Jaros v. Village of Downers Grove

2020 IL App (2d) 180654
No. 2-18-0654
Opinion filed June 25, 2020
_____________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT
______________________________________________________________________________

ARTHUR G. JAROS, JR., ) Appeal from the Circuit Court
) of Du Page County
Plaintiff-Appellant, )
)
v. ) No. 17-CH-1233
)
THE VILLAGE OF DOWNERS GROVE; )
SUSAN D. FARLEY; LEAGUE OF WOMEN )
VOTERS OF DOWNERS GROVE, )
WOODRIDGE, AND LISLE; )
GREGORY W. HOSÉ, Individually and in )
his Official Capacity as Commissioner of the )
Village of Downers Grove; ROBERT T. )
BARNETT, Individually and in his Official )
Capacity as Commissioner of the Village )
of Downers Grove; and MARTIN T. TULLY, )
Individually and in his Official Capacity as )
Mayor of the Village of Downers Grove, ) Honorable
) Paul M. Fullerton,
Defendants-Appellees. ) Judge, Presiding.
______________________________________________________________________________

PRESIDING JUSTICE BIRKETT delivered the judgment of the court, with opinion.
Justices McLaren and Bridges concurred in the judgment and opinion.

OPINION

¶1 In September 2017, the village council of Downers Grove (Council) removed plaintiff,

Arthur Jaros, from his seat on the board of trustees for the Downers Grove Public Library (Board).

The impetus for the removal was a report, written by Susan Farley of the League of Women Voters

of Downers Grove, Woodridge, and Lisle (League) and published by the League, stating that
2020 IL App (2d) 180654

plaintiff made bigoted comments at the Board’s August 2017 monthly meeting (August 23

meeting). Seeking redress for both the report of his comments and his removal from the Board,

plaintiff sued multiple defendants, including the Village of Downers Grove (Village), Farley, the

League, Gregory Hosé and Robert Barnett, who were members of the Council, and Martin Tully,

who was the Village mayor. On the motion of defendants, the trial court dismissed plaintiff’s first

amended complaint with prejudice. The court later denied plaintiff’s motion for leave to file a

second amended complaint. Plaintiff appeals, raising multiple issues. We affirm.

¶2 I. BACKGROUND

¶3 On September 5, 2017, plaintiff filed his original complaint. Along with the complaint,

plaintiff filed a motion for injunctive relief, seeking to bar the Council from voting that evening

on a resolution to remove plaintiff from the Board. The trial court heard the motion that same day

and denied it as premature. That evening, the Council adopted the resolution to remove plaintiff

from the Board.

¶4 On September 6, 2017, plaintiff filed a seven-count amended complaint against the

originally named defendants. In the complaint’s general allegations, plaintiff stated that, in August

2015, he was appointed by the Council to a six-year term on the Board. See 75 ILCS 5/4-2 (West

2014) (the village council appoints library trustees). Plaintiff alleged that the position of library

trustee is nonpartisan, that he served as trustee “without any political affiliation,” and that he is

“not a precinct committeeman or other type of official or employee of any political party.”

¶5 Counts I and II alleged defamation. Count I named Farley and count II named the League

on a respondeat superior theory. Plaintiff alleged that, on August 23, 2017, the Board met for its

regular monthly meeting. All six trustees, including plaintiff, were present. Also present were the

Village library’s chief executive officer, Julie Milavec, and various library staff, including Katelyn

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Vabalaitis, who was acting as recording secretary for the meeting. Present as a spectator was

Farley, a member of the League. Neither Hosé, Bartlett, nor Tully were present. On the meeting’s

agenda was the final version of a “Strategic Plan” (Plan) for the Village library. Plaintiff attached

excerpts of the Plan to his complaint. One section of the Plan read:

“Goal: We reflect the diversity of our community

Objective: To be inclusive in providing service to the community

Action Point Person Target Date

[1] Provide regular training Managers Annual
for all staff in equity,
diversity, and inclusion
[2] Incorporate inclusive Managers Annual
practices into library
services
[3] Create a diversity Julie Milavec December 2019
strategy for hiring that
reflects the community

¶6 Plaintiff alleged that the discussion of the Plan resulted in changes to the three proposed

action items, including removing action item (2) and rewording action items (1) and (3). With

these changes, the Plan was approved. Following the meeting, the League published on the

Internet Farley’s “Observer’s Report” (Report) of the August 23 meeting. Plaintiff attached the

Report to his complaint. In the Report, Farley summarized plaintiff’s comments on the three action

items:

“(1) Jaros expressed his objection to Action Item 2. He specifically identified that

this statement: ‘Staff would receive training in Equity, Diversity and Inclusion,’ in his

opinion, did not meet the Affirmative Action requirement and Staff should be hired only

by merit. He questioned why Library staff needed to be trained in any of these areas

(Equity, Diversity or Inclusion). He stated he objected to Staff, who would be around

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children, receiving any training in how to handle inclusion. Should the staff be trained in

Inclusion, Jaros continued, it would open the library up to problems. The children, in his

opinion, had to be protected by library staff from inclusion by ignoring its existence. He

then proceeded to read out loud word by word from what he stated was the Illinois School

Code, IL Sex Education Section to the Board members. Jaros re-stated a second time to

further emphasize, after completing the reading of the ISC Sex Education Section, the ISC

specifically states a marriage is only between a man and a woman. He personally

commented that the code he read did not recognize homosexual marriage and he felt the

Library must not either. The Staff had to protect the children from homosexuals and

exposure to homosexual life style. He proceeded to continue to express his personal views

on how we should view straight people vs. gays and reject any inclusion and people

different from white straight people.

[Jaros] further commented that he felt library staff did the Board a disservice by

inserting the 3 Action Items in the Strategic Plan without prior review by the Board. As

he [was] just reading them at the meeting, he felt unprepared to fight their very existence

in the Plan.

***

(5) Jaros stated he would be voting ‘no’ to the entire Strategic Plan if Action Item

2 remained as presented. He also commented he would really like to eliminate all 3 Action

Items until they could be properly reworded by him. Jaros suggested replacing the word

‘hiring’ in Action Item 3 with ‘recruiting’ and was concerned this Action Item 3 would not

obtain the best candidate for the library staff due to its statement about diversity.

***

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(7) Jaros stated his objection to the library staff creating any reading lists for

distribution as they might pick authors that were too diverse and not, in his opinion, a true

reflection of writers he felt were appropriate for children.”

¶7 According to the Report, the Board ultimately voted to remove action item (2) and reword

action item (3).

¶8 Plaintiff specified the following portion of the Report as defamatory:

“He [Jaros] proceeded to continue to express his personal views on how we should ***

reject any *** people different from white straight people.”

Plaintiff asserted that this statement (reported statement) “was false in its use of the term ‘white’ ”

and also “false in its ascribing to Plaintiff a statement concerning rejecting any people.” Plaintiff

denied making any mention of “race or skin color” at the August 23 meeting. Plaintiff alleged that

Farley made her report “with reckless disregard for the truth and, therefore, with malice.”

¶9 Plaintiff alleged that the reported statement prompted users of social media to attack him

as “bigoted” towards persons of other races and sexual orientations. Plaintiff asserted that he was

an attorney by occupation and that the reported statement “injured [his] reputation” as a member

of the bar. He also claimed damage to his general reputation in the Village.

¶ 10 Plaintiff also attached to his complaint an email he sent to Tully on August 27, 2017. In

this email, plaintiff provided his own account of the Board’s “animated discussion” of the Plan’s

action items. Plaintiff wrote:

“With respect to the first action item, my concern was for indoctrination of staff—

particularly staff of the children’s department—in the ‘political correctness’ associated

with the activist, ‘progressive’ left in this nation. ‘Equity’ ‘diversity’ and ‘inclusion’ can

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easily be interpreted as code words for anything goes, no matter how vulgar or otherwise

against community values.

I specifically pointed out that with respect to the children’s department, we must be

careful to reflect the policy preferences of the State of Illinois. I explained that with respect

to school age children, the law *** continues to require public school instructional

materials to ‘teach honor and respect for monogamous heterosexual marriage.’ The law—

despite recent amendment of [the] School Code *** and despite recent legislation

permitting in Illinois homosexual statutory marriage for adults—does not mandate for the

teaching of our children anything comparable with respect to ‘honor and respect’ for other

statutory forms of ‘marriage. The maxim ‘expressio unius est exclusio alterius’ in my view

is operative here.

I therefore explained that with respect to children, our law does not adopt diversity

and inclusion as to different forms of marriages but instead singles out ‘monogamous

heterosexual marriage’ for preferential treatment with respect to teaching of school age

children. I also explained that unbridled diversity and inclusion can easily be read to mean

that practices outside the American mainstream might now have to be given equal

treatment under the principles of diversity and inclusion including advocacy of forcible

imposition of Shariah law and cannibalism. (Those were the two I named). I could have

added a host of others including the practice of incest, bestiality, female genital mutilation

*** and honor killings ***. I explained that I could not vote for approval of [the Plan]

with these three action items being so loosely drafted as to permit such interpretations to

be made by staff and/or library patrons. President [Wendee] Greene then stepped in an[d]

helped negotiate a compromise acceptable to all six trustees.

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The action items, as added by the staff without warning to the Board, reflect the

radical left values of the American Library Association.

***

It was agreed that the second action item—in my opinion vague as drafted—was

unnecessary for [the Plan] to be adopted and the Board, as a compromise, agreed to

temporarily delete that item altogether with a view to reworking the language at a later date

and perhaps adding a different formulation of the second action item back into [the Plan]

by amendment at some future meeting.” (Emphases added.)

¶ 11 In count III, plaintiff named Hosé and alleged defamation based on republication. Plaintiff

stated that, sometime prior to September 1, 2017, Hosé republished the Report on his Facebook

page and called for the Council to remove plaintiff as library trustee. Plaintiff attached to his

complaint a screenshot of Hosé’s Facebook post.

¶ 12 Count IV of the amended complaint named the Village and sought a declaratory judgment

that section 2.53.1(d) of the Village code (Downers Grove Municipal Code § 2.53.1(d) (amended

June 5, 2007)), which authorized the Board to remove library trustees, exceeded the Village’s

home-rule powers. Count V named the Village, Hosé, Barnett, and Tully. In this count, plaintiff

sought preliminary and permanent injunctive relief to bar the Board from removing plaintiff as

library trustee.

¶ 13 Count VI, naming Hosé and the Village, alleged a violation of plaintiff’s free-speech rights

under the Illinois Constitution (Ill. Const. 1970, art. I, § 4). Plaintiff asserted that his statements

at the August 23 meeting were constitutionally protected speech and that his rights were violated

when the resolution to remove him from the Board was adopted.

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¶ 14 Count VII named Hosé, Barnett, and Tully and alleged a conspiracy to deprive plaintiff of

his free-speech rights under the Illinois Constitution. Plaintiff alleged that these defendants acted

in concert to seek plaintiff’s removal for his constitutionally protected statements at the August 23

meeting.

¶ 15 On September 7, 2017, plaintiff filed a petition for a preliminary injunction in connection

with count V. Plaintiff sought to bar defendants from enforcing the resolution to remove him from

the Board. On September 21, the trial court denied the petition, finding no likelihood of success

on the merits. The court further determined that its denial of injunctive relief under count V “was

tantamount to a judgment declaring that section 2.53.1(d) of the Village code, authorizing [the

Council] to remove members of [the Board], was within the Village’s home-rule powers.” Jaros

v. Village of Downers Grove, 2017 IL App (2d) 170758, ¶ 11. On September 21, plaintiff filed an

interlocutory appeal under Illinois Supreme Court Rules 304(a) (eff. Mar. 8, 2016) and 307(a) (eff.

July 1, 2017). On February 16, 2018, this court issued its opinion affirming the trial court. Jaros,

2017 IL App (2d) 170758, ¶ 50.

¶ 16 While the appeal was pending, defendants filed motions to dismiss counts I, II, III, VI, and

VII of the complaint. Defendants filed their motions pursuant to section 2-619.1 of the Code of

Civil Procedure (Code) (735 ILCS 5/2-619.1 (West 2016)), which permits a defendant to seek

dismissal based on both section 2-615 (id. § 2-615) (dismissal based on failure to state a claim)

and section 2-619 (id. § 2-619) (dismissal based on defects, defenses, or other affirmative matter)

of the Code.

¶ 17 In their joint motion to dismiss counts I and II (defamation), Farley and the League argued

that the reported statement was neither defamatory per se nor defamatory per quod. See Hadley

v. Subscriber Doe, 2014 IL App (2d) 130489, ¶ 19 (“A statement is defamatory per se if its

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defamatory character is obvious and apparent on its face and injury to the plaintiff’s reputation can

be presumed,” while “[a] statement is defamatory per quod if the defamatory character is not

obvious and apparent on its face,” in which case reputational damage is not presumed and the

plaintiff must plead and prove special damages). Farley and the League also noted that, because

plaintiff was a public official, he was required to plead and prove that Farley and the League made

the allegedly defamatory statement with actual malice, i.e., with knowledge of its falsity or in

reckless disregard for its truth or falsity (Tirio v. Dalton, 2019 IL App (2d) 181019, ¶ 58 (citing

New York Times Co. v. Sullivan, 376 U.S. 254, 280 (1964))). Farley and the League argued that

plaintiff did not properly allege that they acted with actual malice.

¶ 18 Farley and the League also asserted the affirmative defense of substantial truth. 1 For

support, Farley and the League attached the official minutes of the August 23 meeting. The minutes

record plaintiff’s comments on the Plan’s three action items:

“Regarding Action Item 1 and 2, Jaros brought up the Illinois School Code and the

requirements for schools in what can be included in sex education classes. He stated that

equity, diversity, and inclusion are part of a left wing political agenda and these action

items espouse a progressive agenda and viewpoint. Jaros stated children’s librarians should

not provide booklists or services that support same sex marriage and that same sex marriage

is lesser than heterosexual marriage. He stated that support of inclusive practices would

1
“While ‘substantial truth’ can be an affirmative defense to a defamation suit, falsity is

also an element of the defamation plaintiff’s cause of action.” Tirio, 2019 IL App (2d) 181019,

¶ 52.

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mean supporting all kinds, including ‘terrorists’ and ‘cannibalism.’ He believes the library

should be inclusive, but only the good kind.”

¶ 19 The minutes reflect that the Board agreed to revise action item (1) and to temporarily

remove action item (2) and place it for discussion at a future meeting. The action items were, as

modified:

“1. Provide regular patron service training for all staff in equity, diversity, and

inclusion.

2. Create a diversity strategy for recruiting that reflects the community.”

¶ 20 Farley and the League also attached a copy of Farley’s handwritten notes, from which she

purportedly derived the Report. Farley wrote in her notes: “Focus on straight white people v. gay

people.”

¶ 21 Farley and the League argued that the reported statement was substantially true in light of

plaintiff’s comments in the email to Tully and the official minutes of the August 23 meeting. Based

also on these independent sources, Farley and the League invoked the fair-report privilege. See

Solaia Technology, LLC v. Specialty Publishing Co., 221 Ill. 2d 558, 588 (2006) (“[T]he fair report

privilege has two requirements: (1) the report must be of an official proceeding; and (2) the report

must be complete and accurate or a fair abridgement of the official proceeding.”). Finally, Farley

and the League asserted that plaintiff’s suit was a “Strategic Lawsuit Against Public Participation”

(SLAPP) and thus barred by the Citizen Participation Act (735 ILCS 110/1 et seq. (West 2016)).

¶ 22 In his motion to dismiss count III (defamation: republication), Hosé argued that plaintiff

did not sufficiently allege that Hosé republished Farley’s account with actual malice. Hosé also

asserted the affirmative defense of legislative immunity.

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¶ 23 In their joint motion, the Village, Hosé, Barnett, and Tully argued for dismissal of counts

VI and VII (free speech) on the ground that the free-speech protections of the Illinois Constitution

did not apply to plaintiff’s remarks at the August 23 meeting, because he was speaking as an

“appointed official on matters relating to his official duties” and not as a “citizen *** about a

matter of public concern.” They also argued that the Illinois Constitution does not permit a claim

for damages for a violation of free-speech rights. Finally, they asserted common-law immunity as

well as statutory immunity under sections 2-109 and 2-201 of the Local Governmental and

Governmental Employees Tort Immunity Act (745 ILCS 10/2-109, 2-201 (West 2016)).

¶ 24 In his responses to the motions to dismiss, plaintiff clarified that he was claiming strictly

that the reported statement was defamatory per se. According to plaintiff, the reported statement

harmed him both in his “calling as library board trustee” and in his occupation as attorney.

¶ 25 On April 4, 2018, the trial court heard the motions to dismiss. The court dismissed the

entire complaint. The court stated that it was granting the dismissal according to both sections 2-

615 and 2-619, but added that, if the section 2-619 grounds had not been adequate in themselves

for dismissal, the court would have permitted plaintiff to replead. As the complaint stood,

however, the court dismissed it with prejudice.

¶ 26 Regarding counts I and II, the court agreed with Farley and the League that the reported

statement was not defamatory per se because plaintiff alleged “nothing *** that’s defamatory

regarding [his] inability to perform his office as a library trustee and nothing *** concerning his

ability to perform as an attorney.” At worst, the reported statement portrayed plaintiff as

“somehow a racist,” which “in and of itself is not defamation.” The court also found that counts I

and II lacked “sufficient facts” in alleging actual malice and provided only “conclusions.”

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¶ 27 As for the affirmative defenses to counts I and II, the court declined to dismiss on the

ground of substantial truth, because there “could possibly be facts that may be present.” The court

did accept, however, the fair-report privilege as a basis for dismissal. Specifically, the court found

that the reported statement was a “fair and accurate report” of the August 23 meeting, given the

“anti-inclusive statements” appearing in the two additional: the official minutes of the August 23

meeting and plaintiff’s August 27 email to Tully. Because there were adequate independent

grounds for dismissal of counts I and II, the court declined to consider whether the Citizen

Participation Act barred plaintiff’s suit.

¶ 28 As for count III, the court reasoned that, since the reported statement was not defamatory

when it was published by Farley and the League, it was perforce not defamatory when it was

republished by Hosé.

¶ 29 As for counts VI and VII, the court found that the reported statement was not protected

speech because plaintiff “was expressing his views as a member of [the Board].” The court also

found that the counts were barred by common law and statutory immunities for government

officials.

¶ 30 Finally, the court dismissed counts IV (declaratory judgment) and V (injunctive relief)

because the court had “already ruled on” the counts, leading to the prior appeal.

¶ 31 That same day, April 4, 2018, the trial court entered a written order dismissing the entire

complaint with prejudice.

¶ 32 Subsequently, on May 4, 2018, plaintiff moved to vacate the dismissal and for leave to file

a second amended complaint. In the proposed complaint, plaintiff repleaded his defamation claims

and free-speech claims and also added due process claims. The trial court denied both motions,

and plaintiff appealed.

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¶ 33 II. ANALYSIS

¶ 34 A. Governing Procedural Law

¶ 35 Defendants filed motions to dismiss under both sections 2-615 and 2-619 of the Code. A

section 2-615 motion to dismiss tests the legal sufficiency of a complaint. Green v. Rogers, 234

Ill. 2d 478, 491 (2009). On review, the question is whether the allegations of the complaint, when

construed in the light most favorable to the plaintiff, are sufficient to establish a cause of action

upon which relief may be granted. Id. All facts apparent from the face of the pleadings, including

the exhibits attached thereto, must be considered. Id. By contrast, a section 2-619 motion admits

the legal sufficiency of the plaintiff’s claims but raises defects, defenses, or other affirmative

matter, appearing on the face of the complaint or established by external submissions, that defeats

the action. Garlick v. Bloomingdale Township, 2018 IL App (2d) 171013, ¶ 24. Our review of a

dismissal under either section is de novo. Lutkauskas v. Ricker, 2015 IL 117090, ¶ 29.

¶ 36 B. Defamation Counts

¶ 37 Counts I, II, and III are all premised on the reported statement, the portion of the Report in

which Farley states that plaintiff “express[ed] his personal views on how we should *** reject any

*** people different from white straight people.” The trial court dismissed counts I (Farley) and

II (the League) on grounds that (1) the reported statement was not defamatory per se, (2) plaintiff

failed to properly allege that Farley and the League acted with actual malice in publishing the

statement, and (3) one of defendants’ affirmative defenses, the fair-report privilege, applied to bar

the claims. The court dismissed count III (Hosé) because, since the reported statement was not

defamatory when it was published, it was necessarily not defamatory when Hosé republished the

statement.

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¶ 38 In order to state a defamation claim, a plaintiff must plead that the defendant made a false

statement about the plaintiff, that the defendant made an unprivileged publication of the statement

to a third party, and that the publication caused damages to the plaintiff. Tirio, 2019 IL App (2d)

181019, ¶ 28. Additionally, because plaintiff was a public official when Farley and the League

published the allegedly defamatory statement, plaintiff was required to plead that Farley and the

League acted with actual malice, i.e., with knowledge that the statement was false or with reckless

disregard for its truth or falsity. Id. ¶ 58.

¶ 39 We begin with Farley and the League’s assertion that plaintiff has forfeited his argument

that the trial court erred in finding that he did not properly allege that Farley and the League acted

with actual malice in publishing the reported statement. Plaintiff raised this argument for the first

time in his reply brief, after Farley and the League pointed out its absence from plaintiff’s opening

brief. Plaintiff’s opening brief addressed the sufficiency of the actual-malice allegations against

Hosé but not those against Farley and the League. Points raised for the first time in the reply brief

are forfeited (Ill. S. Ct. R. 341(h)(7) (eff. May 25, 2018)), but forfeiture is a limitation on the

parties, not the court (City of Highland Park v. Bryan, 2019 IL App (2d) 180662, ¶ 19), and we

choose to address the point because the trial court’s misconception of the pleading requirements

in defamation cases is readily seen. In Colson v. Stieg, 89 Ill. 2d 205, 215-16 (1982), the supreme

court held that the plaintiff sufficiently alleged actual malice in stating that the defendant made the

statement in question “ ‘knowing it to be false, without reasonable grounds for believing it to be

true, maliciously, wilfully, intentionally and without reasonable justification or excuse.’ ” Courts

have relied on Colson in holding that, while the bare assertion that the defendant acted with “actual

malice” is inadequate, the plaintiff need allege nothing more specific than that the defendant acted

with knowledge of the statement’s falsity or in reckless disregard of whether the statement was

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true or false. See Tirio, 2019 IL App (2d) 181019, ¶ 59; Krueger v. Lewis, 342 Ill. App. 3d 467,

472-73 (2003). Here, plaintiff alleged that Farley and the League published the reported statement

“with reckless disregard for the truth and, therefore, with malice.” Though perhaps such

allegations are still “conclusions,” as the trial court remarked, they were nonetheless adequate

under Colson and subsequent cases.

¶ 40 We proceed to determine the far more substantial question whether the reported statement

was actionable defamation. There is no dispute that, on August 23, 2017, the library trustees

debated a proposed strategic plan for the library that would require staff training in “equity,

diversity, and inclusion.” Farley reported that plaintiff expressed an objection to inclusiveness

training. According to Farley, plaintiff remarked that the library should not “recognize

homosexual marriage” but should “protect the children from homosexuals and exposure to

homosexual life style.” He then “proceeded to continue to express his personal views on how we

should view straight people vs. gays and reject inclusion and people different from white straight

people.” In his complaint, plaintiff specifically denied using a racial term or advocating for the

rejection of any people. He impliedly admitted the remainder of the reported statement, i.e., that

he expressed his personal views on gay people and “reject[ed] *** inclusion.”

¶ 41 We note that, in his opening brief, plaintiff raises, and dismisses, the possibility that Farley

cannot be understood as purporting to state actual fact in the reported statement. The first

amendment to the United States Constitution (U.S. Const., amend. I) bars recovery under state

defamation laws for statements that cannot reasonably be construed as stating actual fact

(Milkovich v. Lorain Journal Co., 497 U.S. 1, 20 (1990)), such as loose, figurative, or hyperbolic

language (Imperial Apparel, Ltd. v. Cosmo’s Designer Direct, Inc., 227 Ill. 2d 381, 397-98 (2008)).

Defendants have not argued in this proceeding, either below or on appeal, that any portion of the

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Report should not be interpreted as reporting actual fact. Since we lack argument from defendants

on the point, we decline to address it.

¶ 42 In broad terms, a statement is considered defamatory if it tends to cause such harm to the

reputation of another that it lowers that person in the eyes of the community or deters third persons

from associating with him or her. Van Horne v. Muller, 185 Ill. 2d 299, 307 (1998). “Certain

limited categories of defamatory statements are deemed actionable per se because they are so

obviously and materially harmful to the plaintiff that injury to the plaintiff’s reputation may be

presumed.” Id. “A plaintiff need not plead or prove actual damage to his or her reputation to

recover for a statement that is actionable per se.” Id.

¶ 43 Illinois law recognizes five categories of statements that are considered actionable per se:

“(1) those imputing the commission of a criminal offense; (2) those imputing infection with

a loathsome communicable disease; (3) those imputing an inability to perform or want of

integrity in the discharge of duties of office or employment; (4) those that prejudice a party,

or impute lack of ability, in his or her trade, profession or business; and (5) those imputing

adultery or fornication.” Id.

If the statement at issue does not fall into one of these categories, the action is for defamation

per quod and damage to the plaintiff’s reputation is not presumed. Id. Instead, the plaintiff must

plead and prove special damages, i.e., actual pecuniary loss, in order to recover. Bryson v. News

America Publications, Inc., 174 Ill. 2d 77, 87-88 (1996). The preliminary construction of an

allegedly defamatory statement is a question of law; therefore, our review is de novo. Green, 234

Ill. 2d at 492.

¶ 44 Plaintiff claims that the reported statement was defamatory per se under categories (3) and

(4) because it cast him as bigoted and biased, thus diminishing his standing in two “positions of

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trust within the community”: first, his public office as library trustee and, second, his vocation as

attorney. We decline to consider the reported statement in relation to plaintiff’s position as library

trustee, because his complaint alleges prejudice only to his livelihood as attorney. See Lindblad

v. Nelson, 2019 IL App (1st) 181205, ¶ 24 (the complaint fixes the issues in controversy and the

theories upon which recovery may be based).

¶ 45 We consider, then, whether the reported statement defamed plaintiff in his occupation as

attorney. We hold that it did not.

¶ 46 The Seventh Circuit Court of Appeals’ decision in Cody v. Harris, 409 F.3d 853 (7th Cir.

2005) is helpful in understanding and applying categories (3) and (4). In Cody, the plaintiff, Mark

Cody, was fired from his position as sales manager of a radio station. After his termination,

obscene material began to appear on a website with a domain name that reflected the station’s call

letters, which Cody, while still employed, had been attempting to purchase for the station. Taft

Harris, the station’s manager, made statements to station staff and to an industry periodical that he

suspected Cody was responsible for posting the material. Cody sued, claiming that the statements

were defamatory per se under categories (3) and (4). The trial court dismissed the complaint, and

the appellate court affirmed. The appellate court noted that

“[s]tatements 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 job.” (Emphases in original.) Id. at 857.

“Conversely, attacks related to personal integrity and character have not been deemed defamatory

per se.” Id. at 858; see also Madison v. Frazier, 539 F.3d 646, 656 (7th Cir. 2008) (“[S]tatements

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deemed to be defamatory per se in Illinois under [categories (3) and (4)] have been related to job

performance, as opposed to attacks related to personal integrity and character.”).

¶ 47 To illustrate that attacks on personal integrity and character do not fall within categories

(3) and (4), Cody cited two cases, Heying v. Simonaitis, 126 Ill. App. 3d 157 (1984), and Sangston

v. Ridge Country Club, No. 92 C 1981, 1992 WL 317138 (N.D. Ill. Oct. 29, 1992). In Heying, the

court held that statements accusing the plaintiff, a nurse, of personality conflicts with hospital

colleagues, which involved the plaintiff’s “name-calling” and use of “epithets,” were not

defamatory per se under categories (3) and (4). Heying, 126 Ill. App. 3d at 164-65. The court

found that the statements did not “impute want of integrity or capacity to plaintiff in her

profession” as nurse. Id. at 165.

¶ 48 The plaintiff in Sangston was fired from his position as general manager of a country club.

Afterwards, the country club reported that the reason for the termination was the plaintiff’s

unauthorized calls to “900” numbers from the club’s premises. Sangston, 1992 WL 317138, at *2.

The court held that the report was not defamatory per se under categories (3) and (4):

“The fact that Sangston made unauthorized phone calls while at work might have caused

his dismissal from Ridge, but it does not insinuate that he is unable to capably perform

managerial duties. The reasons given for Sangston’s dismissal only highlight one specific

incident of misconduct. They do not indicate general incompetence.

However, even if we were to find that [the] statements did prejudice Sangston in his

work, we do not feel that charging Sangston with making unauthorized calls to ‘900’ phone

numbers is so obviously hurtful to Sangston’s reputation that it rises to the level of libel

per se.” Id. at *4.

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¶ 49 Based on Heying and Sangston, the Cody court held that Harris’s accusation that Cody

posted the obscene material was related to Cody’s personal integrity, not his performance at the

radio station:

“Harris essentially implied that Cody has a bad temper, is unable to control his anger, and

lacks the integrity and judgment to resist getting revenge in an immature and vicious

manner. All of these implications go to Cody’s personal, rather than professional, traits.

The alleged misconduct did not even occur while Cody was on the job ***; Harris accused

Cody of retaliating against the station not while he was an employee, but after (and

apparently because of) his termination. This situation is not like the Illinois cases that have

found defamation per se when a plaintiff’s work or conduct while carrying out his

employment duties has been impugned.” Cody, 409 F.3d at 858.

¶ 50 The court went on to observe that, “[i]n some cases, personal integrity is so intertwined

with job skills, that an attack upon it could constitute defamation per se.” Id. To illustrate, the

court cited Kumaran v. Brotman, 247 Ill. App. 3d 216, 225 (1993), where a substitute high school

teacher claimed that a newspaper article was defamatory per se for accusing him of “ ‘working a

scam’ ” by making it his full-time job to file numerous lawsuits against various defendants in order

to extract monetary settlements. The appellate court, citing the dictionary definition of “scam” as

a swindle or fraudulent scheme, held that the article was defamatory per se in two respects. First,

the article could be read to impute the commission of a crime, namely deceptive practice. Id. 226-

27 (citing 720 ILCS 5/17-1(B)(a) (West 1992)). Second, the article “could be found to have

prejudiced [the plaintiff] in his profession or trade as a schoolteacher” and thus to constitute

defamation under categories (3) and (4). Id. at 226. The court explained:

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“The portrayal of [the plaintiff’s] full-time occupation as the filing of numerous ‘scam’

lawsuits could tend to prejudice him in his trade as a teacher because a teacher would be

expected to set a good example and function as a role model for his young, impressionable

students. By portraying plaintiff as a swindler, the article could be found to prejudice his

teaching ability and integrity because it presented him as someone who would not be an

acceptable role model for young students.” Id. at 227.

¶ 51 The Cody court found Kumaran distinguishable:

“We see no reason to believe that managing the sales department of a radio station requires

a degree of integrity above and beyond that required for any job. It is true that Harris’s

accusations suggest that Cody lacks certain qualities desirable in an employee, and the

accusations might indeed make it harder for Cody to get a job. But the increased difficulty

in finding employment would be due to Cody’s perceived bad character traits, not because

of his perceived inability to do the job.” Cody, 409 F.3d at 858.

¶ 52 In addition to Kumaran, plaintiff cites other Illinois cases where integrity was found to be

essential to job duties. Plaintiff notes Dobias v. Oak Park & River Forest High School District

200, 2016 IL App (1st) 152205. In that case, Danielle Dobias, a high school teacher and coach,

sued her supervisor, Thomas Tarrant, claiming that he made statements about her that were

defamatory per se. For instance, Tarrant claimed that Dobias “ ‘[w]as rolling around on a bed in

a hotel alone with an athlete as witnessed by another coach who walked in.’ ” Id. ¶ 39. The court

agreed with Dobias that “a teacher is expected to set a good example and to function as a role

model for young, impressionable students.” Id. ¶ 67. The court construed Tarrant’s statement as

describing “contact between a teacher and student-athlete that is far more intimate than would be

appropriate.” Id. ¶ 69. The court held that the remark was defamatory per se under categories

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(3) and (4) because it “clearly imputed a lack of integrity in [the plaintiff’s] profession and

prejudiced her in that profession.” Id. ¶ 72.

¶ 53 The court reached a different conclusion regarding Tarrant’s statements that Dobias was

verbally and physically aggressive toward him and that, on one occasion, while they were arguing

on school grounds, Dobias grabbed Tarrant’s arm and tried to force him into a room. The court

held that the statements, though not “flattering,” were “not so harmful that they would lower

plaintiff’s reputation in the eyes of the community and deter the community from associating with

her.” Id. ¶¶ 99, 101.

¶ 54 Plaintiff also cites Cobbs v. Chicago Defender, 308 Ill. App. 55, 57-58 (1941), where a

clergyman sued a newspaper publisher over a newspaper article referencing rumors that the

plaintiff was involved in “ ‘an unsavory incident of serious proportions.’ ” The court agreed with

the plaintiff that the article was libelous per se, as “a clergyman in the practice of his profession

must maintain a spotless reputation[.]” Id. at 58.

¶ 55 Defendants, for their part, bring our attention to Kapotas v. Better Government Ass’n, 2015

IL App (1st) 140534; Basile v. Prometheus Global Media, 225 F. Supp. 3d 737 (N.D. Ill. 2016);

and Cunningham v. UTI Integrated Logistics, Inc., No. 09-1019-GPM, 2010 WL 1558718 (S.D.

Ill. Apr. 19, 2010), which are also pertinent to the scope of categories (3) and (4). Kapotas relied

on Vicars-Duncan v. Tactikos, 2014 IL App (4th) 131064.

¶ 56 We begin with Vicars-Duncan, where the defendant wrote to the editor of a newspaper a

letter describing his son’s experience in being prosecuted for a traffic violation. The defendant

stated that his son was told by the prosecutor on the case “ ‘that there were witnesses present who

simply were not’ ” and that his son was “ ‘fighting a case he simply could not win.’ ” Id. ¶ 5. The

prosecutor made the statements, according to the defendant, “ ‘in an attempt to get [his] son to

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plead guilty to a charge which was ultimately dismissed.’ ” Id. The defendant further wrote that

he complained to the prosecutor about “ ‘what [he] perceived to be the bullying of an 18-year-old

by the prosecutor,’ ” but that the prosecutor’s response did not “ ‘address[ ] the issue of her telling

[the defendant’s] son an untruth.’ ” Id.

¶ 57 The appellate court held that the statements in the letter were not defamatory per se under

categories (3) and (4). The defendant’s accusations of bullying and untruthfulness were “vague,”

and in any event the defendant did not accuse the prosecutor of knowingly telling a falsehood,

which would have been a breach of professional ethics. Id. ¶ 33-34 (citing Ill. R. Prof’l Conduct

(2010) R. 4.1 (eff. Jan. 1, 2010) (“a lawyer shall not knowingly *** make a false statement of

material fact or law to a third person”)). Moreover, the defendant wrote only that he “ ‘perceived’ ”

bullying, which was “clearly a nonactionable statement of opinion.” Id. ¶ 33 (citing Moriarty v.

Greene, 315 Ill. App. 3d 225, 233 (2000) (“Only statements capable of being proven true or false

are actionable; opinions are not.”)). “[T]aken in whole,” the defendant’s letter accused the

prosecutor “of not being fair to [the defendant’s] son during an adversarial process,” but

“[a]ccusing someone of unfairness expresses nonactionable opinion.” Id. Thus, the letter “[did]

not obviously accuse plaintiff of lacking integrity in performing her job as an assistant State’s

Attorney or engaging in prosecutorial misconduct.” Id.

¶ 58 In Kapotas, the plaintiff was employed as a surgeon at a public hospital. Following his

resignation from that position, one of the defendants published newspaper articles claiming that

the plaintiff was paid over $100,000 for unused sick time while on a leave of absence from the

hospital. The articles acknowledged the hospital’s position that it did not pay its employees for

unused sick time and that the payments to the plaintiff were due to a clerical error. The plaintiff

sued, claiming that the articles were defamatory per se because they “accused him of theft and

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embezzlement, of lacking integrity in his employment duties, and imputed a lack of ability or

otherwise harmed him in the medical profession.” Kapotas, 2015 IL App (1st) 140534, ¶ 51.

Affirming the dismissal of the complaint, the appellate court first determined that the articles did

not impute the commission of any crime. Id. ¶¶ 51-54. Next, relying on Vicars-Duncan, the court

noted that the conduct of which the plaintiff was accused in the articles did not implicate medical

ethics or suggest that he lacked the ability to perform his job. Id. ¶ 56.

¶ 59 In Basile, the defendant published an article relating to a November 2014 cyber-attack on

Sony Pictures, a movie studio. The headline of the article stated that security for Sony reported

that the hack was an “ ‘inside job.’ ” Basile, 225 F. Supp. 3d at 740. The body of the article

claimed that emails pointing to allegedly stolen files were sent from the plaintiff’s email address.

The article identified the plaintiff as a former production accountant at Sony. The plaintiff claimed

that the article was defamatory per se under categories (3) and (4). The court disagreed, relying

on Cody, Kapotas, and Sangston:

“In this case, Plaintiff was apparently a production accountant at Sony, and nothing

in the article disparages her skills as a production accountant or accuses her of being unable

to perform the specific duties of a production accountant. Nor does Plaintiff argue that

maintaining the integrity of Sony’s computer systems was part of her job responsibilities.

Accordingly, the statements in the article do not fall within the third and fourth categories

of defamation per se.” Id. at 743.

¶ 60 The plaintiff in Cunningham sued his former employer for reporting that the plaintiff,

during his employment in the defendant’s warehouse, used profanity, made racially derogatory

remarks, and physically intimidated coworkers and third parties. Cunningham, 2010 WL 1558718,

at *4. The plaintiff claimed that the statements were defamatory per se under categories (3) and

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(4) because they damaged his “business reputation.” Id. The court disagreed, holding that the

statements “related more to [the plaintiff’s] personal character (by impugning that he was a bigot

and a bully) than to his work or professional traits.” Id. The court further determined that personal

integrity was no more essential to the plaintiff’s work as a warehouse employee than it was to the

occupation of the plaintiff in Cody (sales manager of a radio station (see Cody, 409 F.3d at 858)).

Cunningham, 2010 WL 1558718, *4.

¶ 61 The foregoing cases apply a corollary to the principle that a statement is defamatory per se

only if it is “obviously and materially harmful to the plaintiff” (emphasis added) (Van Horne, 185

Ill. 2d at 307): a statement that is allegedly defamatory per se as an attack on professional integrity

“must obviously impute a want of integrity in the performance of plaintiff’s employment duties”

(emphasis added) (Vicars-Duncan, 2014 IL App (4th) 131064, ¶ 33). The cases distinguish

personal integrity from professional integrity. An attack on personal integrity, no matter how it

might diminish reputation and damage future business or employment prospects, is not necessarily

an attack on professional integrity. See Cody, 409 F.3d at 858; Madison, 539 F.3d at 656; Basile,

225 F. Supp. 3d at 743. Rather, “the defamation of professional integrity must be directly

associated with job skills or functions.” Little v. JB Pritzker for Governor, No. 18 C 6954, slip op.

at 8 (N.D. Ill. Apr. 5, 2019). “Disparagement of a general character, equally discreditable to all

persons, is not enough unless the particular quality disparaged is of such a character that it is

peculiarly valuable in the plaintiff’s business or profession.” Restatement (Second) of Torts § 573,

cmt. e (1977); see Cody, 409 F.3d at 858 (revengeful posting of obscene content to website not

pertinent to job duties as sales manager of radio station); Basile, 225 F. Supp. 3d at 743 (cyber-

attack on movie studio did not bear upon competence as studio production accountant);

Cunningham, 2010 WL 1558718, at *4 (physical intimidation, and use of profanity and racially

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abusive language, did not reflect on function as warehouse employee); Sangston, 1992 WL

317138, at *4 (unauthorized phone calls to “900” numbers not pertinent to duties as manager of

country club); Heying, 126 Ill. App. 3d at 164-65 (verbal abuse of colleagues not reflective of

competence as nurse).

¶ 62 As Cody noted, Illinois courts identify good character more strongly with some

occupations—e.g., teacher and clergy—than with others. See Kumaran, 247 Ill. App. 3d at 227

(teacher); Cobbs, 308 Ill. App. at 58 (clergy). Other professions are not associated with such a

high degree of personal character but are, nonetheless, regarded as positions of trust and so are

governed by codes of ethics. Examples are attorneys (Vicars-Duncan, 2014 IL App (4th) 131064,

¶ 33) and physicians (Kapotas, 2015 IL App (1st) 140534, ¶ 56). In Vicars-Duncan, 2014 IL App

(4th) 131064, ¶ 33, and Kapotas, 2015 IL App (1st) 140534, ¶ 56, the courts found it significant

that the allegedly defamatory statements did not accuse the plaintiffs of conduct that would violate

professional ethics. See Restatement (Second) of Torts § 573, cmt. e (1977) (“[A] statement that

a physician consorts with harlots is not actionable per se, although a charge that he makes improper

advances to his patients is actionable; the one statement does not affect his reputation as a physician

whereas the other does so affect it.”).

¶ 63 Moving to the facts at hand, we note that an allegedly defamatory statement must be viewed

in context. See Dobias, 2016 IL App (1st) 152205, ¶ 6. At the August 23 meeting, the Board

discussed a proposal that library staff be trained in equity, diversity, and inclusion. According to

the official minutes of the meeting, plaintiff (1) stated that inclusion is part of a progressive

political agenda; (2) objected to exposing child patrons of the library to materials promoting same-

sex marriage, which he considered to be “lesser than heterosexual marriage”; and (3) advocated

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for a “good” kind of inclusion rather than one that “would mean supporting all kinds [of practices],

including ‘terrorists’ and ‘cannibalism.’ ”

¶ 64 Plaintiff provided Tully his own summary of the meeting. Plaintiff reported that he

recommended at the meeting that any staff training program reflect Illinois law, which dictates

that public school children be taught to respect heterosexual marriage but is silent on same-sex

marriage, even in light of its recent legalization. Plaintiff also reported voicing concern that

uninhibited inclusion would lead, logically, to an embrace of what he saw as patently offensive

practices.

¶ 65 According to Farley, after plaintiff suggested that library staff should “protect the children

from homosexuals and exposure to homosexual life style,” he “proceeded to continue to express

his personal views on how we should view straight people vs. gays and reject inclusion and people

different from white straight people.”

¶ 66 Plaintiff denies that he mentioned race or advocated rejecting people. He construes the

reported statement as an “accusation of bigotry” or “racism,” which, he submits, prejudices his

legal practice in that nonwhite, non-straight persons will be reluctant to retain his services as an

attorney, out of suspicion that he is biased against them.

¶ 67 We disagree that the reported statement impugns plaintiff’s character in a manner relevant

to his profession as attorney. First, contrary to plaintiff’s assertion, the statement attributed to him

would not itself constitute a violation of professional ethics. Plaintiff claims that Rule 8.4 of the

Illinois Rules of Professional Conduct of 2010 “forbids making racist or sexually insensitive

remarks” and that the reported statement, therefore, had “a direct relation to his performance as a

general practice attorney.”

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¶ 68 Plaintiff is incorrect. Paragraph (d) of Rule 8.4 bars an attorney from “engag[ing] in

conduct that is prejudicial to the administration of justice.” Ill. R. Prof’l Conduct (2010) R. 8.4(d)

(eff. Jan. 1, 2010). Plaintiff evidently has in view committee comment (3), which states: “A lawyer

who, in the course of representing a client, knowingly manifests by words or conduct, bias or

prejudice based upon race, sex, religion, national origin, disability, age, sexual orientation or

socioeconomic status, violates paragraph (d) when such actions are prejudicial to the

administration of justice.” (Emphasis added.) Ill. R. Prof’l Conduct (2010) R. 8.4 cmt. 3 (eff. Jan.

1, 2010). Plaintiff did not make the alleged remark in the course of representing a client. Thus, we

fail to see how Rule 8.4 applies.

¶ 69 Nor is it manifest from the reported statement that plaintiff lacks ability or integrity as an

attorney. Without doubt, a statement recommending the “reject[ion] [of] *** people different from

white straight people” immediately strikes one as offensive. We cannot, however, base our

analysis on the visceral impact of the statement but must analyze it dispassionately under the

proper criteria. A statement is not defamatory simply because it paints the plaintiff as a bad

character. More particularly, an attack on personal integrity becomes an actionable attack on

professional integrity only when the statement is directly related to job skills or function. Little,

slip op. at 8. From all accounts of the August 23 meeting, plaintiff’s preeminent concern was to

insulate child patrons of the library from exposure to values and practices he considered personally

offensive. Admittedly, his personal rejection of those values was—so Farley reported—expressed

in odious terms. Even so, we do not perceive plaintiff as repudiating the rule of law, or implying

that nonwhite, non-straight persons are not deserving of equal protection under the law, or

suggesting an unwillingness to advocate as zealously for such persons as for others in a

professional context. There is no reason to believe that plaintiff cannot separate his personal views,

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however offensive, from his performance as a professional. Plaintiff may well be correct that the

reported statement will discourage some from retaining his services as an attorney, but such

detriment is not the touchstone of whether a statement is defamatory per se under categories

(3) and (4). In the cases discussed above, allegations of such conduct as racially derogatory

language, physical aggression, cyberhacking, and revengeful posting of obscenity were found not

to be defamatory per se, because they did not relate to the plaintiff’s ability or integrity in his

specific occupation. If, as a result of the reported statement, some are discouraged from retaining

plaintiff for legal services, the cause will be more about what the reported statement revealed about

his general character than about his capacity to be a fair and competent counselor. See Cody, 409

F.3d at 858 (“[T]he increased difficulty in finding employment would be due to [the plaintiff’s]

perceived bad character traits, not because of his perceived inability to do the job.”).

¶ 70 Plaintiff cites Schrottman v. Barnicle, 437 N.E.2d 205 (Mass. 1982), which he claims

“acknowledged the damaging nature of accusations of bigotry to a member of society in the early

1980s.” The plaintiff in Schrottman sued for libel after a newspaper article was published

attributing a racial slur to him. The Massachusetts supreme court upheld the trial court’s finding

that the article was defamatory, because the attribution of a racial slur “would discredit the plaintiff

in the minds of a considerable and respectable segment in the community.” (Internal quotation

marks omitted.) Id. at 214.

¶ 71 Schrottman is inapposite because the court was applying broader criteria (general

reputation in the community, untethered to occupational competence) than we must utilize in

determining whether the reported statement was defamatory per se under categories (3) and (4).

¶ 72 A foreign court that applied defamation law that is essentially the same as Illinois’s to facts

similar to those here was the Supreme Court of Virginia in Fleming v. Moore, 275 S.E.2d 632 (Va.

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1981). In Fleming, the plaintiff, a university professor, publicly opposed a rezoning plan to permit

the development, on property adjoining his own, of “high-density residential units for a

predominantly black, lower-middle-income group of occupants.” Id. at 634. He claimed that the

development would detract from the value of his property. After the rezoning plan was voted

down, the developer on the failed project published an advertisement accusing the plaintiff of

“ ‘racism’ ” for “ ‘not want[ing] any black people within his sight.’ ” Id. at 634 n.3. The plaintiff

sued the developer for defamation. Prior to the jury trial, the trial court determined as a matter of

law that the advertisement was defamatory per se because it “prejudiced [the plaintiff] in his

profession.” Id. at 636. At the time, Virginia and Illinois recognized substantially the same

categories of statements as defamatory per se. Id. 2

¶ 73 The supreme court rejected the trial court’s finding that the advertisement was defamatory

per se. The court explained that “[t]here must be a nexus between the content of the defamatory

statement and the skills or character required to carry out the particular occupation of the plaintiff.”

Id. The “nexus” was not established in that case because “the allegation of racism was not made

2
Virginia recognized the following categories of defamation per se: “(1) Those which

impute to a person the commission of some criminal offense involving moral turpitude, for which

the party, if the charge is true, may be indicted and punished. (2) Those which impute that a person

is infected with some contagious disease, where if the charge is true, it would exclude the party

from society. (3) Those which impute to a person unfitness to perform the duties of an office or

employment of profit, or want of integrity in the discharge of the duties of such an office or

employment. (4) Those which prejudice such person in his or her profession or trade.” Fleming,

275 S.E.2d at 635.

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in the context of [the plaintiff’s] employment as a teacher.” Id. For instance, “[t]he advertisement

did not allege *** that [the plaintiff] discriminated against the black students in his classes.” Id.

n.7. Thus, “while the allegation might have adversely affected [the plaintiff’s] work, the

statements did not necessarily affect him in his particular profession and consequently were not

defamatory per se.” Id. at 636.

¶ 74 Here, as in Moore, the required “nexus” was absent. The statement that Farley attributed

to plaintiff revealed at most personal bigotry, not lack of competence or integrity as an attorney.

¶ 75 Based on our analysis, we hold that the reported statement was, as a matter of law, not

defamatory per se. Consequently, Farley and the League were not liable for publishing the

reported statement in the first instance, and Hosé was not liable for republishing the reported

statement. See Dubinsky v. United Airlines Master Executive Council, 303 Ill. App. 3d 317, 335

(1999) (republication of a nonactionable statement cannot give rise to liability); Kakuris v. Klein,

88 Ill. App. 3d 597, 605 (1980) (same).

¶ 76 Since we hold that the reported statement was not actionable defamation, and this basis is

adequate to sustain the dismissal of counts I through III, we need not reach defendants’ alternative

grounds for affirmance, namely the fair-report privilege and legislative immunity.

¶ 77 C. Free-Speech Counts

¶ 78 Plaintiff argues that the trial court erred in dismissing counts VI and VII, which alleged

that the Council’s removal of him from the Board for his remarks at the August 23 meeting violated

his right of free speech under the Illinois Constitution (Ill. Const. 1970, art. I, § 4). The trial court

dismissed the counts in part because plaintiff’s remarks at the meeting did not have free-speech

protection, as he “was expressing his views as a member of [the Board],” not as a private citizen.

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¶ 79 Plaintiff based counts VI and VII on the Illinois Constitution alone and not on the United

States Constitution. Though “the Illinois Constitution may provide greater protection to free

speech than does its federal counterpart” (City of Chicago v. Pooh Bah Enterprises, Inc., 224 Ill.

2d 390, 446 (2006)), plaintiff is content to rely solely on case law interpreting the federal free-

speech clause and does not ask that we find greater protection under the Illinois clause in this

particular context.

¶ 80 In his opening brief, plaintiff relies principally on Pickering v. Board of Education of

Township High School District 205, 391 U.S. 563 (1968), and Bond v. Floyd, 385 U.S. 116 (1966).

¶ 81 In Pickering, a school board dismissed a teacher after he penned a letter to the editor of a

local newspaper in which he criticized the school board’s funding decisions. In deciding whether

the board’s action violated the teacher’s free-speech rights, the Court began by rejecting the notion

that “teachers may constitutionally be compelled to relinquish the First Amendment rights they

would otherwise enjoy as citizens to comment on matters of public interest in connection with the

operation of the public schools in which they work.” Pickering, 391 U.S. at 568. “At the same

time,” the Court noted, “it cannot be gainsaid that the State has interests as an employer in

regulating the speech of its employees that differ significantly from those it possesses in

connection with regulation of the speech of the citizenry in general.” Id. Thus, “[t]he problem in

any case is to arrive at a balance between the interests of the teacher, as a citizen, in commenting

upon matters of public concern and the interest of the State, as an employer, in promoting the

efficiency of the public services it performs through its employees.” Id. The Court held that the

balance of those considerations in that case favored the teacher and that hence his dismissal was

improper. Id. 574-75.

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¶ 82 In his opening brief, plaintiff claims that his remarks at the August 23 meeting were

protected under Pickering because he was speaking on a matter of public concern. In their

response brief, defendants point to Garcetti v. Ceballos, 547 U.S. 410 (2006), which plaintiff

neglected to mention in his opening brief. In Garcetti, the Court clarified the test for determining

the free-speech rights of public employees. Id. at 418. The Court observed that “Pickering and

the cases decided in its wake identify two inquiries to guide interpretation of the constitutional

protections accorded to public employee speech.” (Emphasis added.) Id. The Court went on:

“The first requires determining whether the employee spoke as a citizen on a matter of

public concern. [Citation.] If the answer is no, the employee has no First Amendment

cause of action based on his or her employer’s reaction to the speech. [Citation.] If the

answer is yes, then the possibility of a First Amendment claim arises. The question

becomes whether the relevant government entity had an adequate justification for treating

the employee differently from any other member of the general public. [Citation.] This

consideration reflects the importance of the relationship between the speaker’s expressions

and employment. A government entity has broader discretion to restrict speech when it

acts in its role as employer, but the restrictions it imposes must be directed at speech that

has some potential to affect the entity’s operations.” Id.

¶ 83 In an abrupt reversal, plaintiff decides in his reply brief to disavow Pickering and deny that

he was a “public employee” as that term is understood in Pickering and Garcetti. Evidently,

plaintiff realized the full import of Pickering (as clarified in Garcetti): if plaintiff was a “public

employee” and spoke in that capacity, and not as a private citizen, at the August 23 meeting, then

his speech was not protected. Plaintiff now relies on Jenevein v. Willing, 493 F.3d 551, 557-58

(5th Cir. 2007), in which the court declined to apply the Pickering/Garcetti test to an elected state

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judge because “his relationship with his employer differs from that of an ordinary state employee.”

Rather, the court applied the strict-scrutiny standard, which requires regulations on speech “to be

narrowly tailored to address a compelling government interest.” Id. at 558.

¶ 84 Plaintiff submits that his position as an appointed library trustee is more akin to the elected

judge in Jenevein than to the teacher in Pickering. Plaintiff could have taken this position in his

opening brief; instead, he cited Pickering as being factually analogous to this case. The new

argument that plaintiff raises in his reply brief is forfeited. See Ill. S. Ct. R. 341(h)(7) (eff. May

25, 2018) (points not raised in the opening brief are forfeited and shall not be raised in the reply

brief).

¶ 85 We turn to plaintiff’s citation to Bond, a case that predated Pickering. Following his

election to the Georgia House of Representatives (House), Julian Bond issued a statement in

opposition to the Vietnam War. Taking offense at the statement, the House voted to block Bond

from taking the oath of office and assuming his seat in the House chamber. The Court held that

the House’s action violated Bond’s right of free speech. In its analysis, the State conceded that it

would have been a violation of Bond’s free-speech rights for the State to punish Bond for making

the statement while he was a private citizen. The State suggested, however, that it had an interest

in regulating the speech of Bond as legislator if not Bond as private citizen—that “the policy of

encouraging free debate about governmental operations only applies to the citizen-critic of his

government.” Bond, 385 U.S. at 136. The Court disagreed:

“The manifest function of the First Amendment in a representative government requires

that legislators be given the widest latitude to express their views on issues of policy. ***

The interest of the public in hearing all sides of a public issue is hardly advanced by

extending more protection to citizen-critics than to legislators. Legislators have an

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obligation to take positions on controversial political questions so that their constituents

can be fully informed by them, and be better able to assess their qualifications for office;

also so they may be represented in governmental debates by the person they have elected

to represent them.” Id. at 135-37.

¶ 86 Plaintiff contends that, as library trustee, he had the same free-speech rights as Bond, a

state representative. Plaintiff does not consider how his situation, as a trustee appointed by a local

municipal council, differed from Bond’s, a representative elected in a statewide election. In fact,

as defendants note, Bond generated substantial case law—none of which plaintiff acknowledges—

on the very question whether appointed officials enjoy the same free-speech rights that Bond

recognized for elected legislators. This case law recognizes

“the distinction between the First Amendment rights of elected officials, charged only with

representing their own wishes and that of their constituency, and appointed officials who

serve at the will of and on behalf of an appointing body and who are expected to represent

and reflect the views of the appointing body.” McKinley v. Kaplan, 262 F.3d 1146, 1151

(11th Cir. 2001) (county commissioners’ appointee to county media board had no free-

speech right against removal).

See also Rash-Aldridge v. Ramirez, 96 F.3d 117, 120 (5th Cir. 1996) (free-speech rights not

implicated when city council removed fellow council member from her appointed position on the

metropolitan planning board); compare Pleva v. Norquist, 195 F.3d 905, 916-17 (7th Cir. 1999)

(mayor’s at-will appointee to city zoning board had no free-speech right against removal), with

Zerla v. Stark County, No. 1:19-cv-01140-JES-JEH, slip op. at 2-3 (C.D. Ill. July 26, 2019)

(intimidation of county board member had free-speech implications; distinguishing Pleva because,

although the board member was appointed, his position was subject to reelection and not

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appointment). This is as far as we will wade into this seminal case law; we will certainly not

generate an argument for plaintiff based on it. See Bozek v. Erie Insurance Group, 2015 IL App

(2d) 150155, ¶ 37 (declining to address contention because the appellant cited case law without

supporting analysis, and the issue was “too complex *** to address essentially sua sponte”).

¶ 87 Since we hold that plaintiff has not established that his removal from the Board implicated

his free-speech rights, we need not consider defendants’ immunity claims as alternative grounds

for affirmance.

¶ 88 D. Due Process

¶ 89 Next, plaintiff argues that he sufficiently pled that his removal from the Board violated his

due process rights. Plaintiff devotes most of his argument to demonstrating that his proposed

second amended complaint alleged a due process violation. Below, we hold that the trial court did

not err in denying plaintiff leave to file that complaint. Infra ¶¶ 91-94.

¶ 90 Plaintiff also asserts that counts IV and V of his first amended complaint properly alleged

a due process violation. Count V sought an injunction against plaintiff’s removal from the Board.

Count V incorporated the allegations of count IV, in which plaintiff asserted that section 2.53.1(d)

of the Village code, which permits the Council to remove Village library trustees, exceeded the

Village’s home-rule powers. In the prior appeal in this case, we affirmed the trial court’s

declaratory judgment that section 2.53.1(d) was within the Village’s home-rule power. See Jaros,

2017 IL App (2d) 170758, ¶ 50. Subsequently, in opposing defendants’ motion to dismiss the first

amended complaint, plaintiff suggested that the due process allegations in counts IV and V

survived our ruling on appeal. The trial court disagreed, dismissing those counts with prejudice,

along with the others.

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¶ 91 We agree that counts IV and V did not plead a due process claim independent of the claim

relating to home-rule authority. The sole suggestion of a due process claim is the statement in

count V that plaintiff’s removal from office would cause “irreparable injury to his *** state-

constitutionally protected liberty interest” in his position as library trustee. However, there is no

allegation as to how the removal procedure was lacking in due process. There is at best an

implication that a lack of home-rule authority would itself constitute a violation of due process.

As noted, we disposed of the home-rule issue in the prior appeal. Id. Consequently, we affirm the

dismissal of counts IV and V.

¶ 92 E. Second Amended Complaint

¶ 93 We last consider plaintiff’s argument that the trial court erred in denying him leave to file

his second amended complaint. Plaintiff begins his argument by noting the trial court’s remark

that, though it was dismissing plaintiff’s first amended complaint pursuant to sections 2-615 and

2-619, it would have permitted plaintiff to replead if the section 2-619 grounds posed by defendants

were not sufficient of themselves for dismissal of the complaint. Plaintiff’s argument continues:

“For the reasons set forth ***, the circuit court erred in granting the Section 2-619 motions

to dismiss.

Therefore, based upon its own determination under Section 2-615, the circuit court

should have granted [plaintiff] leave to file his proffered Verified Second Amended

Complaint. This is also the result compelled by Illinois case law.” (Emphasis added.)

¶ 94 Plaintiff directs his challenge to the decision to deny him leave to file his second amended

complaint. He seems to suggest that, because the trial court, in dismissing plaintiff’s first amended

complaint, believed that he could remedy the section 2-615 deficiencies, the court bound itself to

grant plaintiff’s later motion for leave to file his second amended complaint. This is a non sequitur.

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In dismissing the first amended complaint, the court believed that plaintiff could establish no set

of facts that would avoid the section 2-619 grounds submitted by defendants. This belief, if sound,

would have supported a dismissal with prejudice, regardless of the court’s position on the section

2-615 grounds. See Lake Point Tower Condominium Ass’n v. Waller, 2017 IL App (1st) 162072,

¶ 21 (dismissal under section 2-619 shall be made with prejudice if the plaintiff can establish no

set of facts that will entitle him to relief). Therefore, we cannot see how the court somehow bound

itself to grant the motion for leave to file the second amended complaint.

¶ 95 Nor has plaintiff convinced us that the result he desires is “compelled by Illinois case law.”

He cites three cases but provides neither pin cites nor parenthetical information. We presume he

has in view the familiar principles, mentioned in these cases, that guide review of the dismissal of

a complaint. However, since plaintiff does not even state these principles, much less apply them

to the case at hand, his point is forfeited. See Ill. S. Ct. R. 341(h)(7) (eff. May 25, 2018) (points

without supporting argument are forfeited). Consequently, we affirm the denial of plaintiff’s

motion for leave to file his second amended complaint.

¶ 96 III. CONCLUSION

¶ 97 For the foregoing reasons, we affirm the judgment of the circuit court of Du Page County.

¶ 98 Affirmed.

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2020 IL App (2d) 180654

No. 2-18-0654

Cite as: Jaros v. Village of Downers Grove, 2020 IL App (2d) 180654

Decision Under Review: Appeal from the Circuit Court of Du Page County, No. 17-CH-
1233; the Hon. Paul M. Fullerton, Judge, presiding.

Attorneys Philip Nathanson, of The Nathanson Law Firm, of Chicago, for
for appellant.
Appellant:

Attorneys John B. Murphey and Matthew D. Rose, of Rosenthal, Murphey,
for Coblentz & Donahue, of Chicago, and Enza I. Petrarca, of
Appellee: Downers Grove, for appellees Village of Downers Grove,
Gregory W. Hosé, Robert T. Barnett, and Martin T. Tully.

John J. Skawski and Justin J. Kaszuba, of Skawski Law Offices,
LLC, of Oak Brook, for appellee Susan D. Farley.

Denise A. Lazar and Christine E. Skoczylas, of Barnes &
Thornburg LLP, of Chicago, and Matthew T. Ciulla (pro hac
vice), of Barnes & Thornburg LLP, of Indianapolis, Indiana, for
other appellees.

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