On appeal, Grasso argued the court erred in its decision because genuine questions of material fact exist regarding whether the defendants were aware the mailers contained false information.
In a written opinion, a panel of the 3rd District Appellate Court reversed the judgment of DuPage County Circuit Court Judge David E. Schwartz and remanded the case for further proceedings.
Justice Matthew G. Bertani delivered the judgment of the court with opinion Monday.
Justices Linda E. Davenport and John C. Anderson concurred in the judgment and opinion. Anderson also specially concurred, with opinion.
In the 2019 election, Grasso’s opponent, Zachary Mottl, and his campaign team published the allegedly defamatory statements about Grasso through mail and social media.
COR was in charge of Mottl’s campaign political strategy, printing and direct mail services. Corbett is a political strategist and the president of COR.
The basis for the fraud claim came from a research report of a third-party political research firm retained by COR, known as America Rising.
The report allegedly indicated Grasso had improperly received an annual $6,000 homestead exemption for a DuPage County residence while simultaneously receiving a homestead exemption for a Cook County residence, his Chicago condominium.
The $36,000 figure therefore suggested Grasso defrauded the government for a period of six years.
However, court documents stated that the research report only supported a two-year overlap in homestead exemptions.
Grasso sued, claiming these statements constituted defamation per se because they falsely imputed that he had committed a crime.
The trial court eventually granted summary judgment in favor of COR and Corbett, finding that Grasso failed to establish they had acted with actual malice in publishing the alleged defamatory mailers.
On appeal, Grasso maintained that genuine issues of material fact existed regarding whether COR and Corbett subjectively entertained serious doubts as to the truth of the mailers.
Grasso also argued that the circuit court supplanted the fact-finding function of the jury in awarding summary judgment.
COR and Corbett contended that the record contains no evidence of actual malice. They also maintained that Grasso’s failure to satisfy his burden of proving such by clear and convincing evidence warranted summary judgment.
The panel, however, determined that the accusations in the mailers that Grasso committed tax fraud “impute the commission of a criminal offense and fall within the ambit of defamation per se.”
Citing Hustler Magazine Inc. v. Falwell, 485 U.S. 46, 52 (1988), Bertani noted that a public official must prove “both that the statement was false and that the statement was made with the requisite level of culpability” in order to recover for defamation.
The panel was faced with deciding whether the evidence of record supports that Grasso has shown with convincing clarity that a reasonable jury might find COR and Corbett published the mailers with actual malice.
The panel determined that a triable issue does exist.
Pointing to Corbett’s deposition, the panel noted that COR and Corbett relied on the America Rising research report for the information they featured within the mailers.
COR vetted that information and then crafted and published the mailers.
But, the research report indicated only that Grasso 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,” Bertani wrote. “The research report in no way supports the notion that plaintiff received an improper exemption beyond the years 2016 and 2017.”
The panel highlighted that Corbett was unable to explain the “math” they used to formulate the $36,000 figure, documents stated.
Corbett’s testimony also indicated that following their independent vetting of the report, they published information on their own accord that the report did not reflect, the panel noted.
“A reasonable jury might find that Corbett’s testimony provides convincing clarity that defendants published the mailers with reckless disregard for the truth,” Bertani wrote.
Anderson concurred with the majority’s analysis and conclusion.
He wrote separately to elaborate on “the problem that exists when a party seeks summary judgment based on their own subjective knowledge and intent, and that party is the only one who has that information (and I use ‘information’ loosely).”
Anderson emphasized that issues of motive, intent, feelings and reactions are not normally subject to summary judgment.
“We cannot allow a litigant to stroll into a deposition, pull a Jon Lovitz and announce, ‘Yeah, I had no idea it was false. Yeah, that’s right. Yeah,’ then demand summary judgment because no one possesses contrary evidence from inside his head,” Anderson wrote. “That may be the ticket for comedy. It is not the ticket for summary judgment.”
Grasso is represented by Jerome A. Vinkler of Vinkler Law Offices Ltd. and Adam R. Bowers of Grasso Law PC. Vinkler and Bowers said they are pleased with the court’s decision.
“In particular, the special concurrence clarifies the use of affidavits in such cases, which carries legal implications for future acts and litigants in Illinois,” Bowers said. “Upon remand, we look forward to bringing this defamation case to trial on behalf of Mayor Grasso.”
COR Strategies and Corbett are represented by Keith S. Brin of Finkel Martwick & Colson PC. Brin said the ruling substantially changes the nature of how defamation is handled.
“We believe the ruling is contrary to precedent, but also inappropriately shifts the burden of proof to the defendant even in the absence of any evidence from the plaintiff,” Brin said. “In doing so, it virtually requires that every defamation case go to trial, which will encourage frivolous lawsuits and the unnecessary expenditure of money and resources in the defense of well-established first amendment law.”
The case is Grasso v. Mottl, 2026 IL App (3d) 240717.
Source:
https://www.lawyerport.com
https://www.lawyerport.com/o/lb-portlet/html/print-view.html?1784556332607
