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Moriarty v. Greene, Nos. 1-99-0277 and 1-99-0409, Consolidated

1st District, June 28, 2000

THIRD DIVISION

PRESIDING JUSTICE CAHILL delivered the opinion of the court:

This consolidated appeal asks us to decide whether nine statements made by defendant Bob Greene in four columnspublished by defendant Chicago Tribune Company state a cause of action under Illinois defamation law. The trial courtfound that seven of the statements did not support claims for defamation and invasion of privacy under Illinois law. Thecourt dismissed those claims with an express written finding to allow interlocutory appeal under Rule 304(a). 155 Ill. 2d R.304(a). The court then found the remaining two statements actionable, but further found that its order involved a question oflaw appropriate for appeal under Rule 308(a). 155 Ill. 2d R. 308(a). Plaintiff appealed the Rule 304(a) order. Defendantsappealed the Rule 308(a) order. We allowed the Rule 308(a) appeal and consolidated both matters. We affirm the Rule304(a) order of the trial court, dismissing seven of the claims. We answer the first certified question under Rule 308(a)"yes," affirming the order of the trial court, and remand for further proceedings. We answer the second certified question"no," reversing the order of the trial court and dismissing the claim.

A child custody dispute was resolved in a 1995 opinion of our supreme court granting custody to the biological father"forthwith." The child had been placed for adoption by his biological mother immediately after birth and remained in thecare and custody of the adoptive parents for four years, until the supreme court granted custody to the biological father inJanuary 1995. See In re Petition of Doe, 254 Ill. App. 3d 405, 627 N.E.2d 648 (1993), rev'd, 159 Ill. 2d 347, 631 N.E.2d181 (1994), reh'g denied, 159 Ill. 2d 362, 638 N.E.2d 181 (1994). Plaintiff, a licensed clinical psychologist, coordinated ateam of mental health professionals assembled at the father's request to implement the supreme court order awardingcustody.

Efforts to arrange a transition period for the transfer of custody from the adoptive parents failed. The biological father, whotook immediate custody of the child from the adoptive parents in April 1995, dismissed the team. Plaintiff was then chosenby the biological father to counsel the child and to help him adjust to the new custody arrangement.

Defendant Greene is a nationally syndicated columnist whose work appears locally in the Chicago Tribune. Greene wroteseveral columns about the case. Four of these columns address plaintiff's professional role in the case and contain thealleged defamatory statements.

Greene's first column was published on May 17, 1995, several weeks after the father took custody of the child. This columnbears a caption "What Doctor Would Allow This?" Plaintiff is identified as a member of the team of therapists assembled tocarry out the court's custody order and as the only therapist later retained by the biological father. The column criticizes thefather's choice because plaintiff, though a psychologist, was not trained in child psychology. The column then poses aquestion: what kind of child psychologist would recommend that a child be removed from the only home and family he hadever known and be given to strangers on one hour's notice? Greene answers this question by saying "apparently none." BobGreene, What Doctor Would Allow This?, Chi. Trib., May 17, 1995 (Tempo Section), at 1.

A second column, captioned "Have You Ever Promised a Kid...," was published on May 21, 1995. This column criticizesthe father's alleged broken promise to the child that he could visit his adoptive family whenever he wished to do so. Greeneexpresses a disbelief in statements attributed to the father and plaintiff that the child had not asked to see or talk to hisadoptive family. Greene then states that plaintiff "readily admitted that she sees her job as doing whatever the naturalparents instruct her to do." Green also states that plaintiff went on a vacation two weeks after the transfer, despite a promiseto be available to the child daily. Bob Greene, Have You Ever Promised a Kid . . ., Chi. Trib., May 21, 1995 (TempoSection), at 1.

A third column, captioned "You Just Don't Know What To Say," published on August 27, 1995, suggests that the childexperienced difficulties adjusting to his new life. The column includes accounts of the child in imaginary conversationswith his adoptive family. The father's attorney is quoted as saying that the child and another child of the adoptive parentsshould be allowed to see each other. The column ends with the statement that "another voice [is helping] to keep that fromhappening." Bob Greene, You Just Don't Know What to Say, Chi. Trib., August 27, 1995 (Tempo Section), at 1.

Plaintiff is identified as the "other voice" in a fourth column published on August 28, 1995, captioned "Doctor's Trust Has aCatch." The column suggests that plaintiff's decision to keep the children apart was motivated by plaintiff's plan to write abook. Greene criticizes plaintiff's intention to write a book about the child's experience. Greene writes "and the woman [he]has been told is a doctor he can trust is talking to him, getting him to confide in her, and then thinking about selling thatchild's thoughts on the open market." The column concludes with plaintiff's statement that "'it would be a wonderful featherin my professional hat' to prove that her plan for [the boy] had worked." Bob Greene, Doctor's Trust Has a Catch, Chi.Trib., August 28, 1995 (Tempo Section), at 1. Plaintiff also alleges that this column attributes the abrupt change in custodyto her, in what Greene characterizes as a "sudden removal plan."

The pleadings and motions in this case ultimately led to the filing of a fourth amended complaint that is the platform for theRule 304(a) and Rule 308(a) orders under appeal. No issues are raised with respect to the interlocutory orders disposing ofthe first three complaints. The fourth amended complaint addresses the following nine statements contained in the threecolumns:

(1) "Some people wondered what kind of child psychologist could recommend a 4-year old boy be taken from his home andfamily on one hour's notice, loaded into a van with strangers and separated without contact from the people he consideredhis parent and his brother?" Bob Greene, What Doctor Would Allow This?, Chi. Trib., May 17, 1995 (Tempo Section), at 1;

(2) Plaintiff "has readily admitted that she sees her job as doing whatever the natural parents instruct her to do." BobGreene, Have You Ever Promised a Kid ..., Chi. Trib., May 21, 1995 (Tempo Section), at 1;

(3) "Within two weeks of [the child's] removal from his adoptive home . . . [plaintiff] reportedly had left the country for atrip of uncertain duration." Bob Greene, Have You Ever Promised a Kid ..., Chi. Trib., May 21, 1995 (Tempo Section), at 1;

(4) "another voice is helping to keep [a meeting between the child and his adoptive brother] from happening." Bob Greene,You Just Don't Know What to Say, Chi. Trib., August 27, 1995 (Tempo Section), at 1;

(5) Plaintiff was "the woman who came up with the plan to take [the child] from his adoptive home suddenly with notransition period." Bob Greene, Doctor's Trust Has a Catch, Chi. Trib., August 28, 1995 (Tempo Section), at 1;

(6) Plaintiff was "the person selected by the natural parents to treat [the child,] and she does not feel the brothers who lovedeach other need to see or speak with each other." Bob Greene, Doctor's Trust Has a Catch, Chi. Trib., August 28, 1995(Tempo Section), at 1;

(7) It was plaintiff's "sudden removal plan." Bob Greene, Doctor's Trust Has a Catch, Chi. Trib., August 28, 1995 (TempoSection), at 1;

(8) "And the woman [the child] has been told is a doctor he can trust is talking to him, getting him to confide in her, andthen thinking about selling that child's thoughts on the open market." Bob Greene, Doctor's Trust Has a Catch, Chi. Trib.,August 28, 1995 (Tempo Section), at 1; and

(9) "It would be a 'wonderful feather in my professional hat' to prove that her plan for [the child] had worked, she said."Bob Greene, Doctor's Trust Has a Catch, Chi. Trib., August 28, 1995 (Tempo Section), at 1.

Count I of the fourth amended complaint alleges defamation per se as to statements 2 and 8. Count II alleges defamationper se as to the remaining statements. Count III alleges defamation per quod as to statements 2 and 8. Count IV allegesdefamation per quod as to the remaining statements. Count V alleges false light invasion of privacy as to all statements.Defendants filed a motion to dismiss counts II, III and V of the fourth amended complaint based on the court's earlierorders. Defendants also sought certification under Rule 308(a) (155 Ill. 2d R. 308(a)) of the court's denial of the motion todismiss claims relating to statements 2 and 8 as alleged in count I. Plaintiff in turn asked for a Rule 304(a) finding as to thedismissal of counts II, III and V. The court granted both motions, and the parties drafted an agreed order entered on January8, 1999, dismissing counts II, III and V under section 2-615 of the Code of Civil Procedure (735 ILCS 5/2-615 (West1996)), and finding no just reason delaying appeal under Rule 304(a). 155 Ill. 2d R. 304(a). The order also containedcertified questions addressing statements 2 and 8 for immediate appeal under Rule 308(a). 155 Ill. 2d R. 308(a).

We first address the defamation claim addressed to statements 2 and 8 certified for appeal under Rule 308(a). 155 Ill. 2d R.308(a). Our review of an appeal by permission under Rule 308(a) is de novo. Reich v. Gendreau, 308 Ill. App. 3d 825, 721N.E.2d 634 (1999). See also Weatherman v. Gary-Wheaton Bank of Fox Valley, N.A., 186 Ill. 2d 472, 480, 713 N.E.2d 543(1999) (employing a de novo review on a Rule 308(a) appeal).

The trial court found that the statement about plaintiff seeing her job as complying with the natural parents' instructions wasdefamatory per se. The question certified under Rule 308(a) reads:

"(1) When read in the context of the column attached to the Fourth Amended Complaint as Exhibit B, is the statementthat plaintiff 'has readily admitted that she sees her job as doing whatever the natural parents instruct her to do'defamatory per se and incapable of a reasonable innocent construction?"

We answer this question yes.

A statement is defamatory per se when the defamatory character of the statement is apparent on its face. Kolegas v. HeftelBroadcasting Corp., 154 Ill. 2d 1, 10, 607 N.E.2d 207 (1992). There are four recognized categories of per se defamatorystatements: words that impute (1) the commission of a crime; (2) infection with a communicable disease; (3) inability toperform or want of integrity to discharge duties of office or employment and prejudice to a party; or (4) lack of ability in aperson's trade, profession or business. Bryson v. News America Publications, Inc., 174 Ill. 2d 77, 88, 672 N.E.2d 1207(1996). We believe that statement 2 is within the scope of the last two categories.

Defendants contend that even if the statement is defamatory per se, it is not actionable since it is susceptible to an innocentconstruction. A statement that is defamatory per se is not actionable if reasonably capable of an innocent construction.Chapski v. Copley Press, 92 Ill. 2d 344, 352, 442 N.E.2d 195 (1982).

Our supreme court first applied and defined the innocent construction rule in John v. Tribune Co., 24 Ill. 2d 437 (1962).The John court held that an alleged defamatory statement must be read as a whole, with words given their natural andobvious meaning. But the rule also requires allegedly libelous words, if amenable to an innocent construction, to be so readand declared nonactionable as a matter of law. John, 24 Ill. 2d at 442. There followed a series of appellate decisions thatwere not always clear, but tended to favor innocent construction wherever possible, despite a context that was derogatory.See generally 1 M. Polelle & B. Ottley, Illinois Tort Law