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Busch v. Bates

July 25, 2001

ALVA W. BUSCH, PLAINTIFF-APPELLANT
v.
JOSEPH BATES, GREG FERNANDEZ, AND WAYNE WATSON, DEFENDANTS-APPELLEES



Appeal from the Circuit Court of St. Clair County. No. 95-L-1015 Honorable Robert P. LeChien, Judge, presiding

The opinion of the court was delivered by: Justice Maag

UNPUBLISHED

The plaintiff, Alva W. Busch, a crime scene technician for the Illinois State Police, filed a four-count complaint against the defendants, Joseph Bates, Greg Fernandez, and Wayne Watson, Illinois State Police officers, on September 22, 1995, alleging that the defendants had conspired to defame his reputation. The circuit court granted the defendants' motion to dismiss the plaintiff's second amended complaint. The court stated that since the defendants made the statements pursuant to their mandatory duty to cooperate in the internal investigation of the plaintiff's conduct as a crime scene technician, their statements were absolutely privileged against claims of defamation so as to preclude actions for libel or slander. The circuit court dismissed the plaintiff's complaint with prejudice since both counts of the plaintiff's second amended complaint stated no alleged defamatory communication other than those statements made during and pursuant to the investigation into a disciplinary matter. The plaintiff filed a timely notice of appeal.

The relevant facts are as follows. The plaintiff claimed that while investigating a crime, he saw Bates threaten a suspect in a homicide investigation. Subsequent thereto, the plaintiff filed a complaint with the Illinois State Police regarding Bates' conduct. On November 9, 1994, Bates wrote a memorandum to Master Sergeant Dennis Higgins regarding the plaintiff's conduct during the homicide investigation of Carlos Robertson. Bates stated, "[The plaintiff] withheld information and did an inadequate job." Bates claimed that the plaintiff attempted to interview subjects at the scene of the crime and that it was not a crime scene technician's job to conduct interviews or to "sit in" on an interview. Bates alleged that the plaintiff had information that connected a homicide in Belleville with the homicide of Robertson but that for a period of time he withheld that information from the agents working on the Robertson case. Bates claimed that the plaintiff did not properly process the scene of the crime. Bates ended his memorandum to Higgins as follows: "In summary, it is my feeling that [the plaintiff] should provide agents with all articles that are of evidentiary value and allow the agents to conduct the investigation unimpeded by his interference or input unless requested. Working with [the plaintiff] is an unpleasant experience that I try to avoid whenever possible."

Fernandez wrote a memorandum to Master Sergeant Debra Landman on November 17, 1994, expressing his concern about the plaintiff's conduct in the Robertson murder investigation. Fernandez stated that on November 3, 1994, he was the case agent for the Robertson murder investigation. When he arrived at the scene of the crime, he coordinated with the Illinois State Police officers, the crime scene technicians, the Washington Park police, and the coroner. Fernandez specifically told the plaintiff that if he needed anything with regard to the crime scene, he should coordinate with Fernandez. After Fernandez observed the plaintiff placing some items inside of his van, Fernandez asked the plaintiff what evidence he had found. The plaintiff stated that he had found a .380-caliber shell casing and that he had "dug a bullet out of the floor under the victim's head." The plaintiff claimed that he found no other evidence. The plaintiff told Fernandez that he was going to the hospital to examine the victim's body. Fernandez told the plaintiff to call him after the examination. Fernandez also asked the plaintiff if he had any additional information for the agents. The plaintiff claimed that he had no further information. Approximately one hour after the plaintiff had left the scene, Fernandez called him at the hospital, since he had not heard from him. The plaintiff informed Fernandez that the victim had been shot twice in the head and that they needed to search for another .380-caliber casing. Fernandez told the plaintiff that he would get the key if the plaintiff would meet him at the Washington Park police department. The plaintiff never came to the Washington Park police department. Later that same evening, Fernandez received a telephone call from Captain Lay, commander of the major case squad. The major case squad was investigating the shooting death of a convenience store clerk in Belleville, Illinois. Lay explained that Larry Lorsbach, Illinois State Police crime lab supervisor, contacted Lay and advised him that firearms specialists were comparing the bullet that killed Robertson to the bullet that killed the convenience store clerk. Fernandez stated that this was the first time that he realized that the two crimes were possibly connected. Fernandez then contacted the plaintiff and asked him about the bullet comparison. The plaintiff informed Fernandez that forensic scientist Jim Hall was working on it. Fernandez inquired as to why the plaintiff had not informed him that he was taking this investigative step. The plaintiff did not respond. He told Fernandez that he would contact him when he received the results. Approximately one hour later, Fernandez learned that the bullets matched. Fernandez later learned that the plaintiff had first contacted Lay with this information and then contacted Fernandez through Illinois State Police radio. Fernandez stated in his memorandum that the plaintiff had attempted to "run the investigation." Fernandez claimed that the plaintiff tried to get a picture of the suspect when he was confessing to his involvement in the murders. Fernandez and the plaintiff argued outside of the interview room. Fernandez later learned that the plaintiff was on the other side of the one-way mirror with two detectives and another crime scene technician while Fernandez and others were interviewing the suspect. The plaintiff criticized the officers that were conducting the interview. The plaintiff also told the others in the room what he was going to ask the suspect and whom he was going to interview. Fernandez claimed: "[The plaintiff] consistantly [sic] pryed [sic] in investigative matters that did not involve him. He criticized the agents['] and detectives['] work during the investigation. [The plaintiff] was a major distraction during this investigation." Fernandez claimed that they returned to the crime scene at the plaintiff's request. The plaintiff supposedly wanted to search the house with a canine unit. Fernandez noticed that the plaintiff was standing in the driveway doing nothing while the search was in progress. Fernandez later saw the plaintiff interviewing a black female in the street. Fernandez requested that the plaintiff take additional photographs of the inside of the house, since the plaintiff's previous photographs did not depict the entire inside of the house. Fernandez closed his memorandum by noting that an investigation is a team effort and that the plaintiff had hindered this investigation.

According to Watson, Master Sergeant Mark Johnsey requested that agents provide written memoranda about their interaction with the plaintiff during the Robertson homicide investigation. Johnsey made this request after the plaintiff filed a complaint regarding the conduct of Fernandez, Dye, and Bates. Watson's memorandum is addressed to Major Lonnie Inlow, Area V commander for the Illinois State Police. Basically, Watson claimed that the plaintiff's conduct had been problematic for a number of years and that the agents had been reluctant to document the plaintiff's interference with their investigations because they worked with the plaintiff "on almost a daily basis." Watson encouraged Major Inlow to interview "all the investigative master sergeants in District 11, as well as investigative commanders of the major police departments such as Granite City, Madison County Sheriff's Office, and Belleville City." Watson stated that St. Clair County State's Attorney Bob Haida had also expressed concern about the plaintiff's conduct and that he should be interviewed. Watson claimed that the plaintiff caused conflict and that his continued presence during investigations involving District 11 investigative personnel was "detrimental to the cases." Watson opined that the plaintiff's conduct was problematic only when a case was newsworthy or highly visible.

In his complaint, the plaintiff alleged that the defendants made the aforementioned statements in retaliation for making the complaint regarding Bates' conduct. Hence, the plaintiff claimed that the defendants conspired to and did spread false rumors and allegations to the effect that the plaintiff withheld information during a homicide investigation and that the plaintiff acted improperly during that investigation. The plaintiff claimed that as a result of the defendants' improper actions, his reputation was damaged and he lost business opportunities.

The defendants filed a motion to dismiss the complaint, claiming that the complaint should be dismissed for the failure to state a cause of action. The defendants also complained that the plaintiff's complaint was barred by sovereign immunity. On February 6, 1996, the circuit court denied the defendants' motion. The circuit court granted the defendants leave to refile if the discovery process revealed insufficient facts to sustain the cause of action. The court also stated that the defendants' motion to dismiss based on an improper forum was denied.

The defendants moved for summary judgment on May 8, 1999, and again asserted the defense of sovereign immunity. On June 7, 1999, the circuit court determined that the plaintiff failed to plead that the officers acted with malice or the intent to harm the plaintiff and, hence, that the plaintiff failed to plead that the officers acted outside of their state employment. The circuit court granted the plaintiff leave to file an amended complaint.

On July 2, 1999, the plaintiff filed his second amended complaint. The plaintiff claimed that on November 3, 1994, he was employed by the Illinois State Police. On that date, the plaintiff witnessed Bates questioning Gerald Simpson, a suspect in a criminal investigation. During the questioning, the plaintiff witnessed Bates scare, threaten, and intimidate Simpson. As a result, Simpson confessed to murdering Sharon Bushong. Simpson's murder trial resulted in a hung jury, and the case was dismissed before Simpson could be retried. According to the State's Attorney, the jury stated that the State did not prove its case, and there was no additional evidence for the second trial.

In their answer, the defendants denied that they defamed the plaintiff or that they conspired to defame the plaintiff. The defendants raised no affirmative defenses in their answer. The defendants then moved to dismiss the plaintiff's second amended complaint. The defendants argued that the complaint failed to plead malice with sufficient particularity and did not explain the oral defamatory statements that the officers allegedly made or to whom they allegedly made them.

The circuit court granted the defendants' motion to dismiss the plaintiff's second amended complaint. The court stated that an Illinois State Police directive concerning complaints and disciplinary investigations clearly outlines a procedure of investigation, administrative determination of fault, implementation of disciplinary alternatives, and review of unfavorable decisions with a right to a hearing and other due process guarantees. The circuit court determined that the aforementioned process of investigation for the purpose of determining discipline for a state employee is quasi-judicial in nature. The circuit court stated that because the defendants made the statements pursuant to their mandatory duty to cooperate in the internal investigation of the plaintiff's conduct as a crime scene technician, their statements were absolutely privileged against claims of defamation so as to preclude actions for libel or slander. Finally, the circuit court dismissed the plaintiff's complaint with prejudice since both counts of the plaintiff's second amended complaint stated no alleged defamatory communication other than those statements made during and pursuant to the investigation into a disciplinary matter. The plaintiff appeals.

Initially, we must address the defendants' argument that the circuit court lacked jurisdiction to hear this action because it is barred by sovereign immunity. We disagree.

Pursuant to article XIII, section 4, of the Illinois Constitution of 1970, "Except as the General Assembly may provide by law, sovereign immunity in this State is abolished." Ill. Const. 1970, art. XIII, ยง4. The General Assembly passed an immunity act stating, "Except as provided in [the Court of Claims Act], *** the State of Illinois shall not be made a ...


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