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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