[Warning: if you fall onto Carla Burkhart’s naughty list, she will SLAPP you!]
* Carla Burkhart is a corrupt public official who used her position on the College of DuPage Foundation Board to obtain a no-bid contract for considerable money.
* In January 2016, Burkhart filed a SLAPP lawsuit against critics of her no-bid contract.
* SLAPP stands for “Strategic Litigation Against Public Participation,” which is something public officials use as a weapon against critics to chill free speech and attempt to trample on the constitutionally protected First Amendment Right to Petition public bodies for redress of grievances.
As I reported yesterday, the Edgar County Watchdogs activist group has been sued for $8 million by College of DuPage Foundation Board Member Carla Burkhart. Today I want to walk through her lawsuit and point out how ridiculous it is, using some of what I learned reading a fantastic book on this type of punitive and vexatious litigation that was written by George W. Pring and Penelope Canan in the 1990s, SLAPPs: Getting Sue for Speaking Out.
If you could choose one topic to become interested in for the new year that would pay dividends and help you become more active in rooting out corruption in your own community, I recommend you study SLAPPs. Chances are, some public official like Burkhart is probably suing a watchdog group or reporter in your own area and I am sure the target of that SLAPP could use your help on the ground. This abuse of power and process is happening all across the country because there is no national anti-SLAPP law that would prevent such Strategic Litigation Against Public Participation.
The Pring/Canan book on SLAPPs is more than 20 years old at this point and I have not been able to find a newer work on the subject that’s remotely as good. Maybe someone reading this will write one. There’s a need for it, because we have entered into a new phase of SLAPPs that was not predicted by Pring/Canan.
Their book covered the first two waves of SLAPPs. The first will surprise you in that it took place just after the American Revolution, up until 1800 or so. At the very birth of our nation, local justices of the peace and other officials didn’t like the idea of Free Speech or the public’s ability to question and mock elected officials. This makes sense if you think about these people being in their 40s or 50s and having lived in the days before the Revolution; their brains were still hard-wired to England and aristocracy and being ruled by a King on a throne somewhere. They didn’t like when someone called them out on their bad behavior, so they would sue critics for defamation. Judges tossed these vexatious lawsuits out of court immediately, citing the First Amendment Right to Petition and the fact that criticizing a public official is not defamation (but is actually a treasured American right that sets our country apart from all others).
This is something that a lot of people, especially conservatives, have a hard time understanding. Defamation requires that a person know something is false and intend to cause harm while publishing it anyway, knowing that by telling a lie that harm will come to the target of the lie. The key words are: lie, intend, false, and harm. Reporting on something terrible that a public official actually did is not defamation. Criticizing a public official for bad behavior is not defamation. Mocking and ridiculing a public official is not defamation. Our nation’s first courts got it right over and over again in those early days and the First Wave of SLAPPs (as Pring/Canan identified them) lasted only a few years before elected officials realized they weren’t going to get anywhere with that tactic.
Jump ahead 170 years to the 1970s, when SLAPPs were rediscovered and used by mostly real estate developers as a weapon to silence critics of poorly conceived development projects. This was back in the days when greedy men in polyester suits with wide striped ties thought it was a great idea to build concrete public housing projects on scenic beachfront property…or plop state-run drug addiction clinics in the middle of a community full of young families…or local a slaughterhouse next to a cherished woodland park to befoul the area. Communities who opposed such developments found themselves at war with the developers, who would use every trick imaginable to get their way. These unscrupulous people started suing the outspoken activists who wanted to stop these ugly projects…in the hopes that the lawsuits would scare them into silence or otherwise tie them up or bankrupt them so they could no longer be obstacles to the construction. You can see how effective this would be in many cases: a well-funded corporate litigation team would file a SLAPP against a ragtag group of moms and dads who opposed the housing project or drug clinic or slaughterhouse or whatever. The community members were exercising their constitutional right to oppose the poorly planned construction projects…and because they spoke out against these developments, the developers sued these people for defamation. This went on for many years, through the 1970s and 1980s and into the 1990s, when Pring/Canan wrote their excellent book. It became an epidemic.
They called that the Second Wave of SLAPPs…which prompted many states to pass anti-SLAPP legislation that was meant to dismiss these kinds of lawsuits early in the litigation process, to both save the court’s time and also spare the targets of the SLAPPs the legal costs involved with defending themselves against such frivolous lawsuits.
I argue that so much time has passed since the Pring/Canan book that we are now in a Third Wave of SLAPPs. This time, the people who are filing these lawsuits are either spoiled prima donnas who don’t like being criticized (similar to the SLAPPers in the First Wave of SLAPPs back in the 1700s) or organizations who use proxies to file SLAPPs so that the organization can benefit in some way from the chill that the SLAPP puts over the community.
In the matter at hand, Carla Burkhart seems to be both a prima donna and also a proxy, possibly for the College of DuPage. She comes off as a spoiled and self-absorbed woman who does not like being criticized by the Edgar County Watchdogs…and at the same time it feels like she may have been egged on in this lawsuit by entities at the College of DuPage, who seem to be sick of John Kraft and Kirk Allen covering the years’ worth of ongoing wrongdoing at the College of DuPage. Burkhart’s goal is clearly to silence the Watchdogs, make them stop writing about her, and also scare anyone else out there who may be considering criticizing her or the College of DuPage (because Pring/Canan identified one big motivation of filing a SLAPP to be chilling speech in the community, since people will see that the Watchdogs have been sued and are suffering through litigation and so if they don’t want to be sued too they reason that they must keep their mouths shut about how they feel about Carla Burkhart and/or the College of DuPage).
[Kirk Allen (left) and John Kraft (right)…the best investigators of government corruption in the state of Illinois.]
Illinois is sometimes a hilarious state to live in, because if you show any interest at all in questioning how the government here spends money then you are called a “busybody.” I wonder if this is because so many people of Eastern European stock immigrated to the Chicago area…and that Soviet mentality became part of the Chicagoland culture that infected the rest of the state. I also think part of it is related to how much people love Al Capone here and how the airport gift shops have so many tee shirts with his face on it, as opposed to Abe Lincoln (who is supposed to be the mascot for the state…but people think Capone is more fun). Illinois is a very strange place where you are actually looked down upon if you “make trouble” by asking too many questions (or any questions at all). People have an attitude here of “shut up and mind your own business” and “don’t spoil this nice racket we’ve got going on.” Don’t rock the boat or make waves!
Kraft & Allen have pretty much single-handedly been using Freedom of Information Act requests to obtain documents that prove wrongdoing by all sorts of public officials. For some reason, reporters at the Chicago Tribune or Sun Times or wherever are never interested in doing this. Maybe they are but their editors won’t let them write anything negative about elected officials…or the editors think those stories would be boring because “nobody cares about the College of DuPage.” That is something that editors of publications say a lot, “nobody cares about the local level.” Remember that the newspapers are all failing and reporters now have to deliver papers door to door on Sundays…and everything is driven by clicks and hit counts and “what can go viral.” Investigative journalism is all but dead. Every paper still alive has become a shallow tabloid.
So, the only way any of this corruption gets exposed anymore is because people like Kraft & Allen have made it their hobby to do so. Instead of watching baseball or football or whatever or collecting stamps or making model airplanes (you can tell that I have no idea what straight guys do in their free time if they are not investigating government wrongdoing), they FOIA government entities for their meeting minutes and contracts and whatever and they look to make sure that everyone is obeying the law. When they find someone who has broken the law, they write about that person on Illinois Leaks. When a corrupt public official doesn’t like being written about, that person sues…and loses because that lawsuit is a SLAPP. Lather, rinse, repeat. This will keep happening as long as public officials think they can get away with filing these Third Wave SLAPPs. We as a country really do need a federal anti-SLAPP law to stop all this.
Carla Burkhart’s SLAPP can be read in its entirety here. My thoughts as I read through it as a student of SLAPPs are:
Page 1: Is Herricane Graphics even a real company? In her lawsuit, Burkhart claims that she runs a business called “Herricane Graphics.” I talked yesterday about what a stupid name that is, but today I looked it up on the Illinois Secretary of State’s website and it is a licensed business. So it technically exists on paper, but I couldn’t find a website for it. The only Yellow Page listing I found redirects to another company called “Schreiner Chicago” (that has a 1990s-looking generic website that says it sells writing instruments and measuring cups, or something). All of this is strange because wouldn’t a graphic design company — if it was legitimate — have a fancy website to showcase its graphic design work? How does Herricane Graphics land any clients if it doesn’t have an online portfolio, a Facebook page, an Instagram, a Twitter, etc.? Something is fishy here.
Page 2: If you have never been involved in a lawsuit, you might not realize that lawyers are allowed to write all kinds of crazy things in a complaint without having to prove anything. Remember that anyone who graduates from even the worst law school in the country and manages to pass the bar in Illinois is allowed to file a lawsuit for a client and sign his name to it…and if he is not embarrassed and doesn’t care about looking foolish later, he can write anything he wants in the complaint. Realistically, unless a judge would at some point mock him, a lawyer can say crazy things in a filing and trust that 99.9999% of people will never read it. Lawsuits are boring to read and reporters are lazy. The average person who has no reason to read a lawsuit won’t bother. Even people who have been sued might not read the lawsuit because they have an attorney to do that (and attorneys never make fun of one another because they all try to stay friendly and give one another slack for the showmanship of a ridiculous complaint). Sometimes bad lawyers put things in a complaint just hoping to get an exciting headline on the chance that a reporter would read it…never expecting anything in the complaint to stick. Almost all lawyers operate under the assumption that the lawsuit will be settled out of court because almost all lawsuits are settled out of court (even the frivolous ones). No lawyer wants to go before a jury because juries are so unpredictable.
So, I laugh when I read what’s written about Kraft & Allen in this complaint by Burkhart because I can’t believe the lawyer she found to represent her is such a ridiculous writer. Take this sentence (please!): “The publications on Illinois Leaks are not designed to educate or inform the public, but to manufacture public hysteria against whatever cause Allen and Kraft so choose.” This is laughable because if you read Illinois Leaks you will immediately see that every post they make is meticulously sourced…and almost all based on public documents they obtained from FOIA requests and then posted to their website. They often just present documents and then pose questions, leaving the readers to view the documents themselves and draw their own conclusions. The topics they cover do not lend themselves easily to causing “public hysteria.” I am one of the Watchdogs’ biggest fans and even I have trouble finding the College of DuPage scandal exciting, let alone hysteria-inducing. I find this poorly written lawsuit that has been filed against them to be hysterical, however.
I truly feel that Carla Burkhart is one of the biggest idiots around for doing this, because she has brought the Streisand Effect upon herself. If she did not like being exposed for what she did wrong at the College of DuPage (when not many people really care about the College of DuPage outside of DuPage County) then she is going to go full on BARBRA when people coast to coast who are interested in SLAPP filings start looking into this lawsuit. As you may know, the “Streisand Effect” is named after what happened when Barbra Streisand filed a big lawsuit for millions of dollars in damages against a coastal erosion research project that had posted a photo of the California coastline that included her Malibu mansion. Hardly anyone had heard of that obscure coastal study in 2003 until Streisand filed the lawsuit; after that, millions of millions of people saw the photo that she sued to prevent anyone from seeing. Her idiocy in suing the photographer and website blew up in her face. She is an idiom now. The “Burkhart Effect” could be next.
Page 3: Here, Burkhart’s complaint gets into some of what she’s all worked up about. She claims that her company Herricane Graphics is real and is not imaginary and that the College of DuPage contracted her to do some kind of signage in April 2012. Then, in July of 2012, some kind of change was made to the signage the College wanted and so she had to have a new contract. Burkhart claims that the new contract was written as an American Institute of Architects Contract and that the College wanted that sort of contract. This gets into the problem that Kraft & Allen reported on, because Burkhart is not an architect. Someone who is not an architect should not (and can not legally) sign an Architect’s contract. The next few pages go into a weird, rambling conspiracy that Burkhart claims involved various people plotting against her, with one woman named Kathy Hamilton in a mad drive for power.
Page 5: Burkhart finally gets around to talking about the Watchdogs again. Here, she tries to make it seem like it was no big deal that she signed that Architect’s contract (even though she is not an architect). What you might not know is that in Illinois an Architect’s contract is one of the few exceptions where a public body does not have to put a job up for a competitive bid and go through that whole process. What it looks like the College of DuPage did was that they just wanted to give this job to Burkhart (who became a Board Member after she landed this gig) so they used that Architect contract to get around the bidding requirement. They didn’t want to put the job up for competitive bids because they just wanted to give this money to Burkhart and if they put it up for a bid then there was a chance that someone would underbid her and she would not get as much money as she wanted. So they pulled a fast one and used the Architect contract to get around that requirement. Burkhart is mad that she got caught and is embarrassed that Kraft & Allen reported on the bad thing she did, so now she is suing them as punishment for them catching her signing this Architect contract and evading the bid process. Only in Illinois!
Page 7: This whole page is roll on the ground hilarious. Here, Burkhart claims she did not sign the contract as an Architect. But, the Watchdogs have the contract she signed. And on the last page of the contract, she signed it as the Architect. How can she pretend this didn’t happen? See for yourself! The College of DuPage also ultimately conducted an internal audit and found that Burkhart was indeed improperly given preferential treatment. Kraft & Allen found this in FOIA production too!
As you can clearly see, over and over again this document that Carla Burkhart signed identifies her as the “Architect” in the agreement. It is repeatedly stated that this is an agreement between the College of DuPage and an Architect. At the very end of the agreement, Carla Burkhart signs her name as the President of Herricane Graphics, which is identified in Article 13 in the SCOPE OF THE AGREEMENT as being the Architect named in the contract.
She seems to claim that none of this happened, when this contract was produced pursuant to FOIA requests and the fact she signed her name as the Architect has been reported in the Chicago Tribune and in other publications...because that’s what the contract says! At no time does this ninny ever seem to have said to the College of DuPage that she shouldn’t be signing an Architect’s contract when she isn’t an architect and knows she’s not an architect. By all accounts, she’s just a greedy clown in a santa hat who went along with this Architect contract thing because this was the scheme they came up with to avoid that competitive bidding process and show her preferential treatment.
Page 12: Burkhart finally gets into the counts of the lawsuit here. Pages 8 through 11 were more rambling conspiracy theories about Kathy Hamilton plotting world domination or something. Burkhart has a strange persecution complex. She also complained about various articles that the Edgar County Watchdogs wrote about her that were all true, but since they were unflattering to her she says they weren’t true. But, again, each article is supported by documents that the College of DuPage produced pursuant to FOIA requests. And every article has documentation either attached or linked. So, I don’t understand how the attorney representing Carla Burkhart could in good faith sign his name to this complaint and file it for her. This is a guy who should really be facing Rule 11 sanctions for this. A lawyer who knowingly files a bogus SLAPP like this does not deserve to keep practicing law. He went to law school and should know better and should have told his client that she is out of her cotton picking mind and can’t sue people because she did something wrong and is now mad that people are writing about it. Take a public position on a Board (and enrich yourself) and expect public criticism.
Page 13: Burkhart alleges defamation, but again: if something is true it is not defamation and everything written about this woman is based on documents that the College of DuPage produced, such as the Architect’s contract she signed (when she is not an architect). Also, she claims that the articles that the Watchdogs wrote damaged her business and kept her from getting opportunities. But, her business doesn’t even have a website. Apparently, the address she lists for her business is an abandoned storefront with no signage in a deserted strip mall in the middle of nowhere. The telephone number listed for Herricane Graphics just rang and rang and didn’t even go to voicemail when I tried calling it to check if it was a real business. How is she getting clients if she has no web or social media presence, her supposed office is what looks like an abandoned storefront, and her phone number just rings and rings with no answer? Maybe if she is not getting clients her business is being hurt because she has not done any of the basic Business-101 things you need to do to actually have a business that attracts clients.
Page 14: More craziness on this page about various people trying to propel that Kathy Hamilton woman to power. This to me reads like someone who thinks her cat or dog is plotting against her and the toaster is preparing to lead a kitchen appliance uprising at dawn. Burkhart thinks she is owed at least a million dollars just for this!
Page 17: Here’s a few pages about tortious interference with a contract. This is rich. So, Burkhart seems to be mad that John Kraft and Kirk Allen used a FOIA request to obtain that Architect’s contract that Burkhart signed (but should have never signed because she is not an architect). Once it was exposed that the College of DuPage and Burkhart were using an AIA Architect contract they should not have been using and the College began an investigation into the impropriety, Burkhart alleges she was damaged because the College stopped paying her. Think about that for a minute. Burkhart actually has the gaul to sue the people who busted her for being involved in this no bid contract scheme because once she was busted she stopped being able to profit from the scheme. Again…only in Illinois!
Page 19: This is the best one….Burkhart sues the Watchdogs for “misappropriation,” claiming she was damaged because they illustrated their articles about her with photos that Burkhart had posted online (and she says they used the photos without her permission!). Again, it’s shocking that a lawyer actually wrote this complaint and filed it. Burkhart is a public official who is involved in a newsworthy scandal; she is not able to control who posts photos of her. The Watchdogs’ use of a photo of her is clearly covered by Fair Use. It is absurd that she would try to make this desperate claim for “misappropriation” (but she doesn’t say anything about asserting a copyright over the photo). The whole issue of Fair Use, copyright, and “misappropriation” is an interesting one that we can explore another day, because much like defamation this is something that people don’t really typically know a lot about and the push right now with the Social Justice Warrior and crybully crowds is for people to claim you need their permission to post something. That’s not true at all. Free speech can’t be curtailed just because a spoiled prima donna does not like being mocked for her bad behavior…and a picture of a public official accompanying an article about that public official’s bad behavior is fair game. This is not Saudi Arabia.
Page 20: Conspiracy! Everyone is plotting against her! My goodness. The author of this paranoid nonsense was someone named “Joshua M. Feagans” from the firm Griffin Williams LLP. He actually signed his name to this foolishness and filed it with the court. That is astonishing to me.
What I hope happens here is that the Watchdogs very aggressively fight this lawsuit and invoke our state’s Citizen Protection Act, which would ultimately make Carla Burkhart pay all of their legal fees that resulted from this SLAPP. I wish that Joshua M. Feagans, whoever he is, would have to face a Rule 11 sanction as well, but I won’t hold my breath for that in Illinois. It’s apparently very rare for an attorney to be punished for filing bogus lawsuits…though I do think the anti-SLAPP measures have some consequences for the plaintiff’s attorneys. It will be interesting to look into that.
Cases like this can drag on for years and this SLAPP was only filed on January 1st, 2016…so it’s only just begun. The timing is great for studying it as a Third Wave SLAPP though, in Pring/Canan fashion, because we can watch the case progress in real time.
I cannot wait to read the response that Kraft & Allen will file and also read their Motion to Dismiss, which should come in the next few months if Burkhart does not withdraw this SLAPP before then.
© 2016, Kevin DuJan. All rights reserved.
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