dissenting:
Plaintiff, a Village of Lyons trustee, filed a complaint against defendant, a citizen and resident of Lyons, alleging slander per se. The language of the complaint makes the conclusional assertion that defendant charged plaintiff with accepting “a bribe to establish a TIF district in the Village of Lyons, and that Plaintiff was pocketing money from developers in exchange for Plaintiff’s cooperation.” The complaint language set forth above merely summarizes the charge plaintiff believed was made against her at a public, village board of trustees’ meeting. The actual, alleged defamatory language never has been pleaded, or otherwise set forth in the record, although a videotape of the occasion was available to plaintiff but has not been made a part of the record. Nor are any facts pleaded in the complaint concerning the business of the meeting, the discussions taking place, or the context within which the alleged statement was made.
In Illinois, a plaintiff claiming defamation per se must plead with particularity that defendant made a false, unprivileged statement concerning plaintiff to a third party. Lykowski v. Bergman, 299 Ill. App. 3d 157, 163, 700 N.E.2d 1064 (1998), citing Mittleman v. Witous, 135 Ill. 2d 220, 552 N.E.2d 973 (1989) (Mittleman), abrogated on other grounds by Kuwik v. Starmark Star Marketing & Administration, Inc., 156 Ill. 2d 16, 619 N.E.2d 129 (1993); see also O’Donnell v. Field Enterprises, Inc., 145 Ill. App. 3d 1032, 1042, 491 N.E.2d 1212 (1986); Suhadolnik v. City of Springfield, 184 Ill. App. 3d 155, 186, 540 N.E.2d 895 (1989). The stringent standard of pleading in per se defamation cases enables a court to determine, as a matter of law (Chapski v. Copley Press, 92 Ill. 2d 344, 352, 442 N.E.2d 195 (1982) (Chapski)), the character of the language used and whether the language can be deemed defamation per se as a matter of law, from which damages can be presumed. Bryson v. News America Publications, Inc., 174 Ill. 2d 77, 88, 672 N.E.2d 1207 (1996) (Bryson).
Another reason for requiring particularity in defamation per se cases is the application of the innocent construction rule. A statement claimed to be defamatory per se, as in the present case, is not actionable if it is capable of innocent construction. The words must be considered in context and given their natural and obvious meaning. Where the statement reasonably may be interpreted as innocent or as referring to another, it is not defamatory. Moriarty v. Greene, 315 Ill. App. 3d 225, 231-32, 732 N.E.2d 730 (2000); Gardner v. Senior Living Systems, Inc., 314 Ill. App. 3d 114, 119, 731 N.E.2d 350 (2000). It must be clear that the speaker is claiming possession of objectively verifiable facts of or concerning the plaintiff; if the speaker is expressing a subjective view, giving an interpretation, or stating a theory, conjecture or surmise, the statement is not actionable. Wilkow v. Forbes, Inc., 241 F.3d 552, 555 (7th Cir. 2000); see Gertz v. Robert Welch, Inc., 418 U.S. 323, 349, 41 L. Ed. 2d 789, 810-11, 94 S. Ct. 2997, 3011-12 (1974) (Gertz); Bryson, 174 Ill. 2d at 100.
Statements, as claimed by the instant plaintiff to be defamatory per se, require her to demonstrate the false imputation of a criminal offense, infection with a loathsome, communicable disease, malfeasance or misfeasance in the duties of her office or employment or disparagement as to her trade, profession or business. Van Home v. Muller, 185 Ill. 2d 299, 307, 705 N.E.2d 898 (1998), cert. denied, Van Horne v. Evergreen Media Corp., 528 U.S. 811, 145 L. Ed. 2d 39, 120 S. Ct. 43 (1999). Here, the actual words used must be pleaded since the court is required to determine (1) whether the language applies to plaintiff or someone else; (2) whether the alleged statement constitutes fact or opinion; (3) its verifiability; (4) the context in which the statement was made; and (5) whether application of the innocent construction rule is necessary. Bryson, 174 Ill. 2d at 93-94; Chapski, 92 Ill. 2d at 352.
Further, the constitutional freedoms of press and speech preclude a public official from recovering damages for defamation unless it can be proved that the statement was made with “actual malice.” New York Times Co. v. Sullivan, 376 U.S. 254, 279-80, 11 L. Ed. 2d 686, 706, 84 S. Ct. 710, 726 (1964) (Sullivan); Mittelman, 135 Ill. 2d at 235. The Supreme Court defined “actual malice” as knowledge of falsity or reckless disregard of truth or falsity. Sullivan, 376 U.S. at 279-80, 11 L. Ed. 2d at 706, 84 S. Ct. at 726. Mere proof of failure to investigate without more cannot establish reckless disregard for truth; rather, a plaintiff must establish that the person uttering the statement entertained serious doubts as to its truth. Harte-Hanks Communications, Inc. v. Connaughton, 491 U.S. 657, 665-66, 105 L. Ed. 2d 562, 575-76, 109 S. Ct. 2678, 2684-85 (1989); Gertz, 418 U.S. at 349-50, 41 L. Ed. 2d at 810-11, 94 S. Ct. at 3012; see also Davis v. Keystone Printing Service, Inc., 155 Ill. App. 3d 309, 320-22, 507 N.E.2d 1358 (1987).
Plaintiff asserts that “[t]he statements were made” by defendant to plaintiff, “upon information and belief, in full knowledge that they were untrue or in reckless disregard of their truth or falsity.” Actual malice must be pleaded specifically, not conclusionally, as was done here; however, a plaintiff may not simply rely on self-serving allegations that a defendant acted maliciously. Facts must be alleged that specifically tend to show defendant knew her statements were false or had a strong reason to suspect they were false. Bias, ill will, or even hatred of a public official is irrelevant; and only a knowing or reckless disregard for the truth is actionable in these circumstances. Fogus v. Capital Cities Media, Inc., 111 Ill. App. 3d 1060, 1064, 444 N.E.2d 1100 (1982); Howell v. Blecharczyck, 119 Ill. App. 3d 987, 994, 457 N.E.2d 494 (1983) (Howell).
In Howell, the court held that where there were no facts from which malice could be implied or presumed, the simple allegation that defendants did not believe their statements, had no reasonable grounds for believing them and published them with reckless disregard for the truth was not a sufficient assertion of malice. 119 Ill. App. 3d at 994; see also Edwards v. University of Chicago Hospitals & Clinics, 137 Ill. App. 3d 485, 491, 484 N.E.2d 1100 (1985) (conclusional allegations in plaintiffs amended complaint that defendant published the allegedly defamatory diagnosis maliciously intending to injure her and to bring her into public scandal, disrepute and disgrace are, in and of themselves, insufficient to raise an inference of actual malice). It is troubling to note that the majority opinion skates over this abject deficiency with little persuasive analysis.
On October 29, 2001, defendant moved to dismiss plaintiffs complaint for failure to state a cause of action under section 2 — 615. Defendant argued that plaintiff failed to plead factually the alleged defamatory statement or show actual malice. Alternatively, defendant contended that no defamation can exist where the alleged defamatory statement cannot be proved false. Defendant also averred that her statement could not be considered defamatory because it was unclear that it was directed solely to plaintiff. In addition, defendant asserted that her statement constituted privileged conduct protected by the first amendment.
On January 22, 2002, the circuit court denied defendant’s section 2 — 615 motion, but ordered the parties to submit briefs on the issue of whether defendant’s statement was privileged under the first amendment. Plaintiff responded that defendant’s statement was not privileged because it was not part of the formal legislative process and did not relate to legislative proceedings. Defendant replied, that plaintiff misrepresented the contents of the statement, noting that the “statement” actually was a question posed by defendant to the board or plaintiff. Defendant pointed out that this question could be construed innocently, does not use the word “bribe,” and was asked in response to a legislative action, namely, a vote regarding a tax increment financing district. Defendant argued that absolute immunity applies because her statement was a governmental criticism made at a legislative proceeding, which is protected by the first amendment.
On March 22, 2002, the circuit court granted defendant’s motion to dismiss with prejudice pursuant to section 2 — 619(a)(9), citing Joseph v. Collis, 272 Ill. App. 3d 200, 649 N.E.2d 964 (1995). The court considered the issue of absolute privilege, although both parties made factual references outside the complaint and defendant failed to raise the issue of privilege as an affirmative defense in an appropriate section 2 — 619(a)(9) motion. The court found that defendant’s statement fell under a narrow, absolute privilege, applied to legislative and judicial proceedings.
Here, the problem is not the application of privilege, but deficient pleadings, which precludes consideration of all related issues. Plaintiffs allegations of defamation were vague and conclusional. The nature and factual context of the accusations of bribery are nowhere in the complaint, preventing the circuit court and this court from being able to determine whether the purported statement was “so obviously and inevitably hurtful that damage is presumed” (Rodriguez-Erdmann v. Ravenswood Hospital Medical Center, 190 Ill. App. 3d 24, 30, 545 N.E.2d 979 (1989) (Rodriguez-Erdmann)). In addition, it cannot be determined from the face of the complaint whether the statement which allegedly injured plaintiff was true, whether a privilege might apply to its application, or whether the innocent construction rule has any application in light of the actual words and surrounding circumstances. Nor does the complaint specifically show whether the statement was directed at plaintiff individually or to the Board. Importantly, nothing factual has been pleaded in support of the conclusional malice assertion.
Although the majority correctly notes that well-pleaded facts must be taken as true for purposes of a motion to dismiss, this rule should not be applied woodenly; a corollary of the asserted rule is that “a plaintiff cannot rely simply on mere conclusions of law or fact unsupported by specific factual allegations” and “a plaintiff must allege facts sufficient to bring his or her claim within the scope of the cause of action being asserted.” Anderson u. Vdnden Dorpel, 172 Ill. 2d 399, 408, 667 N.E.2d 1296 (1996); Jackson v. South Holland Dodge, Inc., 197 Ill. 2d 39, 52, 755 N.E.2d 462 (2001); Weidner v. Midcon Corp., 328 Ill. App. 3d 1056, 1059, 767 N.E.2d 815 (2002). To accept plaintiffs pleadings that defendant imputed an actionable offense of bribery to plaintiff requires this court to surmise, speculate and conject over alleged defamatory words which were neither before the circuit court or this court.
Further, where a public figure alleges defamation, he or she must establish some factual basis for the conclusional assertions that the defamatory statements were made with knowledge of their falsehood or a reckless disregard for their truth or falsity. Rodriguez-Erdmann, 190 Ill. App. 3d at 33. Plaintiff merely made bare allegations of actual malice in her complaint and failed to provide any allegations of fact giving rise to a reasonable inference showing defendant knew the statement was false or that she proceeded in making the statement with a reckless disregard for its falsity.
This case is not about the presence or absence of quotation marks. Nor is it about liberal or strict construction of a complaint. It is about the failure to plead the necessary elements of alleged defamation per se action. To uphold the patently deficient complaint here fractures the law of defamation and sets precedent which deleteriously will affect decisions to follow.
This court can affirm a circuit court decision on any ground appearing in the record. Geick v. Kay, 236 Ill. App. 3d 868, 873, 603 N.E.2d 121 (1992). The instant vacuous complaint itself is the best reason for doing so here.