Tirio wins defamation argument in appellate court

McHenry County Clerk and Recorder Joe Tirio’s defamation claims against an anonymous dark money mailer withstood appellate court scrutiny Monday, and sparked criticism of the country’s overall political discourse.

A panel of Illinois 2nd District Appellate Court judges ruled Monday that Tirio’s allegations against the Illinois Integrity Fund were valid enough to move forward with his attempts at identifying the group’s leaders in court. A series of campaign flyers slamming Tirio before the March 2018 primary election has been at the center of more than a year’s worth of litigation. The flyers alleged Tirio kept a secret “slush fund” – referring to the recorder’s office’s automation fund. They also claimed Tirio used taxpayers’ money to take a vacation to New Mexico. The allegation was acknowledging a work seminar Tirio attended from Feb. 20 to 24, 2017.

Woodstock attorney Philip Prossnitz filed a petition in April 2018, under an Illinois Supreme Court rule that allowed him to gather information about the flyers without knowing who created them.

“The court stated that malicious and possibly false accusations are now all too common in our country’s political discourse. For this reason, they felt authoritative guidance from the Appellate Court was necessary,” Tirio said in an email Monday. “It is comforting to know that in the rough and tumble arena of politics, when the boundaries of law have been crossed, there is recourse in our court system to right wrongs.”

Prossnitz’s April 2018 petition named Chicago printing company Breaker Press Co., whose name appeared on the mailers, and Tirio’s opponent for McHenry County clerk, Janice Dalton, who Prossnitz said used similar accusatory language in automated phone calls.

Chicago attorney Natalie Harris argued on behalf of Dalton, Breaker Press and the Illinois Integrity Fund that the flyers weren’t defamatory, and fell under the protections afforded to political and anonymous speech.

Harris could not be reached for comment after hours Monday.

McHenry County Judge Kevin Costello ultimately ruled that Tirio had a strong enough argument to move forward with his probe into the flyers and who was responsible for them. Harris appealed the judge’s decision; but a December hearing advanced Tirio’s efforts before the higher court could return a decision.

On Dec. 21, Richard Lewandowski, president of Breaker Press, named three men he believed could be tied to the Illinois Integrity Fund.

Facing jail time for contempt of court in McHenry County court in December, Lewandowski named Michael Noonan, McHenry County Board Chairman Jack Franks' former campaign director; Illinois Attorney General Lisa Madigan; and Sean Tenner, a former aide of Barack Obama and owner of KNI Communications, as the people behind the Illinois Integrity Fund.

Tirio subsequently filed a lawsuit in January, naming Noonan and Tenner as defendants and Franks as a respondent. The suit will return to McHenry County court Friday. Franks could not be reached after hours Monday.

Kane County Judge Kevin Busch, who now oversees the case and several related defamation lawsuits, had halted the release of anymore potential “integrity fund” participants’ names until the appellate court issues its ruling.

The appellate judges recognized the issue was moot, since the names of three people allegedly tied to the integrity fund were revealed at a December hearing. The likelihood that similar issues will arise in future campaigns, however, prompted the higher court to rule on the case, regardless.

“The first amendment’s protection of anonymous speech, in this case both public and in the context of a political campaign, is a matter of public concern,” Judge Mary Schostock wrote in a typed opinion. “Further, the circumstances are likely to recur in future political campaigns, as malicious and possibly false accusations are now all too common in our country’s political discourse.”

Ultimately, the appellate judges concluded that although some of the accusations laid out in the campaign flyers were too broad or exaggerated to be considered defamatory, others came across as actual fact.

“In this case, the statements in the flyers that Tirio was ‘crooked’ and that he was ‘destroying the GOP with Chicago style sleaze’ could be viewed as a political rival’s opinion that Tirio was not a trustworthy candidate for the county clerk position. Such statements are nonspecific political hyperbole because there is no factual content,” Schostock wrote.

“However, the statements that Tirio had a secret slush fund and had taken taxpayer-funded vacations are so specific that they go beyond political hyperbole, as there is nothing in the context to suggest that they could not be reasonably interpreted as stating actual facts,” she wrote.

One judge seemed to particularly take offense to Harris’ claims that Tirio’s trip to New Mexico was “nonessential.”

“In addition to the actual substance offered at any given conference, the opportunity to speak with and learn from others in the profession is invaluable,” Judge Susan Hutchinson wrote in a supplementary opinion. “ ‘Nonessential’ – I think not.”