Razavi v. School of the Art Institute of Chicago , 428 Ill. Dec. 352 ( 2018 )

2018 IL App (1st) 171409
No. 1-17-1409
Opinion filed on November 20, 2018.
Second Division
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
OMID SHARIAT RAZAVI, ) Appeal from the
) Circuit Court of
Plaintiff-Appellant, ) Cook County.
)
v. )
) No. 16 L 8406
SCHOOL OF THE ART INSTITUTE )
OF CHICAGO, EVA WALKUSKI, and )
ARIEL ZEKELMAN, ) The Honorable
) Moira Johnson,
Defendants, ) Judge Presiding.
)
(Eva Walkuski and Ariel Zekelman, Defendants­ )
Appellees). )
JUSTICE LAVIN delivered the judgment of the court, with opinion.
Presiding Justice Mason and Justice Pucinski concurred in the judgment and opinion.
OPINION
¶1 Plaintiff Omid Shariat Razavi now files his second interlocutory appeal relating to his
defamation action against defendants Eva Walkuski and Ariel Zekelman. Defendants filed
separate motions to dismiss under section 2-619 of the Code of Civil Procedure (Code) (735
No. 1-17-1409
ILCS 5/2-619 (West 2016)), both of which the circuit court granted after finding an absolute
privilege precluded the lawsuit from proceeding. Plaintiff now contests that judgment on appeal.
For the reasons to follow, we affirm.
¶2 BACKGROUND
¶3 In fall 2011, plaintiff, then age 29, and also Walkuski, then age 19, and Zekelman were
students at the School of the Art Institute of Chicago (SAIC), a private institution, and all three
lived in the SAIC dormitory. Walkuski and Zekelman were friends, and at some point before
December 2011, plaintiff and Walkuski were also friends. In early September 2013, Walkuski
reported to the SAIC campus security director and the director of student outreach that plaintiff
had sexually assaulted her in 2011 and had stalked her in 2012 and 2013. Specifically, she
reported to SAIC that plaintiff “repeatedly engaged in harassing behavior by following her
around campus, contacting her against her wishes, and staring at her for extended periods of time
during” spring 2012 and fall 2013.
¶4 About a week after Walkuski told SAIC campus security and authorities about plaintiff’s
actions, on September 13, 2013, SAIC’s campus security director escorted Walkuski to the
Chicago Police Department where she filed an incident report pertaining to the sexual assault and
stalking. Around the same time, Zekelman reported to campus security an incident in plaintiff’s
dormitory, where while sleeping in a separate bed, she awoke to find plaintiff on top of her and
kissing her in spite of Zekelman’s expressed wishes not to have any physical contact.
¶5 These reports prompted several conversations between plaintiff and Patrick Spence,
associate dean of student affairs, along with the campus security director. Plaintiff did not deny
the sexual contact with Walkuski but claimed it was consensual and sometimes initiated by
Walkuski. He presented campus security with a photograph and text messages and also denied
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any harassment, claiming no contact with Walkuski since August 2012. As to Zekelman, plaintiff
claimed he never engaged in any sexual contact with Zekelman, denying that she even slept in
his dorm room. Campus security then investigated plaintiff, resulting in his interim suspension
while the investigation proceeded. SAIC campus security informed Felice J. Dublon, SAIC’s
vice president and dean of student affairs (VP of Student Affairs), of the allegations against
plaintiff. In turn, Dublon informed plaintiff via a letter, dated October 1, 2013, that the
information indicated he may have violated several rules of conduct from the SAIC student
handbook and that a “Student Conduct Board Meeting” would be held in response. She wrote,
“[t]he purpose of this Meeting is to discuss what has occurred, to determine whether or not you
are responsible for violating SAIC’S Rules of Conduct and if so, to determine what sanctions, if
any, will be imposed.” She further stated that if plaintiff disagreed with the information in the
letter and wished to provide additional information, he could do so prior to the meeting. He could
also bring an “advisor” there or a person of his choosing to serve as an advocate or bystander
witness to the proceedings.
¶6 That meeting took place before the Student Conduct Board (Board) on October 3, 2013,
with Walkuski reconfirming reports of harassment and sexual assault by plaintiff. While
Zekelman formally withdrew her complaint, the Board nonetheless considered her complaint in
assessing Walkuski’s. Prior to the meeting, Zekelman also had reconfirmed her report of
plaintiff’s inappropriate sexual conduct, and the Board found it both relevant and credible. At the
meeting, “[t]he members of the Board carefully reviewed the information presented and found
the information and answers provided by [Walkuski] to be credible. They also found that, in
many respects, the information and answers provided by [plaintiff] were not credible.”
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¶7 Based on the Board’s recommendation and in the exercise of her discretion, Dublon
found plaintiff had committed multiple violations of the rules of conduct, including sexual
assault as defined in the handbook; physical harm to any person or verbal threats, intimidation,
or coercion to an SAIC community member or any other conduct threatening to the health,
safety, or well-being of such person; discrimination, harassment, or retaliation as defined in the
handbook; and failure to comply with SAIC officials’ directions. Plaintiff was expelled as a
result. Dublon notified plaintiff that he could appeal the decision, but the appeal would only
proceed if there was new information not available at the time of the original student conduct
meeting. Plaintiff did in fact appeal but cited no new evidence, and his appeal was therefore
denied. The determination of the Board remained final, as did his expulsion from SAIC.
¶8 Some 10 months after plaintiff’s formal expulsion, on July 17, 2014, a hearing was held
before the Cook County domestic violence division of the circuit court, with testimony from both
Walkuski and plaintiff. Walkuski testified that while she had previously been friends with
plaintiff, around January 2012, she had decided against maintaining the friendship and told him
multiple times in person that she no longer wanted to have contact with him. Between January
and April 2012, and about twice a week, plaintiff would knock obsessively at her dorm room
door. Sometimes he would stand silently near the door until she peered through the peephole
only to see him staring at her. This prompted Walkuski to remain in her dorm room quietly so as
to avoid any contact with plaintiff. Plaintiff’s behavior apparently only stopped after he was
expelled from the residence halls in April 2012 for hitting a teacher.
¶9 Undeterred, however, between December 2012 and February 2013, plaintiff appeared at
Walkuski’s workplace, pacing around the desk while staring at her even though she repeatedly
told him to stay away. About once a week, plaintiff also approached Walkuski when she was
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studying and stared at her from across the room. In August 2013, plaintiff attended Walkuski’s
class staring at her. This all prompted Walkuski to contact the director of student outreach and
head of security, leading to the above-stated student conduct hearing and sanctions against
plaintiff. Because of plaintiff’s stalking, Walkuski felt fear, anxiety, and stress and had an escort
to all of her classes.
¶ 10 At the protective order hearing, plaintiff denied that Walkuski told him to have no contact
with her and essentially denied the stalking incidents.
¶ 11 Following the hearing, the circuit court found Walkuski’s testimony more credible than
plaintiff’s. The court determined that Walkuski had proven her case by a preponderance of the
evidence, insofar as it was more probably true than not that the incidents Walkuski alleged in her
amended petition had occurred, and plaintiff harassed and followed her repeatedly causing her
fear. The court therefore entered a plenary stalking, no-contact court order against plaintiff. The
order, which remained in effect until July 15, 2016, prohibited plaintiff from stalking or
contacting Walkuski or knowingly coming within or remaining within 100 feet of her residence,
school, and place of employment. The protective order was extended from August 2, 2016, until
August 2, 2018.
¶ 12 Several days after the hearing on the protective order, on July 22, 2014, plaintiff filed a
defamation suit against SAIC, Walkuski, and Zekelman. He alleged Walkuski and Zekelman
defamed him by falsely reporting to campus security and SAIC that he had committed criminal
sexual assault, stalking, and other sexual misconduct. Walkuski and Zekelman filed separate
motions to dismiss, arguing the reports to campus security were either absolutely privileged
because they were made to “law enforcement” or fell under a qualified privilege. They argued
these defenses were affirmative matters that shielded them from defamatory liability. The trial
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court denied their motions, and they thereafter filed an interlocutory appeal under Illinois
Supreme Court Rule 308 (eff. Jan. 1, 2016), allowing for certified questions of law.
¶ 13 In Razavi v. Walkuski, 2016 IL App (1st) 151435 (Razavi I), this court was tasked with
addressing the circuit court’s certified question of whether the absolute privilege applied to a
college student’s reports of sexual violence made to campus security. Specifically, the certified
question asked whether campus security should be considered law enforcement for purposes of
the alleged victim’s report of sexual violence on campus. On appeal, plaintiff acknowledged that
absolute privilege would attach to any statements made to local law enforcement but contended
that statements made to campus security should expose defendants to liability for defamation.
This court disagreed, holding that an “absolute privilege extends to statements made by alleged
campus crime victims to campus security.” Id. ¶ 10. We reasoned that the underlying rationale
for the privilege, including the goal of protecting individuals who report crimes and also the
public policy aimed at preventing campus sexual assaults, warranted treating campus security as
law enforcement. We likewise held that when reports of sexual violence are made to campus
security, courts must presume that the statements are made for the purpose of instituting legal
proceedings, notwithstanding a defamation plaintiff’s claim that the statements were false,
maliciously motivated, or made for an unrelated purpose. In addition, we noted that “generally
once a privileged statement is made to law enforcement any subsequent restatements made in
furtherance of an investigation fall under this privilege.” Id. ¶ 8. Accordingly, we remanded the
case for further consideration in light of our answer to the certified question.
¶ 14 Following remand, on October 7, 2016, plaintiff filed a first amended complaint, again
asserting defamation claims against Walkuski, Zekelman, and SAIC, among other claims. Rather
than focusing on campus security, he alleged that Walkuski falsely, or with reckless disregard for
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the truth, reported to agents and employees of SAIC that plaintiff had sexually assaulted her in
2011 and had subsequently contacted her against her wishes and stalked her in 2012 and 2013.
Plaintiff alleged that Walkuski made these statements to SAIC authorities knowing that they
would constitute rule violations leading to his expulsion. Regarding Zekelman, plaintiff alleged
she falsely, or with reckless disregard for the truth, reported to agents and employees of SAIC
that plaintiff battered or sexually assaulted her in March 2012. He alleged her false allegations
were considered in relation to Walkuski’s allegations and contributed to SAIC’s decision to
expel him.
¶ 15 Again, Walkuski and Zekelman filed motions to dismiss under section 2-619(a)(9) of the
Code. They argued that an investigation is a continuum and that it would make little sense to
apply different levels of privilege to the same statements made at different points in an
investigation. They argued that since their initial reports to campus security were absolutely
privileged, so too were their subsequent statements to SAIC officials during the investigation and
resolution of their complaints. In addition, Walkuski argued the restatements to SAIC officials of
her initial crime report were absolutely privileged because they “were made as part of
communications required by law.”
¶ 16 On May 3, 2017, the circuit court granted their motions and dismissed the relevant counts
in plaintiff’s first amended complaint based on absolute privilege. The case remained pending as
to SAIC, and accordingly, the court made an Illinois Supreme Court Rule 304(a) (eff. Mar. 8,
2016) finding that there was no just reason to delay enforcement or appeal of the order. Plaintiff
then filed this interlocutory appeal, challenging the trial court’s judgment.
¶ 17 ANALYSIS
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¶ 18 A motion to dismiss under section 2-619 admits the legal sufficiency of the complaint but
asserts an affirmative defense or other matter that avoids or defeats the plaintiff’s claim. Busch v.
Bates, 323 Ill. App. 3d 823, 831-32 (2001); 735 ILCS 5/2-619(a)(9) (West 2016). While the
motion admits well-pleaded facts, it does not admit conclusions of law and conclusory factual
allegations unsupported by allegations of specific facts. Better Government Ass’n v. Illinois High
School Ass’n, 2017 IL 121124, ¶ 21. A section 2-619 motion should be granted by the circuit
court if, after construing the documents supporting the motion in the light most favorable to the
opposing party, it finds no disputed issues of fact and concludes that the affirmative matter
negates the cause of action completely. Busch, 323 Ill. App. 3d at 832. The existence of an
absolute privilege is such an affirmative matter, which warrants the dismissal of a defamation
action. Id.; Krueger v. Lewis, 342 Ill. App. 3d 467, 473 (2003) (“In a defamation action, the issue
of privilege is an affirmative defense that may be raised and determined in a section 2-619
motion.”). We review an order granting a section 2-619 motion to dismiss de novo. Lawler v.
University of Chicago Medical Center, 2017 IL 120745, ¶ 11.
¶ 19 Plaintiff maintains that absolute privilege does not apply and therefore his amended
complaint asserting defamation should be allowed to proceed. To establish defamation, plaintiff
must show that defendant made a false statement about the plaintiff and published the statement
to a third party, causing damage. Anderson v. Beach, 386 Ill. App. 3d 246, 249 (2008). A
defamatory statement is one that harms a person’s reputation by lowering him in the
community’s eyes or deterring the community from associating with him. Mauvais-Jarvis v.
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Wong, 2013 IL App (1st) 120070, ¶ 67. For example, statements that impute a person has
committed a crime constitute defamation per se. 1 Id. ¶ 69.
¶ 20 As noted in our previous opinion, defamatory statements are not actionable if they are
protected by an absolute or conditional privilege. Anderson, 386 Ill. App. 3d at 249. Where only
a qualified privilege is granted, the person making the statment is immune from liability unless
some element, such as malice, is present. Mauvais-Jarvis, 2013 IL App (1st) 120070, ¶ 72. On
the other hand, where absolute privilege is granted, no cause of action for defamation lies against
the person making the statement, even if it is made with malice. Id. ¶ 71. In light of the complete
immunity provided by an absolute privilege, the classification of absolutely privileged statements
is necessarily narrow. Krueger, 342 Ill. App. 3d at 473. “ ‘A communication is absolutely
privileged when its propagation is so much in the public interest that the publisher should speak
fully and fearlessly.’ ” Anderson, 386 Ill. App. 3d at 249 (quoting Weber v. Cueto, 209 Ill. App.
3d 936, 942 (1991)). This is because, as a matter of public policy, the person making the
defamatory statement should not be deterred from speaking by the threat of civil liability. Weber,
209 Ill. App. 3d at 942; see also Defend v. Lascelles, 149 Ill. App. 3d 630, 635 (1986) (“The law
thus clearly allows for an absolute privilege where there exists a significant interest in protecting
the type of speech involved.”). In other words, the defense of absolute privilege rests on the idea
that conduct, which otherwise would be actionable, must escape liability because the defendant
is acting in furtherance of some socially important interest, like the investigation of an alleged
crime, that is entitled to protection even at the expense of uncompensated harm to the plaintiff’s
reputation. Morris v. Harvey Cycle & Camper, Inc., 392 Ill. App. 3d 399, 404 (2009); Weber,
209 Ill. App. 3d at 942. The privilege is based on a policy that regards the ends to be gained by
1
Here, plaintiff alleged both defamation per quod, requiring him to plead and prove actual
damages, and defamation per se, which does not require proof of actual damages for recovery. See
Mauvais-Jarvis v. Wong, 2013 IL App (1st) 120070, ¶ 68.
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permitting such statements as outweighing the harm which may be done to the reputation of
others. Weber, 209 Ill. 2d at 942.
¶ 21 Indeed, according to the Restatement (Second) of Torts, absolute privilege recognizes
that certain individuals, due to their special position or status,
“should be as free as possible from fear that their actions in that position might have an
adverse effect upon their own personal interests. To accomplish this, it is necessary for
them to be protected not only from civil liability but also from the danger of even an
unsuccessful civil action. To this end, it is necessary that the propriety of their conduct
not be inquired into indirectly by either court or jury in civil proceedings brought against
them for misconduct in their position. Therefore the privilege, or immunity, is absolute
and the protection that it affords is complete.” Restatement (Second) of Torts, ch. 25,
topic 2, tit. B, intro. note, at 243 (1977).
¶ 22 The privilege embraces actions required or permitted by law in the course of judicial or
quasi-judicial proceedings, as well as actions “necessarily preliminary” to judicial or quasi-
judicial proceedings. Layne v. Builders Plumbing Supply Co., 210 Ill. App. 3d 966, 969 (1991).
In addition, section 592A of the Restatement (Second) of Torts says, “One who is required by
law to publish defamatory matter is absolutely privileged to publish it.” Restatement (Second) of
Torts § 592A, at 257 (1977). According to the comment, “This Section rests upon the principle
that one who is required by law to do an act does not incur any liability for doing it.”
Restatement (Second) of Torts § 592A cmt. b, at 257 (1977). As with a motion to dismiss, the
question of whether a defamatory statement is protected by an absolute privilege is one of law
for the court. Layne, 210 Ill. App. 3d at 969.
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¶ 23 In this appeal, plaintiff concedes that statements, when first conveyed to law enforcement
and then repeated during a criminal investigation, are protected by absolute privilege. See id. at
971 (statements to police pertaining to alleged criminal activities should be absolutely
privileged). Plaintiff likewise acknowledges this court’s previous holding, that the victims’
reports of sexual assault and misconduct to campus security2 were absolutely privileged since
campus security is akin to law enforcement. Plaintiff, however, now challenges the trial court’s
ruling that these same statements, when repeated to SAIC agents and authorities both before and
during the student conduct review process, were absolutely privileged. Plaintiff asserts that
process was not a “ ‘continuum’ of any criminal investigation,” nor was his disciplinary hearing
“quasi-judicial” in nature such that absolute privilege applied.
¶ 24 Walkuski and Zekelman have filed separate appellate briefs in response while jointly
challenging plaintiff’s contentions. They assert that the absolute privilege afforded to their initial
crime reports to campus security continued to apply in the context of the investigation and
disciplinary hearing that flowed from the reports. In particular, Walkuski argues that the repeated
allegations were made as part of communications required by law. With this, we wholeheartedly
agree.
¶ 25 In this case, the 2013-14 SAIC Student Handbook’s policy on sexual assault, relationship
violence, and stalking was explicitly adopted in accordance with the Violence Against Women
Reauthorization Act of 2013 (colloquially referred to as the Campus SaVE Act) (Pub. L. 113-4, §
304, 127 Stat. 54, 89 (eff. Mar. 7, 2013) (amending 20 U.S.C. § 1092(f)), which was passed to
2
Although not entirely clear, Plaintiff appears to argue that Zekelman first reported plaintiff’s
misconduct to SAIC authorities, including Dublon. This is contrary to the facts set forth in Razavi I, 2016
IL App (1st) 151435, ¶ 4. It is also contrary to plaintiff’s initial complaint, wherein he alleged Zekelman
falsely reported the misconduct to “campus security.” In addition, Dublon’s October 1, 2013, letter
addressed to plaintiff, indicates Zekelman reported his sexual misconduct to campus security. We
therefore reject plaintiff’s claim.
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encourage greater transparency, enhance the victims’ information and rights, and add
requirements for educational institutions to address and prevent sexual violence on campus. 3
Evelin M. Clay, Colleges and Universities: A Place to Get Away With Rape, 28 St. Thomas L.
Rev. 256, 265 (2016). It is enforced by the U.S. Department of Education and applies to all
colleges and universities that receive federal funding, including student financial assistance. See
U.S. Dep’t of Educ., The Handbook for Campus Safety and Security Reporting (2016),
https://www2.ed.gov/admins/lead/safety/handbook.pdf [https://perma.cc/Y5H3-CUQ5].
Specifically, each eligible institution is required to distribute to both students and employees the
campus security policies and crime statistics, including the reporting procedures and the
institution’s response to such reports, as well as statistics on sex offenses, domestic violence,
dating violence, and stalking incidents reported to campus security. 20 U.S.C. § 1092(f)(1)(A)­
(C), (J) (Supp. II 2014). The school must timely report sex offenses, and the like, to the campus
community when the offenses are “considered to be a threat to other students and employees,” so
as to prevent “similar occurrences.” 20 U.S.C. § 1092(f)(3) (Supp. II 2014).
¶ 26 Each school is required to develop and distribute a policy on “programs to prevent
domestic violence, dating violence, sexual assault, and stalking,” and also develop and distribute
procedures to follow if any incidents are reported. 20 U.S.C. § 1092(f)(8)(A) (Supp. II 2014). A
school’s policy must identify procedures for victims to follow if an offense occurs, with
3
As we noted in Razavi I, 2016 IL (1st) 1511435, ¶ 14 n.2, effective in 2015, the Illinois
legislature enacted the Preventing Sexual Violence in Higher Education Act (Act) (110 ILCS 155/1
et seq. (West 2016)). The Act requires higher education institutions, including those that are for-profit like
SAIC, to have a comprehensive policy to “address student allegations of sexual violence, domestic
violence, dating violence, and stalking,” consistent with federal and state law. 110 ILCS 155/5 (West
2016). The Act requires the comprehensive policy to identify procedures for reporting sexual violence,
the institution’s procedure for responding to a report of an alleged incident of sexual violence or
misconduct, the complaint procedures, and possible sanctions that might be imposed, including expulsion.
See 110 ILCS 155/10 (West 2016). This law is inapplicable to the present case, insofar as the policy in
place and incidents occurred prior to the enactment of the Act.
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information on the importance of preserving evidence, while giving the victims’ options for
reporting the matter to law enforcement (including campus and local police) and campus
authorities. 20 U.S.C. § 1092(f)(8)(B) (Supp. II 2014). The policy, for example, might inform
victims about protective orders or similar lawful orders. Id. The policy must identify “[p]ossible
sanctions or protective measures” the school can impose after a final decision in a disciplinary
procedure for “rape, acquaintance rape, domestic violence, dating violence, sexual assault, or
stalking,” including a statement regarding the standard of evidence used in the proceeding arising
from the victim’s report. 20 U.S.C. § 1092(f)(8)(A), (B) (Supp. II 2014). The disciplinary
procedures for the above-stated offenses must “provide a prompt, fair, and impartial
investigation and resolution.” (Emphasis added.) 20 U.S.C. § 1092(f)(8)(B)(iv)(I)(aa) (Supp. II
2014); see also 34 C.F.R. § 668.46 (2016). The complainant and the accused “are entitled to the
same opportunities to have others present during an institutional disciplinary proceeding,
including the opportunity to be accompanied *** by an advisor of their choice.” 20 U.S.C.
§ 1092(f)(8)(B)(iv)(II) (Supp. II 2014). Both must also be informed about the outcome of the
disciplinary proceeding and any appeal rights. 20 U.S.C. § 1092(f)(8)(B)(iv)(III) (Supp. II 2014).
¶ 27 Here, in accordance with the Campus SaVE Act, the SAIC policy encourages anyone
subjected to sexual assault, relationship violence, or stalking to report the incident promptly to
the police and/or SAIC officials. In particular, the policy encourages victims to report those
incidents to campus security or the director of student outreach in the Office of Student Affairs
and also seek immediate medical attention, among other things. The policy lists a number of
resources for victims, identifies applicable state laws, and delineates what to do if a protective
order is necessary. The victim has a right to file a complaint with campus security or the Office
of Student Affairs. The policy states, “If the alleged offender is also a member of the SAIC
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community, SAIC will take prompt action to investigate and, where appropriate, to impose
sanctions.” An SAIC investigation is to take place especially if SAIC decides the safety of the
community is at risk. If the alleged offender is a student, then the VP of Student Affairs or a
designee is responsible for investigating and resolving the complaint. In addition, the policy
provides that any student offenders are subject to the “Student Conduct Procedures.”
¶ 28 Mirroring the language in the Campus SaVE Act, SAIC’s policy states that these student
conduct procedures provide a “prompt, fair, and impartial investigation and resolution of the
alleged misconduct.” (Emphasis added.) See 20 U.S.C. § 1092(f)(8)(B)(iv)(I)(aa) (Supp. II
2014). In particular, the VP of Student Affairs and/or campus security may interview anyone,
including the victim and the accused, and the interviewees must provide truthful information or
otherwise potentially face violating the rules of conduct. The accused must receive both
notification of the rules allegedly violated and notice of the student conduct meeting. A student
conduct meeting, although not a courtroom procedure allowing for formal rules of evidence,
permits the accused an opportunity to respond to the complaint and allows for review of the
student’s acts of misconduct and any prior acts. While the VP of Student Affairs controls who to
admit to the meeting and also what information is presented, both the complainant and the
accused are responsible for presenting their own case, and both can bring one “advisor” with
them, or an individual of their choosing to simply consult with before, during, or after the
hearing. Whether an accused is responsible for violating rules is based on “whether it is more
likely than not that the student accused of misconduct violated the Rules of Conduct or other
SAIC policies, rules, or regulations.” See also 20 U.S.C. § 1092(f)(8)(A), (B) (Supp. II 2014)
(requiring a statement regarding the standard of evidence). Following closed-door deliberations
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by the Board members, they can recommend possible sanctions, including expulsion, and the VP
of Student Affairs will have the final say on the case’s disposition.
¶ 29 Given SAIC’s policy, which was implemented as required by federal law, and Illinois
precedent, as well as the Restatement (Second) of Torts, we conclude that the victims’ allegedly
defamatory restatements to SAIC authorities and agents about the claimed sexual assault and
misconduct were absolutely privileged. We find several cases dispositive. In Weber, 209 Ill.
App. 3d 936, attorney Amiel Cueto wrote a letter to the chief circuit court judge for Madison
County regarding State’s Attorney Donald Weber and his employee, Virginia. Cueto asserted on
hearsay that Weber, and by implication, Virginia, had committed numerous acts of misconduct,
including the improper use of funds. Cueto noted it was his duty under the rules of professional
conduct to report the misconduct to a tribunal, including the chief judge, the Madison County
Board, and the Attorney Registration and Disciplinary Commission (ARDC). Following these
publications, Virginia filed a defamation suit against Cueto, who affirmatively claimed that his
statements were absolutely privileged as required by his ethical obligations as an attorney. The
trial court granted Cueto’s motion to dismiss as to all three “tribunals,” and the only issue on
appeal was whether the trial court was correct in determining absolute privilege attached to the
county board because it was a quasi-judicial body.
¶ 30 In Weber, this court noted section 592A of the Restatement (Second) of Tort’s
requirement that “ ‘[o]ne who is required by law to publish defamatory matter is absolutely
privileged to publish it.’ ” Id. at 942 (quoting Restatement (Second) of Torts § 592A, at 257
(1977)). This court also noted the mandatory reporting requirement under the rules of
professional conduct was in the public interest, as it was designed to protect individuals and the
public at large from lawyer misconduct and maintain public confidence in the integrity of the
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legal profession. Weber further acknowledged that the county board was empowered to
investigate the improprieties Cueto had alleged consistent with the rules of professional conduct.
This court, accordingly, held that Cueto’s communications to the county board under the
disciplinary rule were “cloaked with an absolute privilege” and upheld the dismissal of the
Virginia’s defamation suit. Id. at 947. Weber noted that, having found Cueto required by law to
publish the defamatory matter, there was no reason to also consider whether the county board
was a quasi-judicial body.
¶ 31 Similarly, in Busch, 323 Ill. App. 3d at 833-34, an absolute privilege applied to several
police officers against a crime scene technician, where the officers alleged the technician
threatened a suspect in a homicide investigation and committed other misconduct to disrupt
investigations. This court found the statements were made during an internal police discplinary
investigation and the officers were legally obligated to report such behavior pursuant to a state
police directive.
¶ 32 In Belluomini v. Zaryczny, 2014 IL App (1st) 122664, ¶ 26, an apparently concerned
citizen reported by letter to the Chicago police superintendent that a number of police officers
committed misconduct by working at the direction of an aldermanic candidate on election day,
thus violating civil and voting rights. Plaintiffs (the accused police officers) sued the concerned
citizen for defamation. This court upheld the trial court’s dismissal of the defamation suit, after
finding that the police department, headed by the superintendent, was a quasi-judicial body and,
significant for the purposes of this appeal, that the statements were also made to law enforcement
officials for the purpose of instituting criminal proceedings. The police officers argued that the
concerned citizen’s allegations were made to an administrative (as opposed to quasi-judicial)
body of the police department and thus were not privileged, but this court held the statements
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were “clearly part of the ongoing investigation that was triggered” by the initial letter. Id. The
Belluomini court held the investigation was itself a quasi-judicial proceeding and wrote, “An
investigation is a continuum and it defies rational thinking to isolate certain portions of the
investigation in order to apply different levels of privilege.” Id.
¶ 33 We referenced the preceding sentence from Belluomini in our prior opinion when noting
that “generally once a privileged statement is made to law enforcement any subsequent
restatements made in furtherance of an investigation fall under this privilege,” even if made to
SAIC employees not employed within the campus security department. Razavi I, 2016 IL App
(1st) 151435, ¶ 8. To the extent this principle of law was dicta, we now make it our holding, and
reaffirm Razavi I for the following reasons.
¶ 34 We already explained the rationale for treating reports of sexual assault to campus
security as absolutely privileged based on public policy. It would make little sense, then, to hold
the initial report of the crime/misconduct to campus security absolutely privileged but not the
repeated allegations made in furtherance of the investigation. In this case, while the investigation
itself was not quasi-judicial, we find it’s enough that it emerged out of a fully protected initial
report. In congruity with Belluomini, the investigation by both campus security and SAIC
officials constitutes a continuum requiring the same level of absolute privilege to be applied
throughout the investigation and resolution of the complaint, including at the disciplinary
proceeding.
¶ 35 Furthermore, the SAIC policy was developed and implemented pursuant to federal law
and required that SAIC promptly and fairly investigate the allegations and, where appropriate,
impose sanctions following a disciplinary hearing. Dublon, the VP of Student Affairs, confirmed
this by attesting that “SAIC complies with federal education policy, which requires that colleges
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and universities respond to and address effectively allegations of harassment and sexual assault,
whenever those allegations are made.” Thus, SAIC was legally required to pursue the
investigation. While the SAIC policy did not require Walkuski and Zekelman to file a complaint
or comply with the investigation, once they did file their complaints and consistent with federal
law, the policy provided for SAIC’s protocol. Cf. Mauvais-Jarvis, 2013 IL App (1st) 120070,
¶¶ 72, 76-80 (finding only a qualified privilege applied to allegedly defamatory statements made
in the context of a private university’s research misconduct proceeding, where federal
regulations and university policy required reporting on basis of “good faith,” thus injecting one
of the elements of qualified privilege into the proceeding itself and where duty to report was not
mandatory). As in Weber, Walkuski and Zekelman’s restatements made under these federally
mandated procedures, by implication, should be cloaked with the same privilege as if the
restatements themselves were legally required. To hold otherwise would render SAIC’s required
investigatory and disciplinary procedures and policies toothless, for absent the victim’s evidence,
there would be no basis to proceed. Therefore, in summary, we hold that repeated allegations
about a claimed sexual assault or misconduct made to campus security and school authorities,
and which are published as part of an investigation into and disciplinary hearing for the alleged
misbehavior, are cloaked with absolute privilege.
¶ 36 Public policy demands this result. It is beyond a doubt that the victims’ participation in
these proceedings is in the public interest. See William L. Prosser, Handbook of the Law of Torts
§ 114, at 777 (4th ed. 1971) (“Absolute immunity has been confined to a very few situations
where there is an obvious policy in favor of permitting complete freedom of expression, without
any inquiry as to the defendant’s motives.”). Absolute privilege in this context encourages
victims to report crimes and misconduct promptly without fear of explicating the facts and
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circumstances surrounding any attack as the investigation unfolds. Cf. 735 ILCS 5/8-804 (West
2016) (“Because of the fear, stigma, and trauma that often result from incidents of sexual
violence, many survivors hesitate to report or seek help, even when it is available at no cost to
them.”). If sexual assault victims are at risk of facing a civil lawsuit from their attacker
throughout the reporting and disciplinary process, they will be less likely to come forward and
report the crime. Absent a report, the sexual assault perpetrator goes free, potentially committing
other similar misdeeds. This places the entire campus unnecessarily at a safety risk, thus
dampening the intended purpose of higher education in a safe environment. The absence of a
victim’s unfettered report not only interferes with the school’s duty to investigate and risks
violating federal law, but it also potentially exposes the university to tort liability and other
financial risks for any future sexual assaults by the same perpetrator. See, e.g., Nero v. Kansas
State University, 861 P.2d 768, 780 (Kan. 1993) (where plaintiff, a Kansas State University
(KSU) student, was allegedly raped in a coed dorm by a KSU student who had previously raped
another student, supreme court reversed summary judgment for defendant university after
finding university had a duty of reasonable care to protect students against certain dangers that
are reasonably foreseeable and within the university’s control); Miller v. State, 467 N.E.2d 493
(N.Y. 1984) (a victim who was raped in her college dorm could sue college for negligence based
on special relationship after college had notice of likely criminal intrusions, yet failed to lock
outer doors of dorm); Mullins v. Pine Manor College, 449 N.E.2d 331 (Mass. 1983) (upholding
negligence jury verdict against college by victim for her rape on campus based on voluntary
undertaking).
¶ 37 And, although plaintiff maintains that there are no repercussions for false reports in this
instance, we disagree since the student handbook sets forth that the complainant, like the
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accused, must provide truthful information or otherwise potentially face violating the rules of
conduct. As such, a complainant who falsely reports a sexual assault can also be subject to
expulsion. See Hartman v. Keri, 883 N.E.2d 774, 778 (Ind. 2008) (noting that, where a student is
subject to academic discipline for abuse of the process, that serves as a substantial deterrent to
false reporting). Likewise, it would be against public policy to force a victim of sexual assault to
parse out what statements would or would not make her subject to a potential defamation lawsuit
as she complies with the very policies and procedures of the institution to ensure a proper
educational environment. See id. at 777-78 (“as long as the process is reasonably transparent and
fair and affords the subject an opportunity to respond, we think the ultimate issue focuses less on
the particular process and more on the recognition of the institution’s interest in assuring a
proper educational environment”). Thus, the ends to be gained by granting absolute privilege far
outweigh the harm that may be done to the alleged perpetrator’s reputation. Weber, 209 Ill. App.
3d at 942.
¶ 38 Our holding is also consistent with our previous ruling in Razavi I. As stated, we also
determined a presumption exists that statements alleging sexual assault or misconduct made to
campus security were made for the purpose of instituting legal proceedings, notwithstanding a
defamation plaintiff’s claim that the statements were false, maliciously motivated, or made for a
purpose unrelated to the institution of legal proceedings. Razavi I, 2016 IL App (1st) 151435,
¶ 11. The same presumption should apply to restatements made during an investigation into and
hearing on sexual assault or misconduct. This is especially true where such an investigation is
aimed at culling information that could in turn determine whether a criminal charge should be
brought or whether civil proceedings, like a tort or application for a protective order, should be
instituted. Plaintiff seems to argue that there’s no indicia of reliability to a victim’s report unless
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a criminal proceeding follows. Notwithstanding that it is the state’s attorney who decides
whether to file charges in any particular case (id. ¶ 15), that position is untenable when one
considers the policy behind section 587 of the Restatement (Second) of Torts. That section by
analogy provides that a party to private litigation or defendant in a criminal prosecution “is
absolutely privileged to publish defamatory matter concerning another in communications
preliminary to a proposed judicial proceeding, or in the institution of or during the course and as
a part of, a judicial proceeding in which he participates, if the matter has some relation to the
proceeding.” Restatement (Second) of Torts § 587, at 248 (1977). Comment b to section 587
explains that the rule “applies to communications made by a client to his attorney with respect to
proposed litigation as well as to information given and informal complaints made to a
prosecuting attorney or other proper officer preliminary to a proposed criminal prosecution
whether or not the information is followed by a formal complaint or affidavit.” Restatement
(Second) of Torts § 587 cmt. b, at 249 (1977).
¶ 39 Adopting that rationale, we conclude that it is immaterial whether a formal criminal
complaint or civil legal proceeding actually followed the victims’ reports of plaintiff’s sexual
assault/misconduct. Likewise, it matters not whether a formal school disciplinary hearing flowed
on the heels of the report. Nevertheless, the evidence in this case supports the above-stated
presumption, where Walkuski filed an incident report with the police, then participated in the
disciplinary proceedings against plaintiff, and also appeared before the Cook County circuit
court where she testified in support of a protective order. Like the SAIC Board, the court found
her testimony more credible than plaintiff’s insofar as it was more likely true than not that the
incidents Walkuski alleged in her amended petition regarding plaintiff’s creepy behavior had
occurred and plaintiff harassed and stalked her repeatedly. The court accordingly granted her the
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protective order, which she had extended up until just several months ago. As such, contrary to
plaintiff’s view, the evidence undeniably shows the legal proceedings emanated from Walkuski’s
initial allegations to campus security and the ensuing investigation and hearing.
¶ 40 In finding absolute privilege, as in Weber, we find it unnecessary to address whether the
disciplinary hearing was quasi-judicial in nature, even though plaintiff vigorously pursues this
line of argument in his appeal. We note that SAIC’s rules permit that disciplinary hearings may
be taped or recorded, but there is no evidence of that occurring in this case. In addition, plaintiff
has failed to provide this court with a report of proceedings on Walkuski and Zekelman’s
motions to dismiss presented to the trial court, although he quotes that oral argument at some
length. Where, as here, an appellant fails to ensure the record on appeal contains a report of
proceedings and his argument fails to cite to the record appropriately, he violates our supreme
court rules, which have the force and effect of the law and are binding on litigants. See Ill. S. Ct.
R. 323 (eff. July 1, 2017); R. 341(h)(7) (eff. Nov. 1, 2017) (the argument section must contain
the contentions of the appellant and the reasons therefor, with citation of the authorities and the
pages of the record relied on); In re Marriage of Thomsen, 371 Ill. App. 3d 236, 241 (2007).
Finally, we note that to the extent plaintiff relies on attachments to his brief, we cannot consider
them. See Walczak v. Onyx Acceptance Corp., 365 Ill. App. 3d 664, 672 (2006) (documents the
appellate court may consider must be included in record, and not simply in appendix).
¶ 41 Along the same lines, while plaintiff insists the trial court incorrectly found the SAIC
student disciplinary hearing to be quasi-judicial, the trial court’s order simply reflects its
determination that Walkuski and Zekelman’s statements were absolutely privileged absent
identifying any rationale. However, as this opinion reveals, a reviewing court may affirm a
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correct decision for any reason appearing in the record, regardless of the basis relied upon by the
trial court. See Weber, 209 Ill. App. 3d at 947.
¶ 42 CONCLUSION
¶ 43 For the reasons set forth above, we affirm the trial court’s dismissal of plaintiff’s
defamation claims against both Walkuski and Zekelman.
¶ 44 Affirmed.
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