MOUNT VERNON – Madison County Circuit Judge Andy Matoesian improperly found a defendant liable for defamation without evidence that her statements were false, Fifth District appellate judges ruled on July 10.
They vacated an order Matoesian signed in favor of Curtis Smith, professor at Southern Illinois University-Edwardsville.
Matoesian would have held trial against defendant Deborah Pontious on damages.
Fifth District Justice Randy Moore wrote, “Falsity is the first element of a claim for defamation, and in no circumstances can liability for defamation be established without evidence of falsity.”
Moore wrote that even if Smith could prove Pontious made false statements, she might qualify for a privilege that Matoesian should have considered.
Justices John Barberis and Judy Cates concurred.
Pontious and Smith dated in 2012.
When they split, Pontious sent messages to Smith’s sister in law and the university.
Smith sued Pontious in 2013, claiming the messages falsely imputed to him the commission of a crime and want of integrity in his professional duties.
He claimed her words damaged him and caused him pecuniary loss.
Pontious answered in 2014, asserting she made statements in good faith.
In May 2016, Smith moved for partial summary judgment on liability.
Pontious answered that he was under federal investigation before he sued her.
She attached electronic mail from the Federal Bureau of Investigation, identifying her as a possible hacking victim.
Matoesian granted Smith’s motion on Aug. 12, 2016.
“The order contains no findings of fact or conclusions of law, and a transcript of the hearing is not part of the record on appeal,” Moore wrote.
U.S. district court records show misdemeanor proceedings against Smith started four days later, involving someone other than Pontious.
Smith pleaded guilty on Sept. 29, 2016, admitting he falsely claimed authorization to change another person’s password at an AT&T store.
He agreed to participate in mental health services and comply with treatment recommendations.
Magistrate Judge Donald Wilkerson told him, “The statement by the victim in this case was gut wrenching, heart breaking.”
“I can’t even imagine the pain that she suffered, her family suffered,” Wilkerson wrote.
He imposed two years’ probation, a $5,000 fine, and restitution of $3,000.
Later that year, in circuit court, Pontious moved to reconsider the liability order.
She attached Smith’s misdemeanor conviction as newly discovered evidence, and a verified complaint of Smith’s former wife charging he raped her, videotaped the act, and published it on the internet.
Matoesian denied reconsideration last year.
Pontious moved to certify questions to the Fifth District, and Matoesian granted it.
He asked the appellate judges if a non public figure could establish liability for defamation without presenting evidence that a statement was false.
Moore wrote that the answer “is a resounding no.”
“We note that the plaintiff makes no argument and cites no authority for the proposition that the plaintiff need not prove falsity,” Moore wrote.
In case Smith should prove falsity, the Justices set a second standard.
They refined Matoesian’s questions to focus on an exception to a rule requiring unprivileged publication as an element of defamation.
Moore quoted an Illinois Supreme Court decision granting qualified privilege to statements that might be actionable except for the occasion or circumstances.
The court wrote, “This privilege is based on the policy of protecting honest communications of misinformation in certain favored circumstances in order to facilitate the availability of correct information.”
Moore wrote that a court looks only to the occasion and determines whether it created a recognized duty or interest for a defendant to make a communication.
He wrote that the record is replete with disputed facts, and that there was conflicting evidence as to truth or falsity.
“In addition, there is nothing in the record to suggest that the circuit court resolved the issue of qualified privilege one way or the other,” Moore wrote.