Court of Appeals of Illinois, First District, First Division
ANNE BELLUOMINI, MIKE BUBALO, GREG CONNELLY, KEVIN DOYLE, JOSEPH GIORANGO, MICHAEL GROTH, DENNIS MUSHOL, and MICHAEL NASH, Plaintiffs-Appellants,
CATHERINE ZARYCZNY, Defendant-Appellee.
Appeal from the Circuit Court of Cook County. No. 10 M1 015668 Honorable Joyce Marie Murphy Gorman, Judge Presiding.
JUSTICE CUNNINGHAM delivered the judgment of the court, with opinion. Justices Hoffman and Delort concurred in the judgment and opinion.
¶ 1 This appeal arises from an August 3, 2012 order entered by the circuit court of Cook County which granted defendant-appellee Catherine Zaryczny's (Zaryczny) motion to reconsider and dismissed with prejudice the third amended complaint filed by plaintiffs-appellants Anne Belluomini, Mike Bubalo, Greg Connelly, Kevin Doyle, Joseph Giorango, Michael Groth, Dennis Mushol, and Michael Nash (collectively, the plaintiffs). On appeal, the plaintiffs argue that: (1) the trial court erred in dismissing their third amended complaint because Zaryczny's defamatory allegations were not absolutely privileged; and (2) the trial court erred in granting Zaryczny's motion to reconsider because she did not meet the burden for reconsideration. For the following reasons, we affirm the judgment of the circuit court of Cook County.
¶ 2 BACKGROUND
¶ 3 On April 14, 2008, Zaryczny sent a letter to Jody Weis, superintendent of the Chicago police department (the Weis letter). In the Weis letter, Zaryczny stated that she possessed evidence of Chicago police officers participating in a "rent a cop scheme" on an election day in Chicago. Also, the Weis letter contained an unsent letter addressed to Patrick Fitzgerald, the United States Attorney for the Northern District of Illinois (the Fitzgerald letter). In the Weis letter, Zaryczny explained that the Fitzgerald letter would not be sent without giving the Chicago police department (CPD) an opportunity to investigate the matter. Further, the Weis letter stated that the evidence warranted a referral to the appropriate investigative and/or prosecutorial agencies, both federal and state. In the Fitzgerald letter, Zaryczny alleged that on an aldermanic election day in Chicago, an unnamed candidate hired Chicago police officers to work at the direction of his campaign. Zaryczny claimed that in the course of their duties, the police officers committed felonies under Illinois law and were involved in a conspiracy in violation of federal civil rights and voting rights acts. Specifically, Zaryczny alleged that the police officers were paid at the campaign headquarters of an alderman and were given "poll watcher" credentials. She also claimed that the officers were given assignments as "roving poll watchers" and moved precinct to precinct in an intimidating manner. She stated that Chicago police officers were seen to have "badges and bulges" by individuals who were lawfully participating in the election. Zaryczny claimed that those actions were improper because police officers are expressly prohibited from participating in any election day activities where the presence of badges, guns or batons is evident in any district where he or she is assigned.
¶ 4 Further, in the Fitzgerald letter, Zaryczny alleged that she possessed evidence of a conspiracy in that none of the police officers or the amounts they were paid appear in any Illinois campaign committee disclosure reports for the time period around the election. Also, Zaryczny claimed that there was evidence of a conspiracy in that there were two campaign committees for the unnamed candidate that had not been reported to the State Board of Elections. Zaryczny asserted that the transgressions of the unnamed candidate and the police officers created a "police state" on the election day in question. She requested that the United States Attorney pursue the prosecution of the police officers.
¶ 5 On April 29, 2008, Zaryczny signed a "Sworn Affidavit for Complaint Register" at CPD. According to CPD forms which memorialized Zaryczny's allegations, Zaryczny reported to CPD that the police officers openly wore their badges and weapons in an intimidating manner while off duty and working as poll watchers during the 32nd Ward aldermanic election on April 17, 2007. Also, Zaryczny alleged that Connelly, Doyle, Giorango, Groth, Nash, and Mushol listed addresses other than their residential addresses on their poll watcher applications and that Mushol unnecessarily unholstered his weapon during an altercation.
¶ 6 On July 9, 2010, the plaintiffs filed a complaint in the circuit court of Cook County alleging slander per se against Zaryczny asserting that she filed false and defamatory complaints against them with CPD. The plaintiffs alleged that Zaryczny's allegations imputed the commission of a criminal offense, imputed a want of integrity in the discharge of their duties of employment, and prejudiced the plaintiffs in their profession. The plaintiffs' complaint did not contain the written exhibits upon which they relied in filing their complaint. On July 13, 2010, the trial court granted the plaintiffs leave to file an amended complaint. On July 27, 2011, the plaintiffs filed a first amended complaint which largely repeated the allegations from the original complaint. The first amended complaint contained CPD's records of Zaryczny's allegations against Bubalo and Mushol, but no written documentation as to the other plaintiffs was attached. On August 30, 2011, Zaryczny filed a motion to dismiss the first amended complaint as to the six plaintiffs that failed to provide written documentation of her allegations. On September 23, 2011, the plaintiffs filed a motion for leave to file a second amended complaint instanter. On September 28, 2011, Zaryczny's motion to dismiss the first amended complaint was granted and the plaintiffs were granted leave to file a second amended complaint. On that same day, the plaintiffs filed a second amended complaint. The second amended complaint largely repeated the allegations of the previous complaints and contained CPD's records of Zaryczny's allegations against all the plaintiffs. On October 19, 2011, the plaintiffs filed a third amended complaint. The third amended complaint largely repeated the allegations of the previous complaints and contained CPD's records of Zaryczny's allegations against all the plaintiffs.
¶ 7 On November 18, 2011, Zaryczny filed a motion to dismiss the plaintiffs' third amended complaint pursuant to section 2-619 of the Illinois Code of Civil Procedure (Code) (735 ILCS 5/2-619 (West 2010)). In her motion to dismiss, Zaryczny argued that her allegations against the plaintiffs were protected by absolute privilege because they were made to law enforcement officials for the purpose of instituting legal proceedings. Thus, Zaryczny argued that the plaintiffs' complaint of her allegedly defamatory statements was not actionable. On December 29, 2011, the plaintiffs filed a response to Zaryczny's motion to dismiss. The plaintiffs argued that Zaryczny's allegations were not absolutely privileged because they were made to the internal affairs division (IAD) of CPD; and IAD is an administrative body that only has the power to conduct administrative, noncriminal investigations. On January 19, 2012, Zaryczny filed a reply to the plaintiffs' response to the motion to dismiss, which contained numerous exhibits. On January 24, 2012, the plaintiffs filed a motion to strike Zaryczny's evidentiary exhibits attached to her reply filed on January 19, 2012. On January 26, 2012, the trial court entered an order which granted the plaintiffs leave to file a surreply and granted Zaryczny leave to file a response to the surreply. Further, the trial court entered Zaryczny's subpoenas to Tina Skahill, commander of IAD (Commander Skahill), and Assistant State's Attorney Lynn McCarthy (ASA McCarthy). The trial court did not rule on the plaintiffs' motion to strike.
¶ 8 On February 16, 2012, the plaintiffs filed their surreply to Zaryczny's motion to dismiss. The plaintiffs' surreply argued that: Zaryczny's allegations were protected by no privilege whatsoever; even if her allegations were privileged, they were only protected by a qualified privilege; and if her allegations are protected by a qualified privilege, the trial court should deny the motion to dismiss because whether Zaryczny waived her privilege is a question of fact for the jury to decide. Zaryczny did not file a timely response to the plaintiffs' surreply and the trial court denied her motion to extend time to file a response. On May 1, 2012, the trial court denied Zaryczny's motion to dismiss on the basis of absolute privilege. The trial court ordered that the complaint be answered within 21 days with the affirmative defense of qualified privilege.
¶ 9 On May 14, 2012, ASA McCarthy executed an affidavit. ASA McCarthy stated that her duties include prosecuting felony criminal cases involving law enforcement personnel and reviewing complaints brought to the Cook County State's Attorney's office for violations of the Illinois Election Code and Illinois Criminal Code. She stated that in April 2008, her office received documents, correspondence and information from Zaryczny regarding an aldermanic election. ASA McCarthy stated that all the information from Zaryczny was kept in a file, which was misplaced and has not been found.
¶ 10 On May 30, 2012, Zaryczny filed a motion to reconsider the trial court's May 1, 2012 judgment. In her motion to reconsider, Zaryczny argued that the trial court erred in limiting the scope of her subpoenas for witnesses and documents, and that the trial court erred in applying Illinois law when it denied her motion to dismiss as to absolute privilege. On June 22, 2012, the plaintiffs filed a response to Zaryczny's motion to reconsider. The plaintiffs argued that Zaryczny did not meet the burden for reconsideration because she had shown no newly discovered evidence and the trial court correctly applied Illinois law. On June 29, 2012, Zaryczny filed a reply to the plaintiffs' response. On July 27, 2012, the trial court held a hearing on the motion to reconsider. On August 3, 2102, the trial court granted Zaryczny's motion to reconsider and dismissed the plaintiffs' third amended complaint with prejudice. Specifically, the court found that Zaryczny's allegations against the plaintiffs were absolutely privileged because they were made to law enforcement ...