Kainrath v. Grider

2018 IL App (1st) 172270

115 N.E.3d 1224

426 Ill.Dec. 302

Frank KAINRATH, Raul Aguirre, and Jason Pyle, Plaintiffs-Appellees,

v.Jay GRIDER, Individually and in His Official Capacity as Stickney Township Assessor, Louis S. Viverito, Individually and in His Official Capacity as Stickney Township Supervisor, and the Township of Stickney, Defendants,

(Jay Grider, Individually and In His Official Capacity as Stickney Township Assessor and the Township of Stickney, Defendants-Appellants).

No. 1-17-2270

Appellate Court of Illinois, First District, FIRST DIVISION.

November 26, 2018

Del Gado Law Group, LLC, of Berwyn (K. Austin Zimmer and Joseph A. Giambrone, of counsel), for appellants.

John S. Xydakis, of Chicago, for appellees.

PRESIDING JUSTICE MIKVA delivered the judgment of the court, with opinion.

¶ 1 Plaintiffs, three municipal officeholders and current or former employees of the City of Burbank, Illinois, sued defendants Jay Grider and the Township of Stickney for defamation and false light. Plaintiffs alleged that Mr. Grider, in his capacity as the Stickney Township Assessor, sent a letter to newspapers, local officials, and others challenging plaintiffs' ethics and accusing them of illegally obtaining property exemptions, effectively causing homeowners in Burbank to pay more than their fair share in property taxes. Defendants now appeal from the denial of their motion for summary judgment, in which they claimed protection under the Citizen Participation Act (Act) ( 735 ILCS 110/1 et seq. (West 2014) ), our state's anti-SLAPP (Strategic Lawsuits Against Public Participation) act. For the reasons that follow, we affirm the judgment of the circuit court.

¶ 2 BACKGROUND

¶ 3 Plaintiffs in this case are Burbank Building Commissioner Frank Kainrath, Burbank Alderman Jason Pyle (also an employee of the Cook County Assessor's office) and Raul Aguirre, a former employee of both the Burbank Zoning Department and the Cook County Board of Review. Mr. Kainrath and Mr. Pyle supported Mr. Aguirre in an unsuccessful electoral race against defendant Jay Grider for Stickney Township Assessor in 2013. In their initial complaint, filed on June 25, 2015, plaintiffs alleged that Mr. Grider, in his capacity as Stickney Township Assessor, sent a defamatory letter accusing them of "wrongful and criminal acts." The letter was sent to a number of recipients, including the Cook County Assessor, the mayor of Burbank, the Better Government Association, and various news organizations. Plaintiffs sued Mr. Grider, individually and in his capacity as Stickney Township Assessor, for defamation and false light, seeking $12 million in compensatory damages and an additional $12 million in punitive damages "or an amount to be proven at trial."

¶ 4 Mr. Grider's June 2015 letter, which plaintiffs attached to their complaint, bore the heading "Why homeowners in Burbank can't catch a break on their property taxes" and stated that it was "By Jay Grider, Assessor[,] Stickney Township." In the letter Mr. Grider described how, "[i]n the course of processing the paperwork that comes through [his] office and reviewing public records online," he had "discovered how several current and former public servants used their inside status to scratch their own backs and lower their own property taxes—causing [the] homeowners of Burbank to pay more property taxes."

¶ 5 Mr. Grider asserted in the letter that "[a]t the top of th[at] ethically-challenged group" and "tax cheating posse" was Mr. Kainrath, who as building commissioner had "follow[ed] a pattern of withholding [the] assessable building permits of his preferred network of home builders and contractors *** to delay the improved properties from reaching the tax rolls in a timely manner." According to the letter, Mr. Kainrath was also a "Top Ten rental-property owner in Burbank," who used land trusts to hide his ownership interests in multiple single-family homes and who for years had received "multiple illegal homeowner exemptions," until "the Erroneous Exemption law went into effect."

¶ 6 The letter described Mr. Pyle, an employee of the Cook County Assessor's office for over 10 years, as "Kainrath's primary inside connection" for illegal exemptions. Mr. Grider asserted in his letter both that Mr. Kainrath developed and owned the property then used by Mr. Pyle as a primary residence and that Mr. Pyle assisted Mr. Kainrath with property tax appeals to reduce the assessed value for the property in 2010-12.

¶ 7 According to Mr. Grider's letter, "former Burbank Zoning Department employee Raul Aguirre," who "worked for the County Board of Review until his retirement in 2012," also helped Mr. Kainrath with property tax appeals and "bled taxpayers through illegal exemptions and inside-access to property tax appeals for real estate he owned in Burbank."

¶ 8 The letter concluded by explaining that Mr. Grider enjoyed his job as township assessor, "saw it as [his] duty to bring the above listed transgressions to light so the taxpayers in Burbank c[ould] get some relief," and believed that what he had detailed in his letter was "only the tip of the iceberg for th[e] situation."

¶ 9 Defendants moved to dismiss plaintiffs' first amended complaint pursuant to section 2619 of the Code of Civil Procedure (Code) ( 735 ILCS 5/2-619(a)(9) (West 2014) ), arguing protection under the Act. A third defendant who was dismissed from the case and is not a party to this appeal also moved to dismiss, through a combined 2-619.1 motion (id. § 2-619.1). Ruling from the bench on September 14, 2016, the circuit court struck plaintiffs' claims for punitive damages, along with certain of their allegations that it felt did not "go to the issue of whether or not this statement by [Mr.] Grider was defamatory or not, which is really the issue we're talking about."

Without ruling on defendants' arguments for dismissal based on the Act—which are at the heart of this appeal—the circuit court granted plaintiffs leave to file a second amended complaint.

¶ 10 On June 23, 2017, defendants moved for summary judgment, arguing that they were immune from suit pursuant to the Act. Defendants insisted that no genuine issue of material fact existed as to whether they were entitled to immunity under sections 15 and 20 of the Act ( 735 ILCS 110/15, 20 (West 2014) ). Defendants asserted that they had made the required threshold showings under that law that Mr. Grider's letter was an act of participation in government to obtain favorable government action and that plaintiff's suit was meritless and filed solely in response to Mr. Grider's protected actions, both because the statements in the letter were true and because the statements were reasonably related to Mr. Grider's duties as Stickney Township Assessor and were thus privileged and nonactionable. Defendants argued that the burden then shifted to plaintiffs to demonstrate by clear and convincing evidence that the letter was not genuinely aimed at procuring favorable government action, and that plaintiffs failed to carry this burden.

¶ 11 Defendants attached to their motion an affidavit by Mr. Grider, in which he explained that, as Stickney Township Assessor, he is a deputy assessor for the Cook County Assessor, is trained and certified to assess the value of residential property in Cook County, and handles inquiries from taxpayers regarding the amount of real estate taxes assessed on properties within the township. Mr. Kainrath, as Building Commissioner for the City of Burbank, is responsible for submitting building permits to Mr. Grider's office in a timely manner. Mr. Grider received one such permit for a pool to be built on a vacant piece of property but learned, by reviewing documents and public records available through the Assessor's internal operating system, that the property was not vacant but in fact contained a brand-new home, for which no building permit had ever been obtained. This caused Mr. Grider to investigate other permits from Mr. Kainrath's office. According to Mr. Grider, the focus of that investigation soon spread from Mr. Kainrath to Mr. Pyle and Mr. Aguirre and resulted in the findings stated in Mr. Grider's June 2015 letter. Mr. Grider attached a number of documents to his affidavit, including property tax search results and the transcript of his deposition.

¶ 12 In response to defendants' motion, plaintiffs argued that the Act did not provide immunity because defendants failed to show that plaintiffs' lawsuit was brought "solely" in response to an act of government participation because defendants could not show that the statements in the letter were true. Plaintiffs submitted the affidavit of their attorney, John Xydakis, who attached an e-mail from Tom Shaer, deputy assessor for communications at the office of the Cook County Assessor, to someone named "Katie," which detailed an investigation by the assessor's office into the specific claims in Mr. Grider's letter, concluding that those claims were "without merit," that there was no evidence of an "erroneous exemptions ‘scheme’ " (internal quotation marks omitted), and that "[a] detailed examination of [the relevant property identification numbers] and other information show[ed] very, very substantial compliance."

¶ 13 Although each side asked the circuit court to strike the opposing parties' affidavits as conclusory, lacking a proper foundation, or because they contradicted prior sworn deposition testimony, there is no indication in the record that the circuit court ruled on these requests.

¶ 14 Following argument, the circuit court denied defendants' motion, finding that although Mr. Grider's letter was sent in furtherance of his right to participate in and obtain favorable government action, "[t]here [wa]s at least a question of fact" regarding the truth or falsity of the statements in that letter. As such, defendants had failed to demonstrate that plaintiffs' claims were meritless, i.e. , that they were "solely based on, related to, or in response...