'Watchdogs' appeal DuPage judge's OK of lawsuit over reporting of alleged 'pay to play' for COD contract

By Jonathan Bilyk | Aug 31, 2016

Journalists who help chronicle and expose corruption in Illinois governments have asked a state appeals court to step in, after a DuPage County judge refused to dismiss a $16 million defamation lawsuit brought by a woman who claims the men known as the Edgar County Watchdogs wrongly accused her of committing a crime when they wrote she engaged in “pay to play” and used an improper exemption to secure a no-bid contract from the College of DuPage – awarded the same day she joined the college’s fundraising foundation board.

Kirk Allen and his non-profit news organization, Edgar County Watchdogs Inc., have filed a petition with the Illinois Second District Appellate Court in Elgin, asking justices to toss the decision of DuPage County Circuit Judge Robert G. Kleeman, who denied their motion to dismiss the legal action brought against the Watchdogs by plaintiffs Carla Burkhart and her company, Herricane Graphics Inc., of west suburban West Chicago.

The Watchdogs have asserted their actions and articles are protected by the U.S. Constitution’s First Amendment and by Illinois’ Citizen Participation Act, which is meant to stop lawsuits brought by people and organizations who may wish to use legal action merely to silence critics and opponents.

In this case, Burkhart brought her complaint in 2015 in DuPage County Circuit Court, asserting the Watchdogs should be made to pay for unfairly impugning her over the $630,000 no-bid sign contract she and her company received from COD.

While the story received larger play from the Chicago Tribune and other news outlets who have looked for years into alleged misconduct and scandal at the controversy-plagued community college in Glen Ellyn, Burkhart chose only to sue the Edgar County Watchdogs, who publish their work on their website under the banner “Illinois Leaks.”

In their reporting on the contract, the Watchdogs had particularly zeroed in on allegations that Burkhart had sidestepped the public bidding process – under which the college should have solicited a number of bids from other companies – by submitting a proposed contract which indicated she would be providing architectural services. The law allows such architectural services contracts to be approved without bidding.

Burkhart is not an architect, nor did she employ an architect to provide such services. A rider was added to the contract later clarifying she would not be providing architectural services, according to court documents.

The Watchdogs also noted Burkhart was awarded the contract the same day she joined the COD Foundation, which raises funds for the college. The Watchdogs wrote this indicated she had committed to raise money for the college in exchange for the contract, which they said indicated a case of “pay to play.”

Burkhart’s lawsuit argued the Watchdogs’ assertions defamed her and harmed her business, as they implied she had committed crimes. She demanded damages of $16 million.

On July 29, Kleeman refused to dismiss Burkhart’s case.

A court transcript of the proceedings that day indicated the judge disagreed with the Watchdogs’ interpretation of an Illinois law, which forbids people from purporting to be an architect, when they are not.

In the official transcript, Kleeman said he believed “holding yourself out to be an architect” may not violate the law until the person doing so advertises their services to the public as an architect when they are not qualified to do so. He disputed the assertions of the Watchdogs’ attorney that there is no difference between such false advertising and allegedly improperly using an architectural services exemption to sidestep public contract bid award requirements.

The judge further disputed the Watchdogs’ defense, which leaned on the so-called “innocent construction” or “neutral construction” test for the phrase “pay to play.” The judge found describing activity as “pay to play” in a purported news article necessarily implies accusations of criminal conduct, and, as such, isn’t protected by the Citizen Participation Act.

In their appeal petition, the Watchdogs argued the judge’s interpretation in this case should not be allowed to stand.

In a statement following the filing of the appeal, Watchdogs’ attorney Shawn Collins, of the Collins Law Firm, of Naperville, told The Cook County Record the decision presented a direct threat to constitutional protections of journalists and citizens acting in the public interest to expose perceived government corruption.

“We disagree that referring to someone’s conduct as ‘pay to play’ in the state of Illinois necessarily means that you are accusing them of a crime,” said Collins. “If Illinois journalists will be threatened with suit every time they use the term ‘pay to play,’ they just won’t use it - Who wants to get sued? - and the citizens of Illinois will be the worse for it.

“And the practitioners of ‘pay to play’ will have a new layer of protection, and no doubt be emboldened into doing more of it.”

In the appeal petition, Collins and the other attorneys representing the Watchdogs asked the appellate court to step in to prevent an improper lawsuit from continuing.

“Being forced to litigate when a CPA motion was filed and improperly denied directly undermines the purpose of the CPA,” the Watchdogs wrote in their appeal.

Collins noted the Second District court is not required to take up the appeal, as it was brought before proceedings in the case had concluded. However, he said he hoped “the appellate court will recognize the important rights at stake here, and agree to hear the appeal now.”

“This case is especially important because it reminds us that we must protect the First Amendment rights of journalists not only because they deserve it, but also because we as citizens need to hear what those journalists have to say,” Collins said.

“Today, the financial and contracting practices at the College of DuPage are more transparent, and respectful of the taxpayers paying for all of it, because of the work of the Watchdogs and others in the media who investigated and brought to light how things were before,” he said. “It is testament to how necessary good journalism is in Illinois.” 

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