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03/05/98 APPELLATE COURT ILLINOIS THIRD DISTRICT

IN THE APPELLATE COURT OF ILLINOIS THIRD DISTRICT A.D., 1998 VIRGINIA JURGENSEN AND JEFFREY LAVIOLETTE, PLAINTIFFS-APPELLANTS,
v.
BRUNO J. HASLINGER AND ROBERTA G. HASLINGER, DEFENDANTS-APPELLEES. (EUGENE J. KORST, RESPONDENT-APPELLANT).



Appeal from the Circuit Court for the 12th Judicial Circuit Will County, Illinois No. 96--L--1406 Honorable William G. McMenamin Judge, Presiding

The opinion of the court was delivered by: Justice Lytton delivered the opinion of the court:

Plaintiffs Virginia Jurgensen and Jeffrey Laviolette filed suit for tortious interference with an expectancy under a will against defendants Bruno and Roberta Haslinger, who were witnesses to a will. The trial judge dismissed the case finding that defendants were absolutely immune from suit for statements made as witnesses in a judicial proceeding. Pursuant to Supreme Court Rule 137 (134 Ill. 2d R. 137), the trial Judge imposed sanctions against plaintiffs' attorney, Eugene J. Korst, who signed and filed the complaint. We hold that the trial court properly dismissed the complaint and imposed sanctions, but erred in calculating the amount of the sanctions.

FACTS

Plaintiffs filed a complaint alleging that their rights as beneficiaries were violated when, at a will contest hearing, defendants falsely testified that the testator's signature was not on the will at the time they signed it. In response to the complaint, defendants filed a motion to dismiss pursuant to section 2--615 of the Illinois Code of Civil Procedure (735 ILCS 5/2--615 (West 1996)), contending that the complaint failed to state a cause of action. The trial Judge granted defendant's motion. Plaintiffs filed a motion to reconsider, asserting that the section 2--615 motion failed to specify wherein the complaint was insufficient. The trial Judge granted the motion to reconsider, vacated his May 6 order, denied the section 2--615 motion, and granted leave for defendants to file a motion to dismiss pursuant to section 2-- 619 of the Illinois Code of Civil Procedure. 735 ILCS 5/2--619 (West 1996).

Defendants' section 2--619 motion cited Briscoe v. Lahue, 460 U.S. 325, 330-31, 75 L. Ed. 2d 96, 105, 103 S. Ct. 1108, ____ (1983), in support of their claim of absolute immunity for testimony given as witnesses in a judicial proceeding. The trial court granted defendants' section 2--619 motion. After defendants requested the imposition of sanctions, plaintiffs pursued a series of unsuccessful motions to reconsider and petitions for substitution of Judge. Ultimately, the trial court imposed sanctions against attorney Korst in the amount of $16,200.

On appeal, plaintiffs and Korst contend (a) the trial court erred in dismissing the complaint on the basis that defendants were absolutely immune from suit in their capacity as witnesses, (b) the trial court erred in denying defendants' motions for substitution of Judge, (c) the trial Judge erred in imposing sanctions, and (d) the trial court erred in determining the amount of the sanctions.

I. ABSOLUTE PRIVILEGE

Plaintiff's complaint alleges that defendants' tortious conduct consisted of testifying falsely at a will contest hearing conducted in the circuit court of Will County, Illinois.

The doctrine of absolute privilege from civil suit for statements made in judicial proceedings has been described by the U.S. Supreme Court as "well established" (Briscoe v. Lahue, 460 U.S. 325, 330-31, 75 L. Ed. 2d 96, 105, 103 S. Ct. 1108, ____ (1983), citing Cutler v. Dixon, 4 Co. Rep. 14b, 76 Eng. Rep. 886 (QB 1585)) and as a tradition "well grounded in history and reason" (Briscoe, 460 U.S. at 334, 75 L. Ed. 2d at 107, 103 S. Ct. at ____). As early as 1870, the Illinois supreme court declared that in a legal proceeding, "hatever is said...in such proceeding, pertinent and material to the matter in controversy, is privileged, and no action can be maintained upon it." Spaids v. Barrett, 57 Ill. 289 (1870). The applicability of the privilege in judicial and quasi-judicial proceedings was recently discussed by this court in Bushell v. Caterpillar, Inc., 291 Ill. App. 3d 559, 683 N.E.2d 1286 (1997).

The doctrine of absolute privilege rests upon the idea that conduct which otherwise would be actionable is permitted to escape liability because the defendant is acting in furtherance of some interest of social importance, which is entitled to protection even at the expense of uncompensated harm to an injured party. Thomas v. Petrulis, 125 Ill. App. 3d 415, 418, 465 N.E.2d 1059, 1061 (1984), citing W. Prosser, Torts § 114, at 776 (4th ed. 1971). Absolute privilege provides complete immunity from civil action, even though the statements are made with malice, because public policy favors the free and unhindered flow of information. Ringier America v. Enviro-Technics, Ltd., 284 Ill. App. 3d 1102, 1105, 673 N.E.2d 444, 446 (1996); Starnes v. International Harvester Co., 184 Ill. App. 3d 199, 203, 539 N.E.2d 1372, 1374 (1989). In the absence of such a privilege, a witness might be reluctant to come forward to testify, or, once on the stand, the witness's testimony might be distorted by the fear of subsequent liability. Briscoe, 460 U.S. at 333, 75 L. Ed. 2d at 106, 103 S. Ct. at ___.

Nonetheless, defendants argue that extending absolute privilege to defendants would effectively constitute the condoning of fraud and a denial of plaintiffs' right to pursue its tortuous interference claim. We do not find this argument to be persuasive. The very essence of plaintiffs' complaint is that they were damaged because a factfinder in another case believed the defendants and rendered a verdict detrimental to the plaintiffs' claims as putative beneficiaries under the will. We are reminded of the Supreme Court's admonishment in Butz v. Economou, 438 U.S. 478, 512, 57 L. Ed. 2d 895, 919, 98 S. Ct. 2894, ____ (1978), quoted with favor in Briscoe, 460 U.S. at 335, 75 L. Ed. 2d at 108, 103 S. Ct. at ____:

"controversies sufficiently intense to erupt in litigation are not easily capped by a judicial decree. The loser in one forum will frequently seek another * * *. Absolute immunity is thus necessary to assure that Judges, advocates, and witnesses can perform their respective functions without harassment or intimidation."

We decline defendants' invitation to carve an "attesting witness" exception into the well-established doctrine of absolute privilege for ...


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