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Third Division
August 11, 2004

Plaintiff, Dennis A. Brennan, filed this defamation actionagainst Midwest Suburban Publishing, Inc., d/b/a Daily Southtown,Inc., and Phil Kadner, a columnist for the Daily Southtownnewspaper, for alleged damages arising from the publication of acolumn regarding plaintiff's appearance at an administrativehearing before the Illinois State Board of Elections (ElectionBoard). Plaintiff's two-count complaint alleged defamation perse (count I) and false light invasion of privacy (count II).

The trial court dismissed the complaint pursuant to bothsection 2-615 and section 2-619 of the Illinois Code of CivilProcedure (Code) (735 ILCS 5/2-615, 2-619 (West 1996)), rulingthat the alleged defamation was not a verifiable fact and wassubject to an innocent construction. Plaintiff appeals from thetrial court's order granting defendants' motion to dismiss.

On appeal, plaintiff contends that: (1) the publishedstatement in defendants' column announcing that plaintiff usedthe United States mail to perpetrate a fraud constitutesdefamation per se rather than constitutionally protected opinion;(2) the statement at issue is not reasonably capable of aninnocent construction; (3) the statement is not substantiallytrue; (4) his complaint sufficiently alleges actual malice; and(5) his complaint states a claim for false light invasion ofprivacy. For the reasons that follow, we affirm.

BACKGROUND

In February or early March of 2001, plaintiff and severalother individuals formed a political committee referred to as theCommittee to Stop the Hurckes Four. The committee wasestablished to oppose the election of four candidates who wererunning for positions on the school board in Oak Lawn CommunityHigh School District 229 (District 229). See Brennan v. IllinoisState Board of Elections, 336 Ill. App. 3d 749, 754, 784 N.E.2d854 (2002). The four candidates were endorsed by Jerry Hurckes,a village trustee, who some years before, had been accused ofcommitting election fraud.

Plaintiff was legal counsel for District 229. It wasestablished that if the four candidates Hurckes endorsed wereelected to the school board, plaintiff would lose his contract ascounsel for the school district. See Brennan, 336 Ill. App. 3d at754. Plaintiff personally loaned the committee funds to producea professional videotape attacking the four candidates for beingassociated with Hurckes. Shortly before the election, copies ofthe videotape were mailed to over 7000 registered voters in theschool district.

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

After several administrative hearings were held, an ElectionBoard hearing officer issued a written report on October 5, 2001,finding, inter alia, that the committee and plaintiff failed toreport contributions to the committee in excess of $500 withintwo business days; plaintiff failed to turn over to the actingcommittee chairman financial receipts and proofs of transactionsto the committee; plaintiff filed a false D-1 statement oforganization naming David Zapata as chairman and treasurer when,in fact, plaintiff was the committee's de facto chairman andtreasurer; plaintiff allowed the committee to accept and expendfunds at a time when the committee had vacancies in the officesof chairman and treasurer; plaintiff filed a false D-1 andamended D-1 by failing to list his name as a sponsoring entity;and plaintiff's actions were performed with the intent to violatethe Election Code. Brennan, 336 Ill. App. 3d at 758.

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

In the column, Kadner discussed a report published in anewsletter on state politics called "Capital Fax," which wasproduced by Rich Miller, a fellow columnist for the DailySouthtown. The column contained the following relevant passages:

"The hearing officer, in addition to recommending afine for [plaintiff], also urged that the case be turnedover to the Illinois attorney general or Cook County state'sattorney for possible criminal prosecution.

Capital Fax reported that [Al Zimmer, the electionboard's general counsel] recommended that the election boardforward its information to the Cook County state's attorney,but also recommended that the Illinois Attorney andRegistration Disciplinary Commission be sent theinformation.

The Commission has the power to suspend a lawyer'slicense.

Beyond that, Zimmer recommended that the election boardmerely issue a decree forbidding [plaintiff] frommisbehaving again, according to Capital Fax.

I asked Zimmer if the election board had ever urged acriminal prosecution of an individual, rather than acampaign committee, for violations of the election code.

'Not since I've worked here,' said Zimmer, who hasworked for the election board for 16 years.

Another source said that the election board could refer[plaintiff's] case to the U.S. attorney's office, claimingthat he used the U.S. mail in perpetrating a fraud."

On October 16, 2001, in a written order, the Election Boardadopted the hearing officer's findings of fact and conclusions oflaw. The order directed plaintiff, the committee, and DavidZapata, to cease and desist from the conduct complained of in thecomplaint; it levied a fine against the committee in the amountof $4,200, which was stayed until further order of the ElectionBoard, and it directed the Election Board's general counsel tosend a copy of the order to the Cook County State's Attorney'soffice and to the Illinois Attorney Registration and DisciplinaryCommission.

Approximately a year later, on October 11, 2002, plaintifffiled a two-count defamation action against defendants. In thecomplaint, plaintiff alleged that the passage in Kadner's columnstating that a source had declared that the Election Board couldrefer plaintiff's case to the United States attorney's office forprosecution for mail fraud imputed that plaintiff committed afederal crime and imputed to plaintiff a want of integrity in thedischarge of his office or employment, which thereby constituteddefamation per se and false light invasion of privacy.

On April 22, 2003, the trial court entered an orderdismissing the complaint pursuant to both section 2-615 andsection 2-619 of the Code (735 ILCS 5/2-615, 2-619 (West 1996)),ruling that the alleged defamatory statement was not a verifiablefact and was subject to an innocent construction. Plaintiff nowappeals from the trial court's order granting defendants' motionto dismiss.

ANALYSIS

In the present case, the trial court dismissed plaintiff'scomplaint pursuant to both section 2-615 and section 2-619 of theCode, ruling that the alleged defamation was not a verifiablefact and was subject to an innocent construction. A section 2-615 motion challenges a complaint for failing to state a cause ofaction, while a section 2-619(a)(9) motion admits the legalsufficiency of a complaint but asserts that it is barred by someaffirmative matter. Lawson v. City of Chicago, 278 Ill. App. 3d628, 634, 662 N.E.2d 1377 (1996).

Motions filed under either section admit all well-pleadedfacts together with all reasonable inferences that can be drawntherefrom. Romanek v. Connelly, 324 Ill. App. 3d 393, 398, 753N.E.2d 1062 (2001). In ruling on either motion, all pleadingsand supporting documents are construed in a light most favorableto the nonmoving party. Romanek, 324 Ill. App. 3d at 398. "Therelevant inquiry for this court is 'whether the existence of agenuine issue of material fact should have precluded thedismissal or, absent such an issue of fact, whether dismissal isproper as a matter of law.'" Romanek, 324 Ill. App. 3d at 398,quoting Kedzie & 103rd Currency Exchange, Inc. v. Hodge, 156 Ill.2d 112, 116-17, 619 N.E.2d 732 (1993). Since resolution ofeither motion involves only a question of law, our review is denovo. Romanek, 324 Ill. App. 3d at 398; LaSalle National Bank v.City Suites, Inc., 325 Ill. App. 3d 780, 789, 758 N.E.2d 382(2001).

I. Defamation

The defamation action provides redress for false statementsof fact that harm reputation. Hopewell v. Vitullo, 299 Ill. App.3d 513, 517, 701 N.E.2d 99 (1998). A statement is considereddefamatory if it tends to cause such harm to the reputation ofanother that it lowers that person in the eyes of the communityor deters third persons from associating with him or her.Dubinsky v. United Airlines Master Executive Council, 303 Ill.App. 3d 317, 323, 708 N.E.2d 441 (1999); Restatement (Second) ofTorts