NOTICE Decision filed 11/02/06. The text of NO. 5-06-0048 this decision may be changed or corrected prior to the filing of a Petition for Rehearing or the IN THE APPELLATE COURT disposition of the same.
OF ILLINOIS
FIFTH DISTRICT
GORDON MAAG, ) Appeal from Plaintiff-Appellant, ) Circuit Court of v. ) Madison County. ILLINOIS COALITION FOR JOBS, GROWTH ) No. 04-L-1395 AND PROSPERITY, an Unincorporated ) Association; THE ILLINOIS STATE CHAMBER) OF COMMERCE, a Not-for-Profit ) Corporation; RONALD GIDWITZ; ) and GREGORY BAISE, ) Honorable ) Patrick W. Kelley, Defendants-Appellees. ) Judge, presiding. _________________________________________________________________
JUSTICE KNECHT delivered the opinion of the court:
In the fall of 2004 plaintiff, Gordon Maag, was a member of the Illinois
Appellate Court running for retention in the Fifth Judicial District. He was also a
candidate in a contested race for the Illinois Supreme Court. The dispute in this case
arose from a flyer prepared by the Illinois Coalition for Jobs, Growth and Prosperity
(Coalition) mailed and hand delivered throughout the Fifth District headlined "In
Southern Illinois, the 'Wheels of Justice' have ground to a screeching halt... Gordon
Maag's Record On Crime: embarrassing--and dangerous." The flyer referred to plaintiff
as not thinking a crime was "exceptionally brutal" and "wantonly cruel" when the victim
was stabbed in the face, neck and chest with a butcher knife. The flyer also stated
plaintiff overturned sentences for a murderer, a drug dealer and a sexual predator.
Plaintiff filed a defamation per se action against the Coalition, the Illinois State Chamber of Commerce, Ronald Gidwitz and Gregory Baise (defendants). Plaintiff alleged the
flyer was intended to thwart his bid for retention. The trial court dismissed the action
under section 2-615 of the Code of Civil Procedure (Code) (735 ILCS 5/2-615 (West
2004)).
I. BACKGROUND
Here, in full, is the flyer on which the complaint is based:
"In Southern Illinois, the 'Wheels of Justice' have
ground to a screeching halt... Gordon Maag's Record
On Crime: embarrassing--and dangerous."
"Gordon Maag's Record on the Bench:
Questionable Decisions Bring Justice to a
Grinding Halt
You'd be surprised to learn about some
of Gordon Maag's rulings on the 5th District
Court of Appeals. They're one of the reasons
employers and jobs have been fleeing southern
Illinois...and who can blame them...
What was he thinking?
Judge Maag reduced a criminal's sentence for a
brutal stabbing because he didn't think it was 'exceptionally
brutal' and 'wantonly cruel'...the victim was stabbed in the
face, neck and chest with a butcher knife.
People v. Romell Johnson, Docket No. 5-99-0637,
333Ill.App.3d935
- 2 - Letting a Murderer Back on the Streets
Judge Maag reduced the jail time for a shooting
conviction, only to allow the four-time felon to later commit
murder. People v. Marcus Jackson, Docket No. 5-96-0243,
299Ill.App.3d323
A Mistake with Consequences
Judge Maag reversed a drug dealer's conviction,
allowing them [sic] to continue trafficking crack cocaine.
People v. Samuel Yarber, Docket No. 5-05-0143,
279Ill.App.3d519
Questionable Judgment
Judge Maag overturned a 1st degree murder convic-
tion because the jury was not given the correct instructions
for a lesser crime ...huh?
People v. Larry Biggerstaff, Docket No. 5-94-0695,
174Ill2d571
'Technicality' Justice?
Judge Maag turned a man convicted of soliciting the
murder of a pregnant woman free, on a technicality. People
v. William Terrell, Docket No. 5-02-0367, 339Ill.App.3d413
[sic]
Overturning the Conviction of a Sexual Predator
Judge Maag let a convicted child sexual predator
back on the streets because the trial judge read the jury
- 3 - testimony from the six year old victim; the jury had already
heard this testimony.
People v. Gary Miller, Docket No. 5-98-0434,
311Ill.App.3d772
Gordon Maag's decisions caused businesses and jobs
to flee southern Illinois. On November 2nd, tell him we
can't afford his brand of 'justice' anymore."
Plaintiff filed a single count complaint on December 20, 2004, alleging
defamation per se against all four defendants. It was alleged the Coalition published
the flyer "in its own right" and "as agent for the other defendants." Defendants moved to
dismiss the complaint under sections 2-615 and 2-619 of the Code (735 ILCS 5/2-615,
2-619 (West 2004)) for failure to state a claim on which relief can be granted. The trial
court took judicial notice, at the invitation of the parties, of the appellate opinions cited in
the flyer, the criminal histories of the defendants referred to in the flyer and the fact
plaintiff was a candidate in a contested judicial race when the flyer was dis-tributed.
After considering arguments from all the parties the trial court dismissed plaintiff's
complaint with prejudice as to all defendants on June 10, 2005. The court found the
flyer did not support an allegation of defamation per se as it criticized only plaintiff's
actions while a sitting judge and not his private character and did not impute to him
fraudulent motive or interest in conducting his duties as a judge.
On June 30, 2005, plaintiff filed a motion to reconsider and motion for
leave to amend. Appended to the motion to amend were two proposed amended
complaints. The first proposed amended complaint was pleaded in three counts
alleging defamation per se, defamation per quod and tortious interference with business
- 4 - relations. This complaint was to be filed if the trial court allowed plaintiff's motion to
reconsider the dismissal with prejudice of plaintiff's original complaint for defamation per
se. The second proposed amended complaint was to be filed if the trial court denied
leave to replead with respect to defamation per se and included only two counts, one for
defamation per quod and one for tortious interference with business relations.
On September 19, 2005, the trial court denied the motion to reconsider
and, in so doing, denied plaintiff leave to plead an amended defamation per se count
but allowed the filing of the two counts for defamation per quod and tortious interference
with business relations. On September 27, 2005, plaintiff filed his first amended
complaint with only those two counts.
Defendants filed section 2-615 motions to dismiss the first amended
complaint and plaintiff filed a reply. On December 7, 2005, the motions were heard by
conference call, and on December 28, 2005, the trial court granted all motions to
dismiss with prejudice, finding plaintiff had not alleged extrinsic facts sufficient to
establish a claim for defamation per quod given the court's previous ruling that the flyer
was not defamatory on its face nor did he allege either special damages or actual
malice with sufficient particularity. Finally, the court found a public officeholder did not
have sufficient expectancy of continued employment to support a tortious interference
with business relations claim.
Plaintiff appeals arguing the trial court erred (1) in finding he failed to state
a cause of action for defamation per se; (2) in finding he failed to state a cause of action
for defamation per quod; and (3) in finding he failed to state a cause of action for
tortious interference with business relations.
II. ANALYSIS
- 5 - A. Standard of Review
A dismissal under section 2-615 of the Code is reviewed de novo. Brandt
v. Boston Scientific Corp., 204 Ill. 2d 640, 644-45, 792 N.E.2d 296, 299 (2003). When
ruling on a section 2-615 motion to dismiss, the court must accept as true all well-
pleaded facts in the complaint and reasonable inferences drawn therefrom. Bryson v.
News America Publications, Inc., 174 Ill. 2d 77, 86, 672 N.E.2d 1207, 1213 (1996). If,
after viewing the allegations in the light most favorable to the plaintiff, the complaint fails
to state a cause of action on which relief can be granted, the motion should be granted.
Bryson, 174 Ill. 2d at 86, 672 N.E.2d at 1214.
B. Defamation Per Se
A statement is defamatory if it tends to cause such harm to the reputation
of another that it lowers that person in the eyes of the community or deters third persons
from associating with that person. Bryson, 174 Ill. 2d at 87, 672 N.E.2d at 1214. A
statement may be actionable per se if it is defamatory on its face and fits in one of the
limited categories outlined by our supreme court. Bryson, 174 Ill. 2d at 87, 672 N.E.2d
at 1214. These categories are: (1) words imputing the commission of a criminal
offense; (2) words imputing infection with a loathsome communicable disease; (3)
words imputing an inability to perform or want of integrity in the discharge of the duties
of office or employment; (4) words which prejudice a party or impute lack of ability in his
or her trade, profession or business; and (5) words imputing adultery or fornication.
Bryson, 174 Ill. 2d at 88-89, 672 N.E.2d at 1214-15. If the defamatory statement is
actionable per se, the plaintiff need not plead or prove actual damages as these
statements are thought to be so obviously harmful that injury to a plaintiff's reputation is
presumed. Bryson, 174 Ill. 2d at 87, 672 N.E.2d at 1214.
- 6 - Defendants contend plaintiff forfeited his right to challenge the dismissal of
his claim for defamation per se because he filed an amended complaint which did not
reallege that claim. In fact, plaintiff's motion for leave to file an amended complaint
asked for leave to file an amended complaint including a count alleging defamation per
se, including additional paragraphs attempting to address the trial court's concerns
about the original complaint, as well as additional counts alleging defamation per quod
and tortious interference. Alternatively, considering the trial court's dismissal with
prejudice of the original claim for defamation per se, plaintiff requested leave to file an
amended complaint alleging only defamation per quod and tortious interference. The
motion for leave to file an amended complaint was combined with a motion to recon-
sider the trial court's ruling dismissing the original defamation per se complaint.
After hearing arguments, the trial court denied the motion to reconsider
and granted the motion for leave to file an amended complaint only as to count II
(defamation per quod) and count III (tortious interference). Thus, the trial court denied
plaintiff's attempt to file his claim for defamation per se. Plaintiff did not abandon the
claim by failing to refile and reallege the claim. He has not forfeited his claim for
defamation per se.
We understand plaintiff's outrage with the flyer. The flyer is full of
disparagement and innuendo unbefitting a campaign for judicial office. Disagreement
with a judge's decisions is acceptable and criticism is to be expected. Expressing such
disagreement and criticism in an inflammatory and unreasonable manner is unseemly
and unproductive and has no place in what should be a reasoned debate on differing
judicial philosophies.
The hysterical hyperbole in the flyer is insulting to the judicial and electoral
- 7 - process. It devalues the intelligence of voters, and seeks to make us afraid and cast
blame. The flyer is the product of a mindset that believes voter manipulation can be
accomplished by resort to phrases that evoke emotion rather than thought. However,
ill-informed, mean-spirited hyperbole is not necessarily defamatory per se.
Plaintiff alleges he was defamed by the flyer at issue and it was defama-
tory per se in that it fell into two defamation per se categories: it imputed he is unable to
perform or lacks integrity in performing his employment duties and it imputed he lacked
ability or otherwise prejudiced him in his profession. He contends the trial court applied
a separate standard to him because he was both a public official and a candidate for
public office. Indeed, the trial court noted the flyer at issue would have been defamatory
per se if plaintiff had been a private citizen because it did impute both an inability to
perform the duties of office or employment and a lack of ability in plaintiff's profession.
We question whether a reader would conclude, based on the content of
the flyer, plaintiff lacked integrity or was unable to perform his duties, or lacked ability.
Instead, the reader would be likely to conclude plaintiff made judicial decisions with
which the authors of the flyer strongly disagreed. The trial court noted the flyer's
criticism was limited to plaintiff's decisions and record while in office and not his private
life and it did not suggest fraudulent motive or interest on the part of plaintiff in conduct-
ing official business. The trial court noted the flyer was disseminated during a hotly
contested political campaign where harsh criticisms are to be expected. Unfortunately,
reasoned public debate gave way to crass and calculated name-calling for the purpose
of partisan advantage. The trial court was correct in making these distinctions from
defamatory statements made about a private citizen.
When a person runs for public office, he puts his character in issue so far
- 8 - as it relates to his fitness and qualifications for office; therefore, his conduct and actions
are fair game for comment. Ogren v. Rockford Star Printing Co., 288 Ill. 405, 417, 123
N.E. 587, 592 (1919). "[A candidate's] acts may be canvassed and his conduct boldly
censured." (Emphasis in original.) Ogren, 288 Ill. at 417, 123 N.E. at 592.
The flyer at issue here charged plaintiff with bringing justice to a halt with
questionable decisions, his record on crime is dangerous and embarrassing, and as a
result of plaintiff's decisions, businesses and jobs were supposedly fleeing southern
Illinois. None of these charges implied plaintiff was dishonest or had ever committed
fraud or engaged in wrongful conduct as a judge. Instead, these charges suggested
plaintiff was soft on crime and this "softness" resulted in businesses leaving southern
Illinois. While the last assertion is unlikely in a cause and effect analysis, these
assertions were all merely opinion as to plaintiff's performance as a judge. None of
them were comments on his personal character and, thus, not actionable as defamatory
per se.
Further, the alleged defamatory statements in the flyer were nonactionable
opinion and not fact. While there is no first amendment privilege for statements of
opinion (Milkovich v. Lorain Journal Co., 497 U.S. 1, 19, 111 L. Ed. 2d 1, 18, 110 S. Ct.
2695, 2706 (1990)), a statement will receive first amendment protection from
defamation suits if it cannot be reasonably interpreted as stating actual facts about the
plaintiff. Milkovich, 497 U.S. at 20, 111 L. Ed. 2d at 19, 110 S. Ct. at 2706. To
determine whether a statement implies the existence of facts about the plaintiff, three
factors are considered. Hopewell v. Vitullo, 299 Ill. App. 3d 513, 518, 701 N.E.2d 99,
103 (1998). "First, we consider whether the language of the statement has a precise
and readily understood meaning, while bearing in mind that the first amendment
- 9 - protects overly loose, figurative, rhetorical, or hyperbolic language, which negates the
impression that the statement actually presents facts." Hopewell, 299 Ill. App. 3d at
518, 701 N.E.2d at 103. Second, whether the context of the statement negates the
impression a statement is factual is considered. Hopewell, 299 Ill. App. 3d at 519, 701
N.E.2d at 103. Finally, courts consider whether a statement may be objectively verified
as true or false. Hopewell, 299 Ill. App. 3d at 519, 701 N.E.2d at 103.
In determining whether statements are opinion or fact, allegedly libelous
language must be evaluated in its broader context to assess whether a reader would
have understood the allegation to be a statement of fact. Old Dominion Branch No. 496
v. Austin, 418 U.S. 264, 284, 41 L. Ed. 2d 745, 761-62, 94 S. Ct. 2770, 2781 (1974).
Exaggerated rhetoric is commonplace in political campaigns. In this case, the
statements were made as part of a hotly contested judicial election. Defendants
suggest the flyer is full of rhetoric without substance. This is both a sad and telling
admission. It is insulting to voters. If the purpose of the flyer is to sway the electorate,
then admitting it has no substance gives insight into what the flyer's authors think of
voters and the electoral process. This is not the robust and wide open debate one
would hope for in an election. We conclude the statements were "rhetorical hyperbole"
or terms "either too vague to be falsifiable or sure to be understood as merely a label for
the labeler's underlying assertions." Dilworth v. Dudley, 75 F.3d 307, 309 (7th Cir.
1996).
The statements made in the flyer in reference to specifically cited cases--
"What was he thinking?," "Letting a Murderer Back on the Streets," "A Mistake with
Consequences," "Questionable Judgment," "'Technicality' Justice?," and "Overturning
the Conviction of a Sexual Predator"--while not actual labels placed on plaintiff, would
- 10 - also fall into the opinion or "rhetorical hyperbole" category of nonactionable language.
More troublesome are the actual case citations and summaries underlying each of
these printed bullets. These are apparently cited as "facts" supporting the expressed
opinions.
The summaries of the cited cases are not completely accurate. Yet, the
provision of case citations for each case implies they can be verified as accurate factual
assertions. Defendants attempt to explain these inaccuracies by noting the flyer was
prepared by "laymen," not lawyers, and therefore some of the intricacies and nuances
of the law are not interpreted as they would be by someone with legal training.
However, several of the inaccuracies have nothing to do with legal "nuances" but with
facts easily identifiable in the written opinions such as where the flyer states plaintiff
reduced jail time or let defendants go free when their cases were actually remanded for
new trials.
For the most part, the inaccuracies have to do with what was left out--legal
explanations as to why certain results were reached, commonly known to laymen as
"technicalities"--and the addition of facts which, while apparently true, occurred in the
lives of the defendants in the cited cases after plaintiff's involvement in the cited cases
had ended and were not verifiable in the cited cases themselves. The thrust of the
summaries is that plaintiff participated in rulings that benefited criminal defendants.
While simplistic and misleading, it is also true. These are shallow and truncated
summaries of judicial decisions designed to generate fear and anger. However, these
statements are not actionable as defamatory because they are substantially true even
though not accurate in every detail. See Gist v. Macon County Sheriff's Department,
284 Ill. App. 3d 367, 371, 671 N.E.2d 1154, 1157 (1996).
- 11 - For all of these reasons, we find plaintiff failed to state a cause of action
for defamation per se and the trial court properly granted the motion to dismiss.
C. Defamation Per Quod
A defamation per quod claim is appropriate either where the defamatory
character of a statement is not apparent on its face and extrinsic evidence is necessary
to demonstrate its injurious meaning or where a statement is defamatory on its face but
does not fall under one of the categories of statements which are actionable per se.
Bryson, 174 Ill. 2d at 103, 672 N.E.2d at 1221. A plaintiff bringing a per quod claim
must also plead and prove special damages to recover. Bryson, 174 Ill. 2d at 103, 672
N.E.2d at 1221. Special damages are "actual damage of a pecuniary nature." Bryson,
174 Ill. 2d at 87-88, 672 N.E.2d at 1214.
Plaintiff does not allege extrinsic evidence to demonstrate the injurious
meaning of the statements in the flyer but argues, as he did for his per se claim, the
statements are defamatory on their face. As we have found above, the statements in
the flyer are not defamatory on their face. As previously noted in our discussion of
defamation per se, the alleged defamatory statements were also nonactionable opinion
and not fact.
Further, plaintiff has not alleged special damages, i.e., actual damages of
a pecuniary nature. He alleged he "has been injured in his personal reputation and in
his professional reputation so far as his fitness to sit on the appellate court is con-
cerned"; he "suffered personal humiliation, mental anguish and mental suffering"; and
he lost the salary and benefits of an appellate court judge. The first two categories do
not qualify as "special damages" as "general allegations such as damage to one's
health or reputation, economic loss, and emotional distress are insufficient to state a
- 12 - cause of action for defamation per quod." Kurczaba v. Pollock, 318 Ill. App. 3d 686,
694, 742 N.E.2d 425, 433 (2000).
As for the loss of plaintiff's position as an appellate judge, apparently no
Illinois appeals court has addressed this issue. However, it has been held to be fatal to
a claim for defamation per quod to fail to allege the flyer caused the candidate to slip in
the polls. Plaintiff did not identify any voter who was otherwise inclined to vote for him
and failed to do so because of the flyer, and plaintiff did not allege he slipped in the
polls. See Bauer v. Ribaudo, 975 S.W.2d 180, 182 (Mo. App. 1998); Carey v. Pulitzer
Publishing Co., 859 S.W.2d 851, 857 (Mo. App. 1993). Many factors determine the
outcome of an election (see Southwestern Publishing Co. v. Horsey, 230 F.2d 319, 322-
23 (9th Cir. 1956)). To say the flyer cost plaintiff the election is "far too speculative and
uncertain to entertain" as special damages. Aycock v. Padgett, 134 N.C. App. 164, 168,
516 S.E.2d 907, 910 (1999). The trial court was correct in dismissing plaintiff's claim for
defamation per quod.
D. Tortious Interference
To state a cause of action for tortious interference with prospective
economic advantage, plaintiff must allege (1) reasonable expectancy of entering into
valid business relationship; (2) the defendant's knowledge of the plaintiff's expectancy;
(3) intentional and unjustified interference by the defendant inducing or causing a
breach or termination of the expectancy; and (4) damages to the plaintiff resulting from
such interference. Anderson v. Vanden Dorpel, 172 Ill. 2d 399, 406-07, 667 N.E.2d
1296, 1299 (1996). The trial court found plaintiff failed to satisfy the first element
because "a public office holder *** does not have a sufficient expectancy of continued
employment to support a tortious interference claim."
- 13 - We agree with the trial court's assessment. An elected office is not a
property interest or a contractual right with which an officeholder has a recognizable
"reasonable expectancy" of continued employment as one might in an employment
setting. Apparently no Illinois appeals court has addressed this issue. We, as did the
trial court, decline plaintiff's invitation to follow California authority on this issue. The
trial court was correct in dismissing plaintiff's claim for tortious interference.
III. CONCLUSION
For the reasons stated, the judgment of the trial court is affirmed.
Affirmed.
SPOMER, P.J., and APPLETON, J., concur.
- 14 - NO. 5-06-0048 IN THE
APPELLATE COURT OF ILLINOIS FIFTH DISTRICT ___________________________________________________________________________ GORDON MAAG, ) Appeal from Plaintiff-Appellant, ) Circuit Court of v. ) Madison County. ILLINOIS COALITION FOR JOBS, GROWTH ) No. 04-L-1395 AND PROSPERITY, an Unincorporated ) Association; THE ILLINOIS STATE CHAMBER ) OF COMMERCE, a Not-for-Profit ) Corporation; RONALD GIDWITZ; ) and GREGORY BAISE, ) Honorable ) Patrick W. Kelley, Defendants-Appellees. ) Judge, presiding. ___________________________________________________________________________
Opinion Filed: November 2, 2006 ___________________________________________________________________________ Justices: Honorable James A. Knecht, J. Honorable Stephen L. Spomer, P.J., and Honorable Thomas R. Appleton, J., Concur ___________________________________________________________________________
Attorney Rex Carr, The Rex Carr Law Firm, LLC, 412 Missouri Ave., for East St. Louis, IL 62201 Appellant ___________________________________________________________________________ Attorneys Richard J. O'Brien, Eric S. Mattson, Tracy A. Braun, Jordan for S. Ginsberg, Sidley Austin LLP, One South Dearborn Street, Appellees Chicago, IL 60603; Justin A. Reichert, Bruce Stratton, Stratton, Giganti, Stone & Kopec, 725 South Fourth Street, Springfield, IL 62703; Tyrone C. Fahner, John M. Touhy, J. Gregory Deis, Mayer, Brown, Rowe & Maw, LLP, 71 South Wacker Drive, Chicago, IL 60606 ___________________________________________________________________________