No. 2--06--1055 Filed: 7-30-08
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
______________________________________________________________________________
JOHN GREEN, ) Appeal from the Circuit Court
) of Du Page County
Plaintiff-Appellant, )
)
v. ) No. 06--L--208
)
STEVEN ROGERS, ) Honorable
) Robert K. Kilander
Defendant-Appellee. ) Judge, Presiding.
______________________________________________________________________________
PRESIDING JUSTICE GILLERAN JOHNSON delivered the opinion of the court:
On March 3, 2006, the plaintiff, John Green, filed a complaint against the defendant, Steven
Rogers, then president of the Clarendon Hills Little League (CHLL), alleging causes of action for
defamation per se and civil conspiracy. The plaintiff subsequently issued subpoenas to each of the
individual members of the CHLL board. On May 10, 2006, the trial court quashed the subpoenas and
stayed discovery pending resolution of a motion to dismiss the plaintiff's complaint. On July 13,
2006, the trial court granted the defendant's motion to dismiss the plaintiff's first amended complaint
pursuant to section 2--615 of the Code of Civil Procedure (the Code) (735 ILCS 5/2--615 (West
2006)). The plaintiff filed a motion to reconsider the May 10 and July 13, 2006, orders. On
September 21, 2006, the trial court denied the plaintiff's motion to reconsider. The plaintiff appealed
from these orders. This court reversed the trial court's determination and remanded the case for
additional proceedings. Green v. Rogers, No. 2--06--1055 (2007) (unpublished order under Supreme
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Court Rule 23). The defendant filed a petition for leave to appeal. Our supreme court denied the
defendant's petition but, under its supervisory authority, directed this court to vacate our judgment
and reconsider it in light of Imperial Apparel, Ltd. v. Cosmo's Designer Direct, Inc., 227 Ill. 2d 381
(2008). We affirm in part, reverse in part, and remand for additional proceedings consistent with this
opinion.
BACKGROUND
The plaintiff lives with his wife and three children in the Village of Clarendon Hills (the
Village). He is a practicing dentist and attorney, and from 2000 to 2004 he served in some capacity
in CHLL. On March 3, 2006, the plaintiff filed a complaint asserting claims of defamation per se and
civil conspiracy against the defendant. In his complaint, the plaintiff alleged the following.
The plaintiff had been a volunteer for CHLL since 2000 and had managed, coached, and
served as the minor league director. In December 2004, the plaintiff submitted his name to coach a
CHLL team. In January 2005, the plaintiff announced that he was a candidate for Village trustee with
the election to be held on April 5, 2005. On March 4, 2005, the defendant sent the plaintiff an e-mail
stating that the CHLL board had decided not to assign the plaintiff as a coach for the year. The e-
mail stated that the board's "decision was based on a long pattern of behavior which [was] not
consistent with what [the CHLL board felt was] acceptable for our coaches." Prior to March 4,
2005, the plaintiff had never been informed by CHLL of any conduct unacceptable for coaching and
had never been disciplined or advised as to any complaints about his coaching.
On March 7, 2005, the plaintiff sent the defendant an e-mail indicating that he sought an
immediate appeal of the board's decision. The defendant responded by letter that denied the plaintiff's
request for an appeal hearing. On March 11, 2005, the defendant sent an e-mail to the plaintiff that
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clarified the board's ruling. The defendant explained that the board's decision barred the plaintiff from
being a coach or manager only for the 2005 season. The plaintiff was still eligible to be a parent
volunteer. On the same date, the plaintiff sent a reply indicating that he "respectfully disagreed" with
the board's decision to "not allow [him] to coach [his] only son." The plaintiff implored the defendant
to "do the right thing" and allow the plaintiff to coach his son. The defendant sent a reply indicating
that the board declined to reverse its decision.
In March 2005, during the plaintiff's political campaign for trustee of the Village, the plaintiff
was advised by two of his running mates that trustee Terry Pocius and Village resident Mary Church
Brown informed them that the plaintiff was denied a coaching position with CHLL because of his
temper and inappropriate behavior with children. Pocius and Brown also indicated that the defendant
was the source of those comments.
The plaintiff alleged that on or about March 4, 2005, the defendant made and published
statements about the plaintiff that he knew were false and were made to humiliate, embarrass, and
harm the plaintiff as a candidate and damage his reputation in the community. Specifically, the
defendant allegedly stated that the plaintiff: "(a) *** exhibited a long pattern of misconduct with
children which was not acceptable for CHLL coaches; (b) *** abused players, coaches and umpires
in CHLL; and (3)*** was unfit to be assigned as a CHLL coach to insinuate to the community that
the plaintiff was guilty of inappropriate behavior with children and others associated with CHLL."
The plaintiff alleged that the defendant knowingly and intentionally made and published these
defamatory statements about the plaintiff to the CHLL board, members of CHLL, and residents of
the Village.
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The plaintiff further alleged that the defendant conspired with others to knowingly allow such
defamatory statements to be disseminated beyond the CHLL board. The defendant denied the
plaintiff an opportunity to respond to the false charges. The defendant also failed to set forth any
specific behavior of the plaintiff that justified barring him as a coach. The plaintiff alleged that in
January 2006 he again submitted his name to coach a CHLL team and his application was again
denied. The plaintiff alleged that the defendant's defamatory statements had damaged his reputation
in the community and his reputation as an attorney and dentist. Additionally, the plaintiff has had to
endure public ridicule and personal embarrassment.
In count I of the plaintiff's complaint, alleging defamation per se, the plaintiff realleged the
foregoing facts and alleged that the defendant intentionally made defamatory and false statements
about the plaintiff to one or more third parties, including the CHLL board, members of CHLL, and
residents of the Village. The defendant's statements allegedly impugned the plaintiff's character and
integrity as a dentist and an attorney and disparaged his reputation as a competent coach for youth
sports. In count II, for civil conspiracy, the plaintiff realleged the foregoing and further alleged that
the defendant engaged in a scheme with other members of the CHLL board and with the plaintiff's
political opponents to prevent the plaintiff from being assigned as a CHLL coach, to harm the
plaintiff's reputation, and to embarrass him politically and in the community. The plaintiff requested
compensatory and special damages in excess of $50,000 and punitive damages in excess of $100,000.
On April 14, 2006, the plaintiff issued subpoenas to each of the individual members of the
CHLL board. The subpoenas each contained 28 demands for production of documents. On April
26 and 27, respectively, the defendant filed a motion for a protective order to stay discovery and a
motion to quash the subpoenas, on behalf of all of the parties to whom the subpoenas were served.
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In his motion to stay discovery, the defendant indicated that he would be filing a motion to dismiss
the plaintiff's complaint. The defendant argued that the trial court had the power to stay discovery
in order to prevent unnecessary annoyance and expense. The defendant requested that the trial court
stay discovery until the defendant's motion to dismiss was resolved. On May 2, 2006, the defendant
filed a motion to dismiss the plaintiff's complaint pursuant to section 2--619.1 of the Code (735 ILCS
5/2--619.1 (West 2006)).
On May 10, 2006, a hearing was held on the defendant's motions to quash the subpoenas and
stay discovery. The plaintiff's counsel indicated that the subpoenas would provide information that
the plaintiff would like to use in an amended complaint. Defense counsel argued that there was no
point in allowing such extensive discovery until there was a ruling on the defendant's motion to
dismiss. The trial court noted that the documents being subpoenaed from the members of the CHLL
board would be available through the defendant since he was the president of the board. The trial
court did not find it appropriate to subpoena information from third parties until it was clear whether
the information would be available from the defendant. The trial court granted the motion to quash
and the motion to stay discovery.
On June 5, 2006, the plaintiff filed a motion for leave to amend his complaint and a motion
to vacate the protective order staying discovery. In addition to the original allegations, the amended
complaint alleged that the CHLL board held a meeting on March 4, 2005, to select coaches and
managers for the 2005 season and that the defendant made the allegedly defamatory statements about
the plaintiff to the board members and other Village residents at that meeting. The plaintiff named
the board members as David Killpack, Hartwell Morse, Eric Nolan, Steve Garnett, and Doug
Denlinger. The plaintiff specified that two of the Village residents were Terry Pocius and Mary
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Church Brown. The plaintiff also alleged that he had submitted his name to be a coach in January
2006. The plaintiff incorporated the original allegations and further alleged that the defendant had
made the same defamatory statements to the board members and Village residents at a February 27,
2006, CHLL board meeting held to select coaches for the 2006 season. The plaintiff added an
additional count for defamation per se based on the defendant's February 27, 2006, statements. In
sum, counts I and II of the amended complaint were for defamation per se and count III was based
on civil conspiracy.
On June 12, 2006, oral argument was held on the plaintiff's motion to amend his complaint
and motion to vacate the protective order staying discovery. The plaintiff indicated that his main
concern as to his inability to obtain discovery was the one-year statute of limitations on defamation
claims. The plaintiff acknowledged, however, that the statute was tolled by the filing of the
complaint. The plaintiff asserted that there were other publications made by other third parties that
would be revealed in the subpoenaed records. The trial court indicated that it was not concerned
about other potential defendants and invited the plaintiff to file additional suits against any third
parties. The trial court stated that it wanted to have an initial hearing on the defendant's motion to
dismiss before allowing further discovery. Therefore, the trial court granted the plaintiff's motion to
amend and continued the plaintiff's motion to vacate the protective order until after a hearing on the
motion to dismiss.
On June 16, 2006, the defendant filed a motion to dismiss the first amended complaint
pursuant to section 2--615 of the Code (735 ILCS 5/2--615 (West 2006)). In his motion, the
defendant argued that the allegations did not state a claim for defamation or civil conspiracy.
Specifically, the defendant argued that the alleged statements were not defamatory per se. The
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defendant argued that there was no nexus between the alleged statements regarding the plaintiff's
suitability to be a little league coach and the plaintiff's ability as an attorney or dentist. Additionally,
the defendant argued that the alleged statements did not impute the commission of a criminal offense.
The defendant also argued that the statements were not actionable because they were
susceptible to an innocent interpretation. The defendant argued that "abuse" could mean verbal abuse
well below the level of criminal conduct. Additionally, the defendant argued that "misconduct" could
mean something as innocuous as taking the children to Dairy Queen without their parents' permission.
Finally, the defendant argued that the alleged statements were not actionable because they were
expressions of opinion and not fact. The defendant argued that the alleged statements were general
and not supported by any specific facts. For example, there was no explanation of the plaintiff's
temper, there was no description of any form of abuse, and there was no explanation of why the
plaintiff was unfit to coach. The defendant argued that the alleged statements were not actionable
because they were not tied to any particular verifiable factual circumstance.
On July 13, 2006, a hearing was held on the defendant's motion. Following argument, the trial
court noted what it thought were a number of peculiarities present in the plaintiff's complaint.
Specifically, the trial court noted that the complaint alleged that the defendant made the identical
defamatory statements on March 4, 2005, and February 27, 2006. The trial court also noted that, in
defamation suits, the alleged defamatory statements are usually very specific and surrounded by
quotation marks. The trial court noted that the defamatory statements alleged in the plaintiff's
complaint seemed to be summations of what may have been said. The trial court also noted that the
complaint alleged only that the statements may have been made to some people, but was not specific
as to who was there when the statements were made.
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Thereafter, the trial court determined that the plaintiff's complaint failed to state a cause of
action for defamation or civil conspiracy. The trial court stated that the alleged defamatory
statements were insufficient as a matter of law to state a claim for defamation per se. The trial court
also found that the statements were simply opinions capable of innocent construction. The trial court
thus dismissed counts I and II for defamation per se. The trial court then dismissed count III for civil
conspiracy because it was dependent on the defamation claims in counts I and II. The trial court
clarified that it was a dismissal without prejudice and cautioned the plaintiff to review Supreme Court
Rule 137 (155 Ill. 2d R. 137) prior to filing any further pleadings. The trial court denied the plaintiff's
motion to vacate the protective order staying discovery. Finally, the trial court granted the plaintiff
30 days to file an amended pleading.
On August 10, 2006, the plaintiff stood on his first amended complaint and filed a motion to
reconsider the order dismissing that complaint and the order denying him the right to subpoena
relevant documents from third parties in support of his claims. On September 21, 2006, following
a hearing, the trial court denied the motion to reconsider. Thereafter, the plaintiff filed a timely notice
of appeal.
ANALYSIS
On appeal, the defendant argues that the trial court erred in granting the defendant's motion
to dismiss and in denying him the right to conduct additional discovery.
"The question presented by a section 2--615 motion to dismiss is whether the
allegations of the complaint, when viewed in a light most favorable to the plaintiff, are
sufficient to state a cause of action upon which relief can be granted. [Citation.] Illinois is
a fact-pleading jurisdiction that requires a plaintiff to present a legally and factually sufficient
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complaint. [Citation.] The plaintiff is not required to prove his or her case, but must allege
sufficient facts to state all the elements of the asserted cause of action. [Citation.]
When ruling on a section 2--615 motion to dismiss, the trial court should admit all
well-pleaded facts as true and disregard legal and factual conclusions that are unsupported
by allegations of fact. [Citation.] If, after disregarding any legal and factual conclusions, the
complaint does not allege sufficient facts to state a cause of action, the trial court must grant
the motion to dismiss. [Citation.] The standard of review on a section 2--615 dismissal is de
novo. [Citation.]" Neurosurgery & Spine Surgery, S.C. v. Goldman, 339 Ill. App. 3d 177,
182 (2003).
A. Relevant Case Law on Defamation Per Se
A statement is 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]."
Bryson v. News America Publications, Inc., 174 Ill. 2d 77, 87 (1996). "To state a defamation claim,
a plaintiff must present facts that a defendant made a false statement about a plaintiff, [that] the
defendant made an unprivileged publication of that statement to a third party, and that this publication
caused damages." Seith v. Chicago Sun-Times, Inc., 371 Ill. App. 3d 124, 134 (2007). If a plaintiff
alleges that a statement is defamatory per se, he need not plead or prove actual damages to his
reputation; statements that are defamatory per se "are thought to be so obviously and materially
harmful to the plaintiff that injury to [his] reputation may be presumed." Bryson, 174 Ill. 2d at 87.
Illinois recognizes five categories of statements that are defamatory per se: (1) those imputing the
commission of a criminal offense; (2) those imputing infection with a communicable disease; (3) those
imputing an inability to perform or want of integrity in the discharge of duties of office or
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employment; (4) those that prejudice a party or impute lack of ability in the party's trade, profession,
or business; and (5) those imputing adultery or fornication. Bryson, 174 Ill. 2d at 88-89. The
plaintiff alleges that the defendant's statements fall within the first, third, and fourth categories of
defamation per se.
Even if a statement falls into one or more of these categories, a statement will not be deemed
defamatory per se if it is reasonably capable of an "innocent construction." Bryson, 174 Ill. 2d at 90.
The "innocent construction rule" "requires a court to consider the statement in context and to give
the words of the statement, and any implications arising from them, their natural and obvious
meaning." Solaia Technology, LLC v. Specialty Publishing Co., 221 Ill. 2d 558, 580 (2006). A court
must interpret the words of the statement as they appear to have been used and according to the idea
they were intended to convey to the reasonable reader. Bryson, 174 Ill. 2d at 93. When the
defendant clearly intended and unmistakably conveyed a defamatory meaning, a court should not
strain to see an inoffensive gloss on the statement. Bryson, 174 Ill. 2d at 93. The preliminary
determination of whether the innocent construction rule applies is a question of law for the court, and
whether the statement was understood to be defamatory or to refer to the plaintiff is a question for
the jury if the innocent construction issue is resolved in the plaintiff's favor. Tuite v. Corbitt, 224 Ill.
2d 490, 503 (2006). The innocent construction rule has been deemed a proper ground for dismissal
of a complaint pursuant to section 2--615. Tuite v. Corbitt, 358 Ill. App. 3d 889, 900 (2005).
Additionally, if a statement is defamatory per se, but not subject to an innocent construction,
it still may enjoy constitutional protection under the first amendment. Solaia Technology, 221 Ill. 2d
at 581. The first amendment to the United States Constitution states, in part, that "Congress shall
make no law *** abridging the freedom of speech ***." U.S. Const., amend. I. The United States
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Supreme Court has long held that its provisions are also binding on the states through the due process
clause of the fourteenth amendment. Imperial Apparel, 227 Ill. 2d at 393, citing Murdock v.
Pennsylvania, 319 U.S. 105, 108, 87 L. Ed. 1292, 1295-96, 63 S. Ct. 870, 872 (1943). The
provisions of the first amendment have been interpreted as limiting the reach of state defamation law.
Imperial Apparel, 227 Ill. 2d at 394.
"Whether and to what extent the Constitution constrains state defamation law depends
on the circumstances of the case at issue. Two considerations must be taken into account.
The first is whether the plaintiff is a public figure or official or is, instead, *** a private figure.
The second is whether the speech at issue is of public concern. [Citation.]" Imperial Apparel,
227 Ill. 2d at 394.
The question of whether the plaintiff is a public or private figure affects the standard of
liability. If the plaintiff is a public figure, the first amendment precludes him from obtaining redress
in a defamation action unless he can prove that the allegedly defamatory statements were made with
actual malice. Imperial Apparel, 227 Ill. 2d at 394. If the plaintiff is a private figure, the first
amendment does not impose any restriction on the liability standards that states may adopt. Imperial
Apparel, 227 Ill. 2d at 394. In Illinois, ordinary negligence is the liability standard. Troman v. Wood,
62 Ill. 2d 184, 198 (1975).
In contrast to a plaintiff's status, the content of the challenged speech bears on the standard
that must be satisfied in order to recover punitive damages. Imperial Apparel, 227 Ill. 2d at 395.
Specifically, "[w]here the cause of action is based on defamatory statements concerning a matter of
public concern, punitive damages may not be imposed absent a showing of actual malice." Imperial
Apparel, 227 Ill. 2d at 395.
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In addition to governing standards regarding fault, falsity, and punitive damages, the first
amendment imposes limits on the type of speech that may be the subject of state defamation actions.
Imperial Apparel, 227 Ill. 2d at 397. Specifically, in Milkovich v. Lorain Journal Co., 497 U.S. 1,
20, 111 L. Ed. 2d 1, 19, 110 S. Ct. 2695, 2706 (1990), the Supreme Court held that a statement will
receive first amendment protection only if it "cannot be reasonably interpreted as stating actual facts"
about the plaintiff. The Milkovich Court balanced the first amendment's guarantee of free, uninhibited
discussion with society's interest in preventing and redressing attacks on reputation. Milkovich, 497
U.S. at 22, 111 L. Ed. 2d at 20, 110 S. Ct. at 2707-08. The Court rejected what it called "an artificial
dichotomy between opinion and fact" and noted that expressions of opinion may often imply
assertions of objective fact and, in such cases, would be considered actionable. See Milkovich, 497
U.S. at 19, 111 L. Ed. 2d at 18, 110 S. Ct. at 2706; see also Howell v. Blecharczyck, 119 Ill. App.
3d 987, 993 (1983) (a statement of opinion that implies the existence of an undisclosed defamatory
fact is actionable).
To determine whether a statement reasonably presents or implies the existence of facts about
the plaintiff, we review three considerations: "whether the statement has a precise and readily
understood meaning, whether the statement is verifiable, and whether the statement's literary or social
context signals that it has factual content." Solaia Technology, 221 Ill. 2d at 581. In doing so, we
bear in mind that the first amendment protects overly loose, figurative, rhetorical, or hyperbolic
language, which negates the impression that the statement actually presents facts. Hopewell v.
Vitullo, 299 Ill. App. 3d 513, 518 (1998). Whether a statement qualifies as constitutionally protected
speech under the first amendment is a matter of law for the court to decide. Hopewell, 299 Ill. App.
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3d at 518. To determine whether a statement is fact or opinion, a court must evaluate the totality of
the circumstances. Piersall v. SportsVision of Chicago, 230 Ill. App. 3d 503, 510 (1992).
"The principle that an allegedly defamatory statement is protected by the first amendment
unless the plaintiff shows that the statement is factual has been found to apply to three types of
actions: those brought by public officials, those brought by public figures, and those brought by
private individuals against media defendants." Imperial Apparel, 227 Ill. 2d at 398-99. "Whether the
privilege afforded by the first amendment to statements that are not factual also extends to statements
made by one private party about another on a matter of purely private concern is unsettled." Imperial
Apparel, 227 Ill. 2d at 399.
B. Defamation Per Se: Application of Law to the Facts of this Case
1. Defamation Per Se and the Innocent Construction Rule
In the present case, the allegations in the plaintiff's complaint state a cause of action for
defamation per se. The plaintiff alleged that the defendant made three defamatory statements: (1) that
the plaintiff exhibited a long pattern of misconduct with children, (2) that the plaintiff abused players,
coaches, and umpires in CHLL; and (3) that the plaintiff was unfit to be assigned as a CHLL coach.
The complaint indicates that, in addition to having served as a CHLL coach for the 2000 through
2004 seasons, the plaintiff is a practicing attorney and dentist. The first two alleged statements are,
at a minimum, defamatory under the fourth category of defamation per se because the statements are
prejudicial to the plaintiff in his dental and legal professions.
"Statements that have been deemed defamatory per se by Illinois courts under the third and/or
fourth categories have always been related to job performance; to succeed, the plaintiff must have
been accused of lacking ability in his trade or doing something bad in the course of carrying out his
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job." (Emphasis in original.) Cody v. Harris, 409 F.3d 853, 857 (7th Cir. 2005), citing Clarage v.
Kuzma, 342 Ill. App. 3d 573 (2003), and Parker v. House O'Lite Corp., 324 Ill. App. 3d 1014
(2001). For example, in Parker, the plaintiff, whose job was drafting lighting specifications for a new
hospital, was accused of rigging the specifications so that only his brother-in-law would be able to
qualify for the job. Parker, 324 Ill. App. 3d at 1019. This alleged " 'want of integrity' " was in
performing the plaintiff's duties of employment, and the court stated that it constituted defamation
per se. Parker, 324 Ill. App. 3d at 1025, quoting Van Horne v. Muller, 185 Ill. 2d 299, 307 (1998).
Conversely, attacks related to personal integrity and character have not been deemed
defamatory per se. Cody, 409 F.3d at 858, citing Heying v. Simonaitis, 126 Ill. App. 3d 157 (1984).
"In Heying, the court held that statements made by doctors regarding personality conflicts between
the plaintiff nurse and her fellow employees did not impugn her ability as a nurse." Cody, 409 F.3d
at 858, citing Heying, 126 Ill. App. 3d at 164. Nonetheless, "[i]n some cases, personal integrity is
so intertwined with job skills, that an attack upon it could constitute defamation per se." Cody, 409
F.3d at 858, citing Kumaran v. Brotman, 247 Ill. App. 3d 216 (1993). In Kumaran, the court found
that the plaintiff stated a cause of action for defamation per se where a newspaper article alleged that
the plaintiff had brought several nonmeritorious lawsuits to "scam" settlement money from the
defendants. Kumaran, 247 Ill. App. 3d at 225. The court concluded that the accusations contained
in the article prejudiced the plaintiff in his profession as a substitute teacher "because a teacher would
be expected to set a good example and function as a role model for his young, impressionable
students." Kumaran, 247 Ill. App. 3d at 227. The court essentially concluded that personal integrity
was a job requirement for being a teacher.
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The facts in the present case present a situation similar to that in Kumaran. The first two
alleged defamatory statements accuse the plaintiff of engaging in misconduct that could impute a lack
of ability and prejudice the plaintiff in his dental and legal professions. Similar to the holding in
Kumaran that personal integrity is a job requirement for teachers, both the dental and legal
professions require persons admitted to practice to be of good moral character. See 225 ILCS
25/9(b) (West 2006); 188 Ill. 2d R. 701(a). Additionally, the Illinois Dental Practice Act prohibits
engaging in "dishonorable, unethical, or unprofessional conduct of a character likely to *** harm the
public." 225 ILCS 25/23(11) (West 2006). Accordingly, the allegations that the plaintiff had a long
pattern of misconduct with children and abused players, coaches, and umpires in CHLL impute a lack
of ability and are prejudicial to the plaintiff's dental and legal professions since such professions
require a high level of moral character. Misconduct and abuse, especially as to children, is
undoubtedly the type of behavior that would lower the public's perception of the plaintiff's moral
character. Moreover, the statements are prejudicial to the plaintiff in his dental profession because
it is likely that some of the plaintiff's patients are children. The parents of those children would be
reluctant to send them to a dentist who "exhibited a long pattern of misconduct with children" and
"abused" children.
Turning to the third alleged statement--that the plaintiff was unfit to be assigned as a CHLL
coach--we hold that it is not defamatory per se, because it does not prejudice the plaintiff or impute
a lack of ability in his professions. Rather, it is capable of an innocent construction. In Anderson v.
Vanden Dorpel, 172 Ill. 2d 399, 415 (1996), our supreme court held that an employer's comments
to an employee's prospective employer that she did not "follow up on assignments" and did not get
along with her coworkers could reasonably be construed to signify "nothing more than that the
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plaintiff did not fit in with [the defendant's] organization and perform well in that particular position."
The court determined that, because it was capable of such an innocent construction, it would not
support an action for defamation per se. Anderson, 172 Ill. 2d at 416. The defendant's alleged
statement that the plaintiff was unfit to coach can reasonably be construed in a similar fashion. It
could mean nothing more than that the plaintiff did not fit in with the board members of CHLL. As
it can be innocently construed, it does not support an action for defamation per se. Anderson, 172
Ill. 2d at 416.
We must next consider whether the first two alleged defamatory statements, which we
determined to be defamatory per se, are capable of an innocent construction. Construing the
complaint in the light most favorable to the plaintiff, we hold that the defendant's alleged statements,
when they are considered in context and their words and implications are given their natural and
obvious meaning, are not reasonably capable of an innocent construction. Although there are varying
levels of misconduct and abuse of children, any degree of such behavior can hardly be considered
innocent. In this context, we cannot find an innocent construction for the defendant's alleged
statements.
In his appellee brief, the defendant relies on Harrison v. Chicago Sun-Times, Inc., 341 Ill.
App. 3d 555, 570 (2003), for the proposition that the defendant's alleged statements are susceptible
of an innocent construction. In Harrison, the defendant published a news story that stated that the
plaintiff had kidnapped her child. Harrison, 341 Ill. App. 3d at 560. The plaintiff argued that the
defendant's news story was defamatory per se because it imputed the commission of a criminal
offense. Harrison, 341 Ill. App. 3d at 562-63. Even though the word "kidnapped" carried a specific
meaning denoting a crime under the Illinois criminal statutes, the court found that it was susceptible
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of an innocent construction because there were also noncriminal meanings of the word. See Harrison,
341 Ill. App. 3d at 570-71 (noting that in custody and Hague Convention contexts the reasonable
construction of the word "kidnapped" does not refer to the violation of a criminal statute).
Harrison may have been persuasive here if the defendant's alleged statements were defamatory
per se on the basis that they imputed the commission of a criminal offense. It is reasonable to argue
that there may be noncriminal contexts for misconduct with children and abuse of players in CHLL.
However, because the defendant's alleged statements are defamatory per se because they prejudice
the plaintiff in his professions, Harrison is not persuasive.
2. First Amendment Protection
Finally, as explained in Imperial Apparel, we must address whether the alleged defamatory
statements are protected by the first amendment, thus precluding or constraining the plaintiff's
defamation claims. Relative to first amendment constraints on state defamation law, we must address
the status of the parties, the standard of liability, and the standard for punitive damages. The first
consideration is whether the plaintiff is a public official or is merely a private figure. In his complaint,
the plaintiff alleged that in January 2005 he announced that he was a candidate for Village trustee and
that the election was to be held on April 5, 2005. Candidates for public office have been held to be
public officials for defamation purposes. Monitor Patriot Co. v. Roy, 401 U.S. 265, 272, 28 L. Ed.
2d 35, 41, 91 S. Ct. 621, 625 (1971) (stating that the first amendment "has its fullest and most urgent
application precisely to the conduct of campaigns for political office"). Accordingly, the plaintiff was
a public official for defamation purposes from the time he announced his campaign for trustee until
the election in April 2005. Count I is based on alleged defamatory statements made on March 4,
2005. Since these statements were during the plaintiff's political campaign, he is a public official as
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to count I. However, count II is based on statements that were made on February 27, 2006. This
court can take judicial notice of the Du Page County Election Commission website that shows the
plaintiff lost his campaign for Village trustee. Nordine v. Illinois Power Co., 32 Ill. 2d 421, 428
(1965) (courts may take judicial notice of public records); see also www.dupageelections.com (April
5, 2005, consolidated election). Accordingly, the plaintiff is a private figure as to count II and the
liability standard is ordinary negligence. See Troman, 62 Ill. 2d at 198.
With respect to the liability standard of count I, we must next address whether the alleged
defamatory statements relate to the plaintiff's official conduct. In New York Times Co. v. Sullivan,
376 U.S. 254, 279-80, 11 L. Ed. 2d 686, 706, 84 S. Ct. 710, 726 (1964), the Supreme Court held
that the first and fourteenth amendments require "a federal rule that prohibits a public official from
recovering damages for a defamatory falsehood relating to his official conduct unless he proves that
the statement was made with 'actual malice'--that is, with knowledge that it was false or with reckless
disregard of whether it was false or not." (Emphasis added.) That the actual malice standard applies
only to comments relating to "official conduct" has been broadly construed to reach "anything which
might touch on an official's fitness for office." Garrison v. Louisiana, 379 U.S. 64, 77, 13 L. Ed. 2d
125, 134, 85 S. Ct. 209, 217 (1964). As many things can touch on someone's "fitness for office," this
restriction to the actual malice standard is rarely applied. Dixon v. International Brotherhood of
Police Officers, 504 F.3d 73, 88 (1st Cir. 2007). As explained in Monitor Patriot Co., 401 U.S. at
274-75, 28 L. Ed. 2d at 42, 91 S. Ct. at 627-28:
"Indeed, whatever vitality the 'official conduct' concept may retain with regard to occupants
of public office, [citation] it is clearly of little applicability in the context of an election
campaign. The principal activity of a candidate in our political system *** consists in putting
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before the voters every conceivable aspect of his public and private life that he thinks may
lead the electorate to gain a good impression of him. *** Any test adequate to safeguard
First Amendment guarantees in this area must go far beyond the customary meaning of the
phrase 'official conduct.'
Given the realities of our political life, it is by no means easy to see what statements
about a candidate might be altogether without relevance to his fitness for the office he seeks."
Based on the foregoing, we conclude that the alleged defamatory statements contained in count I of
the plaintiff's first amended complaint, accusing the plaintiff of a long pattern of misconduct with
children and abuse of children and others in CHLL, relate to the plaintiff's fitness for office and that
the actual malice standard applies.
Under the New York Times standard, a statement has been made with actual malice if it was
made "with knowledge that it was false or with reckless disregard of whether it was false or not."
New York Times, 376 U.S. at 280, 11 L. Ed. 2d at 706, 84 S. Ct. at 726. In the present case, the
plaintiff properly alleged actual malice. Specifically, in paragraph 24 of his first amended complaint,
the plaintiff stated that the defendant made the alleged defamatory statements "which he knew were
false." See Krueger v. Lewis, 342 Ill. App. 3d 467, 473 (2003) (actual malice was sufficiently alleged
where the complaint stated that the statements were made by the defendant " 'in full knowledge that
they were untrue or in reckless disregard of their truth or falsity' "). Thus, the plaintiff has properly
alleged the elements of a defamation claim as required by the first amendment and sufficient to survive
a section 2--615 motion to dismiss. In summary, the plaintiff is a public official as to count I and a
private figure as to count II. The plaintiff has properly alleged actual malice in count I.
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The second consideration is whether the speech at issue is of public concern. If so, punitive
damages may not be imposed absent a showing of actual malice. This consideration is relevant
because the plaintiff requested punitive damages in counts I and II. Whether a publication addresses
a matter of public concern "must be determined by the content, form, and context of a given
statement, as revealed by the whole record." Connick v. Myers, 461 U.S. 138, 147-48, 75 L. Ed. 2d
708, 720, 103 S. Ct. 1684, 1690 (1983). A matter of public concern is any matter of political, social,
or other concern in the community, rather than merely a personal grievance. Connick, 461 U.S. at
146, 75 L. Ed. 2d at 719, 103 S. Ct. at 1690. Whether statements address a matter of public concern
is a question of law. Landstrom v. Illinois Department of Children & Family Services, 892 F.2d 670,
678-79 (7th Cir. 1990).
In the present case, the defendant allegedly indicated that the plaintiff exhibited a long pattern
of misconduct with children and abused players, coaches, and umpires in CHLL. This content is a
matter of public concern to the Village community. See Terry v. Davis Community Church, 131 Cal.
App. 4th 1534, 1547, 33 Cal. Rptr. 3d 145, 154 (2005) (youth group leader's alleged misconduct was
matter of public concern because public has interest in matters affecting its youth); Turner v. Devlin,
174 Ariz. 201, 205, 848 P.2d 286, 290 (1993) (police conduct, especially with respect to treatment
of children, was matter of public concern). The form and context of the statements also favor a
determination that the alleged defamatory statements are a matter of public concern. The statements
were made by the defendant, as president of CHLL, during times that the CHLL board was choosing
coaches and managers for the upcoming season. Although the alleged statements were made only
to a limited number of people, they are not thereby deprived of first amendment protection. See
Cioffi v. Averill Park Central School District Board of Education, 444 F.3d 158, 165 (2d Cir. 2006)
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(although a defamatory letter was sent only to one person and the members of the board of education,
this fact did not remove it from first amendment protection). Moreover, the statements are not
merely a personal grievance. Rather, since the statements were made when the CHLL board was
choosing coaches and managers for the upcoming season, the purpose of the statements was to alter
public opinion or to bring alleged wrongdoing to light. Such a purpose indicates that the statements
are a matter of public concern. See Linhart v. Glatfelter, 771 F.2d 1004, 1010 (7th Cir. 1985)
(speech is a matter of public concern if it was made for the purpose of bringing wrongdoing to light
or to raise issues of public concern, rather than to further some purely private interest).
Accordingly, because the statements at issue are a matter of public concern, punitive damages
may not be imposed absent a showing of actual malice. As stated, the plaintiff properly alleged actual
malice in count I, which was required because the plaintiff is a public official as to that count. The
plaintiff also properly alleged actual malice as to count II. Specifically, in paragraph 33 of the first
amended complaint, the plaintiff alleged that the defendant made the defamatory statements "which
he knew were false." See New York Times, 376 U.S. at 280, 11 L. Ed. 2d at 707, 84 S. Ct. at 726
(a statement has been made with actual malice if it was made with knowledge that it was false). Thus,
the plaintiff's requests for punitive damages are legally sufficient.
Having determined the constraints the first amendment places on this defamation suit, we must
next address whether the alleged statements are constitutionally protected under the first amendment
as stating actual fact. As stated above, courts consider several factors in determining whether a
statement is factual. First, courts look to whether the statement has a precise and readily understood
meaning. Solaia Technology, 221 Ill. 2d at 581. The term "misconduct" is defined as "[a] dereliction
of duty; unlawful or improper behavior." Black's Law Dictionary 1013 (7th ed. 1999). The term
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"abuse," relative to the treatment of others, is defined as "physical or mental maltreatment, often
resulting in mental, emotional, sexual, or physical injury." Black's Law Dictionary 10 (8th ed. 2004).
Here, the statements that the plaintiff "exhibited a long pattern of misconduct" and "abused players,
coaches, and umpires" have a readily understood meaning. Such statements would conjure up images
in the listeners' minds of verbal abuse, sexual abuse, or some type of physical abuse. However, the
statements are not precise in the sense that they do not give insight into the exact type of abuse or
misconduct to which the defendant was referring. Thus, this consideration does not significantly aid
our analysis.
We next consider whether the statements are susceptible to being objectively verifiable as true
or false. Solaia Technology, 221 Ill. 2d at 581. Viewing the complaint in the light most favorable
to the plaintiff, we believe that the defendant's statements are susceptible to being objectively
verifiable. The plaintiff's amended complaint alleges that he had been a CHLL coach for the 2000
through 2004 seasons. Information could be gathered from those who interacted with the plaintiff
during those seasons to determine if the defendant's allegations are true.
Finally, we consider whether the statements' social context signals that they have factual
content. Solaia Technology, 221 Ill. 2d at 581. In Gregory v. McDonnell Douglas Corp., 17 Cal.
3d 596, 552 P.2d 425, 131 Cal. Rptr. 641 (1976), the California Supreme Court noted that the social
context in which words were used had to be considered when characterizing those words as fact or
opinion:
"Thus, where potentially defamatory statements are published in a public debate, a heated
labor dispute, or in another setting in which the audience may anticipate efforts by the parties
to persuade others to their positions by use of epithets, fiery rhetoric or hyperbole, language
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which generally might be considered as statements of fact may well assume the character of
statements of opinion." Gregory, 17 Cal. 3d at 601, 552 P.2d at 428, 131 Cal. Rptr. at 644.
In the present case, the social context signals that the defendant's alleged statements have
factual content. A CHLL board meeting where the members are picking coaches for the coming
season is not the type of social context where one would expect the use of "epithets, fiery rhetoric
or hyperbole." Moreover, the defendant's allegations were not merely that the plaintiff was abusive,
rude, or incapable of appropriately managing a little league team. The defendant allegedly stated that
the plaintiff "exhibited a long pattern of misconduct" and "abused" CHLL players, coaches, and
umpires. A "pattern" of misconduct implies that the plaintiff engaged in a series of acts of misconduct
against children. See Black's Law Dictionary 1149 (7th ed. 1999) (defining "pattern" as "[a] mode
of behavior or series of acts that are recognizably consistent"). Here, by using the terms "exhibited
a long pattern of misconduct" and "abused," the defendant implies that his statements are based on
specific factual events. See Moriarty v. Greene, 315 Ill. App. 3d 225, 235 (2000), quoting Haynes
v. Alfred A. Knopf, Inc., 8 F.3d 1222, 1227 (7th Cir. 1993) (a statement is actionable if a defendant
is claiming to be in possession of objectively verifiable facts, rather than exploring a "subjective view,
an interpretation, a theory, conjecture or surmise"); see also Howell, 119 Ill. App. 3d at 993 (a
statement that implies the existence of an undisclosed defamatory fact is actionable).
Under the relevant considerations, the defendant's alleged statements can be reasonably
interpreted as stating actual facts about the plaintiff and are, therefore, not entitled to first amendment
protection. See Milkovich, 497 U.S. at 20, 111 L. Ed. 2d at 19, 110 S. Ct. at 2706. Thus, the
plaintiff's first amended complaint states a cause of action for defamation per se. In light of this
determination, we reverse the trial court's order dismissing the plaintiff's amended complaint.
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In so ruling, we note that in Imperial Apparel the court stated that this principle, that an
alleged defamatory statement is protected by the first amendment unless the plaintiff shows that the
statement is factual, had been applied to actions by public officials. This is the situation presented by
count I. However, the court further noted that whether the privilege afforded by the first amendment
to statements that are not factual extends to statements made by one private party about another on
a matter of purely private concern was unsettled. Imperial Apparel, 227 Ill. 2d at 399. Additionally,
the supreme court did not comment on whether the privilege has been extended to statements made
by a private party to a nonmedia defendant on a matter of public concern, the situation presented by
count II of the plaintiff's amended complaint. Nonetheless, as in Imperial Apparel, we need not
resolve these issues, because the statements at issue purportedly state actual fact and are not afforded
first amendment protection.
We further note that the defendant relies on Doherty v. Kahn, 289 Ill. App. 3d 544, 557
(1997), abrogated on other grounds, Soh v. Target Marketing Systems, Inc., 353 Ill. App. 3d 126,
131 (2004), and Wynne v. Loyola University of Chicago, 318 Ill. App. 3d 443, 452 (2000), in arguing
that the statements at issue are mere expressions of opinion. In Doherty, the plaintiff filed a complaint
for defamation per se based on statements the defendant allegedly made to the plaintiff's potential
landscaping customers. Doherty, 289 Ill. App. 3d at 554. The defendant allegedly stated that the
plaintiff "was 'incompetent,' 'lazy,' 'dishonest,' 'cannot manage a business,' and/or 'lacks the ability to
perform landscaping services.' " Doherty, 289 Ill. App. 3d at 554. The reviewing court found that
these statements were mere expressions of opinion. Doherty, 289 Ill. App. 3d at 556. In the present
case, unlike in Doherty, the defendant did not simply state that the plaintiff was abusive, rude, or
unfit, had a bad temper, or was incapable of coaching a CHLL team. As explained above, in context,
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the defendant's alleged statements implied that there was a specific factual basis for his statements.
Thus, we do not find Doherty persuasive.
In Wynne, the plaintiff's claim for defamation per se was based on a memo that the defendant
had written regarding the plaintiff. Wynne, 318 Ill. App. 3d at 447. In the memo, the defendant
wrote that the plaintiff made " 'bizarre telephone calls' " to colleagues; the plaintiff " 'appeared to
wheedle, persuade, nag, and domineer' " for changes in the university's special education program;
" 'nothing ever seemed to satisfy [the plaintiff]' "; the defendant found meetings involving the plaintiff
to be " 'uniformly unpleasant' "; and the plaintiff " 'began striking various deals' " with the dean.
Wynne, 318 Ill. App. 3d at 452. At the start of the memo, the defendant had cautioned that what was
written was " 'simply a summary of [the defendant's] own feelings about [her] experiences with [the
plaintiff].' " Wynne, 318 Ill. App. 3d at 452. The reviewing court determined that none of these
words were defamatory per se, because they were not capable of verification and the defendant was
merely expressing her opinion. Wynne, 318 Ill. App. 3d at 452.
Wynne is also unpersuasive. As explained by the Wynne court: "in one sense all opinions
imply facts, the question of whether a statement of opinion is actionable as defamation is one of
degree; the vaguer and more generalized the opinion, the more likely the opinion is nonactionable as
a matter of law." Wynne, 318 Ill. App. 3d at 452. Viewed in context, the statements in Wynne were
vaguer and more general than the statements at issue in the present case and it was clear that the
Wynne defendant was simply stating her opinion. In the present case, the statements that the plaintiff
exhibited a long pattern of misconduct and abused players, coaches, and umpires in CHLL, when
viewed in context, were more specific and implied that the defendant had a factual basis for his
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statements. Additionally, unlike in Wynne, there was no specific indication that the statements were
merely the defendant's opinion.
C. Discovery
The plaintiff's second contention on appeal is that the trial court abused its discretion when
it stayed discovery until it ruled on the defendant's motion to dismiss. "A trial court has great latitude
in ruling on discovery matters. [Citation.] A trial court's rulings on such matters will not be disturbed
absent a manifest abuse of discretion." Adkins Energy, 347 Ill. App. 3d at 380-81. "A court abuses
its discretion only where its ruling is arbitrary, fanciful, or unreasonable, or where no reasonable
person would adopt the court's view." Evitts v. DaimlerChrysler Motors Corp., 359 Ill. App. 3d 504,
513 (2005).
We cannot say that the trial court abused its discretion in staying discovery pending a ruling
on the defendant's motion to dismiss. See Adkins Energy, 347 Ill. App. 3d at 381 (reviewing court
found that the trial court did not abuse its discretion in staying discovery until it resolved whether the
plaintiff's complaint stated a cause of action). The trial court explained that the information being
subpoenaed from the CHLL board members should have been available from the defendant as
president of the CHLL. The trial court did not find it appropriate to subpoena information from third
parties until it was clear whether the information would be available from the defendant. At a hearing
on the plaintiff's motion to vacate the protective order staying discovery, the plaintiff asserted that
his main concern with the inability to obtain discovery was the one-year statute of limitations on
defamation claims. The plaintiff acknowledged at the hearing, however, that the statute was tolled
by the filing of the complaint. Under these circumstances, the trial court's determination was not
unreasonable. Moreover, because we determined that the plaintiff's first amended complaint stated
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a cause of action for defamation per se, the protective order staying discovery did not harm the
plaintiff. See Adkins Energy, 347 Ill. App. 3d at 381 (indicating that an order staying discovery
would be harmful if discovery were necessary to resist a motion to dismiss).
D. Civil Conspiracy
Finally, we address whether the trial court properly dismissed count III, the plaintiff's claim
for civil conspiracy. " 'Civil conspiracy consists of a combination of two or more persons for the
purpose of accomplishing by some concerted action either an unlawful purpose or a lawful purpose
by unlawful means.' " Karas v. Strevell, 227 Ill. 2d 440, 466 (2008), quoting Adcock v. Brakegate,
Ltd., 164 Ill. 2d 54, 62 (1994). "Conspiracies are often intentionally 'shrouded in mystery,' which by
nature makes it difficult for the plaintiff to allege with complete specificity all of the details of the
conspiracy." Time Savers, Inc. v. LaSalle Bank, N.A., 371 Ill. App. 3d 759, 771 (2007), quoting
Adcock, 164 Ill. 2d at 66. However, "the complaint must contain more than the conclusion that there
was a conspiracy, it must allege specific facts from which the existence of a conspiracy may properly
be inferred." Fritz v. Johnston, 209 Ill. 2d 302, 318 (2004). "The mere characterization of a
combination of acts as a conspiracy is insufficient to withstand a motion to dismiss." Buckner v.
Atlantic Plant Maintenance, Inc., 182 Ill. 2d 12, 23 (1998).
In the present case, in addition to incorporating the allegations contained in the defamation
claims, the plaintiff alleged:
"53. On information and belief, Defendant engaged in a scheme with Hartwell Morse
and Eric Nolan, and with Plaintiff's political opponents, including Terry Pocius, Mary Church
Brown and Paul Pederson, to defame Plaintiff by disseminating false statements about Plaintiff
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being involved in a long pattern of misconduct and being unfit to coach in CHLL so as to
harm Plaintiff's reputation and to embarrass him in the community."
The plaintiff additionally alleged that, in furtherance of the conspiracy, the defendant intentionally
published and otherwise disseminated the defamatory statements at issue.
The plaintiff's allegations fail to state a cause of action for civil conspiracy. "In Illinois, a
plaintiff must plead the facts essential to his cause of action; unsupported conclusions are not
enough." Buckner, 182 Ill. 2d at 24. Here, the complaint does not allege any concert of action on
the part of Hartwell Morse, Eric Nolan, and Paul Pederson. The complaint never identifies Morse,
Nolan, or Pederson, or the roles they played in the case. The complaint merely indicates that Nolan
and Morse were two of the people to whom the defamatory statements were made and that Pederson
was a political opponent. With respect to Pocius and Brown, the complaint indicated that Pocius was
a prior Village trustee and that Brown was a resident of the Village. The complaint also indicated
that Pocius and Brown informed the plaintiff's running mates, during the plaintiff's campaign for
Village trustee, of the defendant's alleged defamatory statements made in March 2005. However, the
fact that Pocius and Brown may have repeated the defendant's alleged defamatory statements is not
evidence of a conspiracy. See McClure v. Owens Corning Fiberglas Corp., 188 Ill. 2d 102, 133-34
(1999) ("[a]ccidental, inadvertent, or negligent participation in a common scheme does not amount
to conspiracy"). The plaintiff has provided nothing more than a conclusory allegation that a
conspiracy existed. Such conclusory allegations are not sufficient to state a cause of action for
conspiracy. See Buckner, 182 Ill. 2d at 24. Although the trial court dismissed the conspiracy claim
on the basis that it was dependent on the defamation claims, we may affirm on any basis appearing
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in the record regardless of the trial court's reasoning. Bell Leasing Brokerage, LLC v. Roger Auto
Service, Inc., 372 Ill. App. 3d 461, 469 (2007).
CONCLUSION
For the foregoing reasons, we reverse the judgment of the circuit court of Du Page County
dismissing the plaintiff's claims for defamation per se (counts I and II) and remand for additional
proceedings consistent with this opinion. However, we affirm the dismissal of the plaintiff's claim for
civil conspiracy (count III).
Affirmed in part and reversed in part; cause remanded.
BOWMAN and HUTCHINSON, JJ., concur.
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Green v. Rogers
Combined Opinion