United States District Court, Northern District of Illinois, E.D
April 12, 1983
DEBORAH ROZNER BOND, PLAINTIFF,
CHERYL CALIENDO PECAUT, DEFENDANT.
The opinion of the court was delivered by: Prentice H. Marshall, District Judge.
In this action brought in federal court under 28 U.S.C. § 1332
(1976), plaintiff Deborah Rozner Bond seeks to recover
damages caused by a letter written to Judge Jane D. Waller of
the Circuit Court of Lake County, Illinois, by defendant Cheryl
Caliendo Pecaut. Defendant has moved to dismiss the complaint.
Since plaintiff has submitted materials outside the pleadings
in opposition to the motion, we treat it as one for summary
judgment. Fed.R.Civ.P. 12(b).
Plaintiff was divorced from Joseph Luciana ("Luciana") in
1978 and was awarded custody of their son. In 1982, plaintiff
petitioned the Circuit Court of Lake County to permit her to
move to Virginia with the child, where she planned to remarry.
Luciana responded to the petition by requesting that he be
awarded custody. The court, seeking guidance, ordered
defendant, a psychologist, to conduct a "custody evaluation,"
which was submitted to the court on May 16, 1982. In her
evaluation, defendant recommended that plaintiff be permitted
to move to Virginia with her son, and stated her opinion that
it would not be "psychologically detrimental" for the boy if
he moved away from his father. On May 24, the court entered an
order permitting plaintiff to move to Virginia with her son,
relying in part on defendant's recommendations.
On November 10, 1982, Luciana presented the court with a
motion to modify the earlier order, alleging that since its
entry and plaintiff's move to Virginia, she had adopted a
course of conduct designed to "alienate" the son from his
father. Appended to the motion was a letter addressed to the
court from defendant, in which she described plaintiff's
attempts to prevent Luciana from seeing his son pursuant to a
visitation plan which had been adopted in the earlier order.
The letter indicated that this conduct would cause the child
to "suffer emotionally," and that it was indicative of "a more
severe emotional difficulty on [plaintiff's] part than was
initially evident." The record does not reveal the disposition
of Luciana's motion.
In count I of her complaint, plaintiff alleges that the
letter is defamatory. Defendant claims she is entitled to
judgment because the letter is privileged as a matter of
law,*fn1 and hence is not actionable.
Illinois law*fn2 holds that all matters submitted to a
court in judicial proceedings are absolutely privileged if
relevant to the proceedings, and relevance is broadly
construed to include all matters arguably relevant to the
pending proceeding. Libco Corp. v. Adams, 100 Ill. App.3d 314,
316-17, 55 Ill.Dec. 805, 807, 426 N.E.2d 1130, 1132 (1982);
Anderson v. Matz, 67 Ill. App.3d 175, 23 Ill.Dec. 852,
384 N.E.2d 759 (1978); Wahler v. Schroeder, 9 Ill. App.3d 505, 507,
292 N.E.2d 521, 523 (1972); Macie v. Clark Equipment Co.,
8 Ill. App.3d 613, 290 N.E.2d 912 (1972); Sarelas v. Alexander,
132 Ill. App.2d 380, 384, 270 N.E.2d 558, 560-61 (1971); Talley
v. Alton Box Board Co., 37 Ill. App.2d 137, 185 N.E.2d 349
(1962); Harrell v. Summers, 32 Ill. App.2d 358, 178 N.E.2d 133
(1961); Dean v. Kirkland, 301 Ill. App. 495,
509-10, 23 N.E.2d 180, 187-88 (1939).*fn3 The breadth of this
privilege is illustrated by the facts that it has been
extended to quasi-judicial proceedings, see Brubaker v. Board
of Education, 502 F.2d 973, 990-91 (7th Cir. 1974) (board of
education), cert. denied, 421 U.S. 965, 95 S.Ct. 1953, 44
L.Ed.2d 451 (1975); Shearson Hayden Stone, Inc. v. Liang,
493 F. Supp. 104, 109 (N.D.Ill. 1980) (arbitration); McCutcheon v.
Moran, 99 Ill. App.3d 421, 54 Ill. Dec. 913, 425 N.E.2d 1130
(1981) (board of education); Parker v. Kirkland, 298 Ill. App. 340,
18 N.E.2d 709 (1939) (board of tax appeals); Kimball v.
Ryan, 283 Ill. App. 456 (1936) (board of education);*fn4 and
not only to statements made in court, but also to any statement
made in preparation for or in relation to a pending proceeding,
see Libco Corp. v. Adams, 100 Ill. App.3d 314, 55 Ill. Dec. 805,
426 N.E.2d 1130 (1981); McCutcheon v. Moran, 99 Ill. App.3d 421,
425, 54 Ill.Dec. 913, 916, 425 N.E.2d 1130, 1133 (1981); Weiler
v. Stern, 67 Ill. App.3d 179, 23 Ill.Dec. 855, 384 N.E.2d 762
(1978); Dean v. Kirkland, 301 Ill. App. 495, 510,
23 N.E.2d 180, 188 (1939).
Two cases are particularly pertinent. In Nolin v. Nolin,
68 Ill. App.3d 54, 215 N.E.2d 21 (1966), the court held that
defamatory statements in a will are absolutely privileged, so
as not to deter executors from presenting unaltered wills for
probate. In Krumin v. Bruknes, 255 Ill. App. 503 (1930), the
defendant, who had sided with his sister in her divorce action
against the plaintiff, gave an affidavit to the Naturalization
Bureau charging the plaintiff, an alien, with being a criminal.
The court held the affidavit was absolutely privileged, so as
not to deter citizens from presenting information to law
These principles indicate that defendant's letter to the
court was absolutely privileged. The letter was relevant to
pending legal proceedings.*fn5 In it, charges are made that
plaintiff had disobeyed an order of court. Moreover, the court
had a legitimate interest in how its custody order was being
carried out. Plaintiff argues that since the court had not
requested the letter, it was not privileged. However, there is
no authority for the proposition that the court must request
a communication before it is privileged. In any event, having
learned that some of the information contained in her earlier
report was erroneous, defendant was certainly under an
ethical, if not a legal obligation to report that fact to the
court, so it would be apprised of the facts. In the final
analysis, we think that public policy is served if persons
with knowledge of relevant facts can report to the courts
without fear of civil liability. That is the policy underlying
the privilege, as the Nolin and Krumin cases make clear. That
policy can only be vindicated if defendant's letter is accorded
an absolute privilege.
Even if the letter were not entitled to an absolute
privilege, defendant would still be entitled to judgment on
the issue of qualified privilege. In Judge v. Rockford Memorial
Hospital, 17 Ill. App.2d 365, 150 N.E.2d 202 (1958), the court
stated that there are five elements of a qualified privilege:
1) good faith by the writer, 2) an interest or duty to uphold,
3) a statement limited in scope to that purpose, 4) a proper
occasion, and 5) publication in a proper manner and to proper
parties only. Id. at
376-77, 150 N.E.2d at 207.*fn6 There is no serious dispute
that defendant's letter satisfied requirements 2) through 5).
Defendant had an interest in ensuring that the court was not
misled by her previous report, the letter was limited to
reporting the new facts not contained in the report that were
relevant to the child's welfare and the court's order,
Luciana's motion provided a proper occasion for the letter
since the child's custody and contact with his father was put
at issue by the motion, and the letter was published only to
the court and parties.
With regard to the first element, the complaint does not
even allege that the letter was written in bad faith. Even if
it did contain such allegation, unless it is supported by
specific facts, it would be insufficient to withstand summary
judgment. See Spencer v. Community Hospital, 87 Ill. App.3d 214,
220, 42 Ill.Dec. 272, 278, 408 N.E.2d 981, 987 (1980); Roemer
v. Zurich Insurance Co., 25 Ill. App.3d 606, 613,
323 N.E.2d 582, 587 (1975); Sarelas v. Law Bulletin Publishing Co.,
115 Ill. App.2d 205, 219-20, 253 N.E.2d 168, 174-75 (1969). The only
evidence the parties have adduced consists of defendant's
report and letter, the court's order, and Luciana's motion.
None of that evidence in any way suggests bad faith on
defendant's part. To the contrary, the report and following
letter merely contain legitimate expressions of concern for the
welfare of plaintiff's child. No inference of malice is raised
where a statement merely reflects a legitimate concern of the
defendant.*fn7 To the contrary, the record affirmatively
demonstrates defendant's good faith, given "the dispassionate
and purposeful tone of [he]r letter," Allen v. Ali,
105 Ill. App.3d 887, 892, 61 Ill.Dec. 678, 681, 435 N.E.2d 167, 170
In count II, plaintiff seeks to recover by alleging that the
letter constitutes a tortious invasion of her privacy.
Defendant contends that Illinois recognizes an action for
invasion of privacy only when an unauthorized appropriation of
the plaintiff's name for commercial purposes is alleged.
Otherwise, there is no action in Illinois for invasion of
privacy, defendant argues. While there is some authority for
this view, see Kelly v. Franco, 72 Ill. App.3d 642, 646, 28
Ill.Dec. 855, 858-59, 391 N.E.2d 54, 57-58 (1979); Bureau of
Credit Control v. Scott, 36 Ill. App.3d 1006, 1009,
345 N.E.2d 37, 40 (1976),*fn8 we need not go so far as to hold
that Illinois would not recognize such a tort. Even if
Illinois did permit recovery for publication of private facts
about the plaintiff, the tort would be limited only to
unreasonable intrusions on plaintiff's privacy. See Challen v.
Town and Country Charge, 545 F. Supp. 1014, 1016-17 (N.D.Ill.
1982); Geisberger v. Willuhn, 72 Ill. App.3d 435, 438-39, 28
Ill.Dec. 586, 589, 390 N.E.2d 945, 948 (1979); Bank of Indiana
v. Tremunde, 50 Ill. App.3d 480, 8 Ill.Dec. 57, 365 N.E.2d 295
(1977); Midwest Glass Co. v. Stanford Development Co.,
34 Ill. App.3d 130, 339 N.E.2d 274 (1975). For the same reasons
that we held defendant's letter privileged, we think that the
record indicates that the letter was at most a reasonable
intrusion on plaintiff's privacy. The letter is relevant to
judicial proceedings in which plaintiff's fitness as a mother
was at issue, so the court had a compelling need for access to
the letter. The letter does not recite plaintiff's revelations
in the course of therapy, but only what she had willingly told
defendant in a phone conversation. Moreover, to serve the
public policy in favor of permitting persons to communicate
freely with courts, defendant can interpose the same privilege
defense to an action for invasion of privacy as is available in
a defamation action. See Bloomfield v. Retail Credit Co.,
14 Ill. App.3d 158, 173-74, 302 N.E.2d 88, 100 (1973). Hence
defendant's privilege defense operates as a complete defense to
count 11 as well as count I.
Plaintiff has also requested leave of court to file
additional counts alleging breach of an implied contract, and
unlawful disclosure of facts in violation of the Mental Health
and Developmental Disabilities Confidentiality Act,
Ill.Rev.Stat. ch. 91 1/2, §§ 801-17 (1981). Defendant's
privilege defense also acts as a complete defense to these
claims. The implied contract between the parties and the
guarantee of confidentiality of the act should not be read to
undermine the public policies that justify the privilege
defense. Assuming the courts of Illinois would recognize these
causes of action, we think they would also recognize a
privilege defense against them based on the same elements as
the privilege in defamation actions.
Even if defendant did not have a privilege defense
applicable to these two theories, we think they fail to state
a cause of action. The two theories are in essence identical:
the implied contract between the parties that guarantees
confidentiality is coextensive with the guarantee of
confidentiality the Illinois General Assembly has been willing
to recognize. Indeed, there is no reason to believe an
"implied" contract would be any broader than that level of
confidentiality the legislature has concluded is reasonable.
See Geinsenberger v. Willuhn, 72 Ill. pp.3d 435, 438-39, 28
Ill.Dec. 586, 589, 390 N.E.2d 945, 948 (1979). The record does
not reveal a breach of this legislative guarantee. The act
creates a privilege against disclosure of a patient's
"communication" to a therapist. Ill.Rev. Stat. ch. 91 1/2, §
810 (1981). "`[C]ommunication' means any communication
made . . . to a therapist or to or in the presence of other
persons during or in connection with providing mental health or
developmental disabilities services to a recipient." Id. §
802(1). "`Mental health or developmental disabilities services'
or `services' includes but is not limited to examination,
diagnosis, evaluation, treatment, training, pharmaceuticals,
aftercare, habilitation or rehabilitation." Id. § 802(3). It is
debatable whether what plaintiff told defendant is covered by
the act, since both parties understood that defendant's
function was not to treat
plaintiff, but to advise the court. In any event, the act
permits disclosure of "communications" where the patient's
mental condition is an element of a claim or defense after in
camera inspection by the court. Id. § 810(a)(1)-(2). That is
exactly what happened here. Plaintiff's fitness as a mother was
certainly at issue in the custody proceedings, and the letter
was submitted first to the court, which had an opportunity to
inspect it before it was publicly filed. In fact, the record
does not reveal whether the court ever did order the letter
filed. If not, it remained in the court's private files and has
never been disclosed within the meaning of the act. If so, the
court had an opportunity to inspect the letter before it was
filed, and the act was complied with. In either case, no
violation of the act has been alleged.
Plaintiff's motion for leave to file additional counts is
Defendant's motion to dismiss the complaint is granted.
Judgment to enter in favor of defendant, with costs.