Murauskas v. Rosa

2019 IL App (1st) 190480-U

• Court: Appellate Court of Illinois
• Decided: November 14, 2019
• Docket: 1-19-0480
• Status: Unpublished

Opinion

2019 IL App (1st) 190480-U FOURTH DIVISION November 14, 2019

No. 1-19-0480

NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________

IN THE APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT ______________________________________________________________________________

AARON M. MURAUSKAS, ) Appeal from the ) Circuit Court of Plaintiff-Appellant, ) Cook County ) v. ) No. 2018 M1 13843 ) MELISSA ROSA, ) Honorable ) Mary Kathleen McHugh, Defendant-Appellee. ) Judge Presiding. ______________________________________________________________________________

JUSTICE REYES delivered the judgment of the court. Presiding Justice Gordon and Justice Lampkin concurred in the judgment.

ORDER

¶1 Held: Affirming the judgment of the circuit court of Cook County dismissing a defamation complaint with prejudice where the challenged communications were absolutely privileged.

¶2 Plaintiff Aaron M. Murauskas (Murauskas) appeals from an order of the circuit court of

Cook County dismissing with prejudice his defamation complaint against fellow police officer

Melissa Rosa (Rosa) pursuant to section 2-619(a)(9) of the Code of Civil Procedure (Code) (735

ILCS 5/2-619(a)(9) (West 2018)). Relying on Razavi v. School of the Art Institute of Chicago,

2018 IL App (1st) 171409 (Razavi II) – discussed below – the circuit court held that Rosa’s

alleged statements were absolutely privileged. For the reasons set forth herein, we affirm. 1-19-0480

¶3 BACKGROUND

¶4 Murauskas is a sergeant and Rosa is an officer with the University of Illinois at Chicago

(UIC) police department. On January 12, 2018, Rosa sent an email to UIC police chief Kevin

Booker (Booker), UIC police captain Stanley Grice (Grice), and other UIC departments and

officials, including the Office of Access & Equity (OAE), requesting an investigation of her

complaint against Murauskas for sexual harassment and retaliation in the workplace. Although a

complaint was attached to her email, it does not appear in the record on appeal. In a second

email on January 18, 2018, Rosa indicated that the OAE had promptly responded to her earlier

communication. She suggested, however, that the UIC police department did not take her

allegations seriously. Rosa stated that she realized that Murauskas’s actions were criminal, and

she requested: “Please investigate this already or contact the police department who will.”

¶5 Murauskas subsequently filed a verified complaint for defamation against Rosa in the

circuit court of Cook County alleging that: Rosa had filed a false and unsigned complaint with

the OAE; she made the allegations maliciously in retaliation for being “written up” by

Murauskas for infractions; she refused to participate in a follow-up interview with “Internal

Affairs” (which Murauskas has represented is the commonly-used name for the “University

Police’s Office of Professional Standards”) 1; the OAE found her allegations to be “unfounded”;

and Internal Affairs closed the matter due to insufficient evidence. Murauskas believed that

Rosa refused to sign an affidavit because she did not want to face criminal charges for filing a

false complaint. According to Murauskas, Rosa knew that filing her complaint would prevent

him from working overtime until the complaint was fully adjudicated, pursuant to departmental

policy. Since her complaint was dismissed on March 15, 2018, Murauskas alleged that he lost

two months of overtime. He also alleged that her complaint caused his immediate suspension 1 Murauskas has also represented that “Internal Affairs is part of the State Police.” -2- 1-19-0480

from a “command position,” resulting in his loss of additional compensation. Murauskas

asserted that Rosa’s complaint was not covered by any reporting privilege because (a) she neither

signed nor attested to the complaint and (b) her complaint was “willful and malicious.”

¶6 Rosa filed a motion to dismiss his defamation complaint pursuant to section 2-619(a)(9)

of the Code, arguing that his claim was barred by her defense of absolute privilege. She asserted

that an absolute privilege provided complete immunity from his civil action – even if her

statements were allegedly made with malice – because “public policy favors the free and

unhindered flow of such information.” According to Rosa, the OAE was designated by UIC

pursuant to federal law 2 to receive and investigate complaints of unlawful discrimination,

harassment, and retaliation in education, employment, and UIC-sponsored programs and

activities, as well as alleged violations of UIC’s policy against sexual harassment,

discrimination, and misconduct. Rosa represented that OAE investigations were conducted by

the “Title IX Coordinator” and his designees, who determine when there have been policy

violations based on a preponderance of the evidence standard and make recommendations to the

appropriate UIC authorities for students, faculty, or staff. Asserting that the OAE was a quasi-

judicial body and complaints filed with the OAE and related investigations are quasi-judicial

proceedings, Rosa argued that her challenged statements were absolutely privileged.

¶7 In his response, Murauskas discussed the six powers recognized by courts as typically

associated with a quasi-judicial body, i.e., one to which absolute privilege would attach: (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

2 Rosa specifically cited Title IX of the Education Amendments Act of 1972 (20 U.S.C. § 1681, et seq.) and Title VII of the Civil Rights Act of 1964, as amended (42 U.S.C. § 2000e, et seq.). -3- 1-19-0480

attendance of witnesses, and to hear litigation of issues on a hearing; and (6) the power to

enforce decisions or impose policies. Murauskas asserted that the Title IX Coordinator lacked

many of these powers, and thus Rosa’s complaint was not protected by absolute privilege.

¶8 Rosa replied that she had emailed her complaint both to the OAE and to Booker and

Grice from the UIC police department, wherein she reported facts and events which allegedly

demonstrated Murauskas’s criminal conduct. Rosa argued that the statements she made to law

enforcement officials for the purpose of instituting legal proceedings were absolutely privileged.

Asserting that she “had no control” over the police department’s decision not to criminally

investigate her claims, Rosa asserted that her simultaneous statements to the OAE and the UIC

police were equally protected under the absolute privilege defense.

¶9 Murauskas subsequently filed an affidavit, wherein he represented that the OAE could

require him to file an answer but could not discipline police officers. According to Murauskas,

the OAE referred Rosa’s complaint to Internal Affairs. Murauskas averred that Rosa knew that

her complaint would cause Internal Affairs to “bench” him, which was the routine practice. He

asserted his damages were due to the lack of overtime, which was caused by the complaint to

Internal Affairs, not the complaint to the OAE. Murauskas further averred that Rosa knew her

failure to sign the complaint would prevent Internal Affairs from disciplining her.

¶ 10 Murauskas also indicated that he did not oppose Rosa’s motion to cite the recently-

decided Razavi II. He argued, however, that the case did not compel dismissal of his action.

¶ 11 On February 7, 2019, the circuit court entered a written order granting Rosa’s motion to

dismiss Murauskas’s complaint with prejudice under section 2-619(a)(9) of the Code. Finding

that Razavi II was dispositive, the circuit court held that the alleged statements by Rosa to the

OAE and/or to Internal Affairs were covered by absolute privilege. Murauskas timely appealed.

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¶ 12 ANALYSIS

¶ 13 Murauskas contends that the circuit court erred in dismissing his defamation complaint

pursuant to section 2-619(a)(9) of the Code (735 ILCS 5/2-619(a)(9) (West 2018)). He asserts

that Rosa’s statements were not absolutely privileged because he was damaged by her

communications to Murauskas’s employer, not statements to law enforcement or to a quasi-

judicial body.

¶ 14 As a preliminary matter, we address Murauskas’s contention that the statement of facts in

Rosa’s brief violates Illinois Supreme Court Rule 341 because it is unsupported and

argumentative. Rule 341(h)(6) provides that the statement of facts “shall contain the facts

necessary to an understanding of the case, stated accurately and fairly without argument or

comment, and with appropriate reference to the pages of the record on appeal[.]” Ill. S. Ct. R.

341(h)(6) (eff. May 25, 2018). We agree that portions of Rosa’s statement of facts present

argument and lack proper citation. While we may strike a statement of facts when the

improprieties hinder our review (Hall v. Naper Gold Hospitality LLC, 2012 IL App (2d) 111151,

¶ 9), the deficiencies in Rosa’s brief do not impair our effective review. We thus deny

Murauskas’s request to strike, but note that any statement that is argumentative or made without

reference to the record shall be ignored. Beitner v. Marzahl, 354 Ill. App. 3d 142, 146 (2004).

¶ 15 Turning to the merits, section 2-619(a)(9) of the Code allows for the dismissal of an

action on the ground that “the claim asserted against defendant is barred by other affirmative

matter avoiding the legal effect of or defeating the claim.” 735 ILCS 5/2-619(a)(9) (West 2018).

A motion to dismiss under section 2-619 “admits well-pleaded facts, but does not admit

conclusions of law and conclusory factual allegations unsupported by allegations of specific

facts.” Better Government Ass’n v. Illinois High School Ass’n, 2017 IL 121124, ¶ 21. Our task

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when considering dismissal under section 2-619(a)(9) is ultimately to consider whether the

existence of a genuine issue of material fact should have precluded the dismissal or, absent such

an issue of fact, whether dismissal is proper as a matter of law. Id. We review a section 2-619

dismissal de novo (id.), meaning that “we perform the same analysis that a trial judge would

perform” (Tzakis v. Berger Excavating Contractors, Inc., 2019 IL App (1st) 170859, ¶ 19).

¶ 16 As discussed further below, the existence of an absolute privilege is an affirmative matter

warranting the dismissal of a defamation action. Busch v. Bates, 323 Ill. App. 3d 823, 832

(2001). See also Malevitis v. Friedman, 323 Ill. App. 3d 1129, 1131 (2001) (noting that absolute

privilege is an affirmative defense that may be raised and determined under section 2-619).

¶ 17 Murauskas filed a complaint against Rosa for defamation. “To state a cause of action for

defamation, a plaintiff must present facts showing the defendant made a false statement about the

plaintiff, the defendant made an unprivileged publication of that statement to a third party, and

the publication caused damages.” Hadley v. Doe, 2015 IL 118000, ¶ 30. “A defamatory

statement is one that harms a person’s reputation because it lowers the person in the eyes of

others or deters others from associating with her or him.” Id.

¶ 18 A defamatory statement is not actionable if it is privileged. Solaia Technology, LLC v.

Specialty Publishing Co., 221 Ill. 2d 558, 585 (2006). There are two classes of privileged

statements: those subject to an absolute privilege and those subject to a qualified or conditional

privilege. Id. “When absolute privilege is granted, no cause of action for defamation lies against

the person making the statement even if it is made with malice.” Mauvais-Jarvis v. Wong, 2013

IL App (1st) 120070, ¶ 71. Rosa contends that her statements were subject to an absolute

privilege. The question of whether a statement is privileged is a question of law which we

review de novo. Razavi II at ¶ 22; Malevitis, 323 Ill. App. 3d at 1131.

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¶ 19 “A communication is absolutely privileged when its propagation is so much in the public

interest that the publisher should speak fully and fearlessly.” Weber v. Cueto, 209 Ill. App. 3d

936, 942 (1991). The absolute privilege is based on a policy that “regards the ends to be gained

by permitting such statements as outweighing the harm which may be done to the reputation of

others.” Razavi II at ¶ 20. See also Weber, 209 Ill. App. 3d at 942 (noting that the absolute

privilege defense “rest[s] upon the idea that conduct which would otherwise be actionable is to

escape liability because the defendant is acting in furtherance of some interest of social

importance that is entitled to protection even at the expense of uncompensated harm to the

plaintiff’s reputation”). Certain types of defamatory statements are deemed privileged so that the

individual making the statements will not be deterred by the threat of civil liability. Id. See, e.g.,

Thomas v. Petrulis, 125 Ill. App. 3d 415, 423 (1984) (noting that a libel suit could chill an

employee’s “utilization of the Title VII mechanism because the employee would have to defend

himself in a lengthy court battle”). In light of the complete immunity afforded by an absolute

privilege, the classification of absolutely privileged statements is necessarily narrow. Razavi II

at ¶ 20; Layne v. Builders Plumbing Supply Co., 210 Ill. App. 3d 966, 969 (1992).

¶ 20 The absolute privilege “embraces actions required or permitted by law in the course of

judicial or quasi-judicial proceedings as well as actions ‘necessarily preliminary’ to judicial or

quasi-judicial proceedings.” Layne, 210 Ill. App. 3d at 969 (citing Parrillo, Weiss, & Moss v.

Cashion, 181 Ill. App. 3d 920, 928 (1989)). “Whether a given proceeding by an administrative

body is quasi-judicial depends upon the powers and duties of the body conducting the proceeding

and upon the nature of the proceeding.” Id. at 926. Illinois courts have identified six powers that

differentiate a quasi-judicial body from a body merely performing an administrative function:

“(1) the power to exercise judgment and discretion; (2) the power to hear and determine or to

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ascertain facts and decide; (3) the power to make binding orders and judgments; (4) the power to

affect the personal and 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.” Id. While it is not necessary for a body to

possess all six powers in order to be considered a quasi-judicial body, “the more powers the body

possesses, the more likely it is to attain quasi-judicial status.” Belluomini v. Zaryczny, 2014 IL

App (1st) 122664, ¶ 22. Illinois courts have found that bodies such as the Illinois Department of

Insurance (Parrillo, 181 Ill. App. 3d at 927) and the Equal Employment Opportunity

Commission (Thomas, 125 Ill. App. 3d at 421) are quasi-judicial. But see Zych v. Tucker, 363

Ill. App. 3d 831, 836 (2006) (noting that although the Office of Internal Affairs (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 [section 2-619] motion supports the

proposition that the OIA itself possesses any of the powers of a quasi-judicial body”).

¶ 21 Murauskas contends that “Title IX office” at UIC does not constitute a quasi-judicial

body because it lacks many of the powers enumerated above. We find, however, that it is not

necessary herein to determine whether the OAE/Title IX office is a quasi-judicial body. Illinois

courts have found that a communication made in the discharge of a legal duty is absolutely

privileged, irrespective of whether the body at issue was deemed quasi-judicial. Weber, 209 Ill.

App. 3d at 947 (holding that a communication to a county board made in compliance with a

disciplinary rule in the code of professional responsibility for attorneys was cloaked with

absolute privilege, regardless of whether the county board was a quasi-judicial body). 3 It has

3 See also Anderson v. Beach, 386 Ill. App. 3d 246, 249-50 (2008) (finding that a police officer’s letter to her superior officer regarding a colleague’s alleged misconduct was absolutely privileged because departmental rules required her to report the misconduct, but her communications to officers outside of her chain of command were not protected); Busch, 323 Ill. App. 3d at 834 (concluding that the absolute -8- 1-19-0480

also “long been held that statements made to law enforcement officials, for the purpose of

instituting legal proceedings, are granted absolute privilege.” Vincent v. Williams, 279 Ill. App.

3d 1, 7 (1996). See also Layne, 210 Ill. App. 3d at 7 (finding that statements made to a police

department concerning the plaintiff’s alleged criminal conduct were absolutely privileged). As

discussed below, the two Razavi cases – Razavi v. Walkuski, 2016 IL App (1st) 151435 (Razavi

I), and Razavi II – guide our analysis herein.

¶ 22 The plaintiff Omar Shariat Razavi (Razavi) filed a defamation action against defendants

Eva Walkuski (Walkuski) and Ariel Zekelman (Zekelman). Razavi I at ¶ 1. Razavi and the

defendants were students at the School of the Art Institute (SAIC), a private university. Id. ¶ 3.

After Walkuski reported to the SAIC campus security director that Razavi had sexually assaulted

and stalked her, the director escorted Walkuski to the Chicago police department, where she filed

an incident report. Id. Zekelman also reported to SAIC campus security that Razavi had

sexually assaulted her. Id. Following a hearing before the student conduct board, Razavi was

expelled; he then filed a defamation action against the defendants and SAIC. Id. ¶¶ 3-4. The

defendants moved to dismiss, contending that the reports to SAIC campus security were

absolutely privileged because they were made to law enforcement personnel. Id. ¶ 4. The circuit

court denied the motion, finding that whether the absolute privilege applied to reports of sexual

violence made to campus security was a question of first impression. Id.

¶ 23 As to the certified question of whether campus security should be considered law

enforcement for purposes of an alleged victim’s report of sexual violence on campus, the

appellate court in Razavi I found that the underlying rationale of the absolute privilege as well as

the public policy of helping prevent sexual assault on college campuses warranted treating

privilege applied where police officers who reported alleged misconduct by a crime scene technician faced “conflicting obligations,” i.e., “either fail to report and face disciplinary action or report perceived official misconduct and face a defamation action”). -9- 1-19-0480

campus security as law enforcement. Id. ¶ 12. The appellate court further found that it was

“manifestly counterintuitive” to penalize an individual for reporting an alleged incident of on-

campus sexual violence to the school’s security department. Id. ¶ 13.

¶ 24 The appellate court then considered whether “the victim made the report for the purpose

of initiating legal proceedings.” Id. ¶ 15. After noting the six powers identified with a quasi-

judicial body, the appellate court observed that the privilege did not require university

proceedings themselves to constitute a legal proceeding and that the act of reporting to a police

officer did not itself constitute a legal proceeding; rather, the State’s Attorney has the discretion

to decide whether to file charges. Id. The appellate court noted that, “[i]n the context of reports

to traditional law enforcement, courts presume that statements are made for the purpose of

constituting legal proceedings, notwithstanding a defamation plaintiff’s claim that the statements

were false, maliciously motivated or made for a purpose unrelated to the institution of legal

proceedings.” Id. The appellate court concluded, “We see no reason to depart from this

rationale and require courts to make a determination of fact as to the reporter’s subjective intent

when reports of sexual violence are first made to campus security.” Id. The Razavi I court thus

found that statements to campus security are absolutely privileged. Id.

¶ 25 Following remand, rather than focusing on campus security, Razavi alleged that

Walkuski and Zekelman falsely or recklessly reported the alleged assaults to agents and

employees of SAIC. Razavi II at ¶ 14. Walkuski and Zekelman again filed motions to dismiss,

arguing that an investigation is a “continuum” and it would make little sense to apply different

levels of privilege to the same statements made at different points in an investigation. Id. ¶ 15.

After the circuit court granted the dismissals, Razavi argued on appeal that the process was not a

“continuum” of any criminal investigation, nor was his disciplinary hearing “quasi-judicial” in

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nature such that absolute privilege applied. Id. ¶ 23.

¶ 26 The appellate court initially noted that SAIC student handbook’s policy on sexual assault,

relationship violence, and stalking was adopted in accordance with a federal law which was

passed to encourage greater transparency, enhance the victims’ information and rights, and add

requirements for educational institutions to address and prevent sexual violence on campus. Id.

¶ 25. The SAIC policy encouraged anyone subject to sexual assault, relationship violence, or

stalking to report the incident promptly to the police and/or SAIC officials. Id. ¶ 27. Given the

SAIC policy and applicable law – providing that generally once a privileged statement is made to

law enforcement any subsequent restatements made in further of the investigation fall under the

absolute privilege (Razavi I at ¶ 8; Belluomini, 2014 IL App (1st) 122664, ¶ 26) – the appellate

court concluded that the victims’ allegedly defamatory restatements to SAIC authorities and

agents regarding the purported sexual assault and misconduct were absolutely privileged. Id.

¶ 34. The Razavi II court noted that while the SAIC investigation itself was not quasi-judicial, it

was sufficient that it emerged out of a fully-protected initial report. Id.

¶ 27 In the instant case, Rosa contemporaneously submitted her complaint and follow-up

email alleging sexual misconduct by Murauskas to both campus resources and to UIC police

chief Booker and UIC police captain Grice. We thus reject Murauskas’s assessment that Rosa

“did not go to law enforcement, and did not consult campus security.” Furthermore, his claim

that she made defamatory communications to his “employer [and] not to law enforcement”

ignores the fact that they both were employed by the UIC police department. Whether the UIC

police is considered campus security or traditional law enforcement, the result under Razavi I

remains the same. We adhere to this court’s holding in Razavi I and find that by communicating

her allegations to senior officers of the UIC police department, Rosa’s statements were made for

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the purpose of initiating legal proceedings, regardless of Murauskas’s claim that her statements

were false, maliciously motivated, and made for a purpose unrelated to the institution of legal

proceedings. See Razavi I at ¶ 15. To the extent that the complaint attached to Rosa’s January

12 email was not included in the record on appeal, such deficiency is construed against

Murauskas, as the appellant. E.g., Tebbens v. Levin & Conde, 2018 IL App (1st) 170777, ¶ 31

(noting that “[a]ny doubts or deficiencies arising from an incomplete record will be construed

against the appellant”). Based on the foregoing, we conclude that Rosa’s statements to the UIC

police officials were absolutely privileged.

¶ 28 We further conclude that Rosa’s statements to university departments and officials –

including the OAE – were part of the same “continuum” and were entitled to the same

protection. Belluomini, 2014 IL App (1st) 122664, ¶ 26 (noting that an “investigation is a

continuum and it defies rational thinking to isolate certain portions of the investigation in order

to apply different levels of privilege”). Her communications with the OAE regarding

Murauskas’s alleged actions appear to have been consistent with the university’s federally-

mandated policies and procedures regarding the reporting and investigation of purported sexual

misconduct. See, e.g., 34 C.F.R. § 106.8 (requiring educational institutions which receive

federal funding to adopt and publish grievance procedures for the prompt and equitable

resolution of student and employee complaints of sexual discrimination, including sexual

violence and harassment). Under the Razavi II rationale, Rosa’s statements made under these

federally-mandated procedures are cloaked with the same privilege as if the statements

themselves were legally required. Razavi II at ¶ 35. To hold otherwise would render UIC’s

investigatory procedures “toothless,” since there would be no basis to proceed. Id. As the

Razavi II court observed, an alleged victim’s participation in these types of proceedings is in the

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public interest. Id. ¶ 36. Furthermore, “it would be against public policy to force a victim of

sexual assault to parse out what statements would or would not make her subject to a potential

defamation lawsuit as she complies with the very policies and procedures of the institution.” Id.

¶ 37.

¶ 29 Finally, we address Murauskas’s argument that he was harmed by the Internal Affairs

investigation, not the OAE/Title IX Coordinator’s investigation, because Internal Affairs

imposed limitations on his work opportunities and compensation while it conducted its

investigation. Since Rosa had no control over the manner in which the OAE handled the

investigation, including its alleged referral to Internal Affairs, we reject Muraskas’s contention.

See, e.g., Belluomini, 2014 Il App (1st) 122664, ¶ 26.

¶ 30 For the reasons discussed above, we conclude that the ends to be gained by granting

absolute privilege to Rosa’s communications under the circumstances herein outweigh the harm

to Murauskas’s reputation or compensation. See Razavi II at ¶ 37. The circuit court properly

dismissed Murauskas’s complaint for defamation under section 2-619(a)(9) of the Code based on

Rosa’s defense of absolute privilege.

¶ 31 CONCLUSION

¶ 32 The judgment of the circuit court of Cook County dismissing Murauskas’s defamation

action with prejudice pursuant to section 2-619(a)(9) of the Code is affirmed.

¶ 33 Affirmed.

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