Center were not open during business hours, which normally ran until 4 p.m. Investigators confirmed this finding by independently surveying the courtrooms during business hours. By means of hidden cameras, the investigators also confirmed that a number of judges were leaving before the end of business hours. In one of the most explosive portions of the report, a reporter found one judge sunbathing outside of her home at around 2 p.m. on a workday. After being confronted by the reporter, the judge argued that she had left the courthouse early that day only because she had completed her call and had nothing further to do.
¶ 3 The report also contained a segment specifically regarding plaintiff. The report stated, “We caught him leaving the courthouse early three times. On a rainy October day, he was home by 1:18 p.m. He never returned our calls.” This statement was acсompanied by images of a car parked in the driveway of a house. The report named two other judges who had allegedly been seen leaving before the end of business hours. The report also included statements by defendant Andy Shaw to the effect that judges should be required to punch in and out of courthouses in order to ensure that they are working during business hours.
¶ 4 The report‘s second installment focused on an analysis of the costs to taxpayers of the Cook County judicial system, including judicial salaries and benefits, and it also included reactions to the investigation from members of the judiciary and the public. The report also examined various methods of disciplining and supervising judges. The report included the following exchange by defendant Larry Yellen, a reporter, and WFLD anchor Robin Robinson:
“ROBINSON: Sounds like a lack of supervision, like somebody didn‘t put a framework in place to get the most effective system there is.
YELLEN: You know, it might be a lack of accountability because judges are elected, as we pointed out in the piece. They‘re elected, that means they‘re accountable to the voters, but you know and I know thаt when people go to vote
on judges, they don‘t know the details of whom they‘re voting on. It‘s the bottom of the ballot, everybody‘s tired by then, and they can‘t recognize all those names.”
¶ 5 At the conclusion of this installment, Robinson announced that the previous night‘s installment contained an error regarding the evidence against plaintiff. Robinson stated:
“Last night‘s story, by the way, identified Judge Jim Ryan [i.e., plaintiff] as one of the judges leaving work early. We watched [plaintiff] leaving the courthouse and said he went home. But the house and the car we showed actually belonged to a neighbor. Our bad. Whilе we saw the judge leave work early, we really don‘t know where he went. We do apologize for that mistake.”
¶ 6 The report‘s third segment focused on the Illinois Supreme Court‘s reaction to the previous two segments. Joe Tybor, the court‘s press secretary, stated that the judges’ alleged behavior was “totally unacceptable and, in the court‘s mind, cannot be tolerated.” Tybor also indicated that the supreme court planned to discuss the situation with Tim Evans, the chief judge of the circuit court, and other supervising judges in order to further investigate the situation and decide on corrective measures. Chief Judge Evans stated that he intended to take action if shown some evidence of wrongdoing by the judges involved.
¶ 7 The next day, May 27, 2010, plaintiff filed the original complaint in this case, alleging a single count of defamation. (The complaint was amended about a year later to include the other three counts now at issue.) The complaint centered on the report‘s claim during its first installment (which Robinson conceded was incorrect during the second installment) that plaintiff was at home with his car parked in the driveway prior to 4 p.m. on a workday. Plaintiff asked for damages of $7 million.
¶ 8 The fourth and final installment of the report aired the following night, May 28, 2010. This report detailed the fallout from the investigation. According to the report, Chief Judge Evans reassigned all of the judges involved to different duties and arranged for the judges to receive “mentoring” from other, veteran judges. The report explained that, because judges are elected, reassignment is one of the few supervisory tools that the chief judge can use to discipline judges.
¶ 9 Defendants originally moved to dismiss plaintiff‘s complaint based on immunity under the Citizen Pаrticipation Act in late 2010. After the circuit court denied the motion, defendants twice petitioned for leave to appeal, the first time under Illinois Supreme Court Rule 304(a) (eff. Feb. 26, 2010) and the second under Illinois Supreme Court Rule 308 (eff. Feb. 26, 2010). We denied leave to appeal both times.1 While the second attempted appeal
¶ 10 Defendants filed combined motions to dismiss the amended complaint under section 2-619.1 of the Code of Civil Procedure (
¶ 11 The sole issue on appeal is whether plaintiff‘s suit should be dismissed because it is barred under the Act. A motion to dismiss based on immunity under the Act is properly raised under section 2-619(a)(9) of the Code of Civil Procedure (
“When ruling on the motion, the court should construe the pleadings and supporting documents in the light most favorable to the nonmoving party. [Citation.] The court must accept as true all well-pleaded facts in plaintiff‘s complaint and all inferences that may reasonably be drawn in plaintiff‘s favor. [Citation.] The question on appeal 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. [Citation.] Our review is de novo.” (Internal quotation marks omitted.) Id. ¶ 55
¶ 12 In 2007, the legislature enacted the Citizen Participation Act in order to combat the rise of what have been termed “Strategic Lawsuits Against Public Participation,” commonly called SLAPPs. A SLAPP is a meritless lawsuit that is used to retaliate against a defendant for attempting to participate in government by exercising some first amendment right such as the right to free speech or the right to petition. See Sandholm v. Kuecker, 2012 IL 111443, ¶¶ 33-34. “Plaintiffs in SLAPP suits do not intend to win but rather to chill a defendant‘s speech or protest activity and discourage opposition by others through delay, expense, and distraction. *** While the case is being litigated in the courts, however, defendants are forced to expend funds on litigation costs and attorney fees and may be discouraged from continuing their protest activities.” Id. ¶ 34.
¶ 14 In Illinois, the legislature declared four public policy goals for the Act:
“It is in the public interest and it is the purpose of this Act to [1] strike a balance between the rights of persons to file lawsuits for injury and the constitutional rights of persons to petition, speak freely, associate freely, and otherwise participate in government; [2] to protect and encourage public participаtion in government to the maximum extent permitted by law; [3] to establish an efficient process for identification and adjudication of SLAPPs; and [4] to provide for attorney‘s fees and costs to prevailing movants.”
735 ILCS 110/5 (West 2010).
The legislature further declared that the Act “shall be construed liberally to effectuate its purposes and intent fully.”
¶ 15 As can be seen from the legislature‘s public policy statement, the Act seeks not only to protect individuals from meritless, retaliatory SLAPPs but also to allow plaintiffs who have legitimately been wronged to receive compensation. But this laudablе goal runs almost immediately into the most intractable problem associated with SLAPPs: they are very hard to distinguish from normal lawsuits. See Sandholm, 2012 IL 111443, ¶ 35 (“SLAPPs masquerade as ordinary lawsuits and may include myriad causes of action, including defamation, interference with contractual rights or prospective economic advantage, and malicious prosecution.” (Internal quotation marks omitted.)). A SLAPP is often identifiable by its lack of merit and because it is filed against defendants who are exercising their first amendment rights, but this does not mean that all lawsuits that lack merit or that implicate first amendment аctivities are SLAPPs.
¶ 16 To help overcome this problem, the legislature established a standard for invoking immunity under the Act. Section 15 states:
“This Act applies to any motion to dispose of a claim in a judicial proceeding on the grounds that the claim is based on, relates to, or is in response to any act or acts of the moving party in furtherance of the moving party‘s rights of petition, speech, association, or to otherwise participate in government.
Acts in furtherance of the constitutional rights to petition, speech, association, and participation in government are immune from liability, regardless of intent or purpose, except when not genuinely aimed at procuring favorable government action, result, or outcome.”
735 ILCS 110/15 (West 2010).
¶ 17 The trouble with the standard as written, however, is that if it is applied to the letter then the Act would mandate dismissal of every lawsuit that implicated a defendant‘s first amendment activities regardless of whether the plaintiff‘s claims were meritorious or not, essentially creating absolute immunity for torts committed while exercising first amendment rights. The supreme court recently confronted this problem in Sandholm v. Kuecker, 2012 IL 111443. The supreme court noted that the standard articulated in the Act did not track the legislature‘s stated public policy, which required the court to read into the Act the additional requirement that, in order to qualify for dismissal, a claim must be affirmatively identified as a meritless, retaliatоry SLAPP. See id. ¶ 45; see also id. ¶ 50 (“We believe that, had the legislature intended to radically alter the common law by imposing a qualified privilege on defamation within the process of petitioning the government, it would have explicitly stated its intent to do so.“); id. ¶ 51 (“We simply do not believe that, in enacting the anti-SLAPP statute, the legislature intended to abolish an individual‘s right to seek redress for defamation or other intentional torts, whenever the tortious acts are in furtherance of the tortfeasor‘s rights of petition, speech, association, or participation in government.“).
¶ 18 Under Sandholm, the threshold step in analyzing a motion to dismiss based on the Act is to “first determine whether the suit is the type of suit the Act was intended to address.” Id. ¶ 43. We recently summarized Sandholm‘s approach in Hammons v. Society of Permanent Cosmetic Professionals, 2012 IL App (1st) 102644. Under Sandholm, a lawsuit may only be dismissed due to immunity under the Act if:
“(1) the defendants’ acts were in furtherance of their right to petition, speak, associate, or otherwise participate in government to obtain favorable government action; (2) the plaintiffs’ claims are solely based on, related to, or in response to the defendants’ ‘acts in furtherance‘; and (3) the plaintiffs fail to produce clear and convincing evidence that the defendants’ acts were not genuinely aimed at solely procuring favorable government action.” Id. ¶ 18.
¶ 19 It is indisputable that defendants’ actions in this case satisfy the first prong of the test. The investigatory report that defendants produced uncovered questionable activity by members of the judiciary in the performance of their official duties. Defendants communicated the findings of their investigation to the public and to members of local and state government via a televised newscast. Perhaps most importantly, the report sought comment from the Illinois Supreme Court and Chief Judge Evans on the investigation‘s findings and urged them to take action. Such activity is well within the scope of the Act, and in fact the investigatory report at issue here is an excellent example of the kind of activity that the legislature sought to protect, as shown by the Act‘s own language. The legislature noted in the Act‘s public policy statement that “[t]he information, reports, opinions, claims, arguments, and other expressions provided by citizens are vital to effective law enforcement, the operation of government,
¶ 20 Yet merely because defendants’ activities are the kind that the Act is designed to protect does not necessarily mean that plaintiff‘s lawsuit is a SLAPP and is therefore subject to dismissal under the Act. The next step in the analysis is to determine whether plaintiff‘s claim is “solely based on” defendants’ protected acts. Sandholm stated that a lawsuit is not “solely based on” protected acts and therefore is not subject to dismissal under the Act if “a plaintiff files suit genuinely seeking relief for damages for the alleged defamation or intentionally tortious acts of defendants.” Sandholm, 2012 IL 111443, ¶ 45. This prong of the analysis is the central issue in this case.
¶ 21 To satisfy its burden under this prong of the test, a movant2 must affirmatively demonstrate that the nonmovant‘s claim is a SLAPP within the meaning of the Act, that is, that the claim is meritless and was filed in retaliation against the movant‘s protected activities in order to deter the movant from further engaging in those activities. See id. ¶ 57 (“Plaintiff‘s suit does not resemble in any way a strategic lawsuit intended to chill participation in government or to stifle political expression. It is apparent that the true goal of plaintiff‘s сlaims is not to interfere with and burden defendants’ free speech and petition rights, but to seek damages for the personal harm to his reputation from defendants’ alleged
defamatory and tortious acts. Defendants have not met their burden of showing that plaintiff‘s suit was based solely on their petitioning activities.“); see also id. ¶¶ 33-34 (defining SLAPPs as meritless and retaliatory).
¶ 22 Defendants’ primary argument is that plaintiff‘s lawsuit is a SLAPP because his claims would not survive a summary motion to dismiss under section 2-615 (
¶ 23 Hytel is still useful, however, for the question of whether a claim is retaliatory within the meaning of the Act. Hytel suggested two helpful factors to consider: (1) the proximity in time between the protected activity and the filing of the complaint, and (2) whether the damages requested are reasonably related to the facts alleged in the complaint and are a “good-faith estimate of the extent of the
¶ 24 Further, there is the type of relief requested by plaintiff. The original complaint contained a single defamation claim and demanded compensatory damages of $7 million, as well as reserving the right to also demand unspecified punitive damages. Demanding damages in the millions for alleged defamation is a classic SLAPP scenario. See id. (citing Sobczak, supra, at 563). Moreover, the amended complaint included three additional counts that each also asked for compensatory damages of $7 million, making the total compensatory demand $28 million. Based on the nature of plaintiff‘s alleged injuries, it is difficult to see how such a high demand can be factually justified.3
¶ 25 Plaintiff argues that the reason he filed his lawsuit so quickly was because of defendants’
claim in the first installment of the report, which incorrectly stated that plaintiff was at his home early on a workday, and because defendants continued to air footage of plaintiff (which was accompanied by allegedly defamatory voiceovers) in advertisements and teasers for the remaining installments оf the report. There are several problems with this argument. First, the defendants aired a correction during the second installment of the report, apparently after plaintiff contacted defendants and advised them of the error. Yet this occurred at least two days before plaintiff filed this lawsuit, which raises the question of why a lawsuit was necessary to obtain a correction that plaintiff had already received. Second, plaintiff‘s original complaint demanded only money damages. If plaintiff‘s purpose in filing the lawsuit so quickly was to prevent further harm to his reputation, then we cannot see how a demand for $7 million rather than an injunction would resolve the problem in a way that does not involve intimidating defendants into silence.
¶ 26 Given the timing of the complaint and the speed with which it was filed, the high damages demand, and the type of relief requested, we must conclude that defendants have shown evidence of retaliatory intent. Cf. Hytel, 405 Ill. App. 3d at 126 (finding that the movant had shown retaliatory intent). But even though defendants have presented evidence of retaliatory intent, that alone does not make the lawsuit a SLAPP because a SLAPP is also “by definition, meritless.” Sandholm, 2012 IL 111443, ¶ 34. Defendants must also present evidence that plaintiff‘s claims lack merit, but they have failed to do so here.
¶ 27 The only evidence that defendants have offered that could conceivably be proof that plaintiff‘s claims lack merit relates to the defamation count and to a lesser extent thе false light count. Plaintiff‘s main contention in these counts is that the report‘s claim that he left work early and went home on several days is false. Defendants countered this allegation with logbooks from the sheriff‘s office that recorded the hours during which plaintiff‘s courtroom was open during April 2010. The logs showed that plaintiff‘s courtroom was usually empty by 2 p.m. Defendants argue that plaintiff‘s defamation claim is therefore meritless because these logs show that the report was substantially true. See, e.g., Gist v. Macon County Sheriff‘s Department, 284 Ill. App. 3d 367, 371 (1996).
¶ 28 The problem with this evidence is that it does not prove that the report‘s allеgation that plaintiff left work early and went home on a number of days is substantially true. Indeed, it is undisputed that defendants retracted the report‘s central allegation that plaintiff was at home during the workday on October 9, 2009. Nor does the fact that plaintiff‘s courtroom was empty after 2 p.m. on certain days prove that he left work and went home. Judges work in their private chambers as well as their courtrooms, and many judges serve on committees in their official capacities or are otherwise involved in the legal community. A judge‘s official duties do not require a сonstant presence in the courtroom itself at all times, or even in the courthouse. Substantial truth is an affirmative defense4 that requires a defendant to show that “the ‘gist’ or ‘sting’ of the defamatory material is true.” Id. The gist of the report was that plaintiff was neglecting his official duties because he habitually left the courthouse and went home during business hours, but the sheriff‘s logs prove only that plaintiff was not in his courtroom at certain times.
¶ 30 In sum, although defendants presented sufficient evidence that they engaged in protected activities and that plaintiff‘s claims were retaliatory, they failed to show that plaintiff‘s claims are meritless and are therefore a SLAPP. Defendants have consequently not carried their burden under the Act and the circuit court was correct to deny defendant‘s motion to dismiss.
¶ 31 Affirmed.