Seventh Circuit Allows Firefighter’s First Amendment and Due Process Case to Go Forward

On May 10, 2010, in Kodish v. Oakbrook Terrace Fire Protection District, the Seventh Circuit held that it was error to grant the defendant’s motion for summary judgment.  The court’s ruling allows the plaintiff’s claims, that he was terminated as a firefighter by the District in retaliation for exercising his First Amendment speech rights and that he had a property right in continued employment, to proceed.  The Plaintiff, Kodish, had been a firefighter for over one year. However, during four of his sixteen months of employment, he was on medical leave.  The applicable Illinois Fire Protection Act provides that the right to continued employment in the absence of just cause for termination attaches only after a firefighter “holds” his position for one year or longer.

The court found that “holding a position” for one year or longer did not require one to perform his job duties without interruption during that period.  Rather, the requirement was satisfied by a “colorable appointment coupled with performance of the duties of the position and remuneration therefor.”  Because Kodish met this standard notwithstanding his period of medical leave and interrupted employment, the court found that he had a property interest in continued employment.

With respect to Kodish’s First Amendment claim, the court found that given circumstantial evidence that the District Chief  had  anti-union animus and the District’s Board did not conduct its own investigation, but instead relied upon the Chief, it was error to hold that there was no genuine question of fact and that the District was entitled to Judgment as a matter of law.

The court’s decision is particularly noteworthy for its in-depth discussion of a public employee’s right to continued employment and its construction of what it means to “hold a position.”

Illinois Supreme Court Approves Significant Reduction of Punitive Damages in Defamation Case

In Slovinski v. Elliot, a default judgment was entered in favor of the plaintiff in his defamation action.  The case proceeded to a jury trial on damages.  The jury returned an award for the plaintiff of $81,600 for emotional distress, no damages for reputational injury and $2 million in punitive damages.  The trial court reduced punitive damages to $1 million.  On appeal, the court affirmed the default judgment and the emotional distress award.  Significantly, the appellate court further reduced the punitive damage award to $81,600.  The statements at issue were made to one of the defendant’s suppliers that financial statements were not available because plaintiff had not completed them, that plaintiff was not doing his job, was coming in late and leaving early, that plaintiff snuck off for workouts and “spent his time chasing pussy all day.”

On appeal to the Illinois Supreme Court, the plaintiff argued that the initial reduction was inappropriate since the trial court did not provide specific reasons for reducing the award.  On April 15, 2010, the Supreme Court found that the question is whether there is a basis in the record to support the order, not whether specific grounds for reduction are articulated.  In this regard, the Court found that contrary to the plaintiff’s argument, there was no evidence supporting the theory of a premeditated scheme to defame.  Rather, at most, there was a reckless disregard for the plaintiff’s rights, which the Supreme Court found was “on the low end of the scale for punitive damages, far below those cases involving a defendant’s deliberate attempt to harm another person.”  In addition, the Supreme Court found that the statements were not repeated, but stated merely once in a meeting to a limited number of persons.  Further, the Supreme Court emphasized that the jury returned no award for reputational injury.  Thus, the Supreme Court found that even the trial court’s remittitur to $1 million constituted an abuse of discretion and there was no basis in the record to support such an award and affirmed the appellate court’s reduction of punitive damages to $81,600.

Slovinski is probably limited to its particular facts. In a case with a significant reputational injury and more widespread publication, the defendants would likely have a more difficult time justifying such a drastic reduction of the damages found to be appropriate by a jury.

Illinois Appellate Court Adopts Fiduciary Shield Doctrine in Defamation Case

In Femal v Square D Company, the Illinois Appellate Court applied the fiduciary shield doctrine to determine whether the trial court had personal jurisdiction over the defendant.  In Femal, the attorney for Rockwell International, a Wisconsin corporation, traveled to Illinois to explore the possibility of a settlement between Rockwell and another corporation in a patent infringement case.  In the course of that meeting, the attorney purportedly made statements accusing Femal, an employee of the other corporation, with certain ethical violations which Femal claimed led to his termination.  Femal sued the attorney for defamation.  The attorney claimed that the court lacked personal jurisdiction since he did not reside or do business in Illinois and only traveled to Illinois for the settlement conference on behalf of his Wisconsin employer.  The court, citing the Illinois Supreme Court’s decision in Rollins v. Ellwood, a kidnapping case, found that the fiduciary shield doctrine prevents courts from asserting jurisdiction over a person on the basis of acts by that person not on his own behalf, but on behalf of his employer.  The court found that it would be unfair and unreasonable under Illinois’ due process clause to assert jurisdiction over an individual whose sole contacts with the state were a consequence of his acting on behalf of his employer.  Ultimately, the court found that there were questions of fact as to whether the defendant acted out of personal interests or solely in the interests of his employer and ordered an evidentiary hearing on the issue.  Femal provides an important defense for individual defamation defendants whose statements were made in the course of their employment.  There is contrary Illinois authority which could support arguments that jurisdiction existed since the defendant’s tortious conduct occurred in Illinois and the plaintiff’s injury occurred in Illinois.  Also, there is authority from the Illinois Supreme Court’s decision in Van Horne v. Muller, that whoever participates in the publication of a defamatory statement is liable for defamation.  However, Femal provides an important defense to out of state defendants who can show that their statements were made in the course of their employment duties.

Illinois Appellate Court Finds that First Amendment Bars Priest’s Defamation Case

In Stepek v. Doe, the Illinois Appellate Court found that the First Amendment’s free exercise of religion clause barred the defamation claim of a Catholic priest against two brothers who charged that he abused them 25 years earlier.  The court adopted the rationale of the Massachusetts Supreme Court in Hiles v. Episcopal Diocese of Massachusetts, where the court found that “The First Amendment’s protection of internal religious disciplinary proceedings would be meaningless if a parishioner’s accusation that was used to initiate those proceedings could be tested in a civil court.”  Because the brothers’ accusations arose in the course of a church disciplinary decision, the court found that exercising subject matter jurisdiction would “require the secular court to involve itself in the regulation of ecclesiastical activity.”  Accordingly, the court held that the First Amendment barred the trial court from exercising jurisdiction.

Stepek presents a departure from prior Illinois law where the First Amendment inquiry focused upon whether a controversy involving a church could be determined without reference to ecclesiastical doctrine or church law.  Prior cases involving alleged improper sexual activity by clergy were held not to implicate the First Amendment because the matters were determined by application of neutral principles of law.  Biven v. Wright (allegations of improper sexual conduct in the course of religious counseling).  Moreover, unlike the Hiles case relied upon by the court, Stepek involved allegations of criminal conduct, over which secular courts unquestionably have an interest.  In addition, in Stepek, the Church’s own written procedures and policies required the reporting of accusations of the abuse of minors by clergy to secular prosecuting and investigative authorities.  Thus, in Stepek, it was argued that determination of the defamation claim would not involve interpretation of church doctrine or review of church discipline.  The court’s focus upon the forum in which the statements were made rather than whether the truth or falsity of the statements at issue can be determined without interpreting religious criteria will make it harder for defamation plaintiffs to proceed where their claims are based, in part, on statements made in a religious forum.

Seventh Circuit Finds that Public Employee’s Termination Did Not Violate First Amendment

On May 18, 2010, the Seventh Circuit found that a public employee’s critical comments of his department did not implicate the First Amendment notwithstanding that they resulted in his termination.  Ogden v. Atterholt, et al.The Court found that the comments were made in the performance of the employee’s professional duties and not as a consequence of his rights as a citizen.  The Court based its decision on Garcetti v. Ceballos, where the United States Supreme Court found that public employers are permitted to exercise a significant amount of control over their employee’s words and conduct.  The Ogden court found that the speech at issue sought to implement changes within his department, in contrast to voicing concerns as a private citizen.  As the court found, “Garcettimade clear that public employees speaking pursuant to their official duties are speaking as employees, not citizens, and thus are not protected by the First Amendment regardless of the content of their speech.”

The court’s opinion is a straightforward application of Garcetti, a necessary case for anyone representing public employees to be aware of.

Former Virgin Islands Judge Wins Defamation Case Against Newspaper and Reporters

On March 16, 2010, a jury in the Superior Court of the U.S. Virgin Islands in St. Thomas returned a verdict in favor of retired U.S. Virgin Islands Superior Court Judge, Leon Kendall, finding that Judge Kendall was defamed in articles published by the V.I. Daily News.  The jury returned a verdict in the amount of $240,000, finding that the articles were published with actual malice.  The 16 articles in question reported on Judge Kendall’s bail decisions involving criminal defendants and charged, in substance, that Judge Kendall released violent criminals out on bond and gave them the opportunity to commit further violent crimes, including, in one case, the murder of a 12 year old girl.  As a consequence of the newspaper’s allegations, a vigorous campaign was initiated in the community calling for Judge Kendall’s resignation.  However, the evidence showed that no history of violent conduct or propensity to engage in violent conduct had been presented to Judge Kendall at the time of the bail hearings.  In addition, despite Judge Kendall’s presiding over more than 600 bail decisions, none was ever appealed by prosecutors. Moreover, 98% of the defendants who were let out on bond fully complied with the conditions and terms of the bail orders.  The jury agreed with the plaintiff that defendants published false and defamatory statements with actual malice.  The newspaper has stated that it intends to appeal the judgment.

The case is the second in recent years where a judge has prevailed in a defamation lawsuit based upon media statements critical of  judicial conduct and overcoming the actual malice standard applicable to public officials.  In 2007, Justice Robert R. Thomas, of the Illinois Supreme Court, was awarded a $7 million dollar jury verdict (subsequently reduced), arising from critical statements appearing in a local newspaper.

Illinois Reaffirms that Statements Made to Law Enforcement Personnel Are Protected by an Absolute Privilege

In Morris v. Harvey Cycle and Camper, Inc., the court reaffirmed that Illinois absolutely protects statements made to law enforcement officials from claims of defamation.  The court noted that the majority of states afforded at most a qualified or conditional privilege to such statements  and that many jurisdictions had abandoned absolute privilege in favor of a conditional privilege, which would be lost in the event of a direct intent to injure or constitutional malice.   The court noted that most of the prior Illinois decisions affording an absolute privilege to statements made to police personnel were analogous to absolutely privileged statements made in the course of or preliminary to judicial proceedings.  In Morris, the facts suggested that the statements were made not to commence legal proceedings, but to use strong arm tactics by car dealer personnel to recover a car without refunding the plaintiff’s down payment.

The motivation for the making of the statement, however,  is irrelevant when an absolute privilege applies.  Therefore, the statements made to law enforcement could not form the basis of a defamation action and the claim was dismissed.

Illinois Supreme Court Limits Pleading on Information and Belief in Defamation Cases

On September 24, 2009, the Illinois Supreme Court significantly limited the use of allegations based upon “information and belief” in defamation cases.  Green v. Rogers.  In Green, multiple statements were attributed to the defendant on “information and belief.”  It was alleged that the statements constituted defamationper se.  In finding that the statements, as pled, could not constitute defamation per se, the Court reaffirmed that “although a complaint for defamation per se need not set forth the allegedly defamatory words in haec verba [i.e., word for word], the substance of the statement must be pled with sufficient precision and particularity so as to permit initial judicial review of its defamatory content.”  The Court held that the statements were not pled with sufficient particularity to permit judicial review or the formulation of an answer and potential affirmative defenses.  The Court reiterated that summaries of the types of statements allegedly published are insufficient to state a cause of action for defamation.  The Court found that generic descriptions are insufficient because “without knowing what specific conduct defendant allegedly averred, we have no way of assessing whether defendant’s words were defamatory per se.”  Moreover, the Court found, that if defamation pleadings are based upon “information and belief,” the basis for such information and belief must be set forth in the Complaint.  The Court held that a defamation per se claim must be pled “with a heightened level of precision and particularity” because actual damages need not be proven.  “[I]f a plaintiff does attempt to avail himself of the extraordinary presumption that attaches to a defamation per se, he simply must plead the relevant facts on something more than his mere ‘belief.’”  The Court explained that “the facts informing plaintiff’s belief will always be within plaintiff’s direct knowledge and therefore fully capable of being pled with the requisite precision and particularity.”

Illinois is a fact-pleading jurisdiction.  The Green decision is consistent with long standing Illinois law requiring the pleading of facts with particularity.  Significantly, Green does not preclude the pleading of defamation actions on information and belief.  Rather, it merely requires that the basis of such information and belief be specifically set forth in the Complaint. This requirement will protect against defamation lawsuits proceeding based upon a plaintiff’s subjective spin of what, in fact, was published and may also serve to reduce the filing of certain meritless claims.