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January 30, 1995


Appeal from the Circuit Court of Lake County. No. 93-L-1753. Honorable Bernard E. Drew, Jr., Judge, Presiding.

Released for Publication March 2, 1995.

The Honorable Justice Geiger delivered the opinion of the court: Doyle and Rathje, JJ., concur.

The opinion of the court was delivered by: Geiger

JUSTICE GEIGER delivered the opinion of the court:

The plaintiff, Debra Harris, appeals the dismissal of her claims against the defendants, the Zion police department and Detective Kevin Leslie, pursuant to section 2-619 of the Code of Civil Procedure (735 ILCS 5/2-619 (West 1992)). On appeal, the plaintiff contends that the court erred in dismissing the claims on the ground that Detective Leslie's statements were absolutely privileged. We affirm.

Counts I and II of the complaint alleged that the defendants and the News-Sun (News-Sun) libeled the plaintiff in an article quoting Detective Leslie's comments about the investigation and arrest of the plaintiff's husband for an alleged criminal sexual assault. Those counts further alleged that Detective Leslie was acting within the scope of his employment when he made the statements. Count III, for "emotional distress," alleged that the making and publishing of the statements were extreme and outrageous conduct. The court granted the News-Sun's motion to dismiss the claims against it, and the News-Sun is not a party to this appeal.

The complaint alleged that Detective Leslie told a reporter from the News-Sun the following false statements: that the plaintiff was "convicted in 1990 for her part in concealing [her husband's] illegal activities, [and] has remained 'totally uncooperative' on the present case against her husband"; and that "when [the plaintiff's husband] was taken into custody Friday at his home on the $500,000.00 warrant, police found 140 video tapes [sic] many of a pornographic nature."

The defendants moved to dismiss the complaint on the grounds that they were absolutely immune from civil liability sounding in libel and intentional infliction of emotional distress. The defendants attached to their motion the affidavit of Detective Leslie in which he averred that he is a detective for the Zion police department and that his duties include the investigation of criminal activities occurring within Zion. Leslie averred further that he was assigned to investigate the allegations against the plaintiff's husband; that in the course of his duties he responded to the Lake County news media when inquiries about investigations are made; and that the statement attributed to him by the News-Sun was his official statement "acting as a detective for the Zion Illinois Police Department regarding the criminal investigation of the charges" made against the plaintiff's husband.

The plaintiff attached to her response to the motion a copy of the Zion police department's policy on media relations. The policy provides, in relevant part:

"The media are important to the department because they portray the department to the public and because they can be of aid to the department in alerting the public to crime problems and in seeking the aid of the public. Therefore, this department will strive to maintain a good working relationship with members of the media."

To that end, police officers were directed to treat members of the news media courteously and professionally. The policy further stated that police officers could not reveal confidential information, nor were they allowed to discuss controversial matters or matters relating to the department's policies, philosophy, or enforcement procedures.

In reply, the defendants submitted the affidavit of Gordon D. Ohmstead, a lieutenant in the Zion police department. He averred that he was familiar with the media relations policy; the policy does not prevent a detective from discussing the facts of a particular investigation if that investigation does not involve controversial questions" or "department policy"; the case involving the plaintiff's husband did not raise such "controversial questions" and did not involve departmental policy; and, pursuant to the police department's rules and regulations, a detective assigned to the investigation of a criminal matter is the police department's official spokesperson for that matter. The trial court agreed with the defendants that the absolute privilege barred the plaintiff's claims and dismissed the complaint with prejudice.

The purpose of a section 2-619 motion is to provide a means to dispose of issues of law and easily proved issues of fact. ( Nikolic v. Seidenberg (1993), 242 Ill. App. 3d 96, 98, 182 Ill. Dec. 753, 610 N.E.2d 177.) Our review of such a motion is limited to legal questions and is independent of the trial court's reasoning. ( Employers Mutual Cos. v. Skilling (1994), 256 Ill. App. 3d 567, 569, 196 Ill. Dec. 301, 629 N.E.2d 1145.) Under section 2-619(a)(9), an action may be dismissed on the ground that a claim asserted is barred by other affirmative matter avoiding the legal effect or defeating the claim. (735 ILCS 5/2-619(a)(9) (West 1992).) "Affirmative matter" includes a defense that completely negates the asserted cause of action. ( Asher v. Farb Systems, Inc. (1993), 256 Ill. App. 3d 792, 794, 196 Ill. Dec. 508, 630 N.E.2d 443.) In the context of a defamation action, the issue of absolute privilege is an affirmative defense which may by raised by and determined upon a section 2-619 motion. Geick v. Kay (1992), 236 Ill. App. 3d 868, 875, 177 Ill. Dec. 340, 603 N.E.2d 121.

A trial court's dismissal of a complaint is proper where the affirmative matter "refutes crucial conclusions of law or conclusions of material fact that are unsupported by allegations of specific facts." ( Santa Claus Industries, Inc. v. First National Bank (1991), 216 Ill. App. 3d 231, 236, 159 Ill. Dec. 657, 576 N.E.2d 326.) The affirmative matter must be more than evidence offered to refute a well-pleaded fact. ( Chicago Title & Trust Co. v. Weiss (1992), 238 Ill. App. 3d 921, 925, 179 Ill. Dec. 78, 605 N.E.2d 1092.) However, if facts within an affidavit dispute the allegations of the complaint and are not contradicted via a counteraffidavit, the court must accept the facts in the affidavit as true. ( Landon v. Jarvis (1993), 255 Ill. App. 3d 439, 446-47, 194 Ill. Dec. 255, 627 N.E.2d ...

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