Kainrath v. Grider

Digitally signed by

Reporter of

Decisions

Reason: I attest to

Illinois Official Reports the accuracy and

integrity of this

document

Appellate Court Date: 2019.02.05

15:33:11 -06'00'

Kainrath v. Grider, 2018 IL App (1st) 172270

Appellate Court FRANK KAINRATH, RAUL AGUIRRE, and JASON PYLE,

Caption Plaintiffs-Appellees, v. JAY GRIDER, Individually and in His

Official Capacity as Stickney Township Assessor, LOUIS S.

VIVERITO, Individually and in His Official Capacity as Stickney

Township Supervisor, and THE TOWNSHIP OF STICKNEY,

Defendants (Jay Grider, Individually and In His Official Capacity as

Stickney Township Assessor, and The Township of Stickney,

Defendants-Appellants).

District & No. First District, First Division

Docket No. 1-17-2270

Filed November 26, 2018

Decision Under Appeal from the Circuit Court of Cook County, No. 2015-L-6481; the

Review Hon. Daniel T. Gillespie, Judge, presiding.

Judgment Affirmed.

Counsel on Del Gado Law Group, LLC, of Berwyn (K. Austin Zimmer and

Appeal Joseph A. Giambrone, of counsel), for appellants.

John S. Xydakis, of Chicago, for appellees.

Panel PRESIDING JUSTICE MIKVA delivered the judgment of the court,

with opinion.

Justices Harris and Griffin concurred in the judgment and opinion.

OPINION

¶1 Plaintiffs, three municipal officeholders and current or former employees of the City of

Burbank, Illinois, sued defendants Jay Grider and the Township of Stickney for defamation

and false light. Plaintiffs alleged that Mr. Grider, in his capacity as the Stickney Township

Assessor, sent a letter to newspapers, local officials, and others challenging plaintiffs’ ethics

and accusing them of illegally obtaining property exemptions, effectively causing

homeowners in Burbank to pay more than their fair share in property taxes. Defendants now

appeal from the denial of their motion for summary judgment, in which they claimed

protection under the Citizen Participation Act (Act) (735 ILCS 110/1 et seq. (West 2014)), our

state’s anti-SLAPP (Strategic Lawsuits Against Public Participation) act. For the reasons that

follow, we affirm the judgment of the circuit court.

¶2 BACKGROUND

¶3 Plaintiffs in this case are Burbank Building Commissioner Frank Kainrath, Burbank

Alderman Jason Pyle (also an employee of the Cook County Assessor’s office) and Raul

Aguirre, a former employee of both the Burbank Zoning Department and the Cook County

Board of Review. Mr. Kainrath and Mr. Pyle supported Mr. Aguirre in an unsuccessful

electoral race against defendant Jay Grider for Stickney Township Assessor in 2013. In their

initial complaint, filed on June 25, 2015, plaintiffs alleged that Mr. Grider, in his capacity as

Stickney Township Assessor, sent a defamatory letter accusing them of “wrongful and

criminal acts.” The letter was sent to a number of recipients, including the Cook County

Assessor, the mayor of Burbank, the Better Government Association, and various news

organizations. Plaintiffs sued Mr. Grider, individually and in his capacity as Stickney

Township Assessor, for defamation and false light, seeking $12 million in compensatory

damages and an additional $12 million in punitive damages “or an amount to be proven at

trial.”

¶4 Mr. Grider’s June 2015 letter, which plaintiffs attached to their complaint, bore the heading

“Why homeowners in Burbank can’t catch a break on their property taxes” and stated that it

was “By Jay Grider, Assessor[,] Stickney Township.” In the letter Mr. Grider described how,

“[i]n the course of processing the paperwork that comes through [his] office and reviewing

public records online,” he had “discovered how several current and former public servants

used their inside status to scratch their own backs and lower their own property taxes—causing

[the] homeowners of Burbank to pay more property taxes.”

¶5 Mr. Grider asserted in the letter that “[a]t the top of th[at] ethically-challenged group” and

“tax cheating posse” was Mr. Kainrath, who as building commissioner had “follow[ed] a

pattern of withholding [the] assessable building permits of his preferred network of home

builders and contractors *** to delay the improved properties from reaching the tax rolls in a

timely manner.” According to the letter, Mr. Kainrath was also a “Top Ten rental-property

owner in Burbank,” who used land trusts to hide his ownership interests in multiple

-2-

single-family homes and who for years had received “multiple illegal homeowner

exemptions,” until “the Erroneous Exemption law went into effect.”

¶6 The letter described Mr. Pyle, an employee of the Cook County Assessor’s office for over

10 years, as “Kainrath’s primary inside connection” for illegal exemptions. Mr. Grider asserted

in his letter both that Mr. Kainrath developed and owned the property then used by Mr. Pyle as

a primary residence and that Mr. Pyle assisted Mr. Kainrath with property tax appeals to reduce

the assessed value for the property in 2010-12.

¶7 According to Mr. Grider’s letter, “former Burbank Zoning Department employee Raul

Aguirre,” who “worked for the County Board of Review until his retirement in 2012,” also

helped Mr. Kainrath with property tax appeals and “bled taxpayers through illegal exemptions

and inside-access to property tax appeals for real estate he owned in Burbank.”

¶8 The letter concluded by explaining that Mr. Grider enjoyed his job as township assessor,

“saw it as [his] duty to bring the above listed transgressions to light so the taxpayers in

Burbank c[ould] get some relief,” and believed that what he had detailed in his letter was “only

the tip of the iceberg for th[e] situation.”

¶9 Defendants moved to dismiss plaintiffs’ first amended complaint pursuant to section 2-619

of the Code of Civil Procedure (Code) (735 ILCS 5/2-619(a)(9) (West 2014)), arguing

protection under the Act. A third defendant who was dismissed from the case and is not a party

to this appeal also moved to dismiss, through a combined 2-619.1 motion (id. § 2-619.1).

Ruling from the bench on September 14, 2016, the circuit court struck plaintiffs’ claims for

punitive damages, along with certain of their allegations that it felt did not “go to the issue of

whether or not this statement by [Mr.] Grider was defamatory or not, which is really the issue

we’re talking about.” Without ruling on defendants’ arguments for dismissal based on the

Act—which are at the heart of this appeal—the circuit court granted plaintiffs leave to file a

second amended complaint.

¶ 10 On June 23, 2017, defendants moved for summary judgment, arguing that they were

immune from suit pursuant to the Act. Defendants insisted that no genuine issue of material

fact existed as to whether they were entitled to immunity under sections 15 and 20 of the Act

(735 ILCS 110/15, 20 (West 2014)). Defendants asserted that they had made the required

threshold showings under that law that Mr. Grider’s letter was an act of participation in

government to obtain favorable government action and that plaintiff’s suit was meritless and

filed solely in response to Mr. Grider’s protected actions, both because the statements in the

letter were true and because the statements were reasonably related to Mr. Grider’s duties as

Stickney Township Assessor and were thus privileged and nonactionable. Defendants argued

that the burden then shifted to plaintiffs to demonstrate by clear and convincing evidence that

the letter was not genuinely aimed at procuring favorable government action, and that

plaintiffs failed to carry this burden.

¶ 11 Defendants attached to their motion an affidavit by Mr. Grider, in which he explained that,

as Stickney Township Assessor, he is a deputy assessor for the Cook County Assessor, is

trained and certified to assess the value of residential property in Cook County, and handles

inquiries from taxpayers regarding the amount of real estate taxes assessed on properties

within the township. Mr. Kainrath, as Building Commissioner for the City of Burbank, is

responsible for submitting building permits to Mr. Grider’s office in a timely manner. Mr.

Grider received one such permit for a pool to be built on a vacant piece of property but learned,

by reviewing documents and public records available through the Assessor’s internal operating

-3-

system, that the property was not vacant but in fact contained a brand-new home, for which no

building permit had ever been obtained. This caused Mr. Grider to investigate other permits

from Mr. Kainrath’s office. According to Mr. Grider, the focus of that investigation soon

spread from Mr. Kainrath to Mr. Pyle and Mr. Aguirre and resulted in the findings stated in Mr.

Grider’s June 2015 letter. Mr. Grider attached a number of documents to his affidavit,

including property tax search results and the transcript of his deposition.

¶ 12 In response to defendants’ motion, plaintiffs argued that the Act did not provide immunity

because defendants failed to show that plaintiffs’ lawsuit was brought “solely” in response to

an act of government participation because defendants could not show that the statements in

the letter were true. Plaintiffs submitted the affidavit of their attorney, John Xydakis, who

attached an e-mail from Tom Shaer, deputy assessor for communications at the office of the

Cook County Assessor, to someone named “Katie,” which detailed an investigation by the

assessor’s office into the specific claims in Mr. Grider’s letter, concluding that those claims

were “without merit,” that there was no evidence of an “erroneous exemptions ‘scheme’ ”

(internal quotation marks omitted), and that “[a] detailed examination of [the relevant property

identification numbers] and other information show[ed] very, very substantial compliance.”

¶ 13 Although each side asked the circuit court to strike the opposing parties’ affidavits as

conclusory, lacking a proper foundation, or because they contradicted prior sworn deposition

testimony, there is no indication in the record that the circuit court ruled on these requests.

¶ 14 Following argument, the circuit court denied defendants’ motion, finding that although Mr.

Grider’s letter was sent in furtherance of his right to participate in and obtain favorable

government action, “[t]here [wa]s at least a question of fact” regarding the truth or falsity of the

statements in that letter. As such, defendants had failed to demonstrate that plaintiffs’ claims

were meritless, i.e., that they were “solely based on, related to, or in response [to the letter].”

¶ 15 JURISDICTION

¶ 16 Plaintiffs contend that we lack jurisdiction over this appeal. They argue that, by raising the

affirmative defense of privilege as a reason why plaintiffs’ claims lack merit under the Act,

defendants are using this appeal to improperly obtain interlocutory review of the circuit court’s

order denying a later motion that defendants filed seeking summary judgment on the basis of

privilege. This argument is not jurisdictional; it relates only to the proper scope of what may be

considered when a court decides whether a defendant has met its initial burden under the Act,

an issue we discuss in more detail below.

¶ 17 Our jurisdiction over this appeal is straightforward. Defendants filed their initial motion for

summary judgment based on the Act on June 23, 2017. Although the Act requires that “a

hearing and decision on [such a] motion must occur within 90 days after notice of the motion is

given to the respondent” (735 ILCS 110/20(a) (West 2016)), and the record indicates that the

circuit court did not rule until August 18, 2017, our supreme court has held that failure to

comply with the 90-day requirement does not cause the circuit court to lose jurisdiction

(Sandholm v. Kuecker, 2012 IL 111443, ¶ 67). On September 18, 2017, defendants timely filed

a petition for leave to appeal from the court’s August 18 order pursuant to Illinois Supreme

Court Rule 306(a)(9), which provides for discretionary interlocutory appeals from “order[s] of

the circuit court denying [ ] motion[s] to dispose under the Citizen Participation Act (735 ILCS

110/1 et seq.).” Ill. S. Ct. R. 306(a)(9) (eff. July 1, 2017). We granted defendants’ petition on

October 18, 2017, and accordingly have jurisdiction over this appeal.

-4-

¶ 18 ANALYSIS

¶ 19 Summary judgment is appropriate where, construed liberally in favor of the party opposing

judgment (Carney v. Union Pacific R.R. Co., 2016 IL 118984, ¶ 25), “the pleadings,

depositions, and admissions on file, together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party is entitled to a judgment as a

matter of law” (735 ILCS 5/2-1005(c) (West 2014)). Although summary judgment is

“encouraged as an aid in the expeditious disposition of a lawsuit,” it is “a drastic means of

disposing of litigation and, therefore, should be allowed only when the right of the moving

party is clear and free from doubt.” Adams v. Northern Illinois Gas Co., 211 Ill. 2d 32, 43

(2004). We review a circuit court’s grant or denial of summary judgment de novo (Doria v.

Village of Downers Grove, 397 Ill. App. 3d 752, 756 (2009)) and may affirm the judgment of

the circuit court “on any basis appearing in the record” (Urban Sites of Chicago, LLC v. Crown

Castle USA, 2012 IL App (1st) 111880, ¶ 21).

¶ 20 As an initial matter, we clarify the scope of this appeal and what portions of the record will

be considered. Defendants petitioned this court for leave to appeal from the circuit court’s

denial of their initial motion for summary judgment, based solely on the Act. In connection

with their petition, defendants filed a Rule 328 (Ill. S. Ct. R. 328 (eff. July 1, 2017)) supporting

record consisting of the various complaints in this matter, the briefing on their initial motion

for summary judgment, and the circuit court’s order denying that motion. Defendants were

later granted leave to supplement the record with a transcript of the hearing on their initial

motion for summary judgment. These are the only documents relevant to our review in this

case.

¶ 21 In their opposition to defendants’ petition for leave to appeal plaintiffs attached their own

Rule 328 supporting record, consisting of the briefing on a second motion for summary

judgment filed by defendants, “Based Upon Privilege, Immunities, and Other Defenses.” This

second motion was not filed until August 11, 2017, less than a week before the court’s denial

of the first motion, and was not fully briefed or ruled on for another month, well after

defendants’ petition for leave to appeal the denial of their first motion was filed in this court. It

is not any part of this interlocutory appeal. The documents in the defendants’ supporting record

are not relevant and will also not be considered because “the scope of appellate review of a

summary judgment motion is limited to the record as it existed when the circuit court ruled.”

Campos v. Campos, 342 Ill. App. 3d 1053, 1066 (2003).

¶ 22 In assessing whether defendants’ initial motion for summary judgment was properly

denied, we look first to the burden-shifting requirements of the Citizen Participation Act and

how those requirements have been construed by our supreme court. We then consider whether

defendants made the necessary threshold showings under the Act, including a showing that

plaintiffs’ claims lacked merit.

¶ 23 A. The Citizen Participation Act and Sandholm

¶ 24 The Act (735 ILCS 110/1 et seq. (West 2014)) was enacted in 2007 to deter SLAPP

litigation—“lawsuits aimed at preventing citizens from exercising their political rights or

punishing those who have done so.” (Internal quotation marks omitted.) Sandholm, 2012 IL

111443, ¶ 33. It was meant to “strike a balance between the rights of persons to file lawsuits for

injury” on the one hand, “and the constitutional rights of persons to petition, speak freely,

associate freely, and otherwise participate in government” and furthermore “to protect and

-5-

encourage public participation in government to the maximum extent permitted by law.” 735

ILCS 110/5 (West 2014). The Act provides that “[a]cts in furtherance of the constitutional

rights to petition, speech, association, and participation in government are immune from

liability, regardless of intent or purpose, except when not genuinely aimed at procuring

favorable government action, result, or outcome.” Id. § 15. The Act provides for summary

dismissal, expedited appellate review, and recovery of attorney fees for the “SLAPPed” party.

Sandholm, 2012 IL 111443, ¶ 35; 735 ILCS 110/20(a), 25 (West 2014). It is to be “construed

liberally to effectuate its purposes and intent fully.” 735 ILCS 110/30(b) (West 2014).

¶ 25 Under the Act, a defendant may move “to dispose of a claim in a judicial proceeding” on

the grounds that (1) he engaged in an act “in furtherance of [his] rights of petition, speech,

association, or to otherwise participate in government” and (2) the plaintiff’s claim “is based

on, relates to, or is in response to” that protected act of citizen participation. Id. § 15. The

burden then shifts to the plaintiff to produce “clear and convincing evidence” that the acts of

the moving party were a sham, i.e., that they were “not genuinely aimed at procuring favorable

government action.” Id. §§ 15, 20(c).

¶ 26 Plaintiffs do not appear to dispute that Mr. Grider’s act of sending his June 2015 letter to

local government officials was an act of government participation. The parties’ arguments

instead center on whether defendants met their additional burden under section 15 of the Act of

showing that plaintiffs’ lawsuit was “based on, relat[ed] to, or [wa]s in response to” that

protected act (id. § 15). If defendants did, the burden shifted to plaintiffs; if they did not,

defendants’ motion for summary judgment was properly denied.

¶ 27 In Sandholm, our supreme court construed the language of section 15 narrowly, holding

that a defendant seeking the act’s protections must demonstrate that the plaintiff’s suit is

“solely based on, relating to, or in response to” the defendant’s act of protected citizen

participation. (Emphasis in original.) Sandholm, 2012 IL 111443, ¶ 45. The court explained

that “SLAPPs are, by definition, meritless,” and a “SLAPP plaintiff’s goals are achieved

through the ancillary effects of the lawsuit itself ***, not through an adjudication on the

merits.” (Internal quotation marks omitted.) Id. ¶¶ 34-35. Thus, “where a plaintiff files suit

genuinely seeking relief for damages for the alleged defamation or intentionally tortious acts of

defendants, the lawsuit is not solely based on defendant’s rights of petition, speech,

association, or participation in government” and will “not be subject to dismissal under the

Act.” (Emphasis added.) Id. ¶ 45. The court noted that this construction would “allow[ ] a

court to identify meritless SLAPP suits subject to the Act” and would “ameliorate the

‘particular danger inherent in anti-SLAPP statutes *** that when constructed or construed too

broadly in protecting the rights of defendants, they may impose a counteractive chilling effect

on prospective plaintiffs’ own rights to seek redress from the courts for injuries suffered.’ ” Id.

¶ 48 (quoting Mark J. Sobczak, Comment, SLAPPed in Illinois: The Scope and Applicability of

the Illinois Citizen Participation Act, 28 N. Ill. U.L. Rev. 559, 575 (2008)).

¶ 28 The plaintiff in Sandholm was a high school athletics director and basketball coach who

alleged that a group of individuals had launched an extensive media and letter-writing

campaign to have him removed as coach due to their disagreement with him over his coaching

style. Id. ¶¶ 3-5. The court concluded that the plaintiff’s suit bore all the hallmarks of a genuine

effort to seek damages for personal harm to his reputation from the defendants’ alleged

defamatory and tortious acts, and that the defendants had failed to show that it was a meritless

suit filed solely to stifle defendants’ right to engage in protected petitioning activities. Id. ¶ 57.

-6-

Notably, the Sandholm court recognized that action taken by a defendant might be both

tortious and in furtherance an act of protected citizen participation. Id. ¶ 53 (“It is entirely

possible that defendants could spread malicious lies about an individual while in the course of

genuinely petitioning the government for a favorable result.”). It made clear that, in such cases,

the Act does not apply. Id. ¶ 51.

¶ 29 This court has acknowledged the tension between the concept of “immun[ity] from

liability” referenced in the Act (735 ILCS 110/15 (West 2014)) and the requirement, following

Sandholm, that a defendant must demonstrate that a plaintiff’s claims are meritless before the

Act will be found to apply. Midwest REM Enterprises, Inc. v. Noonan, 2015 IL App (1st)

132488, ¶ 61. Under this construction, what the Act provides seems less like true immunity

from suit and more like an expedited procedure for reaching the merits of a claim. But we are

bound by the clear holding in Sandholm that the Act applies only to “meritless” claims.

Sandholm, 2012 IL 111443, ¶ 45.

¶ 30 Defendants agree that it was their burden to show that plaintiffs’ claims lacked merit and

contend that the circuit court erred in finding they failed to do so. Defendants argue that

plaintiffs’ defamation claims are meritless because both absolute and qualified privileges

applied to the statements in Mr. Grider’s June 2015 letter and that plaintiffs’ false light claims

are meritless because plaintiffs failed to establish actual malice, a necessary element of that

claim. We turn first to plaintiffs’ defamation claims.

¶ 31 B. Whether Plaintiffs’ Defamation Claims Lack Merit

¶ 32 “The essential elements of a defamation claim are: (1) that the defendant made a false

statement about the plaintiff; (2) that the defendant made an unprivileged publication of that

statement to a third party; and (3) that the publication caused damages.” Goral v. Kulys, 2014

IL App (1st) 133236, ¶ 41. Certain types of statements constitute defamation per se, for which

a plaintiff need not prove damages. Id. These include, among others, statements “that impute a

person has committed a crime,” statements “that impute a person is unable to perform or lacks

integrity in performing her or his employment duties,” and statements “that impute a person

lacks ability or otherwise prejudices that person in her or his profession.” (Internal quotation

marks omitted.) Id.

¶ 33 On appeal, defendants do not include any argument, as they did in the circuit court, that the

statements in Mr. Grider’s letter were true. Defendants instead argue only that plaintiffs’

defamation claims were “meritless” under the Act because both a qualified and an absolute

privilege applied to the statements in Mr. Grider’s letter.

¶ 34 Privilege, whether absolute or qualified, is an affirmative defense, not an element of a

plaintiff’s claim for defamation. As this court recently explained in Garrido, due to a “quirk of

defamation law,” many cases “misleading[ly]” state that an unprivileged publication of the

defamatory statement is an element of the claim, when in fact a plaintiff need only prove lack

of privilege “in the event that the defendant raises that particular affirmative defense.” Garrido

v. Arena, 2013 IL App (1st) 120466, ¶ 25 n.2 (citing Quinn v. Jewel Food Stores, Inc., 276 Ill.

App. 3d 861, 870 (1995), and Restatement (Second) of Torts § 613(2) (1977)); see also Blair v.

Walker, 64 Ill. 2d 1, 5 (1976) (noting that “[t]he defense of privilege” has long been recognized

in tort cases).

¶ 35 The Garrido court went on to conclude that the existence of a valid affirmative defense is

not something a court should consider when assessing whether a plaintiff’s claim is “meritless”

-7-

for purposes of the Act. Garrido, 2013 IL App (1st) 120466, ¶¶ 26-27. It explained that, in its

view, although “[t]he term ‘meritless’ is often used loosely to describe any unsuccessful legal

claim or theory, *** in the context of a SLAPP it is a term of art and means something more.”

Id. ¶ 20. According to Garrido, a claim is “meritless” under the Act only “if a movant

disproves some essential element of the nonmovant’s claim.” Id. ¶ 19.

¶ 36 The defendants in Garrido, like defendants here, argued that they were not liable for

defamation because their statements were privileged. Id. ¶ 25. But the court held that this did

not render the plaintiffs’ claims “meritless” under the Act, because “[a] successful affirmative

defense merely ‘avoid[s] the legal effect of or defeat[s] the cause of action set forth in the

complaint’ ” and in fact “rests upon the idea that conduct which otherwise would be actionable

is to escape liability because the defendant is acting in furtherance of some interest of social

importance, which is entitled to protection even at the expense of uncompensated harm to the

plaintiff’s reputation.” (Emphasis and internal quotation marks omitted.) Id. ¶¶ 26-27 (quoting

735 ILCS 5/2-613(d) (West 2010)).

¶ 37 Other panels of this court have restated the holding in Garrido without providing any

additional analysis of the issue. See Midwest REM Enterprises, 2015 IL App (1st) 132488,

¶ 60 (noting that “[t]o show the complaint lacks merit, the defendant must ‘disprov[e] some

essential element of plaintiff’s prima facie case’ ” (quoting Garrido, 2013 IL App (1st)

120466, ¶ 28)); Goral, 2014 IL App (1st) 133236, ¶ 40 (citing Garrido, 2013 IL App (1st)

120466, ¶ 28, for the proposition that “the existence of an affirmative defense does not

establish that a plaintiff’s claim is ‘meritless’ under the second prong [of the Act]”). The circuit

court in this case, though it did not cite the case by name, seems to have similarly relied on

Garrido in ruling on defendants’ motion, stating: “A defendant cannot fulfill the meritless

prong of the second requirement [of the Act] by asserting an affirmative defense. Instead the

Courts must look to examine the plaintiff’s defamation claim and the allegations contained

within the complaint.”

¶ 38 In their reply brief, defendants argue that Garrido is distinguishable from this case on the

basis that, in Garrido, protection under the Act was sought through a motion to dismiss

pursuant to section 2-619 of the Code (735 ILCS 5/2-619 (West 2014)), and not, as here,

through a motion for summary judgment. We reject this distinction as irrelevant. As this court

noted in August v. Hanlon, 2012 IL App (2d) 111252, ¶ 23, “[t]he Act applies to ‘any motion to

dispose of a claim in a judicial proceeding’ ” (emphasis in original) (quoting 735 ILCS 110/15

(West 2010)), and “for purposes of our analysis, any distinction between a motion for

summary judgment and a motion to dismiss under section 2-619(a)(9) is immaterial” (id. ¶ 24).

¶ 39 We nevertheless question whether the distinction in Garrido—that a claim is meritless for

purposes of the Act only if an essential element of the plaintiff’s claim is disproved and not if a

valid affirmative defense is asserted—flows inexorably from our supreme court’s decision in

Sandholm. Notably, the Garrido court cited no authority for its conclusion that the word

“meritless” is a term of art having a special meaning in the context of a motion under the Act.

See Garrido, 2013 IL App (1st) 120466, ¶ 20. Certainly a claim is meritless if an essential

element of the plaintiff’s prima facie case is disproved, but is it not equally meritless if it is

doomed to fail because it is subject to an obvious affirmative defense?

¶ 40 We need not resolve that question here, however. We conclude that, even if an affirmative

defense—like privilege—can provide a basis for dismissal of a claim under the Act, in this

case defendants failed to establish that a privilege applied to Mr. Grider’s comments.

-8-

¶ 41 As our supreme court explained in Blair, 64 Ill. 2d at 5, “Privileged communications are

generally divided into those which are absolutely privileged and those which are only

qualifiedly privileged.” An absolute privilege “cannot be overcome by a showing of improper

motivation or knowledge of falsity,” whereas a qualified privilege “is conditional upon the

good faith and reasonable behavior of the defendant.” Id. at 6. The defendants argue that both

absolute and qualified privileges apply to Mr. Grider’s comments.

¶ 42 Because it is such a “severe restriction” on a plaintiff’s ability to seek recourse for acts of

defamation, absolute privilege has historically been “narrowly applied to legislative, judicial

and certain military officers and proceedings” and “high executive officials.” Id.; see also

Restatement (Second) of Torts § 591(b) (1977) (noting that, at the state level, application of the

privilege is limited to the “governor or other superior executive officer of a state”);

Restatement (Second) of Torts Appendix § 591, Reporter’s Note, at 21 (1981) (explaining that

“[t]he majority of the state courts have declined to extend the absolute privilege beyond the

superior state officers and have recognized as to other officers only a conditional privilege”).

This is in keeping with society’s interest in “the unfettered discharge of public business” that

such proceedings entail and such individuals are charged with. (Internal quotation marks

omitted.) Blair, 64 Ill. 2d at 6. We agree with plaintiffs that Mr. Grider’s level of executive

authority cannot be compared to that of other public officials, for whom Illinois courts have

recognized an absolute privilege. See, e.g., id. at 7 (extending the privilege to statements made

by the governor); Geick v. Kay, 236 Ill. App. 3d 868, 876 (1992) (extending it to statements

made by mayors of Illinois municipalities).

¶ 43 Mr. Grider’s duties are set out in the Property Tax Code, which provides that township

assessors are “ex-officio deputy assessors” charged with making property assessments in the

townships where they are elected, but that they “shall be under the direction and control of the

county assessor in the same manner as other deputy assessors.” 35 ILCS 200/2-55 (West

2014). At his deposition, Mr. Grider agreed that, as a township assessor, he has no authority to

reassess property, issue exemptions, or issue certificates of error. Defendants have simply not

shown that Mr. Grider exercises the high level of executive discretion necessary for a finding

that statements made within the scope of his duties are absolutely privileged. See Catalano v.

Pechous, 83 Ill. 2d 146, 156 (1980) (concluding that, although a city clerk was an officer of the

government of Berwyn, no privilege attached to his remarks because the ordinances governing

his position demonstrated that his relevant duties were ministerial in nature).

¶ 44 The case defendants primarily rely on, Novoselsky v. Brown, 822 F.3d 342 (7th Cir. 2016),

is not controlling and is also distinguishable. There, the Seventh Circuit recently concluded,

despite the fact that her position “does not entail the same level of executive authority as a

governor or mayor,” that Illinois courts would hold that statements made by Dorothy Brown,

as the Clerk of the Circuit Court of Cook County, enjoy the same executive privilege “insofar

as she communicate[s them] within the scope of [her] functions and duties.” Id. at 350. Of

course, as a federal case, this is not controlling. Even if it were, Mr. Grider’s status, as a deputy

assessor, is simply not equivalent to Brown’s.

¶ 45 Defendants alternatively argue that a qualified privilege applied to the statements Mr.

Grider made in his 2015 letter. “A qualified privilege exists where a communication that might

be defamatory is not actionable because of the occasion on which or the circumstances under

which it was made.” (Emphasis added.) Cianci v. Pettibone Corp., 298 Ill. App. 3d 419, 425

(1998). Three such occasions are recognized: “(1) situations that involve some interest of the

-9-

person who publishes the defamatory matter; (2) situations that involve some interest of the

person to whom the matter is published or of some third person; and (3) situations that involve

a recognized interest of the public.” Id. at 426. A qualified privilege is destroyed, however,

where it has been abused. Id. “An abuse of the privilege may consist of ‘any reckless act which

shows a disregard for the defamed party’s rights, including the failure to properly investigate

the truth of the matter, limit the scope of the material, or send the material to only the proper

parties.’ ” Id. (quoting Kuwik v. Starmark Star Marketing & Administration, Inc., 156 Ill. 2d

16, 30 (1993)); see also Restatement (Second) of Torts § 599 cmt. a (1977) (noting a qualified

privilege “may be abused *** because the publication is made to some person not reasonably

believed to be necessary for the accomplishment of the purpose of the particular privilege”).

“[T]he issue of whether a qualified privilege exists [is] a question of law for the court, and the

issue of whether the privilege was abused [is] a question of fact for the jury.” Kuwik, 156 Ill. 2d

at 25.

¶ 46 Defendants argue that the “undisputed evidence demonstrates that Grider’s statements fall

under two of the three recognized situations” in which a qualified privilege arises: “the

interests of third parties and a recognized interest of the public.” We agree with plaintiffs,

however, that even if such a privilege arose, there is at least a question of material fact

regarding whether Mr. Grider abused the privilege by sending his 2015 letter to parties not

reasonably believed to be necessary to accomplish any proper purpose. At his deposition, Mr.

Grider admitted that he additionally sent the letter to the Better Government Association, the

mayor of Burbank, and to “some media outlets, because [he] was trying to get some action or

reaction for the transgressions *** that took place.” Defendants make no argument defending

the reasonableness or necessity of sending the letter to these recipients in order to accomplish

any reform. Defendants’ casual dismissal of plaintiff’s arguments as “Monday morning

quarterbacking” does not persuade us that reversal is warranted.

¶ 47 In sum, we agree with the circuit court that defendants failed to demonstrate that plaintiffs’

defamation claims were meritless. We need not consider the parties’ arguments about whether

plaintiffs’ claims were also retaliatory. Under Sandholm, a lawsuit is not a SLAPP if it has

potential merit, even if the plaintiff’s motivation in bringing it was, in part, retaliatory.

Sandholm, 2012 IL 111443, ¶ 51. Because defendants failed to demonstrate that plaintiffs

defamation claims were meritless, the burden never shifted to plaintiffs to demonstrate by clear

and convincing evidence that the letter Mr. Grider published was not genuinely aimed at

procuring favorable government action.

¶ 48 We also need not consider defendants’ argument on appeal that no proper foundation was

laid for plaintiffs’ introduction of the e-mail from Mr. Shaer at the office of the Cook County

Assessor concluding, after an apparent investigation by that office, that the statements in Mr.

Grider’s letter were substantially false. As an initial matter, defendants failed to preserve this

issue when they failed to secure a ruling on their motion to strike Mr. Xydakis’s affidavit

attaching the exhibit. See Intercontinental Parts, Inc. v. Caterpillar, Inc., 260 Ill. App. 3d

1085, 1090 (1994) (“When a party moves to strike an affidavit which has been filed in support

of a motion for summary judgment, it is that party’s duty to bring his motion to the attention of

the trial court and to get a ruling on the motion, and the failure to obtain such a ruling will

operate as a waiver [forfeiture] of the objections to the affidavit.”). It also does not matter since

the affidavit went to rebut defendants’ argument that the statements Mr. Grider made were true

and, on appeal, the defendants are no longer pursuing that argument.

- 10 -

¶ 49 C. Whether Plaintiffs’ False Light Claims Lack Merit

¶ 50 We separately consider whether defendants demonstrated that plaintiffs’ claims for false

light were meritless. See 735 ILCS 110/15 (West 2014) (discussing when “a claim” may be

disposed of under to the Act). The three elements of this cause of action are that “(1) plaintiff

was placed in a false light before the public as a result of defendant’s actions; (2) the false light

would be highly offensive to a reasonable person; and (3) the defendant acted with actual

malice, with knowledge of or reckless disregard for the falsity of the statements.” Wynne v.

Loyola University of Chicago, 318 Ill. App. 3d 443, 454 (2000). Defendants argue that

plaintiffs’ false light claims are meritless because “[t]he undisputed facts presented offer no

evidence that [Mr.] Grider acted with the requisite intent when he sent the letter.”

¶ 51 A defendant who moves for summary judgment has the initial burden of production, which

can be met by either (1) affirmatively introducing evidence that, if uncontroverted, would

disprove the plaintiff’s case or (2) establishing that a lack of sufficient evidence will prevent

the plaintiff from proving an essential element of the cause of action. Hall v. Flowers, 343 Ill.

App. 3d 462, 469-70 (2003). Where the defendant satisfies this initial burden of production,

the burden then shifts to the plaintiff to show a factual basis to support the elements of his

claim. Id. at 470.

¶ 52 Defendants’ argument appears to be that, based on Mr. Grider’s own self-serving

conclusion, made during his deposition testimony, that he acted without malice in sending the

June 2015 letter, the burden of production shifted to plaintiffs to show a factual basis for their

claim of malicious intent. We disagree. “When determining whether factual issues exist for

purposes of a summary judgment motion, we must ignore personal conclusions, opinions and

self-serving statements and consider only facts admissible in evidence.” (Internal quotation

marks omitted.) Parker v. House O’Lite Corp., 324 Ill. App. 3d 1014, 1029-31 (2001)

(finding—the defendant’s own assertions to the contrary—that the plaintiff raised a triable

issue of fact regarding whether the defendant acted recklessly or with “actual malice”); see

also Perfection Corp. v. Lochinvar Corp., 349 Ill. App. 3d 738, 744 (2004) (“[u]nsupported

assertions, opinions, and self-serving or conclusory statements made in deposition testimony

are not admissible evidence upon review of a summary judgment motion”).

¶ 53 Here, plaintiffs alleged that they and Mr. Grider were political rivals. At his deposition Mr.

Grider acknowledged that, in all of his time as township assessor, this was the only

investigation he personally undertook regarding illegal property tax exemptions or other

misconduct, noting that normally, when he receives tips regarding such conduct from

taxpayers, he forwards them on to the office of the Cook County Assessor through that office’s

whistle-blower website. We further note that a fact finder could conclude that the language

used by Mr. Grider in his 2015 letter at times crosses the line between a dispassionate

recitation of the facts into name-calling, referring to plaintiffs as an “ethically challenged

group” who “used their insider status to scratch their own backs” and a “tax cheating posse”

who “bled taxpayers through illegal exemptions and inside-access to property tax appeals.” On

this record, we cannot say that Mr. Grider’s own testimony insisting he did not act with actual

malice when he sent the letter is sufficient to demonstrate the lack of a question of material fact

on this element.

- 11 -

¶ 54 CONCLUSION

¶ 55 For the above reasons we affirm the circuit court’s denial of defendants’ motion for

summary judgment under the Act. Defendants were not entitled to the protections afforded by

the Act because they failed to show that plaintiff’s claims lacked merit, such that they were

filed solely in response to a protected act of citizen participation.

¶ 56 Affirmed.

- 12 -