Appeal from the Circuit Court of Peoria County; the Hon.
Dennis K. Cashman, Judge, presiding.
JUSTICE WOMBACHER DELIVERED THE OPINION OF THE COURT:
The Illinois Traffic Court Driver Improvement Foundation, a defensive-driving program for traffic offenders, and its director, Dato Olivero, brought a 23-count action in Peoria County against various media defendants and State of Illinois officials. Among the defendants were Stephen Covey, then chief judge of the Tenth Judicial Circuit (Covey), and John Barra, the Peoria County State's Attorney (Barra). The counts directed against these two defendants attempted to state causes of action based upon (1) defamation, (2) conspiracy to defame and to interfere with a business relationship, and (3) violations of section 1983 of the Federal Civil Rights Act (42 U.S.C. § 1983 (1983)). The Honorable Dennis K. Cashman of the Eighth Judicial Circuit was specially assigned to hear the case.
The trial court granted Covey and Barra's motions to dismiss the counts against them and found no just reason to delay enforcement or appeal of its order, from which plaintiffs appeal. We affirm.
The lawsuit stems from three articles which appeared in the Peoria Journal Star concerning the plaintiffs' driver improvement program. One article stated that the plaintiffs misrepresented the program's affiliation with the State of Illinois and the Illinois Chief Judges' Association, and that the director misrepresented his own credentials. A second article reported remarks Dato Olivero allegedly made in addressing one of his driver improvement classes, referring to corruption in the Illinois judicial system. Another article stated that Chief Judge Covey and State's Attorney Barra were withdrawing their support for the plaintiffs' program because of complaints from program participants who believed that Olivero was saying that the judges and State's Attorneys take illegal payments for traffic violations.
Specifically as to Covey and Barra, the amended complaint alleged (1) that each had issued administrative directives suspending participation in plaintiffs' program without first providing plaintiffs with notice and a hearing, thereby depriving plaintiffs of a constitutionally protected property interest without due process of law in violation of section 1983; (2) that Covey, Barra and the Journal Star reporter, Deborah Goeken, had conspired to defame the plaintiffs and to interfere with the administration of the program, thereby harming the plaintiffs' interests protectable under section 1983; (3) that Covey had defamed Dato Olivero by making untrue statements that he "had been operating his program for years using an apparently fabricated association with the State's [j]udicial [s]ystem," and that the program is not connected to the Illinois Chief Judges' Association. The plaintiff further alleged that Judge Covey made the statements maliciously "in that they were deliberately and intentionally worded, phrased and published in a scandalous, shocking and horrifying manner."
• 1 We shall direct our initial attention to the third item in the preceding paragraph, the defamation count against Judge Covey. The trial court dismissed count XXI on the basis that the statements were made in the defendant's official capacity as chief judge and in furtherance of his judicial function in that role, and therefore the defendant was entitled to judicial immunity. We agree.
The United States Supreme Court defined the scope of judicial immunity very broadly in Stump v. Sparkman (1978), 435 U.S. 349, 55 L.Ed.2d 331, 98 S.Ct. 1099, holding that "[a] judge will not be deprived of immunity because the action he took was in error, was done maliciously, or was in excess of his authority; rather, he will be subject to liability only when he has acted in the `clear absence of all jurisdiction.' [Citation.]" 435 U.S. 349, 356-57, 55 L.Ed.2d 331, 339, 98 S.Ct. 1099, 1105.
A judge enjoys absolute immunity only for acts performed in his "judicial" capacity, which the Supreme Court in Stump said is determined according to "the nature of the act itself, i.e., whether it is a function normally performed by a judge, and to the expectations of the parties, i.e., whether they dealt with the judge in his judicial capacity."
The plaintiff attempts to impose liability on the defendant with the argument that his acts were administrative, rather than judicial. This argument is without merit because a judge, and particularly a chief judge, has many administrative duties which are part of his normal functions, and no less "judicial" than the act of presiding over a courtroom.
This court will take judicial notice that the disposition of traffic violations and the exercise of the sentencing alternative of court supervision are matters which fall clearly within the jurisdiction of the circuit courts. Pursuant to that jurisdiction, the plaintiffs' program had for many years been the recipient of referrals from the Tenth Judicial Circuit. Consequently, we do not find that the trial court erred in ruling that the statements Judge Covey made in conjunction with the termination of those referrals were in furtherance of his judicial function as chief judge.
• 2 We further find that this case is easily distinguishable from Harris v. Harvey (7th Cir. 1979), 605 F.2d 330, in which the Seventh Circuit Court of Appeals refused to shield the defendant circuit judge by immunity where he had conducted more than a year-long racially motivated campaign to have the plaintiff dismissed from the police force. The court found that the defendant's repeated communications to the press and to city officials, many of them while plaintiff was awaiting trial on criminal charges, were "undertaken in the `absence of all jurisdiction,'" citing the standard enunciated in Stump v. Sparkman. 605 F.2d 330, 336.
In contrast, the present case presents an isolated instance of public comment by Judge Covey regarding a subject appropriate for judicial attention. This was nothing remotely similar to the personal vendetta conducted in Harris v. Harvey.
Defendant Covey also challenges the sufficiency of count XXI for the first time on appeal on the grounds that the plaintiff failed to allege the identity of the third party to whom publication of Covey's statements was made. The article which appeared in the Peoria Journal Star on the day that Judge Covey was alleged to have published his defamatory remarks contained statements of the nature pleaded in count XXI. However, the newspaper article does not attribute the remarks to Covey, and the complaint does not allege publication of the remarks in the newspaper article. While this presents an interesting question, we are limited by the doctrine of waiver from addressing the issue because of this defendant's failure to raise it in the trial court. Lemke v. Kenilworth Insurance Co. (1985), 109 Ill.2d 350, 487 N.E.2d 943.
• 3 Next, we shall turn to the trial court's dismissal of counts XIV and XVII (against Barra) and XIX and XXII (against Covey). These four counts allege that the issuance of orders or directives by the State's Attorney and chief judge suspending the participation of the county prosecutors and judges in the Tenth Judicial Circuit in plaintiffs' program triggered the plaintiffs' right to notice and hearing pursuant to the fourteenth amendment (U.S. ...