Filed May 28, 2015

In re JoAnne Marie Denison
Respondent-Appellant

Commission No. 2013PR00001

Synopsis of Review Board Report and Recommendation
(May 2015)

This matter arises out of the Administrator's one-count Complaint. The Complaint included charges that Respondent violated Rules 8.2(a), 8.4(c), and 8.4(d). The Complaint alleged that Respondent, in posts to a blog, impugned the integrity of judges and attorneys involved in a probate proceeding by making certain statements knowing the statements were false or with reckless disregard for their truth or falsity.

The Hearing Board found that the Administrator proved Respondent's statements outlined in the Complaint were false and that Respondent made the statements knowing they were false or with reckless disregard for their truth or falsity. The Hearing Board concluded that Respondent violated Rules 8.2(a), 8.4(c) and 8.4(d). The Hearing Board recommended that Respondent be suspended for three years and until further order of the Court.

Upon review, Respondent challenged the findings of the Hearing Board and argued that the First Amendment protected her statements. The Review Board concluded that the Hearing Board's findings were not against the manifest weight of the evidence. The Review Board concluded that the First Amendment did not afford any protection for Respondent. The Review Board affirmed the findings of misconduct of the Hearing Board and recommended that Respondent be suspended for three years and until further order of the Court.

BEFORE THE REVIEW BOARD
OF THE
ILLINOIS ATTORNEY REGISTRATION
AND
DISCIPLINARY COMMISSION

In the Matter of:

JOANNE MARIE DENISON,

Respondent-Appellant,

No. 6192441.

Commission No. . 2013PR00001

REPORT AND RECOMMENDATION OF THE REVIEW BOARD

This case involves Respondent's statements on a blog impugning the integrity of certain judges, guardians ad litem ("GALs") and the lawyers involved in a case in the Probate Court of Cook County. The Hearing Board concluded that Respondent violated Rules 8.2(a) which provides that "a lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, adjudicatory officer or public legal officer"; 8.4(c) which prohibits lawyers from engaging in "conduct involving dishonesty, fraud, deceit or misrepresentation"; and 8.4(d) which prohibits "conduct that is prejudicial to the administration of justice."

The Administrator's Complaint alleged that Respondent made statements in violation of the above rules when she blogged about an adult guardianship of Mary G. Sykes ("Mary") pending in the Probate Division of the Circuit Court of Cook County ("the Sykes case"). In December 2009, the probate court had disqualified Respondent from representing Gloria Sykes ("Gloria"), one of Mary's daughters, in the case. Thereafter, Respondent published blogs related to the Sykes case. The Administrator's Complaint set forth ten excerpts taken from Respondent's blogs and alleged that the statements in the excerpts were made in violation of the

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Rules. See, Administrator's Complaint, paragraph 9. The Hearing Board based its findings on these ten statements. See, Hearing Bd. Report, pp. 7-16, 24-31.

Respondent does not dispute that she made the ten statements in question. She contends that the Hearing Board's findings are against the manifest weight of the evidence because the statements are true. She also contends that her statements on the blog are protected by the First Amendment of the United States Constitution (First Amendment). We have read Respondent's brief and have the benefit of the parties' oral argument before this Board. For the reasons explained below, we affirm the Hearing Board's findings of misconduct and conclude that her false statements are not protected by the First Amendment.

The Hearing Board found that some of the statements set forth in paragraph Nine of the Administrator's Complaint impugned the integrity of the judges in the matter. With respect to those statements, the Hearing Board found that Respondent violated Rule 8.2(a). Hearing Bd. Report, pp. 24-31. The Hearing Board's finding is supported by the record. The Administrator's case primarily relied on the testimony of GALs Adam Stern and Cynthia Farenga, Judge Jane Louis Stuart of the Probate Division of the Circuit Court of Cook County and Peter Schmiedel the attorney for Carolyn Toerpe, Mary's daughter. They testified that the statements impugning the integrity of the judges made by the Respondent were false. The Hearing Board found these witnesses, whose testimony was corroborated, were credible. Moreover, the Hearing Board concluded that Respondent knew the statements about the judges were false or that she made the statements with reckless disregard to their falsity. While Respondent was given the opportunity to provide an objective factual basis for the truth of her statements, the Hearing Board concluded that Respondent failed to do so. (Hearing Bd. Report, pp. 27, 29-30). We see no basis in the record for reversing this conclusion. Pursuant to Rule 8.2,

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a Hearing Board's finding as to whether a respondent knew his or her statements were false or acted with reckless disregard as to the truth is a finding of fact to which we must give deference. In re Palmisano, 92 CH 109 (Review Bd., Feb. 17, 1994), approved and confirmed, No. M.R. 10116 (May 19, 1994).

On appeal before this Board, Respondent does not deny that she made the statements in question but continues to assert her belief in the truth of the statements. Respondent's subjective belief, even if genuine, is not sufficient to overcome the Hearing Board's finding that Respondent made a knowingly false statement or acted with reckless disregard to the truth. In cases involving charges of violations of Rule 8.2(a) where the respondent has made statements about the integrity of judges, this Board has rejected similar arguments. In re Amu, 2011PR00106 (Review Bd., Dec. 13, 2013) at 9, petition for leave to file exceptions denied, No. M.R. 26545 (May 16, 2014)(Respondent disciplined for violating Rule 8.2(a) where "[b]y his own admissions, Respondent based his statements on his own subjective beliefs that the judges were corrupt rather than on any objective facts."). See also, In re Jafree, 93 Ill.2d 450, 460, 444 N.E.2d 143 (1982). Accordingly, we affirm the Hearing Board's finding that Respondent violated Rule 8.2(a).

The Hearing Board also concluded that Respondent violated Rule 8.4(c) in making the statements that Judge Stuart, the GALs Cynthia Farenga and Adam Stern, and attorney Peter Schmiedel, had engaged in corruption and illegal and dishonest acts. Again, the Hearing Board found the testimony of the Administrator's witnesses credible and found that Respondent had no logical or reasonable basis for her accusations and that she made the statements with reckless disregard for their truth or falsity. The Hearing Board concluded that Respondent made the unfounded accusations "because the GALS did not take positions which

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aligned with the views of Respondent and Gloria." (Hearing Bd. Report, p. 30). The Hearing Board's assessment of the credibility of testimony and inferences that should be made, is subject to deference and should not be overturned unless it is against the manifest weight of the evidence. In re Timpone, 157 Ill.2d 178, 196, 623 N.E.2d 300 (1993)("The Hearing Board's findings regarding the credibility of witnesses, the resolution of conflicting testimony, and any other fact-finding judgments are entitled to great deference"). We find no basis for concluding that its factual findings relating to Rule 8.4(c) are against the manifest weight of the evidence.

Regarding Rule 8.4(c), Respondent argues that there was not clear and convincing evidence that she violated the rule because the public could decide for itself whether her statements on the blog were false and there were no adverse responsive comments on the blog. However, this fact, even if true, does not make Respondent's statements true, or satisfy her obligation to present credible proof of their truth, which the Hearing Board found that she did not.

Similarly, the Hearing Board's finding that Respondent violated Rule 8.4(d) is supported by the evidence. Because of Respondent's false blog posts, the parties "became embroiled over frivolous and ancillary matters," forcing the court and counsel on the case to spend an inordinate amount of time and effort to deal with numerous unnecessary issues raised on the blog and to defend themselves from the allegations on the blog. (Hearing Bd. Report, p. 33) The Hearing Board found that some of Respondent's statements on the blogs also served to encourage Gloria to take unreasonable positions in court, all of which caused significant delays in resolving the real issues in the Sykes case. (Hearing Bd. Report, p. 33.) There is no basis for concluding that this finding is against the manifest weight of the evidence.

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The First Amendment does not afford Respondent any protection. No ruling of the United States Supreme Court or any other court supports the conclusion that Rules 8.2(a) or 8.4(c) are unconstitutional, or that enforcing the rules in this case violates her First Amendment rights. The Respondent cites no case or authority that knowingly making false statements about a judge's integrity is protected under the First Amendment. Indeed, in a recent case cited by Respondent, Alvarez v. United States, 567 U.S. ___, 132 S.Ct. 2537 (2012), the Supreme Court pointed out that there are situations in which knowingly or recklessly made false statements are not protected under the First Amendment, citing Garrison v. Louisiana, 379 U.S. 64, 75 (1964) a case in which the district attorney was convicted of defamation for making disparaging statements about the judiciary (" the knowingly false statement and the false statement made with reckless disregard of the truth, do not enjoy constitutional protection.").

Similarly, the Illinois Supreme Court has routinely rejected attempts by respondents to argue that the First Amendment protects lawyers from making false accusations about judges and court proceedings that have no basis in fact and are false or made with reckless disregard to the truth. In re Palmisano, 92 CH 109 (Review Bd., Feb. 17, 1994), approved and confirmed, No. M.R. 10116 (May 19, 1994); In re Hoffman, 08 SH 65 (Review Bd., June 23, 2010), recommendation adopted, No. M.R. 24030 (Sept. 22, 2010); In re Mann, 06 CH 38 (Review Bd., March 29, 2010), recommendation adopted, No. M.R. 23935 (Sept. 20, 2010) (all finding that First Amendment does not protect statements regarding the integrity of a judge made by a lawyer knowing the statements are false or with reckless disregard to their truth or falsity). Thus, the First Amendment does not give Respondent immunity from disciplinary action for her conduct in making the false statements in her blog.

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The Hearing Board's recommendation that Respondent be suspended for three years and until further order of the Court is consistent with the precedent and adequately addresses the purposes of discipline. See, e.g., In re Sarelas, 50 Ill. 2d 87, 277 N.E.2d 313 (1971) (respondent suspended for two years and until further order for engaging in a "litigious storm" that included unwarranted accusations of fraud and corruption); In re Ditkowsky, 2012PR00014 (Dec. 5, 2013) Respondent's petition for leave to file exceptions denied and Review Board's findings and recommendation upheld, No. M.R. 26516 (March 14, 2014) (respondent suspended for four years and until further order of the Court in part for violating Rule 8.2 by making similar statements regarding the Sykes case in e-mails to various individuals and to news outlets).

CONCLUSION

We affirm the findings of misconduct of the Hearing Board and like the Hearing Board, we recommend to the Court that Respondent, Joanne Marie Denison, be suspended for three years and until further order of the Court.

Respectfully Submitted,

Johnny A. Fairman, II
Robert M. Henderson
Gordon B. Nash, Jr.

CERTIFICATION

I, Kenneth G. Jablonski, Clerk of the Attorney Registration and Disciplinary Commission of the Supreme Court of Illinois and keeper of the records, hereby certifies that the foregoing is a true copy of the Report and Recommendation of the Review Board, approved by each Panel member, entered in the above entitled cause of record filed in my office on May 28, 2015.

Kenneth G. Jablonski, Clerk of the
Attorney Registration and Disciplinary
Commission of the Supreme Court of Illinois