Glorioso v. Sun-Times Media Holdings, LLC , 2024 IL 130137 ( 2024 )

2024 IL 130137IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
(Docket No. 130137)
MAURO GLORIOSO, Appellee, v. SUN-TIMES MEDIA
HOLDINGS, LLC, et al., Appellants.
Opinion filed November 21, 2024.
JUSTICE OVERSTREET delivered the judgment of the court, with opinion.
Chief Justice Theis and Justices Neville, Holder White, Cunningham, and
O’Brien concurred in the judgment and opinion.
Justice Rochford took no part in the decision.
OPINION
¶1 Defendants, Sun-Times Media Holdings, LLC, and Tim Novak, appeal the
judgment of the appellate court, which affirmed an order of the circuit court of
Cook County that denied their second motion to dismiss the defamation complaint
filed by plaintiff, Mauro Glorioso. On appeal, defendants contend the complaint is
subject to dismissal as a “Strategic Lawsuit Against Public Participation (SLAPP)”
pursuant to section 15 of the Citizen Participation Act (Act). 735 ILCS 110/15
(West 2022). For the following reasons, we find the lawsuit is not a SLAPP and
affirm.
¶2 I. BACKGROUND
¶3 A. Plaintiff’s Complaint
¶4 The following facts are derived from plaintiff’s complaint, which he filed on
January 5, 2021. Plaintiff is an Illinois attorney who was employed by the Property
Tax Appeal Board (PTAB) from December 2000 through October 2020. After
working as an administrative law judge (ALJ) for eight years, he was appointed as
a PTAB commissioner and, in 2016, as chairman of PTAB, where he served until
March 2019. At that time, Governor Pritzker appointed him executive director and
general counsel of PTAB.
¶5 On February 7, 2020, defendant published through the Chicago Sun-Times
website an article captioned “President’s Chicago tax appeal on Trump Tower is
under investigation” (February 7 article) (Tim Novak, President’s Chicago Tax
Appeal on Trump Tower Is Under Investigation, Chi. Sun-Times, Feb. 7, 2000,
https://chicago.suntimes.com/2020/2/7/21126855/donald-trump-tower-chicago-
property-tax-appeal-investigation [https://perma.cc/5VEN-YCLQ]). The
subheading of the February 7 article read “State inspector general, Pritzker
administration looking into allegation a Republican state agency head pressured
staff to slash by $1M the $2.5M in property taxes Donald Trump paid in 2012.” Id.According to the complaint, the article falsely identified plaintiff as being under
investigation for pressuring PTAB staff to grant a real estate reduction in excess of
$1 million on the property known as Trump Tower, based upon political loyalty,
rather than the merits of the case. In addition, the complaint alleges the February 7
article falsely stated that plaintiff did this to “cut the President a break” and that he
“rejected PTAB staff’s decision to deny Trump any award” as a consequence of
plaintiff’s “political motivations,” which were “improperly driving the decision-
making.”
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¶6 On Sunday, February 9, 2020, defendant republished a print version of the
February 7 article (February 9 article) in the Chicago Sun-Times newspaper. See
Tim Novak, Prez’s Tax Appeal on Chicago Tower Under Investigation, Chi. Sun-
Times, Feb. 9, 2000, at 4. On the front page of that edition, defendant published a
large color photograph of Trump Tower, with a superimposed photograph of
President Donald Trump waving, and in large, block letters printed “PROBING
PREZ’S CHICAGO TOWER TAX APPEAL.” Id. at 1. Underneath that caption
was the subheading “Two investigations looking into allegation that a Republican
state agency head pressured staff to slash property taxes Trump paid in 2012.” Id.
The front page directed readers to the inside pages of the newspaper, which
reprinted the substance of the February 7 article, along with a new headline in large,
block print that read “PREZ’S TAX APPEAL ON CHICAGO TOWER UNDER
INVESTIGATION,” followed by the subheading “State inspector, Pritzker
administration looking into allegation a Republican state agency head pressured
staff to slash $2.5M property taxes Trump paid in 2012 to $1M.” Id. at 4. The article
also included a color photograph of plaintiff.
¶7 On October 9, 2020, defendant published another article (October 9 article),
which was captioned “Pritzker dumps official who pushed for Trump to get $1
million refund on Chicago tower’s taxes.” See Tim Novak, Pritzker Dumps Official
Who Pushed for Trump to Get $1 Million Refund on Chicago Tower’s Taxes, Chi.
Sun-Times (Oct. 9, 2020), https://chicago.suntimes.com/2020/10/9/21509933/
trump-tower-chicago-property-tax-dispute-pritzker-mauro-glorioso-illinois-
property-tax-appeal-board [https://perma.cc/MSV5-UZ3M]. The October 9 article
included the subheading “[Plaintiff], a Westchester Republican the governor
appointed to head the [PTAB] is under a state investigation over his Trump Tower
recommendation.” Id. The complaint alleges the article falsely identified plaintiff
as having “pushed” or “pressured” a refund for Trump based on political
motivations, rather than the merits of the appeal. The October 9 article further
stated, “[t]he 64-year-old Westchester resident and staunch Republican rejected a
report from hearing officer Simeon Nockov, who found that Trump didn’t merit a
refund because Burke’s law firm didn’t present sufficient evidence to support one.”
Id. The complaint alleges the October 9 article also falsely stated that “[a]ny tax
refund for Trump would come out of property taxes to the city of Chicago and eight
other government agencies, the Chicago Public Schools losing the biggest chunk of
money: more than $540,000 if the president gets what [plaintiff] wants.” Id.
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¶8 On Sunday, October 11, 2020, defendant republished a print version of the
October 9 article (October 11 article). On the front page of the Chicago Sun-Times
newspaper of that date was a large, color photograph of Trump Tower and, in block
letters, a caption reading “GOV AXES OFFICIAL WHO PUSHED FOR $1M
TAX REFUND ON TRUMP TOWER.” Tim Novak, Gov Axes Official Who
Pushed for $1m Tax Refund on Trump Tower, Chi. Sun-Times, Oct. 11, 2020, at 1.
Underneath the caption was a color photograph of plaintiff and the subheading,
“[Plaintiff], a Westchester Republican who Pritzker appointed to head the [PTAB],
is under state investigation over his recommendation.” Id. The front-page
introduction then directed readers to a reprint of the October 9 article, which was
modified to include the headline “PRITZKER DUMPS OFFICIAL WHO
PUSHED FOR TRUMP TO GET $1M REFUND ON TOWER’S TAXES.” Id. at
18. The complaint alleges, on information and belief, that the articles were
circulated in print form to more than 120,000 people each and generally circulated
by defendant on the Internet.
¶9 Counts I and II of the complaint allege a cause of action for defamation
per quod based on the publication of the February 7 and February 9 articles
respectively. In support, these counts allege there had been a confidential,
anonymous complaint filed with the Office of the Executive Inspector General
(OEIG) regarding the Trump Tower PTAB appeal. Plaintiff alleges that, although
defendants acknowledged having reviewed this report, the February articles
dramatically distorted the substance of that report. Specifically, he alleges that,
contrary to the statements published therein, there were no statements in the
anonymous complaint that plaintiff (i) “pressured his staff to cut the president a
break,” (ii) “pressured his staff to rule in the president’s favor,” or (iii) “rejected
the [PTAB] staff’s decision to deny Trump any refund.” Further, the complaint
alleges there was no allegation in the anonymous complaint that plaintiff directed
that a legal decision on the Trump Tower property tax appeal be driven by political
motivations rather than the merits of the case. Count I alleges the February articles
do not constitute fair reports of the anonymous complaint and falsely depict
plaintiff as a corrupt political official lacking integrity in his occupation and
profession.
¶ 10 Counts I and II allege that statements published in the February articles were
false in that he never directed PTAB’s initial decision in the Trump Tower PTAB
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appeal be rejected and never directed that a PTAB decision finding in favor of
Trump Tower and refunding more than $1 million be substituted in its place. He
alleges he never directed a decision in any PTAB case be determined on the basis
of political affiliation rather than the merits of the case and that such conduct on his
part was not charged in the anonymous complaint.
¶ 11 Counts III and IV allege causes of action based on defamation per se based on
the October 9 article and the October 11 article, respectively. These counts allege
that defendant used plaintiff’s anticipated termination as PTAB executive director
and general counsel in October 2020 as a basis to publish further false statements
concerning the anonymous complaint. According to these counts, the October
articles falsely reported that the anonymous complaint alleged plaintiff ordered
PTAB to approve the $1 million payout for Trump, rejecting a staff report that
found no valid reason to support the refund on Trump Tower. These counts allege
defendant knew plaintiff was without authority to order such action by PTAB, as
he was a commissioner at the time of the anonymous complaint’s allegations and
not executive director. Finally, these counts allege the October articles correlated
plaintiff’s actions with jeopardizing funding for Chicago public schools, a
correlation that is false and without foundation.
¶ 12 Counts I though IV (the defamation counts) alleged that the statements made in
the February articles and the October articles did not constitute a fair report of the
contents of the anonymous complaint and were made with actual malice because
defendant knew they were false or acted with reckless disregard of their falsity, as
defendants were in possession of the anonymous complaint.
¶ 13 Counts V, VI, VII, and VIII allege causes of action for false light invasion of
privacy based on each of the February and October articles respectively. These
counts allege the articles placed plaintiff in a false light before the public, which
would be highly offensive to a reasonable person, because they falsely accused him
of conduct showing a lack of integrity as executive director and general counsel of
PTAB. Finally, Count X alleges a cause of action for intentional infliction of
emotional distress. All counts allege that, as a result of defendants’ conduct,
plaintiff sustained humiliation, anxiety, embarrassment, mental anguish, injury to
his reputation, termination of his position as executive director and general counsel
of PTAB, and resulting monetary damages, including lost salary, lost benefits, and
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medical expenses. The February and October articles were attached to the
complaint as exhibits.
¶ 14 B. Defendants’ First Motion to Dismiss
¶ 15 On March 5, 2021, defendants filed a combined motion to dismiss plaintiff’s
complaint pursuant to section 2-619.1 of the Code of Civil Procedure (Code). 735
ILCS 5/2-619.1 (West 2020). Defendants’ motion to dismiss based on section 2-
615 of the Code (id. § 2-615) argued that all counts of the complaint should be
dismissed because plaintiff’s allegations of falsity are belied by his
acknowledgment that he was investigated and removed and, thus, are true or
substantially true and that the words he complains of are figurative and conditional
in context. In addition, they argued that reporting news of an inquiry into unproven
allegations precludes a conclusion that defendants acted with “actual malice” as a
matter of law. The section 2-615 motion to dismiss also argued that specific counts
should be dismissed for failure to allege special damages with particularity, because
certain statements are reasonably capable of innocent construction and the
intentional infliction of emotional distress count failed to adequately allege
outrageous conduct.
¶ 16 For their motion to dismiss pursuant to section 2-619 of the Code (id. § 2-619),
defendants argued that they were immunized from liability for publishing the
February articles and October articles by the fair report privilege. In addition, they
argued that plaintiff’s failure to append the anonymous complaint made to the
OEIG to his complaint defeated his cause of action, because that document would
prove his claims have no merit. Finally, defendants argued that the anonymous
complaint extinguished all inferences that defendants made the publications with
actual malice. In support of their motion, defendants attached the “Declaration of
Timothy Novak,” which avers as follows.
¶ 17 1. Declaration of Timothy Novak
¶ 18 Mr. Novak has been an investigative reporter since 2000 focusing on exposing
corruption in the state of Illinois, receiving multiple local and national awards for
his reporting. He is familiar with the Trump Tower appeal pending before PTAB,
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having attended the hearing, and has questioned PTAB about its status in following
years. He is also familiar with the articles, as they were published under his byline.
The anonymous complaint to OEIG, which is referred to in plaintiff’s complaint,
was mailed to him by an anonymous source whom he has not identified. An
accurate copy of the complaint and its mailing envelope is attached to the affidavit.
¶ 19 Based on the information contained in the OEIG complaint, Mr. Novak filed a
request with PTAB pursuant to the Freedom of Information Act (FOIA) (5 ILCS
140/1 et seq. (West 2018)), and PTAB declined to provide the requested
information in a letter dated January 21, 2020, naming plaintiff as one of the
decisionmakers who declined to provide the requested information. Mr. Novak also
attempted to obtain an official statement for attribution from the Governor’s
communication director, Emily Bettner, confirming an ongoing investigation into
allegations of improper political motivations, and received the following statement,
which was quoted in the February articles:
“The administration is determined to get to the bottom of this situation and
will ensure a thorough investigation is conducted. PTAB should take no action
until an investigation is complete. In general, it would be entirely inappropriate
for a legal decision on a property tax appeal to be impacted on any of the
conduct alleged in this complaint, including the allegations of political
motivations improperly driving the decision making.”
¶ 20 Mr. Novak’s declaration states that, based on the foregoing, defendants were
able to report official confirmation of an investigation and the language he used in
the February articles used conjecture and colloquialisms to summarize for their lay
readership the incomplete investigation described by the Governor’s
communication director. With regard to the October articles, Mr. Novak noted that
they included an official statement from PTAB that it would not discuss the merits
of the OEIG investigation until it had been completed. Mr. Novak stated he believed
all facts he reported were true at the time, no facts have been provided to him since
that time to contradict the reporting, and he reported the investigations into PTAB
proceedings as a matter of public concern because they involved the assessment of
taxes for properties associated with the president of the United States, the OEIG
complaint, and the fact that the PTAB appeal had remained pending for more than
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10 years.
¶ 21 2. OEIG Complaint
¶ 22 Based on the postmark on the envelope, the OEIG complaint was mailed to Mr.
Novak on December 23, 2019. It is made on the form “Complaint” published by
the OEIG (Office of Exec. Inspector Gen., Form 300.4A (rev. Feb. 2016)). It is
made by “Anonymous” and dated November 13, 2019. It is made against several
employees of PTAB, including plaintiff, in regard to the May 2012 appeal of the
2011 assessment of Trump Tower by the Cook County Board of Review (Board of
Review). The OEIG complaint is summarized as follows.
¶ 23 ALJ Simeon Nockov conducted a hearing on the assessment appeal on
December 12, 2017. Katherine Patti, who was deputy chief ALJ at the Des Plaines
office, as well as ALJ Jennifer Vesely, assisted Nockov in all aspects of the appeal,
including writing the decision that found that the subject property did not warrant
an assessment reduction. On January 31, 2018, Nockov entered his written decision
for presentation to the PTAB for approval. Shortly thereafter, plaintiff, who was
then chairman of PTAB, told Steven Waggoner, the acting executive director and
chief ALJ, that he wanted a large reduction in the assessment because the owner of
the property was the president of the United States. Waggoner then told Nockov
that he should withdraw his written decision and rewrite it to give a large
assessment reduction to “Make America Great Again.” Nockov complied with
Waggoner’s command and withdrew his written decision.
¶ 24 According to the OEIG complaint, plaintiff was appointed executive director of
PTAB in March 2019. Nockov consulted with Patti and Vesely and, with their help,
rewrote large portions of the decision to comply with Waggoner’s political
directives and rule on “a small assessment reduction” in the rewritten decision.
Nockov entered the rewrite on June 29, 2018. However, later that day, an employee
of the Springfield office of PTAB was instructed by Waggoner to withdraw
Nockov’s rewritten decision by “reserving” the decision in the PTAB database.
Shortly thereafter, Waggoner took over the case as the ALJ in charge of writing the
decision and, despite having not been present at the hearing, found the property
warranted a large assessment reduction by many millions of dollars, “consistent
with [plaintiff]’s directive.” Waggoner entered his written decision in PTAB’s
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database on April 29, 2019. However, plaintiff decided that it was not the right time
to publish Waggoner’s decision, so Waggoner instructed a Springfield employee to
withdraw it from the database on May 7, 2019. The OEIG complaint states that, at
the time of its filing, the decision had not been entered and submitted to PTAB for
approval.
¶ 25 The OEIG complaint states that “unethical political activities and conflicts of
interest” were perpetrated by Waggoner, plaintiff, and those PTAB employees who
participated in their scheme. It states that “the facts show that Waggoner, for
prohibited political reasons, made sure that the decision in the Trump Tower
Chicago appeal would result in a large reduction” and “[plaintiff], Nockov, Patti,
and Vesely participated in this scheme.” Further, it asserts that Nockov, Patti, and
Vesely violated the ALJ code of professional conduct by failing to disclose any of
Waggoner’s conduct and their many communications with him, thus using
Waggoner’s unlawful political pressure and ethical lapses as leverage to protect
them from disciplinary actions.
¶ 26 3. Circuit Court’s May 25, 2021, Order
¶ 27 On May 25, 2021, the Cook County circuit court entered a detailed written order
granting in part and denying in part defendants’ motion to dismiss. As to the
defamation counts, the circuit court found plaintiff adequately pled the falsity of
certain statements in the articles, by exaggerating the scope of the investigation
along with plaintiff’s authority over PTAB’s deliberative process, contrary to the
substance of the OEIG complaint. These statements include the following:
(1) plaintiff was under investigation for having pressured his staff to cut the
president a break and rule in the president’s favor in the Trump Tower appeal,
(2) plaintiff rejected PTAB’s staff’s decision to deny Trump any refund, and
(3) plaintiff directed that a legal decision in the Trump Tower appeal be driven by
political motivations rather than the merits of the case. The circuit court found that
whether these statements were “substantially true” was a question for the trier of
fact because a reasonable jury could find that the statements made the “gist” of the
OEIG complaint worse by exaggerating plaintiff’s involvement in the purported
scheme. The circuit court also found plaintiff adequately pled special damages.
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¶ 28 The circuit court rejected the motion to dismiss based on the fair report privilege
defense raised by defendants for similar reasons, finding that a question of fact
remained as to whether the articles conveyed an erroneous impression to the
ordinary reader regarding the allegations against plaintiff as raised in the OEIG
complaint. Similarly, the issue of actual malice remained as a question of fact. As
to the false light claims, the circuit court found special damages were sufficiently
alleged, as with the defamation counts.
¶ 29 Turning to the intentional infliction of emotional distress count, the circuit court
agreed with defendants that plaintiff failed to adequately plead facts to support a
claim that defendants engaged in extreme and outrageous conduct amounting to
“abuse of power” and granted the motion to dismiss that count without prejudice,
allowing plaintiff to replead that count, if at all, within 28 days. The motion to
dismiss with respect to the defamation and false light counts was thus denied, and
plaintiff did not amend the complaint to restate that claim.
¶ 30 C. Defendants’ Second Motion to Dismiss
¶ 31 On July 28, 2021, defendants filed a “Motion to Dismiss Pursuant to the Illinois
Citizen Participation Act Or, Alternatively, Reconsider Denial of Motion to
Dismiss Pursuant to Section 2-619.1.” In this pleading, defendants argued, for the
first time, that plaintiff’s lawsuit is a SLAPP because the claims raised by plaintiff
are based solely on defendants’ constitutionally protected political speech
activities, that plaintiff’s claims are meritless, and that plaintiff filed them in
retaliation for their exercise of their rights. In support of their argument that the
claims raised by plaintiff are meritless, defendants reiterated the arguments made
in the first motion to dismiss, that the statements made in the articles were
substantially true, were protected by the fair report privilege, were made without
actual malice, and caused no special damages. Also, defendants argued the truth of
the statements could be inferred by the fact that plaintiff failed to attach the OEIG
complaint to his complaint.
¶ 32 In addition to the foregoing, defendants argued the statements are reasonably
capable of innocent construction. Defendants argued that, because plaintiff’s claims
are meritless, it follows that the claims were brought with a retaliatory motive and
thus constitute a SLAPP subject to dismissal pursuant to section 15 of the Act. 735
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ILCS 110/15 (West 2020). For the same reasons, defendants alternatively urged the
circuit court’s reconsideration of its prior order denying the first motion to dismiss.
The same exhibits were attached to the second motion to dismiss as were attached
to the first motion.
¶ 33 D. PTAB’s Final Administrative Decision on the
Trump Tower Appeal
¶ 34 On June 8, 2021, PTAB issued its final administrative decision on the Trump
Tower Appeal, which plaintiff attached to his response to defendants’ second
motion to dismiss. According to this decision, the appeal involved a portion of the
Trump International Hotel and Tower, comprising 836,662 square feet, or 32% of
its building area, which is broken into more than 50 parcels, each with its own
assessed value. PTAB considered a detailed appraisal submitted by the appellant,
and the Board of Review did not submit a competing appraisal nor witnesses to
refute the valuation presented by the appellant. Rather, the Board of Review
submitted comparable sales that PTAB found should be afforded little weight.
Nevertheless, PTAB found the appellant’s appraisal undervalued the property by
about 12%. PTAB concluded that the correct assessment of the value of the
property in 2010 was $9.24 million, as opposed to the assessment established by
the Board of Review, which was $15,604.993. The Board of Review petitioned the
appellate court for direct administrative review of the decision on July 9, 2021. 1
¶ 35 E. Publication of Redacted Version of
OEIG Final Report
¶ 36 On September 29, 2021, defendants filed a motion to supplement the second
motion to dismiss with a publication by the Executive Ethics Commission of the
State of Illinois, titled In Re: Mauro Glorioso, Case #19-02400: “Publication of
Redacted Version of OEIG Final Report” (Final Report). Exec. Ethics Comm’n of
the State of Ill., In re Glorioso, Publication of Redacted Version of OEIG Final
1
The Appellate Court, First District, affirmed PTAB’s decision by an order filed April 4, 2023,
finding the decision was not against the manifest weight of the evidence. Cook County Board of
Review v. Illinois Property Tax Appeal Board, 2023 IL App (1st) 210799-U, ¶¶ 1-2. The Board of
Review did not seek leave to appeal to this court.
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Report (Sept. 9, 2021), https://oeig.illinois.gov/content/dam/soi/en/web/oeig/
investigations/documents/investigative-reports/19-02400-glorioso-1-0.pdf [https://
perma.cc/TY4M-JMG4]. Much of the Final Report is redacted because the redacted
material related to allegations OEIG determined to be unfounded, which included
all allegations regarding the anonymous complaint. The Final Report indicates that
on October 14, 2020, OEIG received a second complaint relating to the Trump
Tower PTAB appeal. Specifically, that complaint alleged that on October 5, 2020,
plaintiff improperly deleted all of his e-mails related to that appeal, as well as
additional files from both his assigned PTAB computer and officewide computer
systems.
¶ 37 The Final Report states that on the date plaintiff was alleged to have improperly
deleted e-mails and other files, PTAB internally announced that plaintiff would be
leaving the agency later that month. When an unnamed employee began preparing
a packet of electronic materials for the incoming executive director, he accessed
plaintiff’s network drive to find that it was “virtually empty.” The employee found
this to be suspicious because a few days prior, another unnamed PTAB employee
reported that plaintiff improperly transferred some e-mails. The Department of
Innovation and Technology was able to recover thousands of deleted e-mails, with
more than 200 of them related to the Trump Tower PTAB appeal. From a review
of the e-mails, however, OEIG determined that these materials did not affect the
outcome of the investigation into the anonymous complaint because they were
identical or highly similar to materials previously obtained during the investigation
or related to FOIA requests from news sources to PTAB regarding the investigation.
¶ 38 As a result of its investigation, OEIG concluded the allegations contained in the
original anonymous complaint were unfounded but that allegations that plaintiff
violated PTAB policy, directives, and state law relating to the maintenance of
records by deleting PTAB files and e-mails in October 2020 were founded. Because
plaintiff is no longer a state employee, OEIG recommended that a copy of the Final
Report be placed in plaintiff’s employment file and that he not be rehired by the
State.
¶ 39 In a public response to the redacted report dated September 9, 2021, plaintiff
through counsel stated that plaintiff knew that his e-mails had been backed up by
the PTAB technology department when he deleted them from his local inbox and
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further that he had been told by the OEIG investigator that OEIG did not need any
further materials. He stated that he neither intended to destroy nor actually
destroyed any e-mails or files upon departing from PTAB and that he fully
cooperated with the OEIG investigation into the anonymous complaint. He
requested that the Final Report not be published or be further redacted.
¶ 40 F. Circuit Court’s Ruling on Defendants’ Second
Motion to Dismiss
¶ 41 On October 29, 2021, the circuit court entered a detailed written order denying
defendants’ second motion to dismiss plaintiff’s complaint as a SLAPP and their
alternative motion to reconsider the ruling on defendants’ second motion to dismiss.
The circuit court found that defendants’ contention that plaintiff’s complaint is a
SLAPP was properly raised in their initial motion to dismiss, rather than in a second
motion in tandem with a motion to reconsider. Further, the circuit court found
defendants failed to meet their burden to establish that plaintiff’s lawsuit is a
SLAPP subject to dismissal. Specifically, citing Goral v. Kulys, 2014 IL App (1st)
133236, ¶ 32, it found no showing that defendants’ publication of the articles was
“in furtherance of their right to petition, speak, associate, or otherwise participate
in government to obtain favorable government action.” In addition, the circuit court
found that defendants failed to meet their burden to establish that plaintiff’s
complaint is meritless and retaliatory. See id. ¶ 8.
¶ 42 In addition, the circuit court found, for the same reasons stated in its order
denying defendants’ first motion to dismiss, that it was not clear from the pleadings
that plaintiff’s claims lack merit. The circuit court reiterated that the truth of
whether plaintiff was under investigation by OEIG did not establish lack of merit,
because the complaint alleges that the articles made false statements regarding the
extent of plaintiff’s role in the allegations being investigated in light of the
allegations relative to the other PTAB employees that were implicated in the
anonymous complaint, as well the reason plaintiff was fired by PTAB. In sum, the
circuit court again held that the substantial truth of the statements in the articles, as
well as application of the innocent construction doctrine and fair report privilege,
remained questions of fact. For these reasons, the circuit court denied the second
motion to dismiss. Defendants filed a petition for leave to appeal the portion of the
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order that denied the second motion to dismiss based on the Act, pursuant to Illinois
Supreme Court Rule 306(a)(9) (eff. Oct. 1, 2020), which the appellate court
granted.
¶ 43 G. The Appellate Court Decision
¶ 44 The appellate court affirmed the circuit court’s order denying defendants’
second motion to dismiss. 2023 IL App (1st) 211526, ¶ 68. Applying this court’s
decision in Sandholm v. Kuecker, 2012 IL 111443, the appellate court found that
the circuit court correctly applied the test set forth therein to determine that the
instant lawsuit is not a SLAPP. 2023 IL App (1st) 211526, ¶¶ 42-66. As to the first
element, the court considered whether defendants met their burden of showing the
sole purpose of their publication of the articles was to exercise their right to
participate in government to procure favorable governmental action. Id. ¶¶ 51-56.
The court noted precedent finding that a newspaper’s investigatory reporting on the
activities of government fell into the activities protected by the Act but found major
distinctions between those activities and the publication of the articles. Id. ¶ 53
(citing Ryan v. Fox Television Stations, Inc., 2012 IL App (1st) 120005). Because
the articles were published as news, rather than editorial or opinion pieces
presenting the thoughts or stance of the writer, and had no bearing on any election,
the court found that whether procuring favorable governmental action was the
purpose of the articles remained an unsettled issue of fact. Id.¶ 45 Turning to the second element of the Sandholm test, the appellate court agreed
that whether plaintiff’s complaint is filed solely based on defendant’s exercise of
political rights requires a showing that the suit is both meritless and retaliatory. Id.¶ 56 (citing Sandholm, 2012 IL 111443, ¶ 34). With regard to lack of merit, the
appellate court agreed with the circuit court, finding as follows:
“We find that [defendants’] reporting could reasonably be read as not fair,
accurate, or truthful by creating the implication that [plaintiff] was more
culpable in the alleged activity than the anonymous complaint claimed, both in
terms of his supposed actions and his supposed authority over PTAB
employees. These are questions of fact that allow [plaintiff’s] complaint to
survive the pleading stage. Defendants have failed to meet their burden of
proving that [plaintiff’s] lawsuit is meritless.” Id. ¶ 59.
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¶ 46 Turning to the issue of whether defendants showed that plaintiff’s complaint is
retaliatory, the appellate court noted that this issue concerns whether plaintiff’s goal
in filing the lawsuit was to seek damages for the harm caused to his reputation and
character or whether the sole intent was to chill defendants’ rights of petition and
speech related to participation in government. Id. ¶ 61. The court noted precedent
that identified two factors considered on this issue: (1) the timing of the lawsuit and
(2) the relationship between damages requested and the injury. Id. (citing Ryan,
2012 IL App (1st) 120005, ¶ 23). In evaluating these factors, the appellate court
concluded that defendants failed to show plaintiff’s lawsuit is retaliatory. Id. ¶ 64.
Because it found in favor of plaintiff on both elements constituting defendants’
initial burden to show the lawsuit is a SLAPP, the appellate court affirmed the
circuit court’s judgment. Id. ¶ 68.
¶ 47 Justice Hyman dissented, asserting that appellate decisions since Sandholm
have strayed from its reasoning and erroneously required that a lawsuit be
“ ‘meritless and retaliatory’ ” in order to be dismissed as a SLAPP. Id. ¶ 73
(Hyman, J., dissenting). The dissent painstakingly outlined the origins of the test
and its application by the appellate court in order to show that the retaliatory
requirement has no basis, will encourage the filing of SLAPPs, and is unworkable.
Id. ¶¶ 76-86. In Justice Hyman’s view, the articles were clearly published in sole
furtherance of government participation because they reported on government
malfeasance and were “undeniably newsworthy and of interest to the public,”
which could lead to reform. Id. ¶¶ 94-95. This court allowed defendants’ petition
for leave to appeal (Ill. S. Ct. R. 315 (eff. Oct. 1, 2021)) and allowed the Reporters
Committee for Freedom of the Press and various other media organizations to file
a joint amicus brief in support of defendants’ position. See Ill. S. Ct. R. 345 (eff.
Sept. 20, 2010).
¶ 48 II. ANALYSIS
¶ 49 Before this court, defendants assert that the courts below erred in their
application of the Sandholm decision, which resulted in the denial of defendants’
second motion to dismiss plaintiff’s complaint. The second motion to dismiss,
brought pursuant to section 2-619 of the Code (735 ILCS 5/2-619 (West 2020)),
asserted that defendants are immune from plaintiff’s complaint by virtue of the Act
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(735 ILCS 110/1 et. seq. (West 2020)). Our review of a decision to deny a motion
to dismiss is de novo. Sandholm, 2012 IL 111443, ¶ 55.
¶ 50 A. The Sandholm Decision
¶ 51 In Sandholm, the supreme court outlined the history and purpose of anti-SLAPP
legislation such as the Act and reviewed the provisions of the Act in detail. Id.
¶¶ 33-40. We decline to repeat that outline in its entirety but reiterate that SLAPPs
are “ ‘lawsuits aimed at preventing citizens from exercising their political rights or
punishing those who have done so’ ” by using “ ‘the threat of money damages or
the prospect of the cost of defending against the suits to silence citizen
participation.’ ” Id. ¶ 33 (quoting Wright Development Group, LLC v. Walsh, 238
Ill. 2d 620, 630 (2010)). The purpose of the Act is “ ‘to strike a balance between
the rights of persons to file lawsuits for injury and the constitutional rights of
persons to petition, speak freely, associate freely, and otherwise participate in
government.’ ” Id. ¶ 36 (quoting 735 ILCS 110/5 (West 2008)).
¶ 52 The court in Sandholm found that the threshold determination to be made in
considering whether a lawsuit is subject to dismissal under the Act is to determine
whether the lawsuit is, in fact, a “ ‘meritless, retaliatory SLAPP’ ” meant “to chill
participation in government through delay, expense, and distraction.” (Emphasis in
original.) Id. ¶¶ 44-45 (quoting Walsh, 238 Ill. 2d at 633). Toward this end, the
court construed the phrase “based on, relates to, or is in response to” in section 15
of the Act (735 ILCS 110/15 (West 2008)) to require that the lawsuit is “solely
based on, relating to, or in response to ‘any act or acts of the moving party in
furtherance of the moving party’s rights of petition, speech, association, or to
otherwise participate in government.’ ” (Emphasis in original.) Sandholm, 2012 IL
111443, ¶ 45 (quoting 735 ILCS 110/15 (West 2008)). Thus, the court found that a
defendant’s initial burden as the moving party is to show the true goal of the lawsuit
is to “chill participation in government or to stifle political expression,” rather than
to seek damages for personal harm from the defendants’ tortious acts. Id. ¶ 57. If
defendants are able to make the aforementioned showing, plaintiff can only survive
dismissal by proving, by clear and convincing evidence, that defendants’ acts of
petition, speech, or assembly, which are the subject of the lawsuit, were “not
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genuinely aimed at procuring favorable governmental action.” 735 ILCS 110/15
(West 2020); see id. § 20(c).
¶ 53 Under principles of stare decisis, we are duty bound to follow the analysis set
forth in Sandholm, absent special justification, good cause, or compelling reasons
for departing from or overruling its holding. See Vitro v. Mihelcic, 209 Ill. 2d 76,
82 (2004). This is especially true in the context of statutory construction because a
departure from a precedent construing a statute “ ‘amounts to an amendment of the
statute itself rather than simply a change in the thinking of the judiciary with respect
to common law concepts which are properly under its control.’ ” People v.
Espinoza, 2015 IL 118218, ¶ 29 (quoting Froud v. Celotex Corp., 98 Ill. 2d 324,
336 (1983)). Moreover, “[w]here the legislature chooses not to amend a statute after
a judicial construction, it will be presumed that it has acquiesced in the court’s
statement of the legislative intent.” Miller v. Lockett, 98 Ill. 2d 478, 483 (1983).
Here, there has been no amendment to section 15 of the Act since the Sandholm
decision, and we find it is improper to depart from or overrule this precedent. Thus,
pursuant to Sandholm, defendants have the initial burden to show plaintiff’s lawsuit
was initiated solely to interfere with defendants’ protected rights. Sandholm, 2012
IL 111443, ¶ 45.
¶ 54 B. The “Post-Sandholm” Test
¶ 55 The appellate court has consistently employed a three-part, post-Sandholm test
to determine whether a lawsuit is subject to dismissal pursuant to the Act. See, e.g.,
Hammons v. Society of Permanent Cosmetic Professionals, 2012 IL App (1st)
102644, ¶ 18; see also Prakash v. Parulekar, 2020 IL App (1st) 191819, ¶ 34.
Pursuant to the post-Sandholm test, the movant has the burden to show that (1) the
movant’s acts were in furtherance of his rights to petition, speak, associate, or
otherwise participate in government to obtain favorable government action and
(2) plaintiff’s claims are solely based on, related to, or in response to the movant’s
exercise of these rights. Prakash, 2020 IL App (1st) 191819, ¶ 34. If the movant
meets its burden under the first two prongs, in order to defeat the motion, plaintiff
must prove by clear and convincing evidence what is considered the third prong of
the test: that the movant’s acts were not genuinely aimed at procuring favorable
government action. Id.- 17 -
¶ 56 We recognize that the parties differ as to whether the second prong of the post-
Sandholm test requires defendants to show that the lawsuit is meritless, retaliatory,
or both. In addition, this issue was a major focus of Justice Hyman’s dissent.
However, the parties also disagree on whether defendants met their burden under
the first prong, which requires defendants to establish their publication of the
articles was “in furtherance” of their “rights of petition, speech, association, or [to]
otherwise participate in government.” See id.; see also Walsh, 238 Ill. 2d at 635-
36.
¶ 57 The appellate court found defendants were unable to establish that the articles
were published in furtherance of their rights to participate in government as
required by the first prong of the post-Sandholm test (2023 IL App (1st) 211526,
¶ 53 (majority opinion)) but nevertheless continued its analysis and concluded
defendants also did not show that plaintiff’s lawsuit is solely based on, related to,
or in response to defendants’ exercise of those rights, as is required by the second
prong (id. ¶¶ 55-64). We note that, if plaintiff’s claims do not involve defendants’
exercise of protected rights, which are “in furtherance” of government
participation, no further analysis of plaintiff’s claims is necessary. In other words,
if defendants fail to meet their burden on either of the first two prongs of the post-
Sandholm test, plaintiff’s lawsuit is not subject to dismissal as a SLAPP under the
Act. 2 Thus, we now turn to the first prong and examine the nature of the articles to
determine if defendants met their burden to show they were published “in
furtherance” of their protected activities.
2
In Sandholm, 2012 IL 111443, ¶ 5, the plaintiff’s complaint was based on various statements
made by the defendants as part of their campaign for the school board to remove him as a high
school basketball coach. These included a letter posted on a website, e-mails and letters to board
members, a petition to the school board, radio interviews, comments on a news website, and
comments that were included in a news article. Id. ¶¶ 6-19. The appellate court found these acts
were in furtherance of the defendants’ rights to participate in the school board’s hiring decision,
which is a government process. Id. ¶ 28. The supreme court’s decision assumes the propriety of this
finding and holds that more is required to prove the lawsuit is a SLAPP. Id. ¶ 57. Thus, it is not
inconsistent with Sandholm for this court to inquire into the nature of defendants’ acts as a
preliminary matter. See, e.g., Hammons, 2012 IL App (1st) 102644 (defendants’ statements on a
message board disparaging plaintiff’s permanent makeup practices and skin pigment products were
not aimed at procuring favorable government action and thus were not subject to dismissal pursuant
to the Act).
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¶ 58 C. The First Prong of the Post-Sandholm Test
¶ 59 1. Acts “in Furtherance of Government Participation”
¶ 60 As we have stated, the first prong of the post-Sandholm test requires defendants
to show that the movants’ acts were in furtherance of their rights to petition, speak,
associate, or otherwise participate in government to obtain favorable government
action. Prakash, 2020 IL App (1st) 191819, ¶ 34. Defendants argue that, because
the articles are “investigative reports” about the activities of a public official within
a government agency, they address a matter of public concern and thus constitute
“acts in furtherance of [defendants’] right to petition, speak, associate, or otherwise
participate in government” within the meaning of section 15 of the Act. See 735
ILCS 110/15 (West 2020). Plaintiff disagrees, arguing that an act of petition,
speech, or association is not in furtherance of the right to participate in government
within the meaning of section 15 unless it is aimed at procuring favorable
government action or outcome. We agree with plaintiff. The Act’s plain language
encompasses acts of “participation in government” and does not contain language
extending such protection to speech regarding matters of public concern that do not
amount to “government” participation.
¶ 61 2. The Objective Component of the “Sham Exception”
¶ 62 As we have stated, in Sandholm, 2012 IL 111443, ¶ 45, the supreme court
reversed the appellate court’s decision on the basis of what is now considered the
second prong of the test, which considers whether the lawsuit is solely based on
defendants’ protected acts or whether it is a genuine attempt at recovering damages
for defendants’ tortious acts. Nevertheless, we find a portion of the appellate court’s
analysis in Sandholm, which was unrelated to the supreme court holding and thus
not addressed, instructive as this court considers an appropriate standard for
evaluating whether defendants’ acts meet the second prong of the Act. See
Sandholm v. Kuecker, 405 Ill. App. 3d 835, 856-65 (2010). Before the appellate
court in Sandholm, the plaintiff argued that the “acts in furtherance of government
participation” portion of the Act should be read to cover only acts performed during
a government proceeding. Id. at 856. In rejecting plaintiff’s argument, the appellate
court noted the immunity afforded by section 15 of the Act was negated by proof
that defendant’s acts were not “genuinely aimed at procuring favorable government
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action, result, or outcome,” which is what we have identified as the third prong of
the “post-Sandholm” test. See id. at 856-57.
¶ 63 In considering the statutory language, the appellate court found its meaning
ambiguous in that it did not specify whether the motivation for the defendant’s acts
is to be considered on an objective or subjective basis. Id. The court then examined
the Act’s legislative history and found that the legislature, in enacting section 15,
intended to adopt the “Noerr-Pennington doctrine,” which had originated and
evolved in federal cases that considered the viability of antitrust claims that
involved a defendant’s exercise of its rights to petition the government. Id. at 857-
60 (citing Eastern R.R. Presidents Conference v. Noerr Motor Freight, Inc., 365
U.S. 127 (1961), United Mine Workers of America v. Pennington, 381 U.S. 657(1965), and City of Columbia v. Omni Outdoor Advertising, Inc., 499 U.S. 365(1991)).
¶ 64 The antitrust activity at issue in Noerr was a negative publicity campaign
instituted by a group of railroad companies against the trucking industry, which the
plaintiff truck drivers alleged was designed to damage the industry. Id. at 860
(citing Noerr, 365 U.S. at 129). The railroad companies admitted they conducted
the campaign but averred that the campaign was an effort to encourage that state
laws be enacted regarding truck weight limits and tax rates. Id. (citing Noerr, 365
U.S. at 144). The United States Supreme Court rejected the antitrust claim, holding
that federal antitrust legislation did not regulate political activity because to hold
otherwise would be an unconstitutional infringement on the railroads’ right to
petition government. Id. (citing Noerr, 365 U.S. at 144). This holding was again
applied in Pennington to grant antitrust immunity to coal companies and unions
who petitioned the Department of Labor to establish minimum wages for competing
contractors and later was expanded to administrative proceedings in California
Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508 (1972). Sandholm, 405
Ill. App. 3d at 860 (citing Pennington, 381 U.S. at 660).
¶ 65 Importantly, the Noerr Court limited its holding that actions of government
petition were exempt from antitrust actions to enunciate what has come to be called
the “sham exception,” which mandated enforcement of antitrust laws against a
defendant who used government participation as a façade to cover up an attempt to
interfere with a competitor’s business. Id. The Court further explained the
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application of the “sham exception” in Omni Outdoor Advertising, a case that was
referenced in legislative debate prior to adoption of the Act. Id. at 860-61 (citing
Omni Outdoor Advertising, 499 U.S. at 367-68, 380-81). This evolved into a two-
part test, which contains both an objective and subjective component aimed at
determining when protected government activity would nevertheless be actionable
based on federal antitrust laws. Id. at 861 (citing Professional Real Estate Investors,
Inc. v. Columbia Pictures Industries, Inc., 508 U.S. 49, 52, 60-61 (1993)).
¶ 66 Based on the legislative history and language of the Act, which mirrored the
“sham exception,” the appellate court in Sandholm concluded that, in analyzing
whether a defendant’s acts are in furtherance of government participation within
the meaning of the Act, an adaptation of the two-part test for the “sham exception”
is appropriate. Id at 862. However, we depart from that decision’s discussion of
how the subjective and objective components of the exception are to be applied
when determining whether dismissal of a lawsuit is required under the Act. See id.
at 862-63 (applying the objective component of the exception and finding that a
subjective analysis is only required if the objective component is not satisfied).
¶ 67 The objective component of the “sham exception” considers whether an
objective person would find the defendant’s acts are reasonably calculated to elicit
favorable government action or outcome. Id. at 863-64. We find this component is
reflected in what has become the first prong of the post-Sandholm test for
evaluating a motion to dismiss, which considers whether the defendant’s acts are to
be considered “in furtherance of government participation,” and hereby adopt it as
the appropriate standard for making such a determination. 3 Thus, we hold that the
first prong of the test requires a court to consider whether an objective person would
find the acts were reasonably calculated to elicit a favorable government action or
outcome. Having set forth the appropriate standard on the first prong of the post-
Sandholm test, we must apply it to defendants’ acts of publishing the articles.
3
The subjective component of the “sham exception” is reflected in the third prong of the post-
Sandholm test, which requires plaintiff to prove that defendants’ acts were not genuinely aimed at
procuring a favorable government outcome, in order to avoid dismissal, should defendants make the
required showing on the first two prongs. See Prakash, 2020 IL App (1st) 191819, ¶ 34.
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¶ 68 3. Media Activities Under the First Prong of the Post-Sandholm Test
¶ 69 Applying the above-stated standard for determining whether defendants have
met their burden under the first prong of the post-Sandholm test, we conclude that
an objective person would not find defendants’ publication of the articles was
reasonably calculated to elicit favorable government action or outcome, and thus
defendant did not publish them “in furtherance” of government participation within
the meaning of section 15 of the Act. 735 ILCS 110/15 (West 2020). A comparison
of defendants’ publication of the articles to the media activities found to be within
the purview of the Act by the appellate court in the wake of Sandholm illustrates
that this finding is not in conflict with those cases and highlights the factors to be
considered in making an objective determination regarding the purpose of those
activities under the first prong of the test.
¶ 70 Defendants cite two cases in support of their position that publication of the
articles constitutes an act in furtherance of government participation to be protected
by the Act. The first is Ryan, 2012 IL App (1st) 120005, ¶ 1, wherein a Chicago
news station aired an investigative report on the working hours of judges in the
circuit court of Cook County. The report was a collaborative effort between the
news station and a nonprofit advocacy group concerned with government
efficiency. Id. ¶ 2.
¶ 71 The multi-installment news report included a firsthand account of investigative
efforts prompted by a revelation from unofficial logs prepared by the Cook County
Sheriff’s Department that many courtrooms were closed before 4 p.m. daily. Id.
Investigators confirmed this finding by surveying courtrooms and using hidden
cameras to document judges leaving the courthouse. Id. The report included an
analysis of the cost to taxpayers of the Cook County judicial system, including
judicial salaries and benefits, and reactions to the investigation from members of
the judiciary and the public and actions the chief judge took to remedy the situation
as revealed by the report. Id. ¶¶ 3-8. Before the final installment, one of the judges
surveilled in the report filed a single-count complaint of defamation seeking $7
million in damages. Id. ¶ 7. The defendants filed a motion to dismiss pursuant to
the Act, which the circuit court denied, and the appellate court allowed the
defendants’ petition for leave to appeal. Id. ¶ 10.
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¶ 72 In reversing the circuit court and finding the complaint subject to dismissal
pursuant to the Act, the appellate court recognized its first step was to determine if
“ ‘the defendants’ acts were in furtherance of their right to petition, speak,
associate, or otherwise participate in government to obtain favorable government
action.’ ” Id. ¶ 18 (quoting Hammons, 2012 IL App (1st) 102644, ¶ 18). In so doing,
the court found that the defendants’ actions “indisputably” satisfied this “first
prong” of the test, explaining:
“The investigatory report that defendants produced uncovered questionable
activity by members of the judiciary in the performance of their official duties.
Defendants communicated the findings of their investigation to the public and
to members of local and state government via a televised newscast. Perhaps
most importantly, the report sought comment from the Illinois Supreme Court
and [Cook County] Chief Judge Evans on the investigation’s findings and urged
them to take action. Such activity is well within the scope of the Act, and in fact
the investigatory report at issue here is an excellent example of the kind of
activity that the legislature sought to protect, as shown by the Act’s own
language.” Id. ¶ 19. 4
¶ 73 The second case relied upon by defendants on the issue of whether the articles
constituted acts in furtherance of government participation is Goral, 2014 IL App
(1st) 133236, ¶¶ 1-3, in which an Internet blogger authored articles questioning
whether a candidate for alderman was qualified to run for office by outlining
concerns about the candidate’s possible misuse of the homestead property tax
exemption. The blogger noted that property tax records showed the candidate
claimed a homestead exemption at an address other than the one she listed on her
campaign website. Id. ¶ 3. The article noted that, if the candidate lived at this other
property address, she would not meet the resident requirements for the office of
alderman in the ward in which she was running. Id. The article stated that the
blogger had shared the information he had uncovered with the Cook County
assessor’s office and the Cook County state’s attorney. Id. Finally, the article noted
4
The court went on to determine, however, that defendants were unable to show that the
plaintiff’s lawsuit was “solely based” on the protected acts as required by Sandholm because,
although they had shown retaliatory intent regarding the timing of the lawsuit and the requested
damages, they did not show the lawsuit was meritless because they were unable to disprove any
element of plaintiff’s claims, specifically that the statements in the report regarding plaintiff were
true. Ryan, 2012 IL App (1st) 120005, ¶¶ 20-30.
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that the candidate’s husband claimed exemptions on two residences and stated the
amount of taxes he had saved as a result. Id.¶ 74 After the candidate lost the election, the blogger authored a follow-up article
detailing a conversation the blogger had with the assessor’s office, in which he was
informed that the candidate and her husband’s residences were flagged as “denied”
until they proved where they actually lived. Id. ¶¶ 3-4. Approximately one month
later, the candidate filed a lawsuit for defamation against the blogger. Id. ¶ 5. While
the suit was pending, the candidate filed a statement of candidacy for state
representative in the next primary election. Id. ¶ 8. The circuit court ultimately
granted the blogger’s motion to dismiss pursuant to the Act and entered a final and
appealable finding pursuant to Rule 304(a) (Ill. S. Ct. R. 304(a) (eff. Feb. 26,
2010)), as the defendant’s motion for attorney fees pursuant to section 25 of the Act
(735 ILCS 110/25 (West 2010)) remained pending. Goral, 2014 IL App (1st)
133236, ¶ 13.
¶ 75 On appeal, the appellate court recognized that the parties had stipulated that the
first prong of the test for determining whether the lawsuit was subject to dismissal
under the Act had been established. Id. ¶ 36. Because the blogger’s articles
questioned the candidate’s eligibility as alderman, the court agreed they “were
written in furtherance of [the blogger’s] right to speak and participate in
government.” Id. (citing Garrido v. Arena, 2013 IL App (1st) 120466, ¶¶ 3, 5-6,
17)). 5
¶ 76 Here, according to defendants, the articles, like the televised reports in Ryan
and the blog articles in Goral, are acts publishing “investigatory reports”
uncovering questionable activity by government actors and, thus, should be deemed
5
The court went on to determine that the defendant was able to establish the second prong under
Sandholm, that the candidate’s lawsuit was solely based on the blogger’s exercise of his protected
rights, finding that the blogger proved lack of merit (i.e., truth and innocent construction), as well
as retaliatory intent based on the timing of the lawsuit related to the posting of the blogger’s article
and the candidate’s campaign for state representative, and the fact that the candidate only claimed
damage for political losses rather than economic losses associated with the tax exemptions and her
real estate business. Goral, 2014 IL App (1st) 133236, ¶¶ 52, 59. Finally, applying the third prong,
which shifts the burden to the plaintiff to prove the defendant’s acts were not genuinely aimed at
procuring governmental action, the court found she had not met her burden, as the articles were
aimed at procuring a favorable outcome from the electorate in the alderman race. Id. ¶ 63. Thus, the
appellate court affirmed the dismissal of the complaint pursuant to the Act. Id. ¶ 66.
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“acts in furtherance of their right to petition, speak, associate, or otherwise
participate in government to obtain favorable government action.” See Ryan, 2012
IL App (1st) 120005, ¶ 1; Goral, 2014 IL App (1st) 133236, ¶ 6. However, the
articles are missing the element that the Ryan court found to be “[p]erhaps most
important[ ]” (Ryan, 2012 IL App (1st) 120005, ¶ 19) and which this court finds to
be an important factor in applying the objective standard we have enunciated for
making these determinations. The televised reports in Ryan requested a response
from the government on its findings and urged the government to act to remedy the
problem. Id. Similarly, in Goral, the blogger’s articles were aimed at the electorate,
seeking specific action on the part of voters rejecting the candidate’s run for
alderman. Goral, 2014 IL App (1st) 133236, ¶¶ 1-3. In contrast, here, the articles
contain no language specifically requesting a response or reaction from a
government entity or employee, nor do they seek any specific action on the part of
the voting public.
¶ 77 In addition, we find the televised news segments in Ryan and the blog articles
in Goral constituted true “investigatory reports” in that the defendants were giving
firsthand reports about investigations in which they were directly involved. See
Ryan, 2012 IL App (1st) 120005, ¶¶ 1-8; Goral, 2014 IL App (1st) 133236, ¶¶ 1-6.
In contrast, here, an objective person would find the purpose of the articles was to
report on the facts and contents of a written complaint and resulting investigation
that was being conducted by a third party, OEIG, which was in no way involved in
the production of the articles. Rather than being an “investigatory report” as the
term was used by the Ryan court, the news articles here were reporting the news
about an investigation. The articles did not constitute a firsthand account of an
investigation conducted by defendants into government activities, and an objective
reader would consider the purpose of the articles was to report the news, rather than
to elicit a particular action on the part of government or the electorate.
¶ 78 Of the cases interpreting the Act since its inception, few have involved motions
to dismiss brought by media defendants regarding news publications. This is not
surprising, considering the public policy stated in section 5 of the Act. 735 ILCS
110/5 (West 2020). The declared policy of the Act is to protect “the constitutional
rights of citizens and organizations to be involved and participate freely in the
process of government.” Id. While section 5 speaks to the vitality of “[t]he
information, reports, opinions, claims, arguments, and other expressions provided
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by citizens” (id.), nowhere in section 5, or anywhere else in the language of the Act,
is there any mention of news media or the freedom of the press. This is not to
minimize or understate the importance of the press and other news media in our
democracy. Our jurisprudence is replete with privileges and other protections
designed to protect these concerns, many of which remain at issue in this lawsuit.
We are simply holding that the Act specifically protects government participation
and does not encompass all media reports on matters of public concern as advocated
by defendants.
¶ 79 III. CONCLUSION
¶ 80 For these reasons, we find that the articles do not constitute acts in furtherance
of government participation and thus plaintiff’s claims are not subject to dismissal
pursuant to the Act. 6 Accordingly, we affirm the appellate court’s judgment and
remand to the circuit court for further proceedings on plaintiff’s complaint.
¶ 81 Affirmed and remanded.
¶ 82 JUSTICE ROCHFORD took no part in the consideration or decision of this
case.
6
In light of the objective standard that we have set forth in this opinion, we overrule the portion
of the appellate court’s opinion that found that the issue of whether the articles were published in
furtherance of government participation remained a question of fact. See 2023 IL App (1st) 211526,
¶ 53. Of course, this is of no consequence because the appellate court’s judgment is affirmed, and
this case is remanded to the circuit court for further proceedings with the issue of the applicability
of the Act fully resolved.
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