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Catalano v. Pechous





Appeal from the Appellate Court for the First District; heard in that court on appeal from the Circuit Court of Cook County, the Hon. Daniel P. Coman, Judge, presiding.


Rehearing denied November 26, 1980.

The plaintiffs, who are seven of the eight aldermen that comprise the city council of Berwyn, filed a complaint in the circuit court of Cook County against the defendants, Robert C. Pechous, the city clerk, Mark Fineman, a reporter for Suburban Week, a weekly supplement to the Chicago Sun-Times, and Field Enterprises, Inc. (Field), the publisher of the Sun-Times. The action sought damages for a defamatory statement allegedly made by Pechous at a council meeting and repeated several months later to Fineman, who quoted it in an article which appeared in Suburban Week.

Motions for summary judgment were filed by Pechous and by Fineman and Field. In each case the plaintiffs filed a reply and a cross-motion for summary judgment. The trial court granted the defendants' motions and denied those of the plaintiffs. On appeal the Appellate Court for the First District reversed the circuit court's granting of Pechous' motion for summary judgment and its denial of the plaintiffs' motion for summary judgment and affirmed the award of summary judgment in favor of Fineman and Field (69 Ill. App.3d 797). We granted petitions for leave to appeal filed by the plaintiffs and by Pechous. 73 Ill.2d R. 315.

This litigation had its origin in a decision by the city council of Berwyn to abandon its practice of having garbage collected by municipal employees and to contract for its collection by private scavenger concerns. The city authorized the solicitation of bids and later awarded a contract to one of the bidders. The particulars, documented by materials which were before the circuit court on the motions for summary judgment, are set out in the opinion of the appellate court, and no more than a summary is required here.

At a meeting on December 19, 1975, the council voted to authorize the city comptroller to draw up specifications and advertise for bids for private scavenger service for the year 1976. Although no copy of the invitation to bid appears in the record, a letter of January 5, 1976, from the mayor to the council states that the invitations specified January 12 as the deadline for the submission of bids. The minutes of the December 19 meeting report that Pechous, as city clerk, was permitted to submit a communication addressed to the members of the city council which, according to the minutes, "raised substantive questions concerning the contemplated shift by the city from municipal refuse collection to private scavenger service." The minutes do not disclose the contents of this communication, and no copy of it appears in the record.

Three scavenger companies submitted bids before the January 12 date, and at a council meeting on December 29 these bids were opened, and the bid of one company, Clearing Disposal, Inc., which was the lowest bidder, was accepted. A fourth company, SCA Services, which had planned to submit a bid by January 12, had not done so by the time of the December 29 meeting. The mayor vetoed the award of the contract to Clearing, but the council overrode the veto at a meeting held on January 12, 1976. At that meeting the council also voted to return unopened a bid which had been received from SCA Services.

It was the meeting of December 29 at which Pechous was alleged to have initially made his defamatory statement. Counts I and II of the complaint, which were directed against Pechous, alleged:

"1. That on December 29, 1975, at a meeting of the Berwyn City Council, The Defendant Pechous falsely and maliciously, with intent to injure the Plaintiffs' good names, uttered to third persons and caused to be published in Cook County Illinois the following false, defamatory and malicious statement, in connection with the awarding of a contract for garbage collection to Clearing Disposal, Inc. by the said Berwyn City Council which is composed of the Plaintiff Alderpersons:

`Two hundred forty pieces of silver changed hands — thirty for each alderman.'

2. That the Defendant Pechous subsequently uttered the following false, malicious, and defamatory statement concerning the Plaintiffs to the Defendant Fineman, regarding the awarding of said contract, with intent to injure the plaintiffs' good names, and thereby caused said statement to be published in an article in the Chicago Sun-Times, a newspaper printed and circulated in Cook County Illinois:

`Something smells in this contract more than garbage * * * I said at the council meeting when the contract was first awarded that I think 240 pieces of silver changed hands — 30 for each alderman. * * * There was just something suspicious about the way that contract was approved * * * I've said all along that if it were ever discovered how that contract was really approved, there'd be some vacant chairs in the city council * * * There are just too many unanswered questions in the contract. The whole thing was railroaded through, and we can't help but think there was some strong motivation behind it.'

4. That the Defendant Pechous intended the persons who heard or read the above statements to believe that the Plaintiffs were bribed to vote to award the said contract to Clearing Disposal, Inc., and to believe that the Plaintiffs cast their votes solely for personal gain in violation of their fiduciary duty to the citizens of Berwyn and of their oaths of office and in violation of the law; and that the above statements were so understood by the persons who heard and read said statements."

Subsequent paragraphs of the complaint alleged that these statements were false, and that Pechous uttered them with knowledge that they were false or with reckless disregard as to their truth or falsity.

Count III, directed against Fineman and Field, alleged that in publishing the quoted statements these defendants did so knowing that the statements were false or with reckless disregard as to their truth or falsity. The article by Fineman is set out in its entirety as the appendix to this opinion. It was published in the May 12-13, 1976, edition of Suburban Week.

Pechous filed an answer denying each allegation of counts I and II. Fineman and Field filed an answer in which they admitted the publication of the article, but denied the other allegations of count III.

The only discovery had in this case was conducted by the plaintiffs, and it was limited to written interrogatories and notices to produce served on Pechous and Fineman. No admissions of fact were requested, and no depositions were taken by either side. The materials available for the court's consideration of the motions for summary judgment, other than the pleadings, consisted of answers to the interrogatories, documents produced, and affidavits by Fineman, Pechous, and four of the plaintiffs which were made in support of the motions for summary judgment.

The pleadings left unresolved several issues of fact: whether Pechous, at the meeting of December 29, had made the statement alleged in paragraph 1 of the complaint; whether he had made the statement to Fineman alleged in paragraph 2; whether these statements were false; and whether Pechous had made them with knowledge of their falsity or with reckless disregard of their truth or falsity. The propriety of disposing of the action upon summary judgment thus turned on whether the additional information before the court eliminated all genuine issues of material fact, as all of the parties represented in their motions.

In addition to renewing the arguments which he had made in the circuit and the appellate courts> that he was entitled to summary judgment, Pechous contends in this court that summary judgment for the plaintiffs was improper since there remained in the case a controversy over whether he made the statement before the council alleged in paragraph 1 of the complaint.

As the appellate court noted in a supplemental opinion, Pechous advanced the same claim in his petition for rehearing. He also sought leave to file an affidavit by Thomas P. Hardy, a reporter for another newspaper, and a copy of an article written by Hardy about the meeting of January 12, 1976, which he had attended. According to this article, Pechous had made a speech at this meeting questioning the legality of the award to Clearing in which he was quoted as referring to 240 pieces of silver, but in somewhat different language from that alleged in the complaint with regard to the December 29 meeting. He was reported to have said, "240 pieces of silver cemented the relationship between Clearing and the aldermen, destroying the tap roots of democracy." Hardy's affidavit did not state that he had attended the meeting of December 29, 1975. In denying leave to file the affidavit and the article, the appellate court held that Pechous was improperly seeking to introduce new evidence for the first time on appeal. (69 Ill. App.3d 797, 813.) This ruling of the court was plainly correct.

Elimination of the affidavit does not wholly dispose of Pechous' contention that summary judgment was improper, however, for in his answer Pechous denied having made the alleged statement regarding 240 pieces of silver at the December 29 council meeting. The complaint was not verified, and the plaintiffs filed no affidavit attesting to the truth of the allegation. It should be added that the minutes of the meeting recite that Pechous was excused on account of illness shortly after the meeting began and before the matter of the bids on the garbage collection contract had been reached. That circumstance does not of course rule out the possibility that Pechous may have remained in council chambers and made his quoted remark during the balance of the meeting.

As the appellate court pointed out in its supplemental opinion, neither in his briefs nor in oral argument did Pechous challenge either the accuracy of his quoted statement or the date when it was made. Moreover, the representation made in his motion for summary judgment that there were no genuine issues of material fact necessarily presupposed that a statement had been made as alleged in the complaint. That he had made his statement at a council meeting was also the necessary predicate for the claim made in his motion for summary judgment that his statement was protected by executive privilege and also for his claim that he had had no time in which to investigate the truth of the statement.

It is thus apparent that Pechous invited both the circuit and appellate courts> to decide the case by summary judgment in the hope that the judgment would be in his favor, and that he sought to repudiate his statement only after the appellate court had rendered a judgment adverse to him. Such a course of action is barred under the doctrines of invited error and of estoppel. Cf. People v. Van De Rostyne (1976), 63 Ill.2d 364, 370; People ex rel. Scoon v. Chicago & Alton R.R. Co. (1911), 253 Ill. 191, 196-98.

Pechous' contention would not, in any event, preclude the award of summary judgment based on his statement to Fineman as alleged in paragraph 2 of the complaint, which includes the same remark about 240 pieces of silver changing hands, since Fineman's affidavit asserts that Pechous did make that statement. We conclude, therefore, that the entry of summary judgment was not rendered improper by any genuine controversy over the making of the statements complained of.

Although neither Pechous nor the other defendants make a point of it, the issue of whether his statements were false, as alleged in the complaint but denied by the answers, was likewise not eliminated by additional information arising out of discovery, and the plaintiffs filed no affidavits denying the receipt of consideration for the award of the contract.

New York Times Co. v. Sullivan (1964), 376 U.S. 254, 11 L.Ed.2d 686, 84 S.Ct. 710, holds that recovery for a defamatory statement concerning a public official may be allowed only if it is established both that the utterance was false and that it was made with knowledge of its falsity or in reckless disregard of whether it was false or true. (Garrison v. Louisiana (1964), 379 U.S. 64, 74, 13 L.Ed.2d 125, 132, 85 S.Ct. 209, 215; Restatement of Torts (Second), sec. 581A (1977).) A determination that the defendant made his statement with actual malice does not establish that the statement was in fact false. Restatement of Torts (Second), sec. 581A, comment f.

The parties do not discuss the question of truth or falsity in their briefs, and it is apparent that by moving for summary judgments they elected to dispense with the necessity of resolving that question. We thus turn to the defendants' arguments on the merits, considering first the liability of Pechous.

Pechous contends that his statement was not defamatory; that even if defamatory it was protected by executive privilege; and that plaintiffs did not prove that his statements were made with actual malice, as that term is defined in New York Times Co. v. Sullivan (1964), 376 U.S. 254, 11 L.Ed.2d 686, 84 S.Ct. 710.

As to the claim of executive privilege, Pechous asserts that since the city clerk is an officer of the government of Berwyn, such a privilege attached to his remarks under the decision in Blair v. Walker (1976), 64 Ill.2d 1. The appellate court properly rejected this claim because the ordinances of Berwyn showed that the city clerk's duties with respect to the award of the contract were ministerial only, and because an affidavit by one of the plaintiffs that Pechous had no part to play in that matter was not controverted by the affidavit filed by Pechous. 69 Ill. App.3d 797, 806-07.

We agree with the reasoning of the appellate court on this issue, and we add only a comment in response to Pechous' observation that the council permitted him to address it on the subject of the award: Those minutes of council meetings which are included in the record indicate that the council did, on occasion, permit persons other than aldermen, including private citizens, to be heard on an issue under consideration. By following that practice the council, of course, did not and could not confer an executive privilege on Pechous or any other speaker.

In discussing Pechous' claim that his statements were not defamatory, a claim also made by the other defendants, we focus, as do the parties, upon his remark, "Two hundred forty pieces of silver changed hands — thirty for each alderman." (We note in passing that Pechous' statement is erroneous in assuming that all eight aldermen voted to award the contract to Clearing. The minutes disclose that only seven aldermen attended the meeting of December 29, the same seven individuals who are the plaintiffs here.)

This remark was of course not made in a literal sense. As Pechous himself states in his motion for summary judgment, the allusion to Judas' betrayal of Christ was intended to convey the thought that the plaintiffs received something of value in exchange for voting to award the contract to Clearing, and had thereby betrayed the public trust. It is not important that the statement fails to charge the criminal offenses of bribery or official misconduct with the precision of an indictment (Ill. Rev. Stat. 1979, ch. 38, pars. 33-1, 33-3). The plaintiffs were accused of venality, and such a charge would be hurtful to them. Zeinfeld v. Hayes Freight Lines, Inc. (1968), 41 Ill.2d 345, 348.

The defendants' argument is that Pechous' words may be given an additional meaning which is not defamatory. Their argument is based on this court's discussion in John v. Tribune Co. (1962), 24 Ill.2d 437, 442, of a "rule of innocent construction." There the court said:

"That rule holds that the article is to be read as a whole and the words given their natural and obvious meaning, and requires that words allegedly libelous that are capable of being read innocently must be so read and declared non-actionable as a matter of law."

We need not, however, consider this argument, for the defendants do not suggest an alternative construction of Pechous' statement which is plausible.

In the form in which the complaint alleges that it was originally made, Pechous' statement had no verbal context; it stood in isolation. As for the interview with Fineman, Pechous repeated the statement and accompanied it with several additional comments. It is questionable to begin with whether these additional comments, made several months after the council meeting and directed to a different audience, may be considered as providing a context for Pechous' earlier utterance. Be that as it may, Pechous' comments, by specifying the consideration for which the alleged bribe was given, seem to reinforce rather than to dissipate his original charge.

There is, in any event, no merit in the suggestion made by defendants Fineman and Field that Pechous' intended meaning was that the plaintiffs "were politically motivated in voting for the Clearing Disposal Contract" for the reason that "a political ally of the plaintiffs" [John Van Tholen, Jr.,] "went to work for the parent company of Clearing Disposal the month the contract was signed." This latter development had not even occurred when Pechous delivered his statement before the council.

In a related line of argument defendants Fineman and Field, quoting a portion of a dictum in Gertz v. Robert Welch, Inc. (1974), 418 U.S. 323, 339-40, 41 L.Ed.2d 789, 805, 94 S.Ct. 2997, 3006-07, assert that an expression of opinion can never be actionable. Therefore, they continue, if Pechous' communication may be construed either as a statement of fact or as an expression of opinion, the rule of innocent construction requires that it be treated as the latter. Pechous' words, it is said, must be taken as asserting only that the aldermen were "acting contrary to the public interest and out of political motives." We do not find that to be a fair reading of Pechous' words. To charge that the approval of the contract was procured by a bribe cannot fairly be transmuted into a criticism of the merits of the award of the contract.

A more candid explanation of what was meant by Pechous' words is furnished by Pechous himself in a different connection. In responding to the plaintiffs' claim that he made his statement with malice he makes the following observation in his brief:

"In view of the circumstances of the Plaintiffs-Appellees' actions in railroading a contract through the City Council without competitive bids, without advance notice to bidders and contrary to the bidding schedule established prior to the December 29th meeting, and contrary to the law, it is not unreasonable, and certainly not reckless to conclude that there may have been a payoff."

So stated, the contention that Pechous' statement was not defamatory reduces to the claim that when a charge of crime is based only on an inference drawn by the speaker, it must be treated as no more than an expression of opinion and thus ceases to be defamatory. We do not believe that such a position is supported by the language from Gertz on which the defendants rely. The passage, in its entirety, reads:

"Under the First Amendment there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas. But there is no constitutional value in false statements of fact. Neither the intentional lie nor the careless error materially advances society's interest in `uninhibited, robust, and wide-open' debate on public issues. New York Times Co. v. Sullivan, 376 U.S., at 270." 418 U.S. 323, 339-40, 41 L.Ed.2d 789, 805, 94 S.Ct. 2997, 3007.

The argument made here would give a defendant in a defamation suit an absolute immunity rather than the limited immunity conferred by New York Times on a person whose defamatory statement was made without actual malice.

The question whether an accusation of crime is a statement of fact or an expression of opinion was an issue in Cianci v. New Times Publishing Co. (2d Cir. 1980), 639 F.2d 54, a recent decision by the United States Court of Appeals for the Second Circuit handed down on July 11, 1980.

The case concerned a newspaper article which stated that a former mayor of Providence, Rhode Island, then seeking re-election, had been accused some 12 years previously of committing a rape. The article reported that the victim had filed a criminal complaint, and it continued, "After receiving a $3,000 settlement, [the victim] dropped the charges." (639 F.2d 54, 56.) The defendants, the publisher and the editor of the newspaper and the author of the article, made a pretrial motion to stay discovery which the district court granted. The court of appeals reversed.

Evidence presented to the district court showed that the $3,000 paid to the victim by the plaintiff had been paid in settlement of a civil suit for damages which the victim had brought, and that the decision to drop the prosecution was made prior to and independently of the payment, as the defendants knew. As viewed by the court of appeals, the decision of the district court rested on its determination that the article did not state explicitly that the plaintiff had paid the $3,000 as part of an agreement to drop criminal charges, and that if there were any implications in the article that the plaintiff was guilty of rape or of making an improper payoff, those implications were "`constitutionally protected as expressions of opinion.'" 639 F.2d 54, 59.

The court of appeals reached the contrary conclusion. On the basis of the decisions of the Supreme Court in Greenbelt Cooperative Publishing Association v. Bresler (1970), 398 U.S. 6, 26 L.Ed.2d 6, 90 S.Ct. 1537, and Old Dominion Branch No. 496, National Association of Letter Carriers v. Austin (1974), 418 U.S. 264, 41 L.Ed.2d 745, 94 S.Ct. 2770, its own decision in Buckley v. Littell (2d Cir. 1976), 539 F.2d 882, cert. denied (1977), 429 U.S. 1062, 50 L.Ed.2d 777, 97 S.Ct. 785, and the decision of the Court of Appeals of New York in Rinaldi v. Holt, Rinehart & Winston, Inc. (1977), 42 N.Y.2d 369, 366 N.E.2d 1299, 397 N.Y.S.2d 943, cert. denied (1977), 434 U.S. 969, 54 L.Ed.2d 456, 98 S.Ct. 514, the court drew certain general principles and applied them to the case before it in the following words:

"[A] pejorative statement of opinion concerning a public figure generally is constitutionally protected, quite apart from Sullivan, no matter how vigorously expressed; (2) that this principle applies even when the statement includes a term which could refer to criminal conduct if the term could not reasonably be so understood in context; but (3) that the principle does not cover a charge which could reasonably be understood as imputing specific criminal or other wrongful acts.

It is clear from the foregoing that even if the article were to be read as only expressing the `opinion' that Cianci committed the crimes of rape and obstruction of justice, it is not absolutely protected as distinguished from the protection afforded by Sullivan. The charges of rape and obstruction of justice were not ...

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