McHenry County Circuit Judge Candidate Mary McClellan files Amended Verified 224 petition

McHenry Co. (ECWd) –

Mary McClellan, candidate for McHenry County Circuit Judge has filed an Amended Verified 224 petition in her efforts to unmask what she believes are the names of people who defamed her.  We wrote about certain matters in this article but the important point from the court on unmasking anonymous commentators is this:

In 2018, a United States District Court of Appeals determined that unmasking an anonymous blogger’s identity, even after losing a defamation case, infringes on his rights under the First Amendment because the unmasking in connection with both his protected and unprotected speech might hinder his ability to engage in anonymous speech in the future.

The alleged Verified filing has numerous problems that one would think a lawyer, let alone one wanting to be a judge, would not make.

For example, on the very first page, she informs the court she is a quasi-public figure.

2. Petitioner McClellan, a quasi-public figure, is and was at all times relevant hereto a resident of McHenry County, Illinois.

As a candidate for public office, she is a public figure and the courts have taken that position in defamation cases for years.

We see that she does not state she has a claim in the case but rather points to the acts giving rise to potential claims?  Most filings of this type would point to actual claims in support of their filing rather than say the acts give rise to potential claims. I can’t count how many cases I have read that were tossed for failure to state a claim.

10. All of the relevant acts, giving rise to Petitioner’s potential claims, occurred within McHenry County, Illinois.

McClellan recently filed for Federal Bankruptcy a fourth time which raises the question, is a person who files bankruptcy four times a person of good credit? I think the actual filing for bankruptcy answers that question.

16. Petitioner McClellan is a person of good repute and credit and has maintained that character her whole life.

She speaks of her reputation within the community as being one of honesty and integrity.  It will be interesting to see how that position is litigated in light of certain matters in the Federal Bankruptcy filing.

17. At all times relevant hereto, and prior to the publication of defamatory statements as listed below, Petitioner McClellan enjoyed a reputation of honesty and integrity within the community.

The date she became a public figure is September 15, 2019.  As a public figure, the bar is raised as it relates to a claim of defamation and it appears her own timeline of events statements on the record could be a problem in this case.

18. Petitioner McClellan announced her intent to run for Circuit Court Judge on September 15, 2019.

The information provided regarding a particular phone call raises many questions as there appear to be some 1st amendment points missed.

21. On information and belief, Lisa Shamhart was the McHenry County Representative on the phone on another line with the hearing officer. Once the hearing officer spoke with Petitioners’ he then spoke with Lisa Shamhart separately.

22. The discussions of that hearing were confidential, and the only persons privileged to the conversation were IDES, Lisa Shamhart, and Petitioners.

Her claims bring us back to the same two questions we always ask, Says Who and With What Proof?

We have yet to find any language in the law that points to a three-party phone conversation as described being subject to some type of required confidentiality, which appears to be the foundation of her claim.   One would think a claim like this would have some type of regulatory language, law, or case law cited in support of that statement.  We hear the same claims from board members in relation to a closed session discussion.  They think because they are in closed sessions the conversation is confidential however that is not the case as people have a 1st amendment right and can walk out of that meeting and tell a reporter everything that was said.  What they cannot do is release the audio or minutes without approval, and both the courts and the AG have said as much in their rulings.  While the release of certain private information may be actionable, we have not seen evidence of such in this case yet.

McClellan claims this confidential conversation was shared with another person, who shared it with another person, who shared it online in comments on the McHenry County Blog on October 2, 2019.  The reason the date is important is that by this date she is, in fact, a public figure and she will have to prove malice, which is a high hurdle in such a case.

Where her points begin to crumble are with the timeline.  This alleged confidential conversation is reported to have taken place on October 2, 2019, at 10 am.

20. On October 2, 2019, at 10:00 a.m., Petitioner Gil, Petitioner McClellan acting as Petitioner Gil’s Attorney, and a hearing officer, participated in a private meeting via phone conference with IDES.

She claims three other comments targeting her stemmed from the disclosure of confidential, (information?) that defamed her.  How is this possible when the dates she provides predate the phone call in question she asserted as the source of the information in question?

30. Additional comments stemming from this original disclosure of confidential defamed Petitioner McClellan. 7:08 p.m. “Mierz” called McClellan a liar and thief (7 /24/19). 12:31 p.m.

When it comes to defamation, more often than not when the Petitioner fails to actually quote what was said, but rather paraphrases it to imply what they want it to mean it’s because they have no case or are simply trying to silence a person. For example, in this filing she states:

26. On or around October 2, 2019, false comments were published by a third party on the World Wide Web, through the on McHenry County Blog, claiming that Petitioner Gil committed fraud by collecting unemployment benefits and workers compensation benefits and that he got caught. (See Exhibit A.) “Nunya” on 10/2/2019,

49. The published comments allege that Petitioner Gil was caught in a fraudulent collection of benefits and lead readers to infer that he committed a crime.

Her claim, when compared to what was actually posted, is not true.

The anonymous comment online did not say Gil committed fraud, let alone that he was collecting unemployment benefits, nor does it say he got caught. What was actually said, and part of the record, in this case, is as follows.

Oh Mary, Mary.
Will you ever learn?
Your deception and lies are all starting to come out.
Nice try attempting to lie to IDES, claiming to be his lawyer.
Guess he is going to HAVE to pay back the 11 grand he got for unemployment.
Attempting to collect unemployment benefits while receiving WC benefits is FRAUD and the both of you just got caught!!
LMAO

Having read hundreds of cases on defamation and what does or does not rise to the level of defamation I am of the opinion the actual statements made do not meet the well-established criteria to qualify as an actionable statement.  The first indicator is the fact she failed to actually quote the statement in the pleading.

The statement in question, “Attempting to collect unemployment benefits while receiving WC benefits is FRAUD” is true or substantially true. Note it did not say Gill committed fraud by collecting unemployment benefits. The comment is not what McClellan told the court. In fact, it said nothing about Gill collecting anything but rather pointed to a true statement that attempting to collect such benefits together, unemployment and workers compensation, is a fraud.

She continued the misinformation with this statement:

49. The published comments allege that Petitioner Gil was caught in a fraudulent collection of benefits and lead readers to infer that he committed a crime.

There was no claim Gil was caught in a fraudulent “collection” of benefits. There was a simple statement that attempting to collect those benefits together is a fraud.  While the entire statement that was posted may infer what she claims with some readers, others, like us, infer something quite different because we know there was no allegation of anyone collecting anything.  The well-established rule of innocent construction must be applied and when doing so in this case, we find the statement to not be actionable.

More false statements?

59. Respondent Shamhart is solely responsible for the publication of these statements in her petition and their subsequent publication in related news articles covering the action.

McClellan appears to be saying information in a filing before the court that may be false is grounds to file suit for defamation if the news media publishes the public record. Let that sink in.

She claims to be protected under the Whistleblower act then makes a claim and provides a citation of the law. The law conflicts with what she said.

78. Petitioner McClellan is protected under the Illinois Whistle blowers reward and protection act. “Whistle blower” protects persons that report, or threaten to report, wrongdoing, provide information or testify regarding wrongdoing, or assist in the enforcement of the Ethics Act. Retaliation against a person for reporting or providing of information of wrongdoing is strictly prohibited by the Ethics Act and may result in a violation of State law (740 ILCS 174/20.2)

The actual Law she cites:

(740 ILCS 174/20.2)
Sec. 20.2. Threatening retaliation. An employer may not threaten any employee with any act or omission if that act or omission would constitute retaliation against the employee under this Act.

McClellan is not an employee of these people so not sure how she thinks the law she cited would apply to her.  More interesting is the claim of retaliation against a person for reporting or providing information on wrongdoing is strictly prohibited by the Ethics Act, which she fails to point to an actual statute.  A simple word search of the entire Ethics Act only points to “prohibited” one time and in that case, and in that one case it has nothing to do with anything remotely close to the case at hand.  To claim the Ethics Act prohibits retaliation appears to be a false statement.

In point #59, as shown above, she specifically stated, Shamhart is “solely” responsible for the publication of the statements.  Square that with #80.

80. On information and belief, Respondents Lisa Shamhart and Joe Tirio are responsible for the publication of these comments.

So what should the courts believe?  Shamhart is “solely” responsible or Shamhart and Tirio are responsible?  One claim directly conflicts with the other.

There are numerous other troubling statements in this filing and we will update on those matters in a future article as we are awaiting certain records that we believe will expose much bigger problems for McClellan and her court filings.

Remember, she is a candidate for Judge.

You can download the petition at this link or view it below.

AMended Petition 224 wo exh.pdf - Adobe Acrobat Pro

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