dissenting:
I respectfully dissent from the opinion of the majority and would reverse the trial court’s order of dismissal with prejudice of the defamation and false light invasion of privacy claims brought by the plaintiff.
As the majority points out, this appeal comes before us because of the trial court’s dismissal of the complaint for defamation per se on defendant’s section 2 —615 motion and its denial with prejudice of plaintiff’s subsequent motion to reconsider or, in the alternative, for leave to file an amended complaint for defamation per se. The section 2—615 motion challenges the sufficiency of the allegations of the complaint and supporting exhibits to state a cause of action, and matters outside the allegations of the complaint including affirmative defenses such as substantial truth may not be considered. Ill. Rev. Stat. 1989, ch. 110, par. 2—615.
The majority correctly states that the pivotal issue is whether plaintiff has sufficiently alleged a per se defamation cause of action so that special damages need not be pled. It is my opinion that the allegations of the proffered amended complaint do allege a per se defamation cause of action.
Initially the plaintiff filed his complaint against the Chicago Council (Council) and Gilbert in two counts alleging defamation and false light invasion of privacy seeking compensatory and punitive damages without pleading special damages. Defendants moved for dismissal pursuant to section 2—615 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2—615). The motion was based on three grounds: (1) the Council report did not mention Harte by name; (2) the statements in the report and in the Sun-Times news story may reasonably be innocently interpreted; and (3) the statements in the report and the news article are substantially true.
The court entered its order on July 5, 1990, which provided in part: “Count I for per se defamation and Count II for per se false light invasion of privacy are stricken. Leave to replead in defamation per se is denied. *** Plaintiff is given 28 days to file an amended complaint for per quod defamation and false light invasion of privacy on or before August 2, 1990.” The trial judge granted the motions on the bases that the statement can be innocently construed and that Harte was not specifically named in the report. The court did not consider whether the statements were true.
I am of the opinion that plaintiff should have been given leave to replead either per se or per quod defamation at his election and that the restriction to a per quod claim was error.
Following the trial court’s striking of plaintiff’s original complaint on defendant’s motion to dismiss and denial of leave to re-plead in defamation per se while granting leave to replead for per quod defamation and false light invasion of privacy, plaintiff moved for reconsideration or in the alternative for leave to file an amended complaint for defamation per se and false light invasion of privacy. A copy of the amended complaint was attached to the motion. The trial court denied plaintiff’s motion and stated in part: “Because plaintiff has failed to file an amended complaint for either defamation per quod or false light invasion of privacy alleging special damages, this action is dismissed with prejudice.”
In my view the court clearly erred in dismissing plaintiff’s cause of action with prejudice thereby extinguishing his right to respond in a litigation forum to the Council’s published report and its links to the resulting published news story which identified him by name in a story about crime, corruption and public wrongdoing. Both orders are appealed.
The amended complaint proffered by plaintiff which was rejected by the court is in summary as follows: Count I seeks compensatory and punitive damages from the defendants for defamation per se. Its allegations are that plaintiff was admitted to the practice of law in 1959 and that he enjoyed a good name and reputation among acquaintances and in the community prior to and at the time of the defendants’ conduct complained of. He alleges that on or about February 6, 1990, defendant Council “created, promoted and published its report” on supreme court candidates (a copy is attached as an exhibit to the complaint) which “falsely, wrongfully and maliciously” stated:
“Moreover, with regard to disciplining attorneys implicated in Operation Greylord, the Supreme Court has treated less prominent attorneys far more harshly than prominent ones with similar ethical lapses. This leads to the appearance that who you are or who you know may be more important to the result in the Supreme Court than the merits of the case itself.” (Emphasis added.)
Plaintiff then alleges that defendant Gilbert, then president of defendant Council, contemporaneously met with members of the press at which time he advised a news reporter with the Chicago Sun-Times that “one example of alleged favoritism in Greylord cases involved several prominent lawyers who each gave $1,000 to convicted Circuit Judge Richard LeFevour.” (Emphasis added.) Plaintiff alleges that the Sun-Times news article published on February 9, 1990 (a copy is attached as an exhibit to the complaint), identified plaintiff by name as one of the persons “in Greylord cases.” Plaintiff alleges on information and belief that defendant Gilbert specifically identified plaintiff by name to the reporter as one of the persons implicated in Greylord cases.
Plaintiff alleges that Operation Greylord was a highly publicized criminal investigation of corruption by members of the bar, of the judiciary and nonjudicial court personnel. He acknowledges that he was the subject of an attorney discipline case decided by the supreme court in June 1988, and alleges that the Council appeared, intervened and participated in that proceeding by filing an amicus curiae brief (a copy is attached as an exhibit to the complaint) and knew the nature and origins of the charges against plaintiff and the true facts of the case, knew plaintiff’s sworn and unrebutted testimony relating to those charges, knew that he was not “implicated in Operation Greylord” nor was he the target of any Federal investigation into criminal wrongdoing or illegal activity. He alleges the Council tacitly endorsed differing levels of discipline in those cases and acknowledged there might be mitigating factors in some of the cases. He alleges that the Council knew that the supreme court did not impose different sanctions on the basis of favoritism exhibited by the court for conduct amounting to “similar ethical lapses” by the attorneys and that the Council further knew that plaintiff had not engaged in conduct intended to interfere with the administration of justice. Plaintiff alleged that defendants’ statement in its report and to the press imputed to the plaintiff the commission of a crime and the lack of integrity in his profession and when the statements were made defendants knew them to be false. Plaintiff alleged that the statements were made with malice, with knowledge that they were false and were intended to publish false statements of fact against plaintiff to advance defendants’ political goals. In count II for invasion of privacy plaintiff alleged the defendants’ statements placed him in a false light before the public and he sought compensatory and punitive damages. No special damages were pled.
The defendants contend that the Council report, which did not identify Harte by name, the press release and the news story are not about Harte but instead are a criticism of the supreme court.
The Council concludes in its report that
“with regard to disciplining attorneys implicated in Operation Greylord, the Supreme Court has treated less prominent attorneys far more harshly than prominent ones with similar ethical lapses. This leads to the appearance that who you are or who you know may be more important to the result in the Supreme Court than the merits of the case itself. In addition, some of the lawyers who were not disciplined had contributed to the election campaigns of some members of the Supreme Court. This highlights the Supreme Court’s insensitivity to ethics and proper procedure and the problems inherent in a judicial selection system where judges must run for office and collect campaign contributions from lawyers who will appear before them.”
This conclusion, when coupled with plaintiff’s allegations that defendant Gilbert advised the Sun-Times reporter (the news story credited the statement to Gilbert) that “one example of alleged favoritism in Greylord cases involved several prominent lawyers who each gave $1,000 to convicted Circuit Judge Richard LeFevour,” and plaintiff’s allegation on information and belief that defendant Gilbert specifically identified plaintiff by name to the reporter as one of the persons implicated in Greylord cases, resulted in the publication of the Sun-Times news story in which Harte is specifically named. The news story followed the Council’s release of its report to the press.
The Sun-Times story in pertinent part was as follows:
“State high court accused of favoritism on ethics
By Tom Gibbons.
The Illinois Supreme Court has shown a woeful lack of leadership in coping with judicial scandals and has shown favoritism to big-name lawyers charged with unethical conduct, a bar group said Thursday.
The Chicago Council of Lawyers issued a scathing report as it announced its evaluations of the nine judges running in the March 20 primary for two seats on the Supreme Court ***. ***
The 1,400 member group leveled strong criticism at the court’s ‘insensitivity to ethics’ — especially in the shadow of the Operation Greylord scandal. Jeffrey B. Gilbert, council president, said one example of alleged favoritism in Greylord cases involved several prominent lawyers who each gave $1,000 to convicted Circuit Court Judge Richard LeFevour.
Though the lawyers — [RC.], William Harte, [W.M.] and [R.M.] — had no cases before LeFevour, they faced disciplinary action for giving money to a judge. Some of them also made campaign gifts to Supreme Court justices.
The Supreme Court refused to discipline the lawyers, but Gilbert said a lesser-known attorney, [W.K.], who was a middle-man between LeFevour and the four lawyers, had his law license suspended for two years.” Chicago Sun Times, February 9,1990, at 20, col. 1.
I would observe that unless the Council suggests that the reporter drew the names from some other source to flesh out the conclusion of favoritism in the report, there is no other conclusion that can be reached but that the questions asked of the Council’s spokesperson, Gilbert, and his answers given at the news conference or at another time before the story was written, identified Mr. Harte by name as one of the supreme court’s favorites.
I am troubled by certain conclusions of the majority with which I cannot agree.
With respect to the charge of “favoritism” the majority finds it to be apparent that the statement can be innocently construed as criticizing the supreme court and not the plaintiff. The majority then concludes that “[t]o be beneficiary of ‘favoritism,’ does not, as plaintiff implies, necessarily suggest wrongdoing on the part of the plaintiff in his relations with the court. One may be a favorite for any number of reasons that do not implicate any wrongdoing.” (220 Ill. App. 3d at 261.) I disagree with the conclusion.
Black’s Law Dictionary defines “favoritism” as “invidious preference and selection based on friendship and factors other than merit.” (Black’s Law Dictionary 548 (5th ed. 1979).) The Council’s report concludes that “who you are or who you know may be more important to the result in the Supreme Court than the merits of the case itself.” Given the context in which the statement is made here, the obvious conclusion to be drawn is that the one who dispenses favoritism and the one who receives favored treatment are equally suspect and culpable of the charged improper conduct. I submit that the majority’s conclusion that reference to plaintiff's disciplinary case and his “favored” treatment by the court was intended only as an illustration of defendants’ criticism of the court and was not defaming to plaintiff is not a valid conclusion.
I depart from the majority in its conclusion that the allegedly defaming words are capable of an innocent construction and therefore are not defamatory per se.
In addressing plaintiff’s allegation that Gilbert’s statement to the reporter identified plaintiff as an attorney “implicated in Operation Greylord,” the majority concludes that plaintiff’s own dictionary definition of the word “implicate,” i.e., “to involve intimately or incriminatingly,” renders defendants’ statement capable of a reasonable innocent interpretation and therefore is not defamatory per se. (Emphasis added.) (See 220 Ill. App. 3d at 261.) It concludes that the trial court found the alleged defamatory words to be capable of an innocent construction, dismissed the original complaint and refused to permit an amendment for defamation per se on the basis of a possible innocent construction.
I disagree that the phrase “implicated in Operation Greylord” conveys an innocent message. Because of its wide public disclosures, Operation Greylord connotes serious wrongdoing and corruption. To be implicated “intimately or incriminatingly” in Operation Greylord connotes to the reader that the party is closely connected to that specific serious wrongdoing and corruption. In my view, to hold that such a statement is not defamatory per se is completely contrary to any reasonable interpretation of the statement or the intent of its author. Therefore, I strongly disagree with the majority opinion and can find no reasonably innocent construction in the phrase “implicated in Operation Greylord.”
The modified innocent construction rule of Chapski v. Copley Press (1982), 92 Ill. 2d 344, 352, reiterated by the supreme court in Mittelman v. Witous (1989), 135 Ill. 2d 220, 232, 552 N.E.2d 973, states:
“ ‘[A] written or oral statement is to be considered in context, with the words and the implications therefrom given their natural and obvious meaning; if, as so construed, the statement may reasonably be innocently interpreted or reasonably be interpreted as referring to someone other than the plaintiff it cannot be actionable per se.’ ” (Mittelman, 135 Ill. 2d at 232, quoting Chapski, 92 Ill. 2d at 352.)
If the statement has reasonably “innocent construction” capabilities it should be so construed. Mittelman, 135 Ill. 2d at 232.
Here then the trial court was required to examine the statements in the context in which they were made and determine whether it was reasonable to interpret them as innocent, nondefaming statements.
For clarity we must repeat the statements plaintiff alleges are defamatory per se in the context in which they are alleged to have occurred.
In the Council’s report:
“with regard to disciplining attorneys implicated in Operation Greylord, the Supreme Court has treated less prominent attorneys far more harshly than prominent ones with similar ethical lapses. This leads to the appearance that who you are or who you know may be more important to the result in the Supreme Court than the merits of the case itself. In addition, some of the lawyers who were not disciplined had contributed to the election campaigns of some members of the Supreme Court. This highlights the Supreme Court’s insensitivity to ethics and proper procedure and the problems inherent in a judicial selection system where judges must run for office and collect campaign contributions from lawyers who will appear before them.”
In the press interview with news reporters, Gilbert is alleged to have said: “[0]ne example of alleged favoritism in Greylord cases involved several prominent lawyers who each gave $1,000 to convicted Circuit Judge Richard LeFevour,” and is alleged to have specifically identified plaintiff by name to the reporter as one of the persons implicated in Greylord cases.
In the Sun-Times story reporting the contents of the Council’s report and the interview at which the report was released to the press:
“The Illinois Supreme Court has shown a woeful lack of leadership in coping with judicial scandals and has shown favoritism to big-name lawyers charged with unethical conduct, a bar group said Thursday.
The Chicago Council of Lawyers issued a scathing report as it announced its evaluations of the nine judges running in the March 20 primary for two seats on the Supreme Court ***. * * *
The 1,400 member group leveled strong criticism at the court’s ‘insensitivity to ethics’ — especially in the shadow of the Operation Greylord scandal. Jeffrey B. Gilbert, council president, said one example of alleged favoritism in Greylord cases involved several prominent lawyers who each gave $1,000 to convicted Circuit Court Judge Richard LeFevour.
Though the lawyers — [RC.], William Harte, [W.M.] and [R.M.] — had no cases before LeFevour, they faced disciplinary action for giving money to a judge. Some of them also made campaign gifts to Supreme Court justices.
The Supreme Court refused to discipline the lawyers, but Gilbert said a lesser-known attorney, [W.K.], who was a middle-man between LeFevour and the four lawyers, had his law license suspended for two years.” Chicago Sun-Times, February 9, 1990, at 20, col. 1.
Plaintiff has alleged the statements are false, that when they were made the Council and Gilbert knew them to be false and that the statements defaming Harte were made with malice and intended to accomplish the Council’s goals and without regard for the damage it would do to the plaintiff in his professional reputation.
In my view, taken together, the report, the alleged statements by Gilbert to the reporter and the news story which identifies Harte are more reasonably construed as defamatory to the plaintiff than as reasonably capable of an innocent construction. Therefore they are defamatory per se.
I would observe that there is a very fine line between appropriate comment and defamation/slander/libel. Where a “report” makes charges which, while intended to criticize the members of the judiciary who hold public office, portrays other nonpublic persons as near equal participants in alleged improper conduct, the obvious result is that one’s reputation built over a period of time can be destroyed or at a minimum greatly diminished in the dissemination of that report to the public.
A lawyer’s reputation, which includes his integrity and legal ability, is the foundation on which he builds his professional career. Where a lawyer has practiced for 30 or more years, as has the plaintiff here, any public charge of wrongdoing, lack of ability or want of integrity does immeasurable damage to the public’s perception of him as a respected member of the legal community. It is difficult to conceive of any way in which the damage done by defamatory comment can be corrected. Plaintiff is entitled to access to the courts for a full airing of his claim against the persons making such a charge and for the opportunity to prove the defaming statements to be untrue. I would reverse and remand.