by Russ Stewert

7-3-13

Now that the Illinois Appellate Court has ruled on losing 45th Ward candidate John Garrido's libel lawsuit, it is clear that Garrido has more than dodged the proverbial bullet -- he has dodged a Scud missile.

After being defeated by 30 votes in the 2011 runoff for alderman, Garrido filed a three-count defamation lawsuit against the victor, Alderman John Arena, Arena's campaign committee, the Chicago Federation of Labor, the Service Employees International Union Political Action Committee, Unite Here Local 1 and Comcast. Garrido sought a total of $900,000 in damages, based on alleged false advertising contained in seven mailings and one cable television ad. He sued based on libel per se, libel per quod and false light.

Under the Illinois Citizen Participation Act, which was passed in 2010, the U.S. Constitution's First Amendment protects all political free speech and right to petition, even if patently false or salacious. The defendants filed a joint Strategic Lawsuits Against Public Participation (SLAPP) motion claiming that Garrido's action was "meritless" and "retaliatory" against the unions for "attempting to participate" in government by exercising First Amendment rights. The Circuit Court granted the motion, stating that the ads were "protected activity," Garrido appealed, and the lower court decision was overturned.

Had Garrido, a Chicago police lieutenant who is a watch commander in the 16th District, lost the appeal, he would have been on the hook for upwards of $150,000 in legal fees incurred by attorneys for Arena and his union allies. Under Illinois Supreme Court Rule 137, any motion sustained under Section 2-615 of the Code of Civil Procedure, in which the complaint is found to be "substantially insufficient at law," can result in sanctions (including attorney fees) against the plaintiff. The Circuit Court granted the defendants' motion under 2-615.

However, the Appellate Court ruled that a motion to dismiss under SLAPP must be brought under Section 2-619, which requires the submission of "affirmative matter" defeating the complaint, and rendering it "meritless." To prevail under SLAPP, the defendants needed to prove that their ads were true, and they failed.

At issue were two allegedly defamatory assertions.

According to the Appellate Court opinion, the first was that Garrido had received a $1,000 campaign contribution from LAZ Parking, which in 2009 got the city's controversial no-bid parking meter privatization contract. The CFL mailer stated, "We pay. Republican John Garrido profits" and "John Garrido takes money from parking meter company. We pay the price." The SEIU mailer said, "Republican John Garrido took money from the company that brought us the parking meter deal." The Arena campaign committee mailer said, "Republican John Garrido took campaign contributions from a firm that profited from the private parking meter deal."

Garrido denied taking any contribution from LAZ Parking. He did, however, receive two $500 personal donations from Juan Gaytan, the owner of Monterrey Security, which does subcontracting for LAZ.

Just to be clear: Chicago aldermanic elections are nonpartisan. One does not run as a Democrat or a Republican. Garrido had sought the Republican nomination for Cook County Board president in 2010 and lost the primary. Arena is now the 45th Ward Democratic committeeman. The anti-Garrido crowd made sure it hung the "Republican" label on Garrido at every opportunity, even sending a mailer with George Bush jumping out of a mailbox. Calling somebody a Republican is not libelous.

The second allegedly defamatory assertion, by the SEIU, was that if he were elected, Garrido "would draw two municipal pension checks," one as an alderman and another as a cop. The mailer said, "With scandal after scandal plaguing our city, the last thing we need is another double-dipping-pension-padding politician on the City Council" and "Do we really want to give more tax dollars" to Garrido. Another SEIU mailer, headlined "CORRUPTION," said, "City Hall's patronage and corruption take enough from us already. Do we want to add another double-dipper?"

Garrido denied that he would be eligible for a "double pension." Under city ordinance, an employee cannot draw two municipal paychecks. If Garrido had been elected alderman in 2011, he would have had to take a leave of absence from his job as a police officer, drawing no pension credits. That was the case in the 36th Ward, when firefighter Nick Sposato won the alderman's job and took leave from the Fire Department. Also, to get a pension, an alderman must serve a minimum of 10 years, so Garrido would have had to be elected in 2011, 2015 and 2019 to qualify.

The Appellate Court's opinion bluntly clarified the issues, ruling that the defendants, during the campaign, lied. At the trial court level, said the opinion (2013 IL. App. 120466, on page 10), they "effectively concede that the statements regarding double-dipping are not actually true" and are "speculative." Further: There "is no evidence" that Garrido received campaign contributions from LAZ Parking . . . (or) personally profited . . ." Further, "Neither of the statements is actually true." They did not "carry the burden" of proving the lawsuit a SLAPP, especially since the action was filed after Garrido lost. Therefore, the court ruled, the plaintiff's complaint is not "meritless" and should not have been dismissed. No sanctions lie. The matter was sent back to the Circuit Court to address other defendants' motions and to begin the discovery process.

The legal implications of the Garrido ruling, which the Arena defendants will surely appeal to the Illinois Supreme Court, are significant. First, under the Citizen Participation Act, all ads and mailers are First Amendment "protected activity." Second, ads of unions and political action committees are "in furtherance of government," and protected. Third, "merely because they are protected does not mean the (plaintiff's) claims are dismissed." Defendants must demonstrate SLAPP and submit evidence that the complaint was meritless and intended as retaliation and that the ads are true.

That shifts the entire burden. Now the accuser must prove that the charges against the accused are true. It's a whole new brave legal world. According to the opinion, the premise of SLAPP was to "sanction those trying to abuse the justice system by bringing unfounded claims in retaliation to those who legitimately exercise First Amendment rights." The opinion added that we "must protect those who file lawsuits for real injury," and the court ruled that Garrido suffered "real injury."

Politically, this much is clear: The Sword of Damocles hanging over Garrido has lifted. Had Arena and the unions won, Garrido's future political career would have crashed, and with huge sanctions, Garrido would have been neutered.

The 2015 election is less than 2 years away, but the resolution of Garrido's lawsuit could easily take 3 or 4 years. In the interim, Garrido has several pieces of gold:

First, a quotable Appellate Court ruling which severely undermines Arena's credibility. To recall the Nixon Watergate era, it's "dirty tricks." Arena and his cohorts used the "Big Lie" to beat Garrido by 30 votes. That's now undeniable.

Second, as long the case is pending, the sword now hangs over Arena. With claims for $900,000 in damages against the alderman and his campaign committee and union supporters, a "chilling effect" has arisen. Donors will wonder if they are giving money to Arena or to his lawyers, and the unions won't dare spend $500,000 on nasty, inaccurate mailers to beat Garrido. Garrido got what he wanted: checkmate.

Third, there is the sympathy factor. "Poor Johnny. He got cheated." The perceived chicanery of the election will inflame and motivate Garrido voters and disgust at least a portion of the 2011 Arena voters.

Normally an incumbent, through constituent service and visibility, gains voter support. After 2 years, one would expect that Arena would have converted about 1,000 Garrido voters. No way. Arena's base, which he has augmented by his anti-Emanuel stances, is concentrated in Portage Park, among liberals and among the artsy-craftsy cultural elite. Arena has made no inroads among the culturally conservative voters in Jefferson Park and Gladstone Park. They want good services, don't yet detest the mayor, and could care less about Arts Alive/45 and the Portage Theater.

As of now, in a 2015 one-on-one race, Garrido's base offsets Arena, but the "45th Ward Mom" has surfaced. Beaubien LSC member Michelle Baert is running for alderman in 2015, and she has a Web site highlighting area "family activities." Baert claims that she will have union support and the mayor's endorsement and that she will raise more than $100,000.

That cuts both ways. Instead of a grudge/geographic/ideological race, with conservative Garrido facing liberal Arena, Baert injects gender and geography into the race. She takes geographic (Gladstone Park) votes away from Garrido and politically correct feminist Portage Park votes away from Arena.

Turnout was 15,879 in the 2011 general election and 12,136 in the runoff. Arena beat Garrido in the runoff 6,083-6,053. Marina Faz-Huppert, who was backed by outgoing Alderman Pat Levar, got 3,095 votes in the general election. Levar's organization has vanished.

My prediction: Garrido is running. Baert's candidacy guarantees another Arena-Garrido runoff. The Appellate Court opinion gives Garrido an early boost.

Send e-mail to russ@russstewart. com or visit his Web site at www. russstewart.com.





