Arguments heard in the Illinois 2nd District Appellate Court last week could determine the future of a defamation lawsuit filed in January.
The appellate judges are expected to issue a written decision in the coming months regarding whether a series of campaign flyers slamming McHenry County Recorder and Clerk Joe Tirio were defamatory.
If the judges decide the flyers were defamatory, Tirio’s Woodstock-based attorney Philip Prossnitz could continue to press for the names of anyone involved with the Illinois Integrity Fund. If not, Chicago attorney Natalie Harris, who represents the Illinois Integrity Fund, could seek to have the civil defamation lawsuit dismissed entirely.
The appellate judges’ questions echoed hearings that took place last year in McHenry County court. Tirio first attempted in August 2018 to unmask the dark money source that called him “crooked” and accused him taking a vacation with a “secret slush fund.”
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 quickly appealed the decision, however, and last week argued her position to the higher court.
“What we have today is a question about the sanctity of anonymous speech,” Harris said early on in her argument.
Harris has maintained that the language on the three flyers that criticized Tirio was anonymous, political speech that falls under the protections of the First Amendment. Prossnitz, however, claims the flyers accused Tirio of committing two crimes: theft and official misconduct.
The “taxpayer slush fund” mentioned in the attack ads against Tirio was a reference to the recorder’s automation fund to help digitize records, Prossnitz said. The automation fund’s balance for fiscal 2017 and fiscal 2018 increased under Tirio’s watch by $293,115, Harris argued.
The flyers also accused Tirio of taking a vacation on the taxpayers’ dime. From Feb. 20 to 24, 2017, Tirio attended the Property Records Industry Association Conference in Albuquerque, New Mexico. Tirio submitted vouchers for reimbursements of meals totaling about $49.38 for the three days, Prossnitz said.
During the attorneys’ oral arguments last week, Harris reiterated that the reference to Tirio’s New Mexico trip wasn’t defamatory, since industry seminars, like the one Tirio attended, often consist of work and vacation time, she said.
“Mr. Tirio does admit that that money was in part spent to fund his nonessential travel to New Mexico in the dead of winter,” Harris said.
Appellate Judge Susan Hutchinson was quick to challenge Harris’ claims, and asked whether the attorney also considered the judge’s upcoming trip to Chicago as “nonessential.”
“Maybe you want to call my presiding judge and tell him that,” Hutchinson said. “Your argument has gotten a little out of hand when you started calling things nonessential and you’ve never been to them.”
Tirio filed the lawsuit in January, after Richard Lewandowski, president of Breaker Press – the Chicago-based union mail-order house that printed the flyers – named three men he believed could be tied to the Illinois Integrity Fund.
Facing jail time on a contempt charge in McHenry County court in December, Lewandowski named Michael Noonan, 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’s lawsuit named Noonan and Tenner as defendants and Franks as a respondent. Kane County Judge Kevin Busch, who now oversees the case and several related defamation lawsuits, has halted the release of anymore potential “integrity fund” participants’ names until the appellate court issues its ruling.
Tirio’s case will return to McHenry County court Sept. 19.