2015 IL App (2d) 140618 No. 2-14-0618 Opinion filed September 4, 2015 ______________________________________________________________________________

IN THE APPELLATE COURT OF ILLINOIS

SECOND DISTRICT ______________________________________________________________________________

JAIME DOE, on Behalf of J. DOE, a Minor, ) Appeal from the Circuit Court ) of Kane County. Petitioner-Appellee, ) ) v. ) No. 14-MR-57 ) THE CATHOLIC DIOCESE OF ROCKFORD ) and JOHN DOE, ) Honorable ) David R. Akemann, Respondents-Appellants. ) Judge, Presiding. ______________________________________________________________________________

JUSTICE BIRKETT delivered the judgment of the court, with opinion. Justices Hutchinson and Zenoff concurred in the judgment and opinion.

OPINION

¶1 Respondents, the Catholic Diocese of Rockford and John Doe, appeal the judgment of the circuit court of Kane County granting the petition pursuant to Illinois Supreme Court Rule 224

(eff. May 30, 2008) 1 of petitioner, Jaime Doe, seeking the identity of the writer of an allegedly defamatory letter concerning her son, J. Doe. Respondents argue that petitioner’s Rule 224 petition was insufficiently pleaded and that, even if the petition were sufficient, disclosure is prohibited under the clergy-penitent privilege, codified at section 8-803 of the Code of Civil

Procedure (Code) (735 ILCS 5/8-803 (West 2012)). We affirm.

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2015 IL App (2d) 140618 this claim, respondents included Doe’s affidavit, along with documents from the Diocese addressing sexual misconduct and reporting as well as standards of behavior applicable to

Diocesan employees and volunteers.

¶7 In his affidavit, Doe averred that the writer “sought consultation and advice about Church

law, ethics and policy pertaining to [the writer’s] roles as a parishioner and a volunteer in the parish with responsibility for monitoring children.” Doe further averred that his role as pastor included guiding the parishioners in spiritual matters and providing counseling and direction about canon law, religious law and policy, and the Catholic faith. Doe also averred that church law required him to keep the confidentiality of requests for counseling and direction.

¶8 Petitioner filed a reply, generally controverting respondents’ arguments. Petitioner included in her reply, as an exhibit, a copy of correspondence sent to her by respondents’ attorney. Based on that correspondence, petitioner argued that respondents viewed the letter as an accusation against J. Doe of sexual misconduct, necessitating an investigation of the incident pursuant to the Diocese’s sexual misconduct standards. Additionally, petitioner attached an

affidavit from her attorney describing how respondents portrayed to petitioner the contents of the letter. Specifically, according to petitioner’s counsel, respondents described the letter as relating an incident that involved “more than just two boys checking each other out” (internal quotation marks omitted). Instead, respondents revealed that the letter specifically stated that J. Doe

“touched and fondled another boy’s private parts.” Further, petitioner offered to submit an amended petition including more detailed allegations of conduct from the letter, if the trial court deemed it necessary.

¶9 The trial court granted petitioner’s petition in part, ordering respondents to disclose only the identity of the writer of the letter. The trial court held that petitioner “met her discovery burden” because “[h]er proposed defamation claim would survive a section 2-615 [(735 ILCS

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5/2-615 (West 2012))] motion to dismiss.” The trial court reasoned that the “complained-of statement [was] not reasonably capable of an innocent construction, and it [could] be reasonably

construed as a factual assertion.” The trial court rejected respondents’ contention that, in addition to surviving a motion to dismiss pursuant to section 2-615 of the Code, it must also survive a motion to dismiss raising affirmative matters pursuant to section 2-619 of the Code

(735 ILCS 5/2-619 (West 2012)). Respondents timely appeal.

¶ 10 II. ANALYSIS

¶ 11 On appeal, respondents argue that the trial court erred in granting the petition.

Respondents contend that the petition was not sufficient to survive a motion to dismiss pursuant to section 2-615. Alternatively, respondents contend that the clergy-penitent privilege precludes the disclosure of the writer’s identity. We address each contention in turn.

¶ 12 Before we turn to respondents’ contentions on appeal, we first address petitioner’s

motion for leave to amend the pleadings, which we took with the case. Petitioner requests that, pursuant to Illinois Supreme Court Rule 362 (eff. Feb. ^[1], 1994), she be granted leave to amend her petition to conform the petition to the record. Petitioner argues that all of the information she seeks to add to the petition was within the various papers filed in the trial court. Petitioner further argues that such an amendment would not prejudice respondents. Respondents contend

that an amendment is improper because it would not cure the petition’s defects and, in any event, they would be prejudiced because petitioner argued the additional information only in her reply, so respondents did not have an opportunity to directly respond below. We have carefully considered the parties’ arguments and we deny petitioner’s motion for leave to amend.

¶ 13 A. Sufficiency of Petition

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¶ 14 Respondents initially contend that the petition was not sufficiently pleaded. This argument requires that we consider the text of Rule 224 and the standards under which a Rule

224 petition is reviewed.

¶ 15 Rule 224 states, pertinently:

“(i) A person or entity who wishes to engage in discovery for the sole purpose of ascertaining the identity of one who may be responsible in damages may file an independent action for such discovery.

(ii) The action for discovery shall be initiated by the filing of a verified petition in the circuit court of the county in which the action or proceeding might be brought or in which one or more of the persons or entities from whom discovery is sought resides. The petition shall be brought in the name of the petitioner and shall name as respondents the persons or entities from whom discovery is sought and shall set forth: (A) the reason the proposed discovery is necessary and (B) the nature of the discovery sought and shall ask

for an order authorizing the petitioner to obtain such discovery. The order allowing the petition will limit discovery to the identification of responsible persons and entities and where a deposition is sought will specify the name and address of each person to be

examined, if known, or, if unknown, information sufficient to identify each person and the time and place of the deposition.” Ill. S. Ct. R. 224(a)(1) (eff. May 30, 2008).

¶ 16 Under Rule 224, the unidentified individual or entity does not bear the burden of demonstrating that the discovery request does not satisfy the rule; rather, it is the petitioner who bears the burden of showing that his or her proposed complaint supports a cause of action, even

if the unidentified individual or entity does not challenge the request. Hadley v. Subscriber Doe, 2014 IL App (2d) 130489, ¶ 12, aff’d, 2015 IL 118000. This is because Rule 224 is intended to assist a petitioner in identifying a currently unidentified party who might be liable; however, to

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2015 IL App (2d) 140618 employ the rule, the petitioner must demonstrate that the proposed identification is necessary.

Hadley v. Subscriber Doe, 2015 IL 118000, ¶ 25.

¶ 17 In order to show the necessity of the identification, the petitioner must demonstrate that a potential defamation claim against the unidentified individual or entity would survive a section

2-615 motion to dismiss. Id. ¶ 27. A section 2-615 motion to dismiss is concerned with the legal

sufficiency of a complaint, posing the question of whether the allegations of that complaint, viewed in the light most favorable to the plaintiff, state a claim on which relief may be granted.

Id. ¶ 29. We review de novo the trial court’s decision on a section 2-615 motion to dismiss. Id.

¶ 18 In order to state a claim of defamation, a plaintiff must plead facts demonstrating that the defendant made a false statement about the plaintiff, that the defendant made an unprivileged publication of the subject statement to a third party, and that the publication caused damages to the plaintiff. Stone v. Paddock Publications, Inc., 2011 IL App (1st) 093386, ¶ 24. A statement

is defamatory if it harms an individual’s reputation by lowering the individual in the eyes of the community or if it deters the community from associating with the individual. Id. Defamation can be either defamation per se or defamation per quod. Id.

¶ 19 A statement is defamatory per se if its harm is apparent and obvious on its face. Id. ¶ 25.

When a statement is defamatory per se, a plaintiff need not plead actual damage to his or her reputation, because the statement is deemed to be so obviously and materially harmful that injury to the plaintiff’s reputation is presumed. Id. However, because a claim of defamation per se relieves a plaintiff of the obligation to prove actual damages, it must be pleaded with a

heightened level of precision and particularity. Id. Illinois recognizes five categories of statements that are defamatory per se: (1) words imputing the commission of a criminal offense;

(2) words imputing an infection with a loathsome communicable disease; (3) words imputing an individual’s inability to perform his employment duties or a lack of integrity in performing those

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2015 IL App (2d) 140618 duties; (4) words imputing a lack of ability in an individual’s profession or prejudicing an

individual in his or her profession; and (5) words imputing an individual’s engagement in fornication or adultery. Id. In this case, petitioner contends that the writer’s statements fall within the first and last categories. With these principles in mind, we turn to respondents’ contentions.

¶ 20 Respondents argue that petitioner did not sufficiently plead facts that demonstrated a defamation claim against the writer. Respondents contend that, because the issue is whether petitioner’s claim would survive a section 2-615 motion to dismiss, we are limited to the four corners of the petition. Further, respondents contend that petitioner failed to sufficiently allege statements that are defamatory per se. We address respondents’ contentions in turn.

¶ 21 1. Scope of Review

¶ 22 Respondents’ initial contention is that we are limited to the four corners of the petition in our review. We agree. Before our supreme court decided Hadley, there might have been some room for debate, but that door has been closed by Hadley, 2015 IL 110800, ¶¶ 27, 29. Our supreme court held that section 2-615 standards apply to the consideration of a Rule 224 petition.

Id. ¶ 27. More specifically, when conducting a section 2-615 analysis, the court is limited to considering “[a]ll facts apparent from the face of the complaint, including any attached exhibits.”

Id. ¶ 29. Thus, we agree with respondents and limit our consideration to the four corners of the petition.

¶ 23 2. Precision and Particularity of Defamation Claim

¶ 24 Under a section 2-615 analysis, the court accepts as true all well-pleaded facts, as well as

any reasonable inferences that arise from them. Borcia v. Hatyina, 2015 IL App (2d) 140559, ¶ 20. The court does not, however, accept as true conclusions that are unsupported by specific facts. Id. The court construes the cause of action liberally in the plaintiff’s favor and should not

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2015 IL App (2d) 140618 dismiss it unless it is apparent that no set of facts can be proved that would entitle the plaintiff to a judgment in his or her favor. Id.

¶ 25 In the petition, petitioner alleged that the writer made false statements against J. Doe and that, in September or October 2013, the allegedly defamatory letter was published to John Doe.

Petitioner alleged that she requested a copy of the letter but that respondents refused to provide it.

¶ 26 Petitioner alleged that respondents “described” to her the contents of the letter and that

the statements regarding J. Doe were false. According to petitioner, the pertinent statements in the letter included: (1) “that J. Doe engaged in a sexual touching against another minor child, who is not the child of the [writer]”; (2) “a parent of J. Doe admitted the improper sexual

contact”; (3) “J. Doe was older and larger than the other child”; and (4) “J. Doe threatened the other child with harm if the other child told anybody about the touching.” According to petitioner, J. Doe became “isolated and ostracized in the community, including the parish community.”

¶ 27 Petitioner thus alleged a claim of defamation per se, alleging that the writer accused J.

Doe of adultery or fornication and the commission of a crime. The allegations recounting the allegedly defamatory statements are not to be read independently of each other; rather, they are

to be read as a whole (along with the other allegations in the petition). See Lloyd v. County of Du Page, 303 Ill. App. 3d 544, 552 (1999) (consideration of a complaint subject to a section 2-

615 motion to dismiss “requires an examination of the complaint as a whole, not its distinct parts”). In our view, these allegations are sufficiently precise and particular to survive a section

2-615 analysis of the defamation claim.

¶ 28 Specifically, petitioner alleged that the writer stated, falsely, that J. Doe performed a

“sexual touching.” One of J. Doe’s parents purportedly admitted that the “sexual touching” was

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2015 IL App (2d) 140618 indeed “improper sexual contact,” and the contact was “against another minor child.” J. Doe threatened the other child in order to prevent that child from revealing the contact between them.

Additionally, petitioner alleged that the writer published the false statements to Doe and that, as a result, J. Doe experienced “isolat[ion] and osctraciz[ation]” in his relevant communities. We believe that these allegations are sufficient to pass muster under a section 2-615 analysis.

¶ 29 Respondents rely on Green v. Rogers, 234 Ill. 2d 478 (2009), in support of their contention that petitioner failed to plead with precision and particularity the facts supporting her

defamation claim against the writer. In Green, the plaintiff alleged, on information and belief, that the defendant made statements about the plaintiff, including that the plaintiff “ ‘exhibited a long pattern of misconduct with children’ ” and had “ ‘abused players, coaches, and umpires’ ” in the Clarendon Hills Little League. Id. at 493. Our supreme court noted that a defamation claim must be pleaded with “specific precision and particularity so as to permit both initial judicial review[2] and the formulation of an answer and potential affirmative defenses.” Id. at

492.

¶ 30 The Green court held that the complaint did not “set forth a precise and particular account of the statements that [the] defendant allegedly made”; rather, the allegations “set forth only a summary of the types of statements that [the] plaintiff may or may not have a reason to believe [the] defendant made.” Id. at 493. The court noted that the allegations were “completely devoid of any specifics, such as what type of misconduct [the] plaintiff exhibited; the nature of 140626

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any alleged ‘abuse’; or how that abuse manifested itself in relation to players, coaches and umpires.” Id. Because the complaint left many questions unaddressed―like whether the alleged abuse was verbal, physical, or a combination, or whether the alleged misconduct was “ ‘not

acceptable for [the little league’s] coaches’ ” under league rules or some other standard―the court had “no way of assessing whether [the] defendant’s words were defamatory per se.” Id. at

493-94.

¶ 31 Green is distinguishable, but this does not mean that we cannot draw some guidance from

it, particularly regarding the initial judicial review of the allegedly defamatory statements. The Green court was also concerned with the defendant’s ability to understand the allegedly defamatory words used, formulate an answer to the allegations, and develop any applicable affirmative defenses. Id. at 492. That circumstance is not present in this case; rather, petitioner is attempting to identify a potential defendant. Accordingly, the defendant’s ability to formulate an answer and affirmative defenses is not yet in issue. Instead, the issue is whether petitioner has sufficient facts on hand to eventually draft a viable claim against the as-yet-unidentified defendant. Thus, we believe that the portion of Green devoted to the consideration of whether the precision and particularity of a complaint is sufficient to allow a defendant to formulate an

answer and affirmative defenses is simply inapposite to the consideration of the sufficiency of allegations against an as-yet-unidentified defendant in a Rule 224 petition.

¶ 32 That leaves the former of the Green court’s concerns, permitting initial judicial review of the defamatory content of the allegations. Id. We believe that Green is not inapposite in the initial-judicial-review context, although it is factually distinct. In Green, the plaintiff was fully aware of the identity of the defendant; here, petitioner knows only that the writer of the letter has connections with Doe’s parish. In both Green and this case, the allegations of defamation are made through information and belief. However, here, petitioner notes that she was apprised of - 10 -

2015 IL App (2d) 140618 the letter and its content, because it was “described by [respondents]” to her. In Green, by contrast, there was no indication as to how the plaintiff learned about the allegedly defamatory statements. Thus, the record here is not so “devoid of specifics” as to prevent the sort of initial judicial review contemplated in Green.

¶ 33 In Green, the court believed that there were many unknown aspects concerning the type of conduct that the plaintiff purportedly performed. Id. at 493-94. Here, petitioner described that the writer averred that J. Doe “engaged in a sexual touching against another minor child.”

This averment informs the reader that J. Doe is a minor, that he touched another minor in a sexual fashion, and that it was “against” this child, leading to an inference that there was an element of coercion or lack of consent. Petitioner further alleged that the writer averred that one of J. Doe’s parents “admitted the improper sexual contact.” The phrase “improper sexual contact” confirms the inference that the sexual touching was not harmless, but was overtly sexual

and against the mores of society. This is further confirmed by petitioner’s allegation that the writer averred that J. Doe “threatened the other child with harm if the other child told anybody about the touching.” This implies that J. Doe knew that the sexual touching was wrong and that he faced definite negative consequences if the other child revealed the touching to anybody.

While it is true that petitioner did not describe the precise nature of the alleged touching, we can reasonably infer (especially as we view the factual allegations in the light most favorable to petitioner under section 2-615) that it was not the innocent explorations of two minors “playing doctor”; rather, in light of the purported threat and parental admission of “improper sexual

contact,” we believe that the clear import of the alleged statements is that J. Doe engaged in some form of knowing conduct that was nonconsensual and overtly sexual. We further believe that this is enough to fall under the rubric of “fornication” for purposes of defamation per se.

See Bryson v. News America Publications, Inc., 174 Ill. 2d 77, 93-94 (1996) (the term “slut” was

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2015 IL App (2d) 140618 sufficiently specific to refer to the plaintiff’s sexual activities without requiring a detailed

description of those activities). Thus, we hold that, unlike in Green, the description of the allegedly defamatory statements was sufficiently precise and particular to allow the trial court to perform an initial judicial review.

¶ 34 Respondents argue that, as in Green, the phrase “sexual touching” is imprecise and does

not adequately describe the specific conduct to which the writer was referring. We reject the contention. The allegations are to be viewed as a whole and not distinctly. Lloyd, 303 Ill. App.

3d at 552 (consideration of a complaint subject to a section 2-615 motion to dismiss “requires an

examination of the complaint as a whole, not its distinct parts”). Moreover, viewing all of the allegations together makes clear that petitioner means that the writer averred that J. Doe committed an improper sexual act against the other, younger, child. This is sufficient.

¶ 35 Respondents complain that the allegation that the writer described J. Doe as “older and larger” than the other child is still too imprecise to pass muster, because “[t]here is no way of knowing the ages or sizes of the children.” Again, we view this allegation in light of all of the allegations, especially in light of the allegation that the writer averred that J. Doe had threatened the other child with harm if the other child revealed the touching to anyone. This implies that J.

Doe was in a position, being both older and larger than the other child, to enforce his threat of harm. Additionally, it underscores the wrongful nature of the conduct, because if J. Doe and the other child were only “playing doctor,” a threat of harm to prevent disclosure would have been unnecessary and unlikely. Finally, respondents complain that “[t]here is no way of knowing what ‘harm’ J. Doe purportedly was said to have ‘threatened’ if the other child told anybody about the ‘touching.’ ” Respondents suggest that the threatened “harm” could be as innocuous as

a threat to no longer be friends. Like the precise nature of the sexual touching, however, the precise harm is immaterial. The point of the allegation is that, in order to coerce the other child

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into silence, J. Doe threatened that some negative action would occur if the child disclosed the conduct. This leads to the inferences expressed above and confirms that the conduct averred by the writer was more than simple innocent exploration. Accordingly, we reject respondents’ contentions about the imprecision of the allegations of the allegedly defamatory statements.

¶ 36 Respondents also take issue with the description of the “factual basis informing”

petitioner’s information and belief regarding the contents of the letter. We find that, in totality, the petition alleges circumstances adequate to allow initial judicial review and to suggest that petitioner can state a viable claim against the writer. Respondents attempt to analogize

petitioner’s allegations to those of the plaintiff in Green. This analogy fails because in Green the plaintiff offered no information as to how he arrived at his information and belief regarding the defendant’s allegedly defamatory statements; by contrast, here, petitioner alleged that the writer’s letter was described to her. We find this sufficiently distinguishing to render misplaced respondents’ reliance on Green. Accordingly, for the preceding reasons, we reject respondents’

contention that petitioner did not allege a claim of defamation with sufficient precision and particularity to pass muster under section 2-615.

¶ 37 3. Defamatory Per Se Statements

¶ 38 Respondents next contend that petitioner did not sufficiently allege that the statements made by the writer were defamatory per se. As noted above, among the categories of defamation

per se are statements imputing the commission of a crime and statements imputing fornication or adultery. Hadley, 2014 IL App (2d) 130489, ¶ 20. Respondents argue that the statements fall into neither of these categories. We disagree.

¶ 39 Respondents first focus on the defamation per se category of fornication or adultery.

Respondents contend that there is nothing in petitioner’s allegations indicating that the writer accused J. Doe of sexual intercourse with the other child. Respondents further argue that, - 13 -

2015 IL App (2d) 140618 because the fornication-or-adultery category was added by statute to the tort of defamation per se

(see 740 ILCS 145/1 (West 2012)), the statute, which was adopted in derogation of the common law, must be strictly construed. Respondents conclude that, because petitioner has not expressly alleged a statement accusing J. Doe of fornication, she has failed to adequately plead a defamatory per se statement within the fornication-or-adultery category. We disagree.

¶ 40 We note that our supreme court in Bryson held that the allegation that the plaintiff was a

“ ‘slut’ ” implied that the plaintiff was “ ‘unchaste,’ ” so that the defendants falsely accused the plaintiff of fornication. Bryson, 174 Ill. 2d at 90. The court reasoned that, in the context of the allegedly defamatory article, the term “slut” was intended to describe the plaintiff’s sexual proclivities. Id. at 93-94. The court was untroubled by the lack of a precise description of what

sort of activities the plaintiff was accused of engaging in. Id. at 90, 93-94. Similarly, albeit in the imputation-of-a-crime context, our supreme court in Hadley was untroubled that the alleged defamer did not expressly state that the plaintiff was a pedophile or had actually molested children. Hadley, 2015 IL 118000, ¶ 37. The natural effect of the words used, along with their context, conveyed the idea that the plaintiff was a pedophile or had engaged in sexual acts with children.

¶ 41 Here, petitioner related that respondents informed her that the writer accused J. Doe of a

“sexual touching,” and that it was “improper sexual contact.” We believe that these words, given

their context, are sufficient to impute activities akin to those found to be implied by the defendants’ use of the word “slut” in Bryson. We have discussed above that the allegations, read

together, paint a picture of nonconsensual sexual activity that J. Doe forced upon the younger, - 14 - 2015 IL App (2d) 140618 smaller child. We believe that these alleged statements are sufficient to fall under the fornication-or-adultery category in the same way as the use of the word “slut” in Bryson. ^[3] ¶ 42 Respondents turn to the Slander and Libel Act (740 ILCS 145/1 (West 2012)) for their next argument. Section 1 of the Slander and Libel Act provides, pertinently: “If any person shall falsely use, utter or publish words, which in their common acceptance, shall amount to charge any person with having been guilty of fornication ***, such words so spoken shall be deemed actionable, and he shall be deemed guilty of slander.” Id. Respondents argue that “unchastity” and “sexual misconduct” are not within the terms of section 1 of the Slander and Libel Act (id.), and so a statement imputing “unchastity” or “sexual misconduct” cannot constitute a defamatory per se statement. We disagree. While respondents are correct that section 1 does not contain the words “unchastity” or “sexual misconduct,” we do not believe that this lack forecloses our holding. We note that Bryson expressly analyzed section 1 of the Slander and Libel Act. Bryson, 174 Ill. 2d at 89. The court expressly held that the use of the term “ ‘slut’ ” implied that the plaintiff was “ ‘unchaste,’ ” so that the “defendants’ statements [fell] within this statutorily