Harte v. Chicago Council of Lawyers

581 N.E.2d 275, 220 Ill. App. 3d 255, 163 Ill. Dec. 324, 1991 Ill. App. LEXIS 1725

• Court: Appellate Court of Illinois
• Decided: October 4, 1991
• Docket: 1-90-2742
• Status: Published

Opinions

PRESIDING JUSTICE RAKOWSKI

delivered the opinion of the court;

Plaintiff-appellant William J. Harte appeals from the dismissal of his complaint alleging defamation per se and false-light invasion of privacy against defendants-appellees Chicago Council of Lawyers and Jeffrey B. Gilbert (Chicago Council and Gilbert, respectively). The trial court dismissed plaintiff’s initial complaint, giving plaintiff leave to replead a defamation per quod action. Subsequently, plaintiff filed a motion to reconsider, or alternatively, sought leave to file a proposed amended complaint which again attempted to state the causes of action of defamation per se and invasion of privacy. Plaintiff appeals the trial court’s denial of this motion and the denial of leave to file the amended complaint. We affirm.

Plaintiff’s proposed amended complaint alleged the following. Plaintiff is an attorney practicing law principally in Chicago, Illinois. Defendants Chicago Council and Gilbert were an Illinois bar association and its president, respectively, at the time of the pertinent publications which give rise to this suit. On February 6, 1990, defendants published a report which related to judicial candidates for the upcoming Illinois Supreme Court election.

Plaintiff alleged that in the report, which was attached to the amended complaint, defendants falsely 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.”

The amended complaint further alleged that contemporaneously with the publication of the written report, defendants, through defendant Gilbert, were interviewed by members of the press. Gilbert told a reporter from the Chicago Sun-Times that “[o]ne example of alleged favoritism in Greylord cases involved several prominent lawyers who each gave $1,000 to convicted Circuit Judge Richard LeFevour.” An article attributing that statement to Gilbert was published in the Sun-Times on February 9, 1990. (This article, too, was attached to the proposed amended complaint.) Plaintiff alleged on information and belief that defendant Gilbert specifically identified plaintiff as one of the persons implicated in Greylord cases to the author of the article.

Operation Greylord was a highly publicized Federal investigation and series of criminal charges relating to instances of corruption by members of the Illinois bar and bench. As a result of the publicity attendant to Operation Greylord, numerous groups, including defendants, have discussed ways to improve the Illinois court system. Defendants have used Operation Greylord as a forum to advocate their views on reform of the Illinois judicial system. In connection with the then-upcoming election and in an effort to advocate their views on judicial reform, defendants published their report.

Chicago Council was given leave by the Illinois Supreme Court to appear as amicus curiae in a number of attorney discipline cases prosecuted by the Administrator of the Attorney Registration and Disciplinary Commission (ARDC). Among the cases which the ARDC prosecuted was In re Corboy (1988), 124 Ill. 2d 29, 528 N.E.2d 694. Among the attorneys whose cases were decided in this case was plaintiff. Plaintiff alleged that as amicus curiae in his case, Chicago Council and Gilbert knew of the charges brought against plaintiff, knew of plaintiff’s testimony, and that defendants knew that plaintiff was not “implicated” in Operation Greylord. Defendants also knew, plaintiff alleged, that plaintiff had never been the target of a Federal investigation into criminal wrongdoing and that plaintiff had not been identified in any Greylord case as having engaged in wrongdoing or criminal activity. Defendants knew that plaintiff served as attorney to James LeFevour, originally a target of investigation and a key government witness, and that plaintiff’s involvement in Operation Greylord was limited to his capacity as an attorney. Plaintiff further alleged that he contacted the then-United States Attorney and an assistant United States Attorney, and inquired whether he had been implicated in the investigation. Plaintiff was assured that he was not and that his name had not surfaced in connection with suggestion of wrongdoing.

Cook County Circuit Court Judge Richard LeFevour was indicted as a result of Operation Greylord. During Judge LeFevour’s trial, evidence was introduced which established that LeFevour received a check, signed by plaintiff, in the amount of $1,000. In the amended complaint, plaintiff related the circumstances in which the check was given to LeFevour. The disciplinary proceeding brought against plaintiff established that plaintiff was informed in a brief conversation with Walter Ketchum that LeFevour’s mother was hospitalized and sought release from the hospital during the holiday season. She was concerned that because of her inability to satisfy her health care obligations, she might not be readmitted to the hospital after the holidays. Plaintiff was asked to lend $1,000 to Mrs. LeFevour to satisfy her health care obligations until her insurance could provide reimbursement, and plaintiff agreed to do so. Plaintiff’s best friend is Raymond LeFevour, Richard LeFevour’s cousin. Plaintiff has known the LeFevours since the 1950’s.

Because LeFevour’s mother was at the time incompetent, the check was made payable to Richard LeFevour, who was acting as the conservator of his mother’s estate. Plaintiff did not intend in the transaction to convey a thing of value to Richard LeFevour or to interfere with the administration of justice, and defendants knew this. Defendants also knew the facts surrounding the transaction. While Mrs. LeFevour’s hospital expenses were ultimately reimbursed by her insurance carriers, the $1,000 loan was never repaid to plaintiff.

Plaintiff’s amended complaint further elaborated on the disciplinary proceedings before the supreme court. Walter M. Ketchum was also a party to this proceeding. The ARDC’s Administrator recommended a harsher sanction against Ketchum than against plaintiff. Chicago Council, in its capacity as amicus curiae, did not address the differing levels of discipline recommended and acknowledged that “mitigating factors may be present in certain of [the specific] cases.” A copy of Chicago Council’s brief in the disciplinary case was attached to the proposed amended complaint. Plaintiff alleged that defendants thus knew that the different sanctions imposed in his case were not the result of favoritism exhibited by the Illinois Supreme Court and that the attorneys in that case did not engage in conduct which constituted similar ethical lapses.

Defendants moved pursuant to section 2 — 615 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2—615) to dismiss the original complaint. Defendants asserted several grounds for dismissal, including: substantial truth (which the trial court denied due to the impropriety of the defense being asserted by way of a section 2—615 motion); that the allegedly defamatory words could be innocently construed; and that the complained-of defamation could not be per se defamation given that it was not alleged that defendants specifically named plaintiff. The trial judge granted the motion on both of these latter grounds. The amended complaint, as indicated, alleges that Gilbert referred to plaintiff by name when being interviewed by the Sun-Times reporter.

The pivotal issue before this court is whether plaintiff’s proposed amended complaint states a cause of action for per se defamation. Defamatory statements may be actionable per se or actionable per quod. A publication is actionable per se if it is “so obviously and naturally harmful to the person to whom it refers that a showing of special damages is unnecessary.” (Owen v. Carr (1986), 113 Ill. 2d 273, 277, 497 N.E.2d 1145.) The defamatory character of such a statement is apparent on its face, and extrinsic facts are not necessary to explain. (Schaffer v. Zekman (1990), 196 Ill. App. 3d 727, 731, 554 N.E.2d 988, citing Brown & Williamson Tobacco Corp. v. Jacobson (7th Cir. 1983), 713 F.2d 262, 267.) Statements are actionable per quod if they necessitate extrinsic facts or innuendo to explain their defamatory meaning and require evidence demonstrating, as a matter of fact, that substantial injury resulted to the plaintiff from their use. Schaffer, 196 Ill. App. 3d at 731, citing Heerey v. Berke (1989), 188 Ill. App. 3d 527, 532, 544 N.E.2d 1037.

Words are considered defamatory per se in Illinois if they: (1) impute the commission of a criminal offense; (2) impute infection with a loathsome communicable disease; (3) impute inability to perform or want of integrity in discharge of duties of office or employment; or (4) prejudice a party, or impute lack of ability, in his trade. Mittelman v. Witous (1989), 135 Ill. 2d 220, 238-39, 552 N.E.2d 973.

In Mittelman, the Illinois Supreme Court reaffirmed the use of the “innocent construction” rule in Illinois. The rule, as modified in the case of Chapski v. Copley Press (1982), 92 Ill. 2d 344, 442 N.E.2d 195, provides as follows:

“[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.” (Chapski, 92 Ill. 2d at 352.)

If a statement is reasonably capable of a nondefamatory interpretation, given its context, it should be so construed, and there is no balancing of reasonable constructions. Mittelman, 135 Ill. 2d at 232.

Accordingly, we must resolve whether the allegedly defamatory statements are capable of being innocently construed. We note that defendants have not asserted that the publications at issue are not capable of a defamatory interpretation in the first instance. A clear understanding of the context of the statements is necessary to resolution of this issue. Plaintiff contends that the statement in defendants’ report that “with regard to disciplining attorneys implicated in Operation Greylord, the [sjupreme court has treated less prominent attorneys far more harshly than prominent ones with similar ethical lapses” is defamatory. The statements in the Sun-Times article plaintiff contends are defamatory, in substance, are that plaintiff and other lawyers were the recipients of “favoritism” from the supreme court in connection with their disciplinary actions.

Defendants’ report was entitled “REPORT OF THE CHICAGO COUNCIL OF LAWYERS ON JUDICIAL CANDIDATES FOR THE ILLINOIS SUPREME COURT FOR VACANCIES FROM COOK COUNTY IN THE PRIMARY ELECTIONS TO BE HELD ON MARCH 20, 1990.” The five-page report with attachments, in its entirety, is devoted to a review and criticism of the Illinois Supreme Court and evaluations of candidates for vacancies in the court in the upcoming election. The article is entitled “State high court accused of favoritism on ethics,” and is concerned with defendants’ criticism of the Illinois Supreme Court’s handling of the aforementioned ethics cases as well as the evaluations defendants gave judicial candidates.

Given the context of the statements relating to plaintiff being a beneficiary of “favoritism,” which must be considered (Mittelman, 135 Ill. 2d 220, 552 N.E.2d 973), it is apparent that the statement can reasonably be innocently (indeed logically) construed as criticizing the Illinois Supreme Court, and not plaintiff. To be the beneficiary of “favoritism,” does not, as plaintiff implies, necessarily suggest wrongdoing on the part of plaintiff in his relations with the court. One may be a favorite for any number of reasons that do not implicate any wrongdoing.

As to the statement in the report, in conjunction with Gilbert’s statement, that plaintiff was “implicated in Operation Greylord,” plaintiff contends that this statement conveys the following: “To say that one has been ‘implicated’ in ‘Operation Greylord’ is to state that that person has been identified in an incriminating way in the federal investigation into judicial corruption in Cook County, Illinois. Defendants’ statement accused plaintiff of having engaged in the type of conduct which formed the basis of the Operation Greylord investigation and gave rise to the indictment and conviction of various attorneys, judges and court personnel.”

As support for this interpretation, plaintiff puts forth a dictionary definition of the word “implicate” which defines the word as “to involve intimately or incriminatingly” (emphasis added). Thus, according to plaintiff’s own definition of the word, defendants’ statement that he was implicated in Operation Greylord can reasonably be innocently interpreted to mean that plaintiff was only intimately involved in Operation Greylord. Another dictionary definition supplies a definition of the word “implicate” as, inter alia, “to involve as a consequence, corollary, or natural inference.” (Webster’s Ninth New Collegiate Dictionary 605 (1989).) This definition suggests a reasonable innocent construction of defendants’ statement amounting to the observation that plaintiff’s disciplinary proceeding before the Illinois Supreme Court was a consequence of Operation Greylord. It is important to note, as the trial court observed and as we have indicated, that the innocent construction rule does not allow for the balancing of reasonable constructions, and we need not decide whether defendants’ interpretation of the statements at issue or plaintiff’s is more reasonable than the other.

In holding as we do, we do not suggest that any seemingly innocent alternative definition from a reputable dictionary necessitates that a court hold that a statement may reasonably be innocently construed. The gist of the innocent construction rule is that the statement is to be construed in the context it is published in, and that words should be given their natural and obvious meanings. While the fact that one of several alternative dictionary definitions provides for an innocent interpretation of a statement is persuasive authority that a statement has a reasonable innocent construction, such an alternative definition is not dispositive of the issue.

Berkos v. National Broadcasting Co. (1987), 161 Ill. App. 3d 476, 515 N.E.2d 668, upon which plaintiff heavily relies, is distinguishable. There, the court held that plaintiff’s complaint complaining of defendants’ broadcast of a news report pertaining to Operation Greylord stated a cause of action for libel per se. In Berkos, the entire focus of the broadcast was on judicial corruption, and the plaintiff-judge was, according to the court, referred to in such a manner as to impute that the plaintiff had engaged in criminal conduct. Here, on the other hand, while the context of the complained-of publications is on judicial shortcomings, the plaintiff is not a judge. Additionally, because the Berkos court did not have the benefit of the Mittelman decision, it may have misapplied the innocent construction rule, as evidenced by the following reasoning. “We cannot say that the insinuation here is so equivocal or ambiguous that an innocent interpretation is equally or more reasonable. As a result the trial court’s orders cannot be affirmed either on the basis that [defendant’s] remarks would not be understood as defamatory by a reasonable viewer of ordinary intelligence, or on the ground that the remarks are more reasonably construed as innocent in their overall context.” (Berkos, 161 Ill. App. 3d at 488.) Such reasoning evinces the balancing process which our supreme court in Mittelman specifically disapproved. (See Mittelman, 135 Ill. 2d at 232 (where the court, in response to the argument by Mittelman that dismissal of the defamation count was appropriate “only where the court finds an innocent construction is ‘equally or more reasonable’ than a defamatory construction,” observed “[tjhere is no balancing of reasonable constructions as Mittelman suggests”).) The Berkos court, however, did make a perceptive observation that in the context of the news report, the question arose as to what newsworthy value the reference to the plaintiff would have served absent the interpretation plaintiff suggested. (Berkos, 161 Ill. App. 3d at 487.) Here, on the other hand, the reference to plaintiff’s disciplinary case and treatment from the supreme court served as an illustration of defendants’ criticisms of the Illinois Supreme Court.

As the statements in this case are capable of reasonably being construed in a manner that does not impute the commission of a crime, impute a want of integrity in the discharge of plaintiff’s duties as an attorney or prejudice plaintiff in his profession, we hold that plaintiff has failed to state a cause of action for defamation per se. Thus, the trial court was correct in dismissing count I of the original and proposed amended complaints.

It follows that as plaintiff has failed to state a cause of action for defamation per se, count II, alleging invasion of privacy (false light), must fail as well. Plaintiff admits as much in his briefs and again at oral argument. See Schaffer, 196 Ill. App. 3d at 734-36.

Accordingly, the judgment of the circuit court is affirmed.

Affirmed.

MURRAY, J., concurs.