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06/26/87 Edward M. Kalish, v. Education Association Et

June 26, 1987





510 N.E.2d 1103, 157 Ill. App. 3d 969, 110 Ill. Dec. 72 1987.IL.893

Appeal from the Circuit Court of Cook County; the Hon. Myron Gomberg, Judge, presiding.


PRESIDING JUSTICE SULLIVAN delivered the opinion of the court. PINCHAM and MURRAY, JJ., concur.


Plaintiff brought an action against defendants to recover damages for defamation, intentional infliction of emotional distress and civil conspiracy. The action was based on statements defendants allegedly made to a panel of the Character and Fitness Committee of the Illinois Supreme Court when plaintiff applied for admission to the Illinois bar. Defendants moved to dismiss the amended complaint on the ground that the communication in question was absolutely privileged. The court granted defendants' motion, from which order plaintiff has appealed.

Plaintiff, a former employee of the Illinois Education Association , an affiliate of the National Education Association , graduated from law school in January 1984 and took the February bar examination, which he passed. As part of the bar application process, plaintiff was required to execute an "AUTHORIZATION AND RELEASE" in which he consented to being investigated by the Character and Fitness Committee (the Committee) as to his "moral character, reputation and fitness for the practice of law." The form authorized every company, corporation, association or institution "having control of any documents, records and other information pertaining to [him], to furnish . . . to any Character and Fitness Committee, any such information . . . or any other pertinent data." A copy of that document was sent by the Committee to the IEA, which was requested to provide information about plaintiff's employment and his reputation and character. IEA's response has never been disclosed to plaintiff.

Plaintiff averred in his amended complaint that when he attended an interview before three members of the Committee, one member, "while reading from a document bearing the IEA letterhead," asked him if he had ever committed a certain crime involving moral turpitude. Plaintiff, who had not been placed under oath, denied the accusation and demanded to know the basis and source of the charge. The Committee refused to elaborate or divulge the source, explaining that it was not engaged in a hearing of the matter but merely was gathering information. The Committee, however, asked plaintiff to undergo a psychiatric evaluation and plaintiff complied. The Committee subsequently recommended plaintiff for admission to the bar in July 1984 and he was admitted on July 25, 1984, approximately two months after the overwhelming majority of applicants who had passed the February 1984 bar examination had been admitted. No formal hearing was ever conducted regarding plaintiff's admission to the bar.

Plaintiff's amended complaint alleged that defendants, out of hostility toward plaintiff and in retaliation for a lawsuit he had filed against them, falsely and maliciously defamed him to the Committee. The complaint alleged further that defendants, knowing that plaintiff's health had been impaired due to job-related stress and aware of the emotional suffering which would accompany their defamatory statements, intentionally inflicted severe emotional distress upon plaintiff. Finally, plaintiff alleged that defendants wrongfully agreed and conspired to make knowingly false statements about him to the Committee. On defendants' motion, the amended complaint was dismissed with prejudice, the court finding that their statements to the Committee were absolutely privileged as a communication with a quasi-judicial body.

The sole issue presented by this appeal is whether the Character and Fitness Committee is a quasi-judicial body, thereby entitling defendants to an absolute privilege for statements allegedly made in response to the Committee's inquiry into plaintiff's "moral character, reputation and fitness for the practice of law." *fn1 Whether a defamatory statement is protected by an absolute or a qualified privilege is a question of law for the court. Spencer v. Community Hospital of Evanston (1980), 87 Ill. App. 3d 214, 219, 408 N.E.2d 981.

The parties agree that statements made during quasi-judicial proceedings are absolutely privileged. (Richardson v. Dunbar (1981), 95 Ill. App. 3d 254, 256, 419 N.E.2d 1205.) Whether any given proceeding by an administrative or executive body is quasi-judicial depends upon the powers and duties of the body conducting the proceeding and upon the nature of the proceedings themselves. (95 Ill. App. 3d 254, 257, 419 N.E.2d 1205.) Six powers have been isolated as differentiating a quasi-judicial body from that 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. (Thomas v. Petrulis (1984), 125 Ill. App. 3d 415, 419-20, 465 N.E.2d 1059, citing Parker v. Holbrook (Tex. Civ. App. 1982), 647 S.W.2d 692, 695.) A quasi-judicial body need not possess all six powers; however, the more powers it possesses, the more likely the body is acting in a quasi-judicial manner. 125 Ill. App. 3d 415, 420, 465 N.E.2d 1059.

At the outset of our Discussion, we note that "[the] power to regulate and define the practice of law is a prerogative of the judicial department, an inherent adjunct of which is to prescribe regulations for the study of law and the admission of applicants for the practice of the profession." (In re Latimer (1957), 11 Ill. 2d 327, 332, 143 N.E.2d 20, appeal dismissed (1957), 355 U.S. 82, 2 L. Ed. 2d 111, 78 S. Ct. 153.) By rule, the Supreme Court of Illinois has delegated the responsibility of determining an applicant's fitness to be admitted to the practice of law to a Committee on Character and Fitness, which it appoints in each of the judicial districts of the State. (87 Ill. 2d R. 708(a).) The committees are designated as bodies of commissioners of the supreme court. 87 Ill. 2d Rules 708, 709(b).

The commissioners "are . . . empowered and charged to receive and entertain complaints, to make inquiries and investigations, and to take proof from time to time as may be necessary, concerning applications for admission to the bar, . . . and the good moral character and general fitness to practice law of applicants for admission." (87 Ill. 2d R. 709(b); In re Latimer (1957), 11 Ill. 2d 327, 332, 143 N.E.2d 20.) Rule 709(b) provides further that "[upon] application by the commissioners, the clerk of the Supreme Court shall issue subpoenas ad testificandum, subpoenas duces tecum, or dedimus potestatem to take depositions." Under the rule, witnesses must be sworn and all testimony must be taken under oath and transcribed. The commissioners may seek judicial enforcement of subpoenas.

Subject to the approval of the supreme court, the Character and Fitness Committee for each judicial district is given authority "to make, adopt, and alter rules not inconsistent with this rule, for the proper performance of [its] functions." (87 Ill. 2d R. 709(a).) The ...

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