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08/26/94 DONALD L. MEYER AND BONITA VISTA

August 26, 1994

DONALD L. MEYER AND BONITA VISTA DEVELOPMENT, INC., PLAINTIFFS-APPELLANTS,
v.
DOUGLAS MCKEOWN, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of the Twelfth Judicial Circuit, Will County, Illinois. No. 93 L 1309. Honorable Herman S. Haase, Judge, Presiding

Petition for Leave to Appeal Denied December 6, 1994.

Present - Honorable Peg Breslin, Justice, Honorable Tom M. Lytton, Justice, Honorable Tobias Barry, Justice

The opinion of the court was delivered by: Lytton

JUSTICE LYTTON delivered the opinion of the court:

We are asked to decide whether allegedly libelous statements published by a village trustee in a newsletter sent to 1200 postal customers in and around the village were privileged communications. Defendant Douglas McKeown, a member of the Village board of the Village of Minooka, Illinois, indicated in his newsletter that Donald Meyer, plaintiff, had not completed work as promised in connection with a subdivision development and had received special favors from the Village. Defendant also alluded to conflicts of interest between three Village trustees and plaintiff because of business relationships and implied that plaintiff was not trustworthy.

Plaintiff brought an action against defendant, alleging that thenewsletter statements constituted interference with business expectancies, slander of title, libel per se and libel per quod. Plaintiff also complained of six false statements allegedly made by defendant at a meeting of the Village board.

Defendant filed a motion to dismiss under section 2-619(a)(9) of the Code of Civil Procedure (735 ILCS 5/2-619(a)(9) (West 1992)), claiming that the statements complained of were within the scope of his official duties and thus were absolutely privileged communications. The trial court dismissed the complaint with prejudice, ruling that Illinois courts have recognized public statements of governmental executive officers are privileged and that no distinction should be made between the privilege of a member of the Village Board and that of the President of the Board. Plaintiff appeals, contending that absolute privilege, covering matters published to constituents, is limited to executive officers, not legislators who should only have immunity for public statements made within the legislative forum or during legislative proceedings. We reverse in part and affirm in part.

A motion to dismiss under section 2-619(a)(9) admits all well-pleaded facts. ( Falk v. Martel (1991), 210 Ill. App. 3d 557, 560, 569 N.E.2d 248, 250, 155 Ill. Dec. 248.) Under a section 2-619(a)(9) motion, an action may be dismissed on the ground that the claim asserted is barred by other affirmative matter avoiding the legal effect or defeating the claim, and the affirmative defense of absolute privilege is such "affirmative matter." ( Geick v. Kay (1992) 236 Ill. App. 3d 868, 875, 603 N.E.2d 121, 127, 177 Ill. Dec. 340, cert. denied (1993), U.S. , 125 L.Ed.2d 726, 113 S. Ct. 3060.) Thus, assuming the facts alleged as true, we must determine whether, as a matter of law, defendant's libelous statements were within the scope of legislative privilege under the law of Illinois.

At the heart of this case are two conflicting public policy considerations that must be balanced in reaching a decision. Those considerations were described in Geick as follows:

"Absolute immunity, or privilege, represents a severe restriction on the right of the individual to be secure in his reputation. [Citation.] The restriction is justified by the countervailing policy that officials of government should be free to exercise their duties without fear of potential civil liability." 236 Ill. App. 2d at 876, 603 N.E.2d at 127.

Illinois courts have uniformly recognized a privilege for statements made by executive officers and members of local government boards and councils at regular meetings. In Larson v. Doner (1961), 32 Ill. App. 2d 471, 178 N.E.2d 399, 40 A.L.R.2d 941, a city clerk complained that she was libeled by the mayor when he presented a resolution at a meetingof the city council to have her suspended from office for malfeasance and negligence. The court ruled that publication of defamatory matter in the course of a city council meeting was absolutely privileged.

Similarly, in McLaughlin v. Tilendis (1969), 115 Ill. App. 2d 148, 253 N.E.2d 85, the court ruled that remarks of a superintendent of schools made to the school board concerning the lack of teaching ability and poor conduct of certain teachers were absolutely privileged. In holding that the statements were within the duties of the superintendent of schools, the court indicated that, where the statements complained of were made between public officials in the conduct of public business, they cannot be the basis for recovery in a suit at law. The court observed that official independence would be entirely destroyed if public officials were subject to vexatious litigation because of acts performed pursuant to a duty imposed by law. Accord, Donner v. Francis (1930), 255 Ill. App. 409, 412-13.

In Blair v. Walker (1976), 64 Ill. 2d 1, 349 N.E.2d 385, Illinois moved considerably beyond the narrow limits of absolute privilege recognized in earlier cases. Then Governor Walker had issued two press releases concerning actions he had directed to be instituted by a State agency against the plaintiffs. The Illinois Supreme Court held that the Governor was protected from actions for civil defamation by an absolute privilege when issuing public statements which were legitimately related to matters committed to his responsibility. After noting that absolute immunity was historically applied only to legislative, judicial, and certain military proceedings, the court stated that "the Governor must be afforded an absolute privilege commensurate with the scope of the discretion he is required to exercise if the goal of unrestrained and fearless administration of government is to be achieved." 64 Ill. 2d at 10, 349 N.E.2d at 389.

The court in Blair also observed that the office of Governor is responsible for the faithful execution of the laws of the State and his duties encompass the supervision of the entire executive branch of State government. The court concluded that the Governor was acting within the inherent, discretionary authority of his office by informing the public of the actions he ...


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