Zych v. Tucker

THIRD DIVISION
FILED: February 22, 2006

No. 1-05-1906

BRIAN ZYCH, ) APPEAL FROM THE
) CIRCUIT COURT OF
Plaintiff-Appellant, ) COOK COUNTY
)
v. )
)
MYRON TUCKER, ) HONORABLE
) JEFFREY LAWRENCE,
Defendant-Appellee. ) JUDGE PRESIDING.

PRESIDING JUSTICE HOFFMAN delivered the opinion of the court:

This is an appeal by the plaintiff, Brian Zych, from an order

of the circuit court dismissing his action for defamation and

malicious prosecution. For the reasons which follow, we affirm the

dismissal of the malicious prosecution claim, reverse the dismissal

of the defamation claim, and remand this cause to the circuit court

for further proceedings.

The facts necessary to a resolution of this appeal are not in

dispute. In his complaint, the plaintiff alleged that at all times

relevant, he was a Cook County Sheriff's police officer and

charged, inter alia, that:

"[T]he defendant, MYRON TUCKER, published a written
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statement which accused *** [him] of using excessive

force, and [stating] that he [the defendant] was

'publicly beaten', terrorized', brutalize (sic),

'tortured' and 'humiliated by this psychotic cop.' The

defendant further accused the plaintiff of being 'totally

out of control, follow[ing] his own rules, [and]

disrespecting the public, policy and procedure.'"

The plaintiff also alleged that the defendant knew that his

statements were false and that he published them for the purpose of

revenge and retaliation because the plaintiff had arrested him.

According to the complaint, the plaintiff became the subject of an

administrative investigation as a result of the defendant's false

accusations, and he was required to respond. The plaintiff sought

recovery on theories of defamation per se and malicious

prosecution.

The defendant filed a motion pursuant to section 2-619 of the

Code of Civil Procedure (Code) (735 ILCS 5/2-619 (West 2004)),

seeking a dismissal of the plaintiff's suit on the grounds that the

actions alleged in the complaint are absolutely privileged.

According to the motion, the written statement referred to in the

complaint is a letter which the defendant sent to the Office of

Internal Affairs of the Cook County Sheriff's Police Department

(OIA). Although the motion is not supported by affidavit in this

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regard (see 735 ILCS 5/2-619(a) (West 2004)), the plaintiff's

response to the motion concedes that the letter was sent to the OIA

as alleged. The circuit court granted the defendant's motion, and

this appeal followed.

When, as in this case, an action is dismissed pursuant to a

section 2-619 motion, the question on appeal is whether there is a

material issue of fact to be decided and whether the defendant is

entitled to judgment as a matter of law. Illinois Graphics Co. v.

Nickum, 159 Ill. 2d 469, 494, 639 N.E.2d 1282 (1994). Because the

question is one of law, our review is de novo. Gonnella Baking

Co. v. Clara's Pasta Di Casa, Ltd., 337 Ill. App. 3d 385, 388, 786

N.E.2d 1058 (2003).

For purposes of this appeal, we accept as true all of the

factual allegations in the plaintiff's complaint (Gonnella Baking

Co, 337 Ill. App. 3d at 388), including, but not limited to, the

allegations that the plaintiff is a police officer employed by the

Cook County Sheriff, that defendant published the subject letter,

that the assertions in the letter are false, that the defendant

knew them to be false, and that he sent the letter for the purpose

of revenge and retaliation because the plaintiff had arrested him.

We also accept as true the fact that defendant sent the subject

letter to the OIA. Additionally, we draw all reasonable inferences

from those facts which are favorable to the plaintiff (Turner v.

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Fletcher, 302 Ill. App. 3d 1051, 1055, 706 N.E.2d 514 (1999)) and

conclude that the letter is defamatory per se because, at a

minimum, it prejudiced the plaintiff in his profession as a law

enforcement officer (see Owen v. Carr, 113 Ill. 2d 273, 277, 497

N.E.2d 1145 (1986)).

However, even statements which are defamatory per se may not

be actionable if they are protected by an absolute or qualified

privilege. Barakat v. Matz, 271 Ill. App. 3d 662, 667, 648 N.E.2d

1033 (1995). The issues presented by this appeal are whether the

letter which the defendant is alleged to have sent is privileged

and, if it is, whether the privilege is absolute or qualified.

Both issues present questions of law. Barakat, 271 Ill. App. 3d at

667; Layne v. Builders Plumbing Supply Co., 210 Ill. App. 3d 966,

969, 569 N.E.2d 1104 (1991).

The defendant argues, as he did before the trial court, that

his letter is protected by an absolute privilege. He contends that

sending the letter to the OIA was "a permissible step" in a quasi-

judicial proceeding and, as a consequence, absolutely privileged.

The plaintiff contends that the defendant's letter was not

published during the course of any legislative, judicial, or quasi-

judicial proceeding and argues that, if the letter is privileged at

all, it is protected by a qualified privilege only. He concludes,

therefore, that the trial court erred in dismissing his defamation

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action as the issue of malice presents a question of fact for the

jury to decide.

The class of occasions where defamatory statements are

absolutely privileged is narrow and generally limited to

legislative, judicial, and some quasi-judicial proceedings.

Barakat, 271 Ill. App. 3d at 667; Allen v. Ali, 105 Ill. App. 3d

887, 890, 435 N.E.2d 167 (1982). An absolute privilege provides a

complete immunity from civil action even though the statements were

made with malice because public policy favors the free and

unhindered flow of such information. Layne, 210 Ill. App. 3d at

969.

A qualified privilege has been found to exist in circumstances

where the following elements are present: "(1) good faith by the

defendant in making the statement; (2) an interest or duty to

uphold; (3) a statement limited in its scope to that purpose; (4) a

proper occasion; and (5) publication in a proper manner and to

proper parties only." Kuwik v. Starmark Star Marketing and

Administration, Inc., 156 Ill. 2d 16, 25, 619 N.E.2d 129 (1993).

However, the scope of protection afforded by a qualified privilege

can be exceeded and the privilege thereby defeated in circumstances

where 1) false statements are made with malice or a reckless

disregard for their truth, 2) the statements are not limited in

scope, or 3) publication is not limited to proper parties. Kuwik,

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156 Ill. 2d at 27; Barakat, 271 Ill. App. 3d at 669-70.

From the facts of record, it is clear that the defendant's

letter was not generated as part of any judicial or legislative

proceeding. The question remaining is whether it was generated as

part of a quasi-judicial proceeding.

Whether any given proceeding is quasi-judicial depends upon

the nature of the proceeding and the powers and duties of the body

conducting the proceeding. Kalish v. Illinois Education Assn., 157

Ill. App. 3d 969, 971, 510 N.E.2d 1103 (1987). Six powers have

been identified which differentiate a quasi-judicial body from a

body performing merely an administrative function:

"(1) [The power to exercise judgment and discretion; (2)

the power to hear and determine or to ascertain facts and

decide; (3) the power to make binding orders and

judgments; (4) the power to affect the personal or

property rights of private persons; (5) the power to

examine witnesses, to compel the attendance of witnesses,

and to hear the litigation of issues on a hearing; and

(6) the power to enforce decisions or impose penalties."

Starnes v. International Harvester Co., 141 Ill. App. 3d

652, 655, 490 N.E.2d 1062 (1986).

As the Starnes Court held, not all six powers are necessary to

constitute a quasi-judicial body but the more such powers the body

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has the more likely it is to attain that status. Starnes, 141

Ill. App. 3d at 655.

The defendant asserts that the quasi-judicial body involved in

this case is the Cook County Sheriff's Merit Board (Merit Board).

He argues that filing a complaint with the OIA is absolutely

privileged "because it is a permissible action in the course of a

disciplinary process which can result in a hearing before the ***

Merit Board."

We agree with the assertion that the Merit Board is a quasi-

judicial body. In matters involving the discipline of a member of

the Cook County Sheriff's Police, the Merit Board possesses the

power to: conduct investigations (55 ILCS 5/3-7015 (West 2004));

hold hearings (55 ILCS 5/3-7015 (West 2004)); examine witnesses and

secure by subpoena their attendance and testimony (55 ILCS 5/3-

7012, 3-7015 (West 2004)); make findings of guilt (55 ILCS 5/3-7012

(West 2004)); order the removal, demotion, or suspension of a

member of the Cook County Sheriff's Police (55 ILCS 5/3-7012 (West

2004)); and order the Sheriff of Cook County to enforce its

disciplinary orders (55 ILCS 5/3-7012 (West 2004)). In short, the

Merit Board possesses the powers that differentiate a quasi-

judicial body from one that merely performs an administrative

function. We turn then to the question of whether the defendant's

letter was a preliminary step in a quasi-judicial proceeding.

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The absolute privilege which protects actions required or

permitted in the course of a quasi-judicial proceeding also

embraces actions "necessarily preliminary" to such a proceeding.

Parrillo, Weiss & Moss v. Cashion, 181 Ill. App. 3d 920, 928, 537

N.E.2d 851 (1989). Although the Merit Board is authorized by

statute to conduct investigations, it is the Sheriff of Cook County

who must file written charges prior to the commencement of any

hearing before the Merit Board at which the removal, demotion or

suspension in excess of 30 days of a member of the Cook County

Sheriff's Police is sought. 55 ILCS 5/3-7012 (West 2004). The OIA

is not charged by statute with the duty to investigate infractions

of the rules and regulations promulgated by the Merit Board, nor is

it empowered to file charges with the Merit Board. Nothing in the

record supports the conclusion that the OIA has any power other

than to investigate complaints against a member of the Cook County

Sheriff's Police and make recommendations to the sheriff who, in

turn, must determine whether to suspend the member for a period not

exceeding 30 days (see 55 ILCS 5/3-7011 (West 2004)) or to file

written charges with the Board (55 ILCS 5/3-7011 (West 2004)).

The defendant relies on a number of cases in support of the

proposition that his letter constitutes an action which was

"necessarily preliminary" to a proceeding before the Merit Board.

However, we find those cases readily distinguishable. The

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defendant's letter did not constitute a formal written charge filed

with the Merit Board (see Thomas v. Petrulis, 125 Ill. App. 3d 415,

416, 465 N.E.2d 1059 (1984)), he did not send his letter to the OIA

in response to any inquiry from the Merit Board (see Kalish, 157

Ill. App. 3d at 978-79), nor is the OIA an officially authorized

agent of the Merit Board (see Allen v. Ali, 105 Ill. App. 3d 887,

890-91, 435 N.E.2d 167 (1982)). Unlike the circumstances present

in Hartlep v. Torres, 324 Ill. App. 3d 817, 818-20, 756 N.E.2d 371

(2001), the defendant's alleged defamatory statements were not made

during the course of any hearing. See also Parker v. Kirkland, 298

Ill. App. 340, 348-52, 18 N.E.2d 709 (1939).

Although the OIA may well be the investigative arm of the

sheriff in matters concerning the discipline of members of the

sheriff=s police department, nothing in the defendant's motion

supports the proposition that the OIA itself possesses any of the

powers of a quasi-judicial body (see Starnes, 141 Ill. App. 3d at

656-57), or that a complaint to the OIA is an action which is

"necessarily preliminary" to a proceeding before the Merit Board.

It is the sheriff who must file written charges against a member

of the police department with the Merit Board, not the OIA. See 55

ILCS 5/3-7012 (West 2004).

The defendant argues that the "public interest in protecting

the free flow of information and airing complaints of police

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misconduct" requires the protection of an absolute privilege. He

contends that, because "a citizen has the right to complain about

police officers *** without fear of a retaliatory defamation suit,"

a qualified privilege affords insufficient protection. We

disagree.

An absolute privilege may be appropriate in circumstances

where a complaint is made to the Merit Board or testimony is given

during a hearing before that quasi-judicial body. However, we do

not believe that the public interest which might be served by a

report of police misconduct to the OIA which lacks the procedural

safeguards that are statutorily mandated for proceedings before the

Merit Board (see 55 ILCS 5/3-7012 (West 2004)) requires the

application of an absolute privilege. If complaints to the OIA

were cloaked with an absolute privilege, police officers would be

subject to unsupported and malicious complaints with no recourse.

Application of a qualified privilege "is based on the policy

of protecting honest communications of misinformation in certain

favored circumstances in order to facilitate the availability of

correct information." (Emphasis added.), Kuwik, 156 Ill. 2d at 24.

We believe that a citizen=s complaint to a police officer=s

supervisor or the division within a police department charged with

investigating police misconduct is such a favored circumstance.

See Flannery v. Allyn, 47 Ill. App. 2d 308, 198 N.E.2d 563 (1964);

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Doe v. Kutella, 1995 WL 758131 (N.D.Ill., 1995). By affording such

communications the protection of a qualified privilege, a balance

is achieved between the public interest in encouraging citizens to

report acts of police misconduct, and the right of a police officer

to be protected from false and malicious complaints.

As noted earlier, the protection afforded by a qualified

privilege may be lost when a false statement is made with malice.

In this case, the plaintiff has alleged not only that the charges

made in the defendant=s letter to the OIA were false but that they

were made for the purpose of revenge and retaliation because the

plaintiff had arrested the defendant. As the plaintiff correctly

asserts, the question of whether the defendant=s statements were

made with malice is one of fact for the jury to decide. Barakat,

271 Ill. App. 3d at 669.

Based on the foregoing analysis, we conclude that the circuit

court erred in finding that the defendant=s letter to the OIA is

absolutely privileged and in dismissing the plaintiff=s defamation

claim. The letter is protected by a qualified privilege. However,

the issue of whether the privilege is defeated based upon malice is

a question of fact to be decided by a jury.

As a final matter, we note that the plaintiff has made no

argument in his appellate brief addressing the dismissal of count

II of his complaint which purports to set forth a claim for

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malicious prosecution. Any error in the dismissal of this count is

therefore waived. Official Reports Advance Sheet No. 21 (October

17, 2001), R. 341(e)(7), eff. October 1, 2001.

For the reasons stated, we reverse the dismissal of the

plaintiff=s defamation claim, affirm the dismissal of his claim for

malicious prosecution, and remand the cause to the circuit court

for further proceedings.

Affirmed in part and reversed in part; cause remanded.

HOFFMAN, P.J., with KARNEZIS and ERICKSON, J.J. concurring.

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