From yesterday's Illinois Appellate Court decision in Grasso v. Mottl, decided by Justice Matthew Bertani, joined by Justices Linda Davenport and John Anderson:
Plaintiff, Gary Grasso, mayor of Burr Ridge [sued, alleging] … [opposing candidate Zachary Mottl and his campaign team] published three defamatory political mailers during a political campaign that stated he had defrauded the government in the amount of $36,000 in real estate tax exemptions.
The basis for the fraud claim originated from a research report of a third-party political research firm [America Rising] retained by defendants that indicated plaintiff had improperly received an annual $6,000 homestead exemption for a Du Page County residence while simultaneously receiving a homestead exemption for a Cook County residence. Accordingly, the $36,000 figure suggested plaintiff defrauded the government for a period of six years. However, the research report only supported a two-year overlap in homestead exemptions.
On appeal, plaintiff asserts the court erred in granting summary judgment for the defendants in that genuine questions of material fact exist regarding whether defendants were aware the mailers contained false information and whether defendants subjectively doubted the truth of that information. We hold that a triable issue exists as to whether defendants recklessly disregarded the truth in publishing the mailers, reverse the grant of summary judgment in their favor, and remand for further proceedings….
The narrow question presented in this appeal is whether the evidence of record supports that plaintiff has shown with convincing clarity that a reasonable jury might find defendants published the mailers with actual malice. In the light most favorable to plaintiff, we hold that such a triable issue exists.
[Defendant political strategist Collin] Corbett testified at deposition that defendants relied on the America Rising research report for the information they featured within the mailers. He and/or COR [Corbett's corporation] vetted that information by examining governmental records that corroborated the research report's findings concerning simultaneous homestead exemptions. In turn, defendants crafted and published the mailers. Corbett testified to his direct involvement in drafting [a mailer that included allegations] … that plaintiff had committed fraud in the amount of $36,000.
The research report indicates that plaintiff had an overlapping homeowner's exemption on his properties for a two-year period. A colorable argument may be made from the report that plaintiff received a total of $12,000 in improper homestead exemptions on his Burr Ridge residence. Corbett was unable to recall how defendants converted that information into a claim of fraud in the sum of $36,000. The research report in no way supports the notion that plaintiff received an improper exemption beyond the years 2016 and 2017. Corbett was unable to explain the "math" defendants used to formulate the $36,000 figure ….
An inference of reckless disregard may be made where the "defendant's investigation has revealed … insufficient information to support the defamatory accusations in good faith." … [A] reasonable jury might find that Corbett's testimony provides convincing clarity that defendants published the mailers with reckless disregard for the truth.
Defendants direct our attention to the portions of Corbett's deposition they assert are dispositive of Corbett's subjective state of mind. Corbett routinely responded "I can't speak to our thinking at that time" when questioned why defendants published the duration and amount of simultaneous homestead exemptions beyond those reflected in the research report. Defendants assert defendants' subjective intent is best evidenced by Corbett's unrefuted testimony that they would not have used any information they believed to have been false. This testimony does not negate a showing of actual malice.
As the United States Supreme Court has explained, "[t]he defendant in a defamation action brought by a public official cannot, however, automatically insure a favorable verdict by testifying that he published with a belief that the statements were true. The finder of fact must determine whether the publication was indeed made in good faith." While a determination on actual malice is not always a question reserved for the jury and may be disposed of on summary judgment, there is no indication the circuit court considered whether the mailers were published in good faith in its grant of summary judgment. As we have noted, we conclude a genuine issue of material fact exists concerning the claim of actual malice….
