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Tirio v. Dalton

Court of Appeals of Illinois, Second District

September 30, 2019

JOSEPH J. TIRIO, Petitioner-Appellee,
JANICE DALTON and BREAKER PRESS CO., INC., Respondents-Appellants The Illinois Integrity Fund, Intervenor-Appellant.

          Appeal from the Circuit Court of McHenry County. No. 18-MR-302 Honorable Kevin G. Costello, Judge, Presiding.

          SCHOSTOK, JUSTICE delivered the judgment of the court, with opinion. Justices Hudson and Hutchinson concurred in the judgment and opinion. Justice Hutchinson also specially concurred, with opinion.



         ¶ 1 The petitioner, Joseph J. Tirio, filed a petition for presuit discovery pursuant to Illinois Supreme Court Rule 224 (eff. May 30, 2008) against the respondents, Janice Dalton and Breaker Press Co., Inc. (Breaker). He sought to discover the identities of certain persons (the unknown defendants) who, as members of the intervenor, the Illinois Integrity Fund (Integrity Fund), created and published three allegedly defamatory campaign flyers. The flyers were mailed with the Integrity Fund's return address. Dalton, Breaker, and the Integrity Fund appeal from the order of the circuit court of McHenry County granting Tirio's Rule 224 petition. For the reasons discussed herein, we affirm.

         ¶ 2 I. BACKGROUND

         ¶ 3 On December 1, 2016, Tirio was sworn in as McHenry County Recorder. In 2018, while maintaining his recorder position, Tirio ran as a candidate in the Republican primary for the position of McHenry County Clerk. Dalton ran in the same Republican primary for the same position. Leading up to the 2018 primary election, the Integrity Fund published in McHenry County three flyers in opposition to Tirio's candidacy. The Integrity Fund paid Breaker to print the flyers. On the front of the first flyer, Tirio was depicted wearing a burglar mask and gloves. The flyer stated that "Crooked Joe Tirio" had a "secret taxpayer funded slush fund" and that he was "just another crooked politician." On the back of the flyer, it stated, in part, that Tirio hired four employees and paid for a vacation to New Mexico with funds from the "slush fund."

         ¶ 4 On the front of the second flyer, Tirio was again depicted wearing a burglar mask and gloves. It stated that "crooked Joe Tirio" and "his Chicago style politics" were "destroying the GOP with Chicago style sleaze." Using arrows as bullet points, the flyer listed "Slush fund, " "Taxpayer-funded vacations, " and "Moneyman for the racist campaigns of Brettman & Schuster." On the back of the flyer, it stated that "we know about" his "secret slush fund, " "patronage hires, " and "taxpayer-funded vacations." It also stated that "Joe Tirio is running for County Clerk to oversee our elections. Tirio is the moneyman behind the campaign of RACISM & HATE."

         ¶ 5 On the front of the third flyer, it stated that Tirio and his friends were wrong for McHenry County. On the back, it stated that Tirio and his friends were "David Duke Republicans" with extremist views. It also again referenced a secret slush fund, patronage hires, and taxpayer- funded vacations. It further stated "Make McHenry County Great Again" and "Vote No on Joe Tirio." In 2018, Dalton produced and published a "robo call" to numerous households in McHenry County, using language nearly identical to some of the language used in the flyers.

         ¶ 6 On May 22, 2018, after winning the Republican primary for McHenry County Clerk, Tirio filed a first amended petition pursuant to Rule 224 against Dalton and Breaker for the purpose of learning the identities of the unknown defendants. Tirio's petition incorporated by reference a proposed complaint against the unknown defendants. The complaint alleged that the masked image, "crooked" statement, "slush fund" statement, "hiring" statement, and "vacation statement" contained in the three flyers were defamatory per se.

         ¶ 7 On June 29, 2018, Dalton and Breaker filed a combined objection and motion to dismiss the Rule 224 petition. They argued that the petition should be dismissed pursuant to section 2-615 of the Code of Civil Procedure (Code) (735 ILCS 5/2-615 (West 2018)) and that they could not be forced to respond to discovery or disclose the unknown defendants, because the statements were not defamatory per se, the slush-fund and hiring statements were capable of an innocent construction, all the statements were protected political opinions, the statements were substantially true, and Tirio failed to allege facts sufficient to plead actual malice.

         ¶ 8 On August 23, 2018, following a hearing, the trial court found that the term "crooked" and the masked image were statements of political opinion and thus not actionable. But the trial court found that the references to a slush fund and a secret slush fund were statements of alleged fact that were arguably defamatory. The trial court found that, viewing the flyers as a whole, the references to a slush fund could not be innocently construed and could be viewed as defamatory per se for alleging both the commission of a crime and a lack of integrity in carrying out a public office. The trial court also found that it could not determine at that stage in the proceedings that the statements were substantially true. Thus, the allegations were sufficient to withstand a section 2-615 dismissal. Finally, the trial court found that Tirio had not sufficiently pleaded actual malice, specifically, allegations as to the falsity or knowing falsity of the statements in the flyers. The trial court granted the motion to dismiss as to Tirio's failure to plead actual malice, but it denied the motion as to all other matters.

         ¶ 9 On August 31, 2018, Tirio filed a second amended Rule 224 petition. Tirio had added allegations to his proposed complaint in an attempt to properly plead actual malice. In his complaint, Tirio alleged that the budget from the recorder's office was generated entirely from user fees collected in conducting its services, and not from any county taxpayer funds. The user fees were deposited into one of four accounts. Those four accounts were open to the public for inspection and included the County General Fund, the Recorder's Automation Fund (the ROA Fund), the Geographical Information Services Fund, and the Illinois State Regional Housing Support Program Fund. An accountant oversaw the four accounts, and the treasurer regularly audited the accounts. There had never been a secret fund, and there was no taxpayer-funded account maintained by Tirio or the recorder's office. The recorder's office filed a monthly revenue report that was a public record. The county budget and the treasurer's report were also matters of public record. The monthly treasurer's report included account balances, including the balance of the ROA Fund.

         ¶ 10 The complaint further alleged that, between the date he took office and March 2018, Tirio hired four individuals. The positions were publicly advertised. A hiring committee from the recorder's office interviewed and hired the four individuals. Tirio did not know three of the four hires, and the fourth he had spoken with only briefly, following a lecture Tirio gave on real estate law. The four individuals were not Tirio's friends.

         ¶ 11 Tirio acknowledged in his complaint that he attended a Property Records Industry Association Conference in Albuquerque, New Mexico, for four days at the end of February 2017. He submitted meal vouchers for the trip, totaling about $50. He flew by commercial airline and booked a hotel about a block away from the conference, because it had lower room rates. He was not joined by any friends or family while he was at the conference and he did not take any personal excursions. The subject matter of the conference related to automation tasks being undertaken by the recorder's office. Tirio alleged that the unknown defendants must have known the purpose of the trip but chose to claim as fact in the flyers that "Crooked Joe paid for his vacation in New Mexico with the slush fund."

         ¶ 12 The complaint further alleged that the three flyers (attached as exhibits to the complaint) were mailed in February and March 2018 to hundreds of households in McHenry County. The complaint set forth three counts, with each count based on one of the three flyers. Tirio alleged that the statements in the flyers were individually and collectively defamatory per se, that the defamatory character of the statements was apparent on their face, that the statements were obviously and materially harmful to him, and that injury to his reputation could be presumed. Tirio alleged that the statements imputed the commission of a crime, an inability to perform or a want of integrity in the discharge of his duties of office, and a lack of ability in his profession. Further, the statements were not true, were not reasonably capable of an innocent construction, and were not privileged.

         ¶ 13 Finally, Tirio alleged that the flyers were published with actual malice, as the unknown defendants were aware that the recorder's office's funds were a matter of public record. Tirio alleged that the unknown defendants knew that (1) Tirio had a good reputation; (2) the accounts managed by the recorder's office were not "secret" but were a matter of public record; (3) the public records showed that the accounts were funded by user fees, not county taxes; (4) the public records showed that the accounts were not a "slush fund" for bribing public officials or carrying on corruptive propaganda or an unregulated fund used for illicit purposes; and (5) the unknown defendants knew that Tirio's trip to New Mexico was not for a vacation. Despite the foregoing knowledge, the unknown defendants made statements that accused Tirio of dishonorable and criminal conduct, theft of public funds, and official misconduct. Tirio thus alleged that the unknown defendants either knew that the statements were false or made the statements with reckless disregard as to the truth.

         ¶ 14 On September 28, 2018, Dalton and Breaker filed a combined objection to the petition and a section 2-615 motion to dismiss the complaint, arguing that Tirio had still not properly pled actual malice. On October 26, 2018, following a hearing, the trial court found that, regarding the slush-fund and vacation statements, Tirio had adequately pleaded that matters of public record could establish that those statements were not true and thus were made with actual malice.

         ¶ 15 On November 29, 2018, the trial court denied Dalton and Breaker's motion to reconsider and granted Tirio's Rule 224 petition. The trial court found that the "statements in the flyers that [Tirio] kept a secret slush fund and used taxpayer money to go on a vacation" clearly implied the crime of theft. Additionally, the trial court stated that "using the secret taxpayer-funded slush fund to go on vacation would [impute] a lack of integrity." The trial court stated that whether Tirio was "keeping a secret slush fund and using it to pay for a vacation" was something that could be verified. The trial court ordered Dalton and Breaker to answer limited discovery, namely, to identify the unknown defendants.

         ¶ 16 Dalton and Breaker filed a timely notice of appeal from this order and moved to stay enforcement of the order. The trial court denied the stay and ordered compliance by December 13, 2018. On that date, Dalton and Breaker declined to comply with the order for the sole purpose of preserving the status quo pending appeal.

         ¶ 17 On December 17, 2018, the trial court issued a rule to show cause why Dalton and Breaker should not be held in contempt for failing to comply with the disclosure order. The trial court granted the Integrity Fund's petition to intervene for the purpose of joining in Dalton and Breaker's response to the rule to show cause. The Integrity Fund authorized its counsel of record, Natalie Harris, to accept service on its behalf to allow Tirio to file and serve his complaint against it before the expiration of the one-year limitations period and to eliminate any risk of harm from a friendly contempt order. Over the objection of Dalton and Breaker and the Integrity Fund, the trial court refused to enter a friendly contempt order or impose nominal sanctions for the purpose of maintaining the status quo pending their appeal. The trial court held Breaker in indirect civil contempt and ordered its president incarcerated pending compliance with the disclosure order.

         ¶ 18 On December 21, 2018, at a hearing, Breaker's president divulged the names of the unknown defendants and the contempt order was vacated. The rule to show cause was dismissed as to Dalton, because she testified that she had never heard of the Integrity Fund or spoken with anyone associated with it. On January 18, 2019, Dalton and Breaker and the Integrity Fund filed an amended notice of appeal.

         ¶ 19 II. ANALYSIS

         ¶ 20 On appeal, Dalton and Breaker and the Integrity Fund (hereinafter the appellants) argue that the trial court erred in granting Tirio's Rule 224 petition. Specifically, the appellants contend that the petition should have been denied because Tirio's defamation complaint was not sufficient to withstand a section 2-615 motion to dismiss. The appellants argue that the slush-fund and vacation statements are protected from defamation liability and that Tirio failed to sufficiently allege actual malice. Additionally, the appellants argue that the trial court erred in denying their motion to stay the disclosure order pending this appeal and in denying their request for a friendly contempt finding.

         ¶ 21 At the outset, we must review whether this case is moot, even if neither party raises the issue, because mootness is a question of jurisdiction. Patel v. Illinois State Medical Society, 298 Ill.App.3d 356, 364 (1998). "The existence of an actual controversy is an essential requisite to appellate jurisdiction, and courts of review will generally not decide abstract, hypothetical, or moot questions." In re Marriage of Nienhouse, 355 Ill.App.3d 146, 149 (2004). "An appeal is moot when it involves no actual controversy or the reviewing court cannot grant the complaining party effectual relief." Steinbrecher v. Steinbrecher, 197 Ill.2d 514, 523 (2001).

         ¶ 22 The present case is arguably moot because Tirio has already learned the names of the unknown defendants and filed suit in McHenry County against those defendants. However, there are three recognized exceptions to the mootness doctrine: (1) the public-interest exception, (2) the collateral-consequences exception, and (3) the capable-of-repetition exception. In re Alfred H.H., 233 Ill.2d 345, 355-63 (2009). The first of these applies here.

         ¶ 23 The public-interest exception allows for review of an otherwise moot issue when the magnitude of the interests involved warrants action by the court. In re Shelby R, 2013 IL 114994, ΒΆ 16. The public-interest exception applies when (1) the question presented is of a public nature, (2) there is a need for an authoritative determination for the future guidance of public officers, and (3) the question is likely to recur. ...

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