Opinion
5-24-0107
11-21-2024
JOHN McBRIDE and ERH ENTERPRISES, Plaintiffs-Appellants, v. ROBERT KRAMER, Defendant-Appellee.
This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of Vermilion County. No. 21-L-52 Honorable Thomas M. O'Shaughnessy, Judge, presiding.
PRESIDING JUSTICE VAUGHAN delivered the judgment of the court. Justices Boie and Sholar concurred in the judgment.
ORDER
VAUGHAN PRESIDING JUSTICE
¶ 1 Held: The trial court's order granting summary judgment is affirmed where the court correctly found that plaintiffs were limited-purpose public figures and failed to make any showing of actual malice.
¶ 2 Plaintiffs, John McBride and ERH Enterprises, appeal from the trial court's order granting summary judgment to defendant, Robert Kramer, on plaintiffs' claims of defamation. On appeal, plaintiffs argue that the trial court erred in classifying them as "limited-purpose public figures" and granting summary judgment for defendant. For the following reasons, we affirm.
¶ 3 I. BACKGROUND
¶ 4 John McBride is the vice president of ERH Enterprises (ERH). ERH operates and maintains municipal sewage systems and provides other public works within the State of Illinois. Beginning in fiscal year 2011-12, ERH contracted with the City of Gilman, Illinois (Gilman), to provide sewage system operations, repair, and maintenance, water plant operations, and maintenance. ERH performed additional public works services for Gilman, including general city maintenance such as street maintenance and grass cutting. On December 21, 2020, Gilman city council unanimously moved to approve Gilman's agreements with ERH that would maintain the city-owned properties infrastructure from 2021 to 2025, at a cost of $11,000 per month, maintain and operate the water facility and water infrastructure from 2021 to 2025 for $10,000 per month, and perform public sanitary sewer services from 2021 to 2023, with a two-year option, for $11,000 per month. At the February 8, 2021, Gilman city council meeting, the Gilman mayor advised the council that the Gilman lift station was in bad shape The council meeting minutes indicated that McBride would provide an estimate for the lift station that "may be around $50,000." The mayor also advised that both pumps at the water tower were having problems and "may need to be replaced." The minutes stated that McBride would also "provide an estimate for those pumps as well." At the next Gilman city council meeting, Gilman resident, Robert Kramer, provided his opinion about the lift station pumps, city police, and Gilman's website. The mayor again advised the council of the need to replace the lift station pumps. "After some discussion about the work to be done" the mayor "recommended acceptance" of ERH's February 9, 2021, proposal because ERH was "familiar with the city's system and has proved to be trustworthy to do good work and provide quality parts." The Gilman city council unanimously approved the ERH bid of $67,300 "to rebuild the lift station near Cargill without competitive bidding." Thereafter, Kramer began posting statements regarding the contracts between Gilman and plaintiffs on his Facebook page entitled Gilman Live 2 where he regularly shared his findings, commentary, and statements related to local governmental issues.
¶ 5 On October 5, 2021, plaintiffs filed a two-count verified complaint against Robert Kramer. The record reveals that Kramer was an engaged citizen who began participating in local governmental affairs in 2019. He investigated and discussed the decisions of public officers, advocated for transparency in public affairs and good stewardship of public resources, and raised concerns about local taxing and spending. He frequently attended Gilman city council meetings and submitted numerous Freedom of Information Act (FOIA) requests to Gilman. He was also a 2021 election write-in candidate for mayor of Gilman. Count I of plaintiffs' complaint alleged Kramer committed libel against McBride. Count II alleged Kramer committed libel against ERH.
¶ 6 Count I was based on Facebook and email postings made by Kramer. The first posting was on April 1, 2021, at which time Kramer posted a copy of ERH correspondence dated February 9, 2021, outlining a proposal to rebuild the lift station in Gilman, Illinois, to his "Gilman Live 2" Facebook group. The correspondence containing the proposal was accompanied with the following message:
"Please note, there is no mention of the Manufacturer, model or anything specific like volume flow rate or head pressure, Warranty etc. The cost, or value of what the City is buying is impossible to determine without this information.
This is totally corrupt to accept this proposal without listing the parts and specifics so the City knows the value of what it is getting and can shop it."
Plaintiffs alleged that this statement (Statement #1) was false and defamatory because it implied that McBride purposely concealed information regarding the lift station proposal and was involved in a corrupt scheme to deceive the public.
¶ 7 On April 3, 2021, Kramer posted a picture with a monster hovering over what was labeled as the City of Gilman. The monster was labeled "ERH." Kramer's posting was titled "Gilman Mayors love affair with ERH" and stated:
"ERH a company located in Westville, IL, about 100 miles away, Why has Gilman Mayor chosen to fire City employees and turn all maintenance and city work over to his buddy John McBride??? December 21, 2020[,] the Gilman City Council voted to give ERH 3 exclusive contracts with no outside bids or even review of possibly hiring City local Employees. $424,000 Dollars in Contracts for Services we do not Monitor. That is $35,333 Dollars in monthly salaries. Ask your Mayor or Councilman, how many hours did ERH Employees actually work in Gilman last month and what did they do for us to give them 35,000 dollars. Kramer for Mayor.
***
Gilman, FOIAs substantiate that the City Council, Mayor have absolutely no record of Hours worked, Maintenance done by ERH for the $35,333 dollars a month we pay them. Where is all that money really going?" (Emphasis in original.)
Plaintiffs alleged these statements (Statement #2) were false and defamatory because they implied McBride had an inappropriate business and/or personal relationship with the Gilman mayor and plaintiffs were involved in a corruption scheme designed to conceal vital information regarding the lift station project and thereby deceive the public.
¶ 8 On August 12, 2021, Kramer sent an email to ERH and the Edgar County Watchdogs. The email accused McBride "of screaming and threatening legal action during a phone call" with Kramer the same day. In reference to Kramer's request for documentation regarding the lift station, Kramer's email stated the following:
"John McBride just called me and was very mad and screaming that he was going to put his lawyers on me now because I was asking him to send me documentation which he previously told me he would send me on a specific list of parts with specs, make and model as well as rating on a job ERH is doing in Gilman on the Lift Station. I also requested maintenance records which previously he stated he would send me but is now refusing. I told him it was very hard to understand him as he was screaming and asked him to please email me what he was saying because it was very hard to understand what all he was screaming. He absolutely refused to email or document anything and stated he does not use email, and that he only talked on the phone[,] and I told him that was improper because nothing is documented[,] and a person can say whatever they want and there is no accountability. What I want is documentation for the parts used in the current Lift Station rebuild and documentation of maintenance records from the Lift Station for the last 5 years., and for this he wants to sick [sic] his lawyers on me. ERH is not accredited with the Better Business Bureau in Illinois[,] and we have little to go on. The City of Gilman has passed many No-Bid contracts to ERH under the Mayors specific request that there be no engineering review or outside bids which is against Illinois Regulations. The people of Gilman have a right to know what their Tax dollars are going for."
Kramer claims this requirement is an Illinois regulation; to avoid confusion we clarify that the requirement mentioned is a statute and exceptions thereto exist. See 65 ILCS 5/8-9-1 (West 2020).
The highlighted portions are the statements claimed as libelous in the complaint.
Plaintiffs alleged these statements (Statement #3) were false and defamatory because they implied that McBride dealt with Kramer in a highly unprofessional and hostile manner in his official capacity and plaintiffs were involved in a corruption scheme designed to conceal vital information regarding the lift station proposal and deceive the public.
¶ 9 Count I alleged that Kramer's statements "maliciously and wrongfully caused the publication of the false and defamatory" emails and postings that impugned McBride's honesty and integrity. The count classified Kramer's statements as "wholly false," and alleged the statements injured McBride's reputation.
¶ 10 Count II was also based on Kramer publications to his Gilman Live 2 group. In a posting on April 1, 2021, entitled "The Gilman Water-Lift-Gate Scandal," Kramer posted the following:
"I, Robert Kramer go to great lengths to be accurate and substantiate what I say to be true. The following pictures contain the documents I have sent and received from the City of Gilman. With these documents and the video of the 2 City Council meetings every person has the ability to see the facts and make their own conclusions. ***
1. The City of Gilman is refusing to provide information to all for comparison prices for equipment the Mayor chooses to buy exclusively through ERH
2. All City Councilmen voted to approve Proposal for $67,300 without knowing anything about what they were getting or what they were replacing.
3. The Mayor had to slip into the vote and state that they knew they were voting on a No Bid contract with ERH.
4. Reference in March 8 Meeting by both Bachman and the Mayor to private meeting they not only discussed business but also made decisions
5. Statement by the City that they have no records of any maintenance logs, work logs or repair logs of any of its infrastructure being maintained under contract with ERH.
6. Critical City Audio Tape of Feb 8 Meeting is missing."
ERH alleged that these statements (Statement #4) were false and defamatory because Kramer implied that ERH was implicated in a corruption scheme designed to conceal vital information regarding the lift station proposal and deceive the public.
¶ 11 Count II also referenced the monster hovering over the city posting from April 3, 2021, along with Kramer's post on that day (Statement #2), as well as the August 12, 2021, email to ERH and the Edgar County Watchdogs (Statement #3), both written above. The allegations were the same but were geared toward ERH's reputation. No copies of any of the alleged postings were attached to the complaint.
¶ 12 On November 8, 2021, Kramer (pro se) filed his answer admitting the postings but denying the postings were malicious or defamatory. He also filed a motion to dismiss claiming the defamation suit was filed because he refused to abide by the cease-and-desist letter sent by plaintiffs' counsel, David Cox. He further stated that the postings were related to "a political campaign that was extremely limited to Iroquois County [which ran] for a very short time and ended in April with the elections." His motion was supported by additional documentation, including a March 16, 2021, email from Gilman in response to Kramer's FOIA request, stating it did not have flow and head ratings for the pumps, or the make, model, or specs for the pumps in Gilman's files.
¶ 13 On December 13, 2021, plaintiff moved to strike or dismiss Kramer's answer and pleadings because they were unverified and further claimed they were not properly served. On February 1, 2022, Kramer voluntarily moved to withdraw his motion to dismiss. He also filed a motion requesting additional time to obtain legal counsel to assist him. On April 21, 2022, the court granted Kramer's motion to withdraw his motion to dismiss and Kramer was given 30 days to file a verified answer. Thereafter, Kramer obtained legal counsel.
¶ 14 On December 30, 2022, Kramer moved for summary judgment. The motion argued that Kramer's opinions were not actionable as defamation and the complaint failed to show that Kramer made false statements about plaintiffs. The motion further argued that plaintiffs failed to plead damages and that Kramer's statements were afforded protection under the Citizens Protection Act. Numerous pages were attached to the motion showing that Kramer regularly appeared at Gilman city council meetings, voiced concerns over contracts and costs, filed many FOIA requests, and even ran as a write-in candidate for mayor of Gilman. The 26 documents also revealed that Kramer felt Cox and the plaintiffs were trying to intimidate him in many ways, including having ERH trucks slow down or stop when they passed by his residence.
¶ 15 Plaintiffs filed their reply on March 16, 2023. They first claimed the motion was contrary to the rules of civil procedure, stating the motion was an attack on the pleadings and therefore was a section 2-615 motion, not a motion for summary judgment. Plaintiffs next argued that there were issues of material fact related to the 26 documents attached to the motion for summary judgment.They then argued, citing Solaia Technology, LLC v. Specialty Publishing Co., 221 Ill.2d 558, 579 (2006), that their complaint was both legally and factually sufficient to show defamation based on the elements. Plaintiffs further argued that the Citizens Protection Act protection was unwarranted because even if Kramer was
The pleading did not indicate how the attachments raised a question of material fact or state the alleged issue(s) of material fact.
"participating in local government and discussing with his community the decisions of public officials, the untrue statements about the plaintiffs, a private citizen and a private business entity, are not protected under the 1st Amendment to the United State constitution or the Citizens Protection Act."
¶ 16 Kramer filed a response on March 23, 2023, noting plaintiffs failed to demonstrate any disputed material fact. It further argued that Kramer's statements, questions, and opinions were truthful. No argument was provided regarding the Citizens Protection Act beyond citing Wright Development Group, LLC v. Walsh, 238 Ill.2d 620, 624 (2010), and Hytel Group, Inc. v. Butler, 405 Ill.App.3d 113, 114 (2010), and saying plaintiffs' arguments were inapplicable. The parties presented their arguments on May 10, 2023.
¶ 17 On August 18, 2023, the court issued a 28-page order addressing every issue raised and the evidence submitted by the parties with their pleadings. After carefully considering the language of each of the four statements, the court found that Statements 1, 3, and 4 were defamatory per se. The order also addressed first amendment considerations relative to the status of the plaintiffs and whether the speech at issue was a public concern. Despite the parties' failure to address the plaintiffs' status, the court found the issue necessary for consideration because it was "critical to the standard of liability applicable to the case," noting such classification was a question of law.
¶ 18 The court found that plaintiffs were public figures because the defamatory statements were related to the Gilman contracts with ERH, and defendant alleged that ERH replaced all Gilman's public works employees. The court further found that these voluntary acts caused plaintiffs to assume "a role of especial prominence and leadership in the affairs of the City." The court found plaintiffs were limited-purpose public figures and then applied a three-step test to determine whether the allegedly defamatory statement concerning a limited-purpose public figure was "sufficiently related to the controversy in which the party has[d] exposed himself to public scrutiny to warrant the implementation of the actual malice standard." Following consideration of each step, the court found that "Plaintiffs' roles in the affairs of Gilman are limited to public works- sewerage and water operations and maintenance, general streets and park maintenance. Plaintiffs are not involved in the general administration of Gilman's governmental affairs, nor public health and safety." The court noted that the three statements, found to be defamatory per se, all pertained "to Plaintiffs' public works contracts with the City, and all are, therefore, related to the public matters in which Plaintiffs have voluntarily exposed themselves to public scrutiny."
¶ 19 Based on that assessment, the court found that plaintiffs were required to establish actual malice to prevail on both the claims as well as the request for punitive damages. The court found that plaintiffs sufficiently alleged actual malice but failed to prove actual malice as there was no proof of deliberate falsification or reckless publication. The court found plaintiffs "offered no evidence contradicting [Kramer's] avowals that he did not act with actual malice toward them when making the defamatory statements" and found that the "bare allegation of malice contained in the complaint, standing alone, [was] not sufficient to withstand a motion for summary judgment." Accordingly, the court granted defendant's motion for summary judgment.
¶ 20 Plaintiffs moved for reconsideration on September 14, 2023, arguing that the trial court erred "in its previous application of existing law, namely the limited public figure" classification. Plaintiffs argued that pursuant to Gertz v. Robert Welch, Inc., 418 U.S. 323, 345 (1974), limited public figures were those who "thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved." In support, plaintiffs argued that there "was no public controversy prior to [Kramer's] statements in which Plaintiffs became involved and attempted to influence public opinion."
¶ 21 Plaintiffs argued, citing Davis v. Keystone Printing Service, Inc., 111 Ill.App.3d 427 (1982), that the "controlling point in assessing an individual's status [was] at the time just prior to an alleged defamatory publication, since a defendant cannot construct his own defense by making a plaintiff a public figure through the same statements that defame him." Plaintiffs claimed, "there was no public controversy prior to the Defendant's defamatory statements" as plaintiffs submitted the lift station repair project proposal to Gilman on February 9, 2021, and no public controversy existed at that time. Plaintiffs further argued that while Kramer "stated his opinions regarding the lift station pumps" at Gilman's regular council meeting on March 8, 2021, the city council considered and unanimously accepted plaintiffs' lift station repair proposal on March 8, 2021, without public controversy. Thereafter, between March 8 and March 29, 2023, Kramer submitted FOIA requests to Gilman seeking information related to plaintiffs' contracts with Gilman, and on April 1, 2021, Kramer published his initial defamatory comment.
¶ 22 Plaintiffs then quoted the definition of "public controversy" from Black's Law Dictionary as "[a] controversy involving issues that are debated publicly and that have significant ramifications for persons other than those embroiled in it." They argued, based on the events from February 2021 to April 2021, that no public controversy existed at the time Kramer published the first defamatory statement on April 1, because "[a] single individual stating their opinion on municipal infrastructure and simply submitting FOIA requests cannot possibly be regarded as examples of a public debate that rises to a controversial level." Plaintiffs argued that it was only when Kramer published the first defamatory statement that a public controversy existed. Plaintiffs stated that they were not limited-public figures, but private figures, and no heightened standard for defamation was applicable.
¶ 23 Kramer responded on October 10, 2023. He argued that plaintiffs were public figures because they voluntarily assumed a role maintaining and operating public works for Gilman. Kramer further cited Waldbaum v. Fairchild Publications, Inc., 627 F.2d 1287, 1297 (D.C. Cir. 1980), for its discussion on how a court should decide when the controversy arose, noting that examination of "whether persons actually were discussing some specific question" was relevant. Waldbaum further stated that, "[i]f the issue was being debated publicly and if it had foreseeable and substantial ramifications for nonparticipants, it was a public controversy." Id.
¶ 24 Kramer argued that this was "a case where there was in existence a public issue in which plaintiff became involved and attempted to influence public opinion." He argued that his statements concerned taxpayer dollars, an indisputably public issue. He questioned the lack of oversight over plaintiffs' actions as early as December 21, 2020, at which time Gilman turned over the entire maintenance and operation of Gilman's public works to ERH. He argued that plaintiffs' insertion into Gilman's public works paid by taxpayer dollars in December 2020, and issues stemming from that insertion, revealed a public controversy long before he published any statements on Facebook or through email. In support, he noted that the council's actions resulted in agreements totaling over $1 million for a city with only 1700 residents and that the people whose jobs were replaced would consider the decision controversial. He further argued that even if the December 2020 turnover of control to ERH was insufficient to find a public controversy, one had arisen by March 2021, because the issue of whether Gilman's lift gate needed maintenance was discussed at the March 8, 2021, city council meeting, by Kramer and the council. He further noted that the debate was also covered by the local newspaper. Kramer argued that because the public controversy was established before April 1, 2021, the trial court's decision should be affirmed.
¶ 25 Plaintiffs filed their reply on October 31, 2023. Therein, plaintiffs argued that Kramer was broadening the trial court's ruling because there was no controversy until April 1, 2021. Citing Waldbaum, 627 F.2d at 1292, plaintiffs argued that a person became a limited-purpose public figure "if he is attempting to have, or realistically can be expected to have, a major impact on the resolution of a specific public dispute that has foreseeable and substantial ramifications for persons beyond its immediate participants." They did not dispute that they voluntarily assumed a role maintaining and operating public works for Gilman and entered the sphere where public scrutiny was foreseeable, but "factors still must be in the context of a specific public dispute in order to be considered limited public figures." Plaintiffs further argued that Kramer could only speculate as to whether the decision to release Gilman employees and hire ERH would have been controversial and that public issues did not necessarily equate to public controversy. It further contended that the record contained no comments from the council members beyond their unanimous acceptance of the lift station repair proposal on March 8, 2021. Plaintiffs maintained their argument that no public controversy existed prior to the publication of Kramer's statements and therefore they could not be limited-purpose public figures.
¶ 26 The parties waived oral argument on the motion to reconsider and the court issued its decision in a docket entry dated December 30, 2023. The entry noted ERH's provision of services beginning in fiscal year 2011-12. The court also noted language from Gertz, 418 U.S. at 345, which held that first amendment protections applied only where the plaintiff, by virtue of his voluntary conduct, assumed a role of special prominence in the affairs of society which invited attention and comment. The trial court found that plaintiffs too narrowly sought to define "public figure" by focusing upon the timing of the controversial statement, stating,
"Plaintiffs became public figures when their public works contracts were entered with the City, thereby inviting public scrutiny and criticism of their conduct under those contracts, in essence, subjecting themselves to being drawn into a controversy. Public scrutiny and criticism of Plaintiffs, when limited to their performance under those contracts, is entitled to New York Times' First Amendment protections."
New York Times Co. v. Sullivan, 376 U.S. 254 (1964).
Thereafter, the trial court denied the motion to reconsider and plaintiffs timely appealed.
Kramer did not cross appeal the trial court's findings of defamation and therefore this court will not address those findings.
¶ 27 II. ANALYSIS
¶ 28 On appeal, plaintiffs argue that the trial court erred as a matter of law by classifying themas limited-purpose public figures and granting defendant's summary judgment motion. Summary judgment is only appropriate when" 'the pleadings, depositions, admissions, and affidavits show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law.'" Village of New Athens v. Smith, 2021 IL App (5th) 200257, ¶ 15 (quoting Direct Auto Insurance Co. v. Beltran, 2013 IL App (1st) 121128, ¶ 43). We review the trial court's decision on a summary judgment motion de novo. Id. The issue of whether a party is properly classified as a public or private figure for purposes of a defamation claim is a question of law. Reed v. Northwestern Publishing Co., 124 Ill.2d 495, 511 (1988) (citing Rosenblatt v. Baer, 383 U.S. 75, 88 (1966)). Questions of law are reviewed de novo. People v. Sanders, 238 Ill.2d 391, 398 (2010).
Despite providing separate counts related to the alleged defamation of McBride and ERH in the complaint, "plaintiffs" did not differentiate between McBride and ERH either before the trial court or on appeal. Accordingly, we hold that any differentiation that could have been made between the parties was forfeited. Haudrich v. Howmedica, Inc., 169 Ill.2d 525, 536 (1996).
¶ 29 Plaintiffs assert that they cannot be a limited-purpose public figure because Kramer's defamatory statements were issued after the Gilman city council unanimously adopted plaintiffs' proposal for maintenance on Gilman's lift station. Since no public dispute was at issue prior to the issuance of Kramer's statements, they argue that the trial court erred because the public dispute cannot arise out of the defamatory statements.
¶ 30 The law addressing the dichotomy of freedom of speech and defamation is well established. "The general proposition that freedom of expression upon public questions is secured by the First Amendment has long been settled by" United States Supreme Court decisions. New York Times Co. v. Sullivan, 376 U.S. 254, 269 (1964). "The constitutional safeguard *** 'was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people.'" Id. (quoting Roth v. United States, 354 U.S. 476, 484 (1957)).
¶ 31 There is a "profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials." Id. at 270.
" 'Cases which impose liability for erroneous reports of the political conduct of officials reflect the obsolete doctrine that the governed must not criticize their governors. *** The interest of the public here outweighs the interest of appellant or any other individual. The protection of the public requires not merely discussion, but information. *** Errors of fact, particularly in regard to a man's mental states and processes, are inevitable. *** Whatever is added to the field of libel is taken from the field of free debate.'" Id. at 272 (quoting Sweeney v. Patterson, 128 F.2d 457, 458 (D.C. Cir. 1942)).
¶ 32 New York Times held that statements-even those that may be erroneous-opposing government officials were firmly protected by the United States Constitution and to find otherwise "dampens the vigor and limits the variety of public debate" in a manner "inconsistent with the First and Fourteenth Amendments." Id. at 279. The Court further held that public officials were prohibited from "recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with 'actual malice'-that is, with knowledge that it was false or with reckless disregard of whether it was false or not." Id. at 279-80.
¶ 33 Later that year, in Garrison v. State of Louisiana, 379 U.S. 64, 74 (1964), the Court extended the holding to instances of criminal defamation. The Court stated,
"What we said of Alabama's civil libel law in New York Times [citation] applies equally to the Louisiana criminal libel rule: 'It would give public servants an unjustified preference over the public they serve, if critics of official conduct did not have a fair equivalent of the immunity granted to the officials themselves.'" Id. (quoting New York Times, 376 U.S. at 282-83).
The Court acknowledged that erroneous statements were" 'inevitable in free debate'" but such statements" 'must be protected if the freedoms of expression are to have the "breathing space" that they "need *** to survive" '" whether the statements were the subject of civil or criminal sanctions. Id. (quoting New York Times, 376 U.S. at 271-72). "For speech concerning public affairs is more than self-expression; it is the essence of self-government." Id. at 74-75.
¶ 34 The issue of whether a party was a public figure was initially addressed in Rosenblatt v. Baer, 383 U.S. 75 (1966). The Court noted that the "plaintiff in New York Times was one of three elected Commissioners of the City of Montgomery, Alabama." Id. at 80. The plaintiff in Rosenblatt "regularly contributed an unpaid column" in the local paper in which he "frequently commented on political matters" and was an "outspoken proponent" of certain issues in the area. Id. at 78. Therein, the Court specifically rejected the argument whether a party was a public official should be based on state-law standards, noting that the states' definitions were "for local administrative purposes, not the purposes of a national constitutional protection," further noting that constitutional principles could not" 'vary with state lines.'" Id. at 84 (quoting Pennekamp v. State of Florida, 328 U.S. 331, 335 (1946)). While the Court ultimately found that no "precise lines need be drawn for the purposes of this case," the Court stated,
"Criticism of government is at the very center of the constitutionally protected area of free discussion. Criticism of those responsible for government operations must be free, lest criticism of government itself be penalized. It is clear, therefore, that the 'public official' designation applies at the very least to those among the hierarchy of government employees who have, or appear to the public to have, substantial responsibility for or control over the conduct of governmental affairs." Id. at 85.
¶ 35 The Rosenblatt Court continued stating,
"The thrust of New York Times is that when interests in public discussions are particularly strong, as they were in that case, the Constitution limits the protections afforded by the law of defamation. Where a position in government has such apparent importance that the public has an independent interest in the qualifications and performance of the person who holds it, beyond the general public interest in the qualifications and performance of all government employees, both elements we identified in New York Times are present and the New York Times malice standards apply." Id. at 86.
¶ 36 Further distinction between public and private parties was established in Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974). Therein, the Court provided elements for consideration to classify a party as a "public person" that included "[t]hose who, by reason of the notoriety of their achievements or the vigor and success with which they seek the public's attention, are properly classed as public figures and those who hold governmental office." Id. at 342. Public parties were precluded from recovery for reputational injury unless they showed by "clear and convincing proof that the defamatory falsehood was made with knowledge of its falsity or with reckless disregard for the truth." Id. The Court further noted that in addition to public officials' access to "channels of effective communication" which provides a better opportunity to "counteract false statements," a party seeking "governmental office" was required to accept consequences related thereto. Id. at 344. Those consequences included "closer public scrutiny" that was not limited to "the formal discharge of official duties." Id. Ultimately, the Court created what is now known as a limitedpurpose public figure and defined such figure as "an individual [who] voluntarily injects himself or is drawn into a particular public controversy and thereby becomes a public figure for a limited range of issues." Id. at 351. The Court specifically rejected the assumption that a citizen's participation in community and professional affairs rendered him a public figure for all purposes. Id. at 352. Instead, the Court instructed that,
"Absent clear evidence of general fame or notoriety in the community, and pervasive involvement in the affairs of society, an individual should not be deemed a public personality for all aspects of his life. It is preferable to reduce the publicfigure question to a more meaningful context by looking to the nature and extent of an individual's participation in the particular controversy giving rise to the defamation." Id.
¶ 37 While no specific formula was enunciated by the United States Supreme Court, a three-part test was propounded by the D.C. Circuit Court. See Waldbaum v. Fairchild Publications, Inc., 627 F.2d 1287 (D.C. Cir. 1987). First, the court was required to isolate the public controversy and the plaintiff's scope related thereto. Id. at 1296. The court clarified that a "public controversy is not simply a matter of interest to the public," stating the controversy "must be a real dispute," the outcome of which affects the public, or some segment of the public. Id. at 1296. "Rather, a public controversy is a dispute that in fact has received public attention because its ramifications will be felt by persons who are not direct participants." Id. It further noted the court's function was not to question the legitimacy of the public's concern. Id. at 1296-97. The court should "ask whether a reasonable person would have expected persons beyond the immediate participants in the dispute to feel the impact of its resolution. If the issue was being debated publicly and it had foreseeable and substantial ramifications for nonparticipants, it was a public controversy." Id. at 1297.
¶ 38 Here, the public controversies included ERH's proposal for maintenance of the lift station, ERH's maintenance of Gilman public works department after it replaced Gilman employees, and the costs and benefits associated with those actions. These actions, all of which were brought up in the public forum of Gilman city council meetings, were debated at the city council meeting, questioned by Kramer, approved by the Gilman city council, occasionally reported in the local paper, and would be paid by Gilman taxpayers. The ERH contracts affected all citizens of Gilman even if they did not participate in the public discussion. Accordingly, we hold that plaintiffs' insertion into Gilman obligations and the effect of this insertion on the Gilman citizens, rises to a public controversy.
¶ 39 Second, Waldbaum instructs the court to consider the plaintiff's role in the debate, stating that trivial or tangential participation is insufficient. Id. While Waldbaum addresses the party's influence though press coverage or debate, such analysis has little relevance in the current situation where the entire public controversy surrounded Gilman's delegation of its own responsibilities to the plaintiffs, which we hold as consistent with a pervasive involvement in the affairs of society. Notably, here, plaintiffs' expanded role in Gilman affairs is exactly what created the public controversy.
¶ 40 Finally, Waldbaum's test requires the court to determine whether the "alleged defamation" was "germane to the plaintiff's participation in the controversy." Id. at 1298. As explained above, the public controversy was the numerous contracts between ERH accepted by the city council. Kramer's comments addressed the quality of plaintiffs' work, the amount of work performed, the benefits provided to the Gilman residents based on the cost of the services, and any potential underlying relationship between the Gilman mayor and McBride that would undermine faith in Gilman's acceptance of the numerous contracts with ERH, especially when no other bids were sought. Kramer's comments directly concerned ERH's participation in the controversy where they addressed both the numerous contracts provided with the decision to not request other bids and the quality of plaintiffs' work. Accordingly, we hold that under Waldbaum's test, plaintiffs would be correctly classified as limited-purpose public figures.
¶ 41 Inasmuch as plaintiffs rely on the timing of the defamatory statements, we find such reliance misplaced. In Davis v. Keystone Printing Service, Inc., 111 Ill.App.3d 427, 429 (1982), a minister filed a libel action against a newspaper and its reporter, and the minister was appealing the trial court's ruling that he was a public figure. Importantly, in Davis, the minister's alleged public figure status was based on "fame and notoriety" due to pictures with celebrities, politicians, and appearances on nation-wide television and radio programs. Davis noted that
"[r]ecent Illinois cases which have determined that a public official/public figure/matter of public concern is present show that either the plaintiff has been extensively involved in public matters and in the public eye or the publication itself has been limited to a particular audience relevant to the subject matter." Id. at 437.
¶ 42 Here, Gilman's delegation of its own obligations to plaintiffs in December 2020, and acceptance of additional contracts with plaintiffs to perform supplemental public works projects on behalf of Gilman in March 2021, can only be classified as ERH's "extensive involvement in public matters." Further, the city council's acceptance of the contract as part of its public council meetings squarely placed plaintiffs into the public eye. Plaintiffs' voluntary acquisition and acceptance of the Gilman's obligations preclude them from claiming they are not limited-purpose public figures, as the limited purpose is solely related to actions performed by plaintiffs pursuant to the contracts delegating Gilman's responsibilities to plaintiffs.
¶ 43 Regardless of the Waldbaum test, it is undisputed that public speech against governmental entities, its officials, and those performing official duties, is clearly protected by the first amendment. See New York Times Co., 376 U.S. at 269; Rosenblatt, 383 U.S. at 85; Garrison, 379 U.S. at 74. Here, the trial court found that "the pleadings, depositions, and exhibits on file establish that Plaintiffs are public figures against whom the First Amendment protection of the New York Times standard of actual malice applies." While the court then addressed general-purpose and limited-purpose public figures to ultimately find plaintiffs were limited public figures, it noted that plaintiffs' role in Gilman's affairs was "limited to public works-sewerage and water operations and maintenance, general streets and parks maintenance." It further found that all of Kramer's statements pertained to plaintiffs' public works contracts with Gilman "and are therefore, related to the public matters in which Plaintiffs have voluntarily exposed themselves to public scrutiny."
¶ 44 While a party may not become a limited-purpose public figure merely by accepting public funds (see Hutchinson v. Proxmire, 443 U.S. 111, 135 (1979)), one who contracts with the government may become a public figure because of the way in which that party conducts itself in connection with those public contacts. Carr v. Forbes, Inc., 259 F.3d 273, 279 (4th Cir. 2001). The record clearly establishes that plaintiffs' proposal did not include specific details related to the lift station project. Nothing in the city council minutes indicated that any member of Gilman's city council questioned plaintiffs' proposal or requested specific details for the project. However, the lack of specificity was clearly raised by Kramer at the March city council meeting. We can only presume his statements were reasonably persuasive when the council meeting minutes revealed that the mayor was compelled to "recommend accepting" plaintiffs' proposal to the Gilman city council by proclaiming plaintiffs were "trustworthy," noting their prior use of "quality parts."
¶ 45 After the Gilman city council accepted the proposal at the mayor's recommendation, Kramer submitted FOIA requests to Gilman to obtain information related to the project. On March 22, 2021, Gilman sent an email stating that it did not have the "flow and head rating for the pumps in use and all the spec for the new pumps" proposed by ERH or the "make, model and all specs on the pumps" proposed by ERH as they did "not exist in the City's files." On the same date, Gilman sent an email to Kramer in response to a different FOIA request stating that "[n]o maintenance logs for the equipment" maintained by ERH in 2020 and "[n]o maintenance logs for repairs and servicing performed on the lift station for the last 5 years" existed in the city's files. After receiving no information on the project from Gilman, or the multi-year contract that replaced Gilman's city employees, Kramer questioned plaintiffs' proposal and requested specific details for the project from plaintiffs. Plaintiffs initially agreed to provide the information but later refused to provide responses to Kramer's questions regarding the public works projects. Plaintiffs present no argument as to why, after Gilman eliminated its own maintenance department and hired plaintiffs to perform the tasks previously performed by Gilman employees, that it should not be held to a limited-purpose public official standard for the work performed on behalf of Gilman. In fact, plaintiffs presented no reason why a public official standard would not be equally applicable, in a limited manner, to an entity or official that has voluntarily taken over Gilman's obligations or to which Gilman delegated its own responsibilities.
¶ 46 We also find plaintiffs' attempt to distinguish Weinel v. Monken, 134 Ill.App.3d 1039 (1985), equally without merit. In Weinel, the court found that the owner of an engineering firm was properly classified as a limited-purpose public figure when he entered a contract with the township and accepted payment for the project. Id. at 1042. Plaintiffs' attempt to distinguish the case by arguing that the project for which the engineer was hired was already controversial has no merit and misses the most basic point of protected free speech. In Weinel, the court noted that the underlying project was controversial. Id. In addition to the project controversy, the engineer initially agreed to provide services for free, later requested a fee of $2500, and later provided the same proposal for services for a $15,000 fee. Id. at 1041. The court held that "plaintiff's participation necessarily exposed him to public scrutiny and public comment" and found the engineer was "properly characterized as a public figure." Id. at 1042.
¶ 47 Here, the mayor originally advised the city council that plaintiffs' proposal for the lift station repair would be $50,000. The proposal submitted and approved-despite Kramer's comments at the March 2021 city council meeting-was for $67,300. Notably, Kramer's initial statement complained about the proposal's failure to provide the name of the manufacturer, model number, volume flow rate, head pressure, or if any warranty was attached to either the materials or labor provided pursuant to Gilman's contract with ERH.
¶ 48 To put it bluntly, plaintiffs' claim that a citizen's complaints about contracts between Gilman and a private contractor-after that same private contractor replaced Gilman's employees and public works department-is unprotected speech makes a mockery of the first amendment and the plethora of case law issued by the United States Supreme Court on the delicate balance between the first amendment and defamation claims. Those cases clearly identified government officials, and those who performed government functions, as public figures. See Garrison, 379 U.S. at 74; Rosenblatt, 383 U.S. at 85; see also New York Times Co., 376 U.S. at 272, 279 (addressing official conduct). Here, to the extent plaintiffs voluntarily assumed Gilman's municipal responsibilities, they are also classified as public figures, albeit limited-purpose public figures, subject to the contracts that transferred government obligations to plaintiffs. Accordingly, we affirm the trial court's classification of plaintiffs as limited-purpose public figures. As no other issue was raised regarding the trial court's order granting summary judgment to defendant, we also affirm that order.
¶ 49 III. CONCLUSION
¶ 50 For the reasons stated herein, we affirm the trial court's classification of plaintiffs as limited-purpose public figures and affirm its order granting summary judgment to defendant.
¶ 51 Affirmed.