In a ruling with important implications for newspapers and the public throughout Illinois, on November 18 DuPage Circuit Court Judge Dorothy French Mallen dismissed a defamation lawsuit [DuPage case number 14 L 413] filed by Winfield Village Trustee Tony Reyes against his community’s struggling sole newspaper, The Winfield Express.
The newspaper published an account of a citizen’s remarks addressing a public meeting of the Winfield Plan Commission concerning a theoretical future development. The citizen made reference to a controversial action by the local high school board in 2004 to sell some valuable public property to the low bidder at a price almost $6 million less than another bid. The article then described for the reader the history of the transaction, including that the developer soon resold the property for an $8 million profit. The citizen was concerned that one of the persons on the high school board back then, Mr. Reyes, was now on the village board and he feared a repeat.
The article also noted that an outside real estate attorney hired after-the-fact to review the transaction wrote that there “appears to be a violation of the spirit of a statutory requirement that school boards attempt to liquidate their properties at the highest price.” The article concluded with various rhetorical questions residents still ask about the matter, including speculation about bribery, but reminded readers that prosecutors had never investigated the transaction and that everyone involved remains legally innocent of any wrongdoing.
Without first contacting the newspaper to complain, submit a statement, or request a retraction, Mr. Reyes filed his lawsuit shortly after the article was published, claiming that it defamed him and cast him in a false light. Mr. Reyes, who has vehemently denied any wrongdoing in connection with transaction, has further claimed that the transaction was the best deal offered to the school district at the time.
A tactic often used by developers and others who want to shut down criticism is to file a frivolous suit against a critic or ringleader for a breath-taking amount of money, knowing that other members of the public will be frightened to raise their voices lest they too be sued. Even though innocent, the costs and trouble of dealing with a lawsuit have a chilling effect that scares others into silence. That technique is known as a Strategic Lawsuit Against Public Participation (SLAPP).
“Fortunately, in 2007 Illinois passed an anti-SLAPP law, called the Citizen Participation Act (CPA), that allows such suits to be quickly dismissed,” says Maryam [correct] Judar, executive director of the Citizen Advocacy Center that the newspaper turned to for help when the suit was filed. The non-profit Center assists the public in exercising its rights under the Sunshine Laws to hold local governments accountable, and it contacted The Collins Law Firm to represent the newspaper.
The newspaper’s attorney filed a motion for dismissal under the Citizen Participation Act requesting not only that the suit be dismissed, but further requesting that the court order that Mr. Reyes pay the newspaper’s legal fees. The motion won.
The judge found that the suit was without merit, filed in retaliation against the paper for a story he did not like, and was intended to chill further criticism. Mr. Reyes has been barred from re-filing his suit, and ordered to pay the newspaper’s legal expenses and attorney’s fees. “Judge French Mallen is one of the most well-respected judges in DuPage County for her careful reading and consideration of all the motion papers and legal authority,” says Robert Dawidiuk, a partner at The Collins Law Firm who argued the case for the newspaper. “Her decisions are well thought out and reasoned. We were fortunate in this case because the CPA is still somewhat of a developing area of law.”
In her ruling, Judge French Mallen went through the newspaper article point-by-point, dismissive of each complaint on various grounds. She summed up, saying “the lawsuit is meritless because every one of those statements that is complained about either doesn’t refer to Mr. Reyes specifically, is true, is innocent construction, or is opinion. None of it rises to the level of defamation. …. So I am finding that this is a meritless lawsuit in that the statements are not defamatory and there is no proof of any actual malice. …. The plaintiff has not provided clear and convincing evidence that the paper and Mr. Greer’s motivation was not solely to participate in the constitutionally-protected free speech and government.”
Mr. Reyes was ordered to pay the newspaper’s legal costs, a rarity in American courts, but specifically authorized and required by the Citizen Participation Act as a deterrent against filing SLAPP actions to stifle public discussion.
Standing outside the courtroom, Mr. Greer said “I think that the judge got it right and this decision should stand if appealed. It is important to our democratic process that public officials and politicians can be questioned and challenged with tough questions in the public forum – especially newspapers.”
Mr. Reyes did not attend court, and his attorney, Thomas E. Sullivan, did not volunteer any opinion on whether they would appeal.