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Krueger v. Lewis

July 24, 2003

PATRICIA KRUEGER, PLAINTIFF-APPELLANT,
v.
MARY ANN LEWIS, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County. No. 01 L 671 Honorable Kathy M. Flanagan, Judge Presiding.

The opinion of the court was delivered by: Justice Theis

UNPUBLISHED

Plaintiff, Patricia Krueger, appeals from an order of the circuit court granting defendant's, Mary Ann Lewis's, motion to dismiss plaintiff's complaint under section 2-615 of the Illinois Code of Civil Procedure (735 ILCS 5/2-615 (West 2000)). Plaintiff argues the trial court erred in dismissing the complaint in that it adequately stated a cause of action for slander per se and the defendant's communications were not absolutely privileged. For the following reasons, we reverse.

The complaint alleges the following facts. Plaintiff held the position of Village trustee of the Village of Lyons since April 20, 1999. On Tuesday, June 19, 2001, plaintiff served at a televised meeting of the Village of Lyons board of trustees which contained an "audience crowded with Lyons citizens and voters." Plaintiff alleges that defendant, "maliciously intending to injure plaintiff in her good name and reputation," charged that plaintiff "in her capacity as a Village Trustee, had accepted a bribe to establish a [tax increment financing] district in the Village of Lyons, and that [p]laintiff was pocketing money from developers in exchange for [p]laintiff's cooperation." Plaintiff requested that defendant repeat her statement and defendant did so. Defendant made the statement "upon information and belief, in full knowledge that [it was] untrue or in reckless disregard of [its] truth or falsity, and for the purpose of injuring plaintiff in her good name and business." Plaintiff further alleges that "[a]t the time of the publication of her statement, the defendant made no reasonable effort to inquire as to the truthfulness of her claim that [p]laintiff accepted bribes." Plaintiff claims these statements have caused injury to her reputation and seeks $50,000 in compensatory damages and $250,000 in punitive damages.

Defendant filed a section 2-615 motion to dismiss (735 ILCS 5/2-615 (West 2000)), arguing, inter alia, that her statements were absolutely privileged. The trial court granted the motion to dismiss, finding the statements were absolutely privileged because they were made at a legislative proceeding. Plaintiff appeals.

We first address defendant's argument that the trial court properly granted the motion to dismiss under section 2-615 because plaintiff has not pleaded the actual words used by defendant as indicated by the lack of quotation marks around the slanderous statements.

When conducting our de novo review of a motion to dismiss under section 2-615, we accept all well-pleaded facts in the complaint as true and draw all reasonable inferences from those facts in favor of the nonmoving party. Casualty Insurance Co. v. Hill Mechanical Group, 323 Ill. App. 3d 1028, 1032, 753 N.E.2d 370, 374 (2001). A complaint is susceptible to dismissal under section 2-615 for failure to state a cause of action only when it clearly appears that no set of facts could be proved under the pleadings that would entitle plaintiff to relief. Casualty Insurance Co., 323 Ill. App. 3d at 1033, 753 N.E.2d at 374. A pleader is not required to set out his evidence. Casualty Insurance Co., 323 Ill. App. 3d at 1034, 753 N.E.2d at 374. Only the ultimate facts to be proved need be alleged, not the evidentiary facts tending to prove such ultimate facts. Casualty Insurance Co., 323 Ill. App. 3d at 1034, 753 N.E.2d at 374.

A complaint for defamation must set forth the words alleged to be defamatory "clearly and with particularity." Lykowski v. Bergman, 299 Ill. App. 3d 157, 163, 700 N.E.2d 1064, 1069 (1998). This rule allows the defendants to properly formulate their answer and affirmative defenses (Lykowski, 299 Ill. App. 3d at 163, 700 N.E.2d at 1069), and to provide the court with the ability to meaningfully review the statements (Mittleman v. Witous, 135 Ill. 2d 220, 230, 552 N.E.2d 973, 978 (1989) (abrogated on other grounds by Kuwik v. Starmark Star Marketing & Administration, Inc., 156 Ill. 2d 16, 619 N.E.2d 129 (1993)). Although the alleged defamatory words are invariably quoted verbatim in the reported cases (3 R. Michael, Illinois Practice §24.7, at 379 (1989)), no Illinois case has ever held that the pleader must place the slanderous remarks within quotation marks. Rather, courts measure the specificity of an allegation by determining whether it states a conclusion or a fact. See, e.g., Mittleman, 135 Ill. 2d at 230, 552 N.E.2d at 978; Lykowski, 299 Ill. App. 3d at 163, 700 N.E.2d at 1069. This is particularly true where the reproduction of those statements may be more difficult, as in slander cases. Mittleman, 135 Ill. 2d at 230, 552 N.E.2d at 978.

Here, plaintiff has adequately alleged ultimate facts supporting a cause of action for slander per se. Statements that accuse a public official of accepting a bribe are sufficient, and it is not necessary that the statement charge the criminal offense of bribery or official misconduct with the precision of an indictment. Catalano v. Pechous, 83 Ill. 2d 146, 157, 419 N.E.2d 350, 355-56 (1980) (holding that defendant's statement that "two hundred forty pieces of silver changed hands-thirty for each alderman" constituted defamation). Plaintiff alleges that on June 19, 2001, she was serving as a trustee in a crowded, televised board meeting. Defendant stated that plaintiff had taken a bribe from developers in return for establishing a tax increment financing district and that plaintiff was pocketing money from developers in exchange for plaintiff's cooperation. We can conduct a meaningful review, as the complaint adequately alleges words that directly impute the commission of the criminal offense of bribery and therefore constitute slander per se. Furthermore, these statements are specific enough that defendant has asserted the affirmative defense of absolute privilege.

We thus reject defendant's argument that the lack of quotation marks around the alleged defamatory comments demonstrates plaintiff has not pleaded the actual words. This argument violates the principle that we must take all well-pleaded facts as true and draw all reasonable inferences in the favor of plaintiff. There is nothing to indicate in the complaint, which we take as true, that these were not the specific words actually used. Mittleman, 135 Ill. 2d at 230, 552 N.E.2d at 978. Therefore, defendant has not demonstrated that it clearly appears that no set of facts could be proved under the pleadings that would entitle plaintiff to relief. Casualty Insurance Co., 323 Ill. App. 3d at 1032-33, 753 N.E.2d at 374.

Defendant further argues that a videotape of the allegations exists, and therefore the statements could have easily been reproduced by the plaintiff. She also indicates that the videotape would demonstrate that plaintiff did not properly allege the statements made. Defendant's argument is misplaced because of her choice to pursue dismissal of the complaint under section 2-615 (735 ILCS 5/2-615 (West 2000)), where we look at only the four corners of the complaint, rather than under section 2-619 (735 ILCS 5/2-619 (West 2000)), where evidentiary material may be submitted. The complaint does not state the comments were videotaped, nor does it relate any other form of the statement. Defendant provides no authority to allow judicial notice that a televised Village of Lyons board meeting was videotaped. More importantly, defendant has not furnished an affidavit or the videotape accompanying a section 2-619 motion, allowing us to review her assertions. See, e.g., Berkos v. National Broadcasting Co., 161 Ill. App. 3d 476, 515 N.E.2d 668 (1987) (defendants presented to court a videotape and transcript of pertinent portion of television broadcast).

We turn now to defendant's argument that the statement was "absolutely privileged" because it was made at a legislative proceeding and therefore protected by the first amendment. We first note that defendant miscontrues the nature of the privilege that she asserts. The pleading implications of the "constitutional privilege" derived from New York Times Co. v. Sullivan, 376 U.S. 254, 11 L. Ed. 2d 686, 84 S. Ct. 710 (1964), and its progeny are separate and distinct from the "absolute privilege" as found in Joseph v. Collis, 272 Ill. App. 3d 200, 649 N.E.2d 964 (1995), which protects a private citizen's statements made at legislative proceedings.

Under the constitutional privilege, a public official plaintiff must plead and prove actual malice, meaning 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. New York Times Co., 376 U.S. 254, 11 L. Ed. 2d 686, 84 S. Ct. 710. The public official-public figure rule is often, misleadingly perhaps, referred to as a privilege, but the impact of the rule has been analyzed in terms of the intent element of the tort. Restatement (Second) of Torts §580A, comment e, at 19 (1977); 3 R. Michael, Illinois Practice §24.7, at 380 (1989). On appeal, defendant does not challenge plaintiff's allegations that the statement was false and that it was made with the knowledge of its falsity or in reckless disregard of whether it was false or true. Rather, defendant asserts that the alleged statements were absolutely privileged.

Even were we to address the constitutional privilege, we find that plaintiff has plead sufficient facts under the liberal pleading standards to allege actual malice. While the bare assertion of actual malice is not enough to state a cause of action (Coursey v. Greater Niles Township Publishing Corp., 40 Ill. 2d 257, 266, 239 N.E.2d 837, 841-42 (1968)), allegations that the statements made were false, were made with knowledge of their falsity, or were made in reckless disregard as to their truth or falsity have been held by our supreme court to be sufficient to withstand a motion to dismiss (Colson v. Stieg, 89 Ill. 2d 205, 215-16, 433 N.E.2d 246, 250-51 (1982) (actual malice sufficiently alleged where complaint stated that statement was made by defendant "knowing it to be false" and was made maliciously, intentionally, and wilfully); see also Weber v. Woods, 31 Ill. App. 3d 122, 127, 334 N.E.2d 857, 860 (1975) (actual malice sufficiently alleged where complaint stated that defendant, knowing the facts, maliciously intended to injure plaintiff and bring him into public scandal, disrepute and disgrace, by falsely and maliciously publishing statements concerning plaintiff that were false, scandalous, malicious and defamatory)). Here, plaintiff ...


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