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Brennan v. Kadner

August 11, 2004

[5] DENNIS BRENNAN, PLAINTIFF-APPELLANT
v.
PHIL KADNER AND MIDWEST SUBURBAN PUBLISHING, INC. D/B/A DAILY SOUTHTOWN, INC., DEFENDANTS-APPELLEES.



[6] Appeal from the Circuit Court of Cook County, Law Division No. 02 L 012996. Honorable Philip L. Bronstein Judge Presiding.

[7] The opinion of the court was delivered by: Justice Hall

[8]  Plaintiff, Dennis A. Brennan, filed this defamation action against Midwest Suburban Publishing, Inc., d/b/a Daily Southtown, Inc., and Phil Kadner, a columnist for the Daily Southtown newspaper, for alleged damages arising from the publication of a column regarding plaintiff's appearance at an administrative hearing before the Illinois State Board of Elections (Election Board). Plaintiff's two-count complaint alleged defamation per se (count I) and false light invasion of privacy (count II).

[9]  The trial court dismissed the complaint pursuant to both section 2-615 and section 2-619 of the Illinois Code of Civil Procedure (Code) (735 ILCS 5/2-615, 2-619 (West 1996)), ruling that the alleged defamation was not a verifiable fact and was subject to an innocent construction. Plaintiff appeals from the trial court's order granting defendants' motion to dismiss.

[10]   On appeal, plaintiff contends that: (1) the published statement in defendants' column announcing that plaintiff used the United States mail to perpetrate a fraud constitutes defamation per se rather than constitutionally protected opinion; (2) the statement at issue is not reasonably capable of an innocent construction; (3) the statement is not substantially true; (4) his complaint sufficiently alleges actual malice; and (5) his complaint states a claim for false light invasion of privacy. For the reasons that follow, we affirm.

[11]   BACKGROUND

[12]   In February or early March of 2001, plaintiff and several other individuals formed a political committee referred to as the Committee to Stop the Hurckes Four. The committee was established to oppose the election of four candidates who were running for positions on the school board in Oak Lawn Community High School District 229 (District 229). See Brennan v. Illinois State Board of Elections, 336 Ill. App. 3d 749, 754, 784 N.E.2d 854 (2002). The four candidates were endorsed by Jerry Hurckes, a village trustee, who some years before, had been accused of committing election fraud.

[13]   Plaintiff was legal counsel for District 229. It was established that if the four candidates Hurckes endorsed were elected to the school board, plaintiff would lose his contract as counsel for the school district. See Brennan, 336 Ill. App. 3d at 754. Plaintiff personally loaned the committee funds to produce a professional videotape attacking the four candidates for being associated with Hurckes. Shortly before the election, copies of the videotape were mailed to over 7000 registered voters in the school district.

[14]   On August 7, 2001, the Election Board filed an amended complaint charging plaintiff and the committee with violation of various sections of the Illinois Election Code (Election Code) (10 ILCS 5/9-1 et seq. (West 2000)), pertaining to the disclosure of campaign contributions and expenditures. See Brennan, 336 Ill. App. 3d at 752-55.

[15]   After several administrative hearings were held, an Election Board hearing officer issued a written report on October 5, 2001, finding, inter alia, that the committee and plaintiff failed to report contributions to the committee in excess of $500 within two business days; plaintiff failed to turn over to the acting committee chairman financial receipts and proofs of transactions to the committee; plaintiff filed a false D-1 statement of organization naming David Zapata as chairman and treasurer when, in fact, plaintiff was the committee's de facto chairman and treasurer; plaintiff allowed the committee to accept and expend funds at a time when the committee had vacancies in the offices of chairman and treasurer; plaintiff filed a false D-1 and amended D-1 by failing to list his name as a sponsoring entity; and plaintiff's actions were performed with the intent to violate the Election Code. Brennan, 336 Ill. App. 3d at 758.

[16]   Six days later, on October 11, 2001, the Daily Southtown published a column authored by Kadner, entitled "State's election laws may be a paper tiger." The column focused on Kadner's concern that in light of a Will County circuit court's ruling that the State Gift Ban Act (5 ILCS 425/1 et seq. (West 2000)) was unconstitutional (see Flynn v. Ryan, 199 Ill. 2d 430, 771 N.E.2d 414 (2002)), the Election Board might not have the statutory authority to financially penalize plaintiff for his conduct in violating the Election Code.

[17]   In the column, Kadner discussed a report published in a newsletter on state politics called "Capital Fax," which was produced by Rich Miller, a fellow columnist for the Daily Southtown. The column contained the following relevant passages:

[18]   "The hearing officer, in addition to recommending a fine for [plaintiff], also urged that the case be turned over to the Illinois attorney general or Cook County state's attorney for possible criminal prosecution.

[19]   Capital Fax reported that [Al Zimmer, the election board's general counsel] recommended that the election board forward its information to the Cook County state's attorney, but also recommended that the Illinois Attorney and ...


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