Defend v. Lascelles

• Decision Date: 07 November 1986
• Docket Number: No. 4-86-0192,4-86-0192
• Citation: 500 N.E.2d 712,102 Ill.Dec. 819,149 Ill.App.3d 630
• Parties: , 102 Ill.Dec. 819, RICO Bus.Disp.Guide 6485 Richard C. DEFEND and Charles R. Johnson, Plaintiffs-Counterdefendants-Appellants, v. Ronald F. LASCELLES and Kathleen Lascelles, Defendants-Counterplaintiffs-Appellees.
• Court: United States Appellate Court of Illinois

Page 712

500 N.E.2d 712

149 Ill.App.3d 630, 102 Ill.Dec. 819, RICO

Bus.Disp.Guide 6485

Richard C. DEFEND and Charles R. Johnson, Plaintiffs-Counterdefendants-Appellants, v. Ronald F. LASCELLES and Kathleen Lascelles,

Defendants-Counterplaintiffs-Appellees.

No. 4-86-0192.

Appellate Court of Illinois,

Fourth District.

Nov. 7, 1986.

Brown, Hay & Stephens (Paul Bown, of counsel), Mohan, Alewelt & Prillaman (Paul Adami, of counsel), Holley, Keith & Mehlick (Grady E. Holley, of counsel), Springfield, for plaintiffs-counterdefendants-appellants.

Barber, Segatto, Hoffee, Hines & Edwards (Barry O. Hines, Carl O. Hoffee, R. Kurt Wilke, Bernard C. Segatto III, of counsel), Springfield, for defendants-counterplaintiffs-appellees.

Justice MORTHLAND delivered the opinion of the court:

This matter involves a permissive interlocutory appeal brought pursuant to Supreme Court Rule 308 (87 Ill.2d 308). Plaintiffs contest the denial of their motion to dismiss count I of the defendants' counterclaim sounding in defamation. That defamation claim, in turn, was brought based upon the allegations contained in count IV of the plaintiffs' second amended complaint charging defendants with a violation of the Racketeer Influenced and Corrupt Organizations Act (RICO) (18 U.S.C. § 1961 et seq. (1982)). The question certified for appeal to this court concerns whether pleadings alleging a civil cause of action under a Federal criminal statute are to be afforded an absolute privilege even if filed with malicious intent.

The case now under our consideration represents the third time these parties have come before us on appeal. Their protracted dispute revolves around the propriety of four condominium-style duplexes planned for construction in the village of Leland Grove, Illinois. Plaintiffs are owners of single-family residences immediately adjacent to the condominium project site. Defendants are the developers of the project.

The genesis of this particular matter arises out of the contentions made under count IV of the plaintiffs' second amended complaint, filed July 2, 1985. In that count, plaintiffs made the following allegations:

"13. By engaging in mail and wire fraud, each of the Defendants used income derived from a pattern of racketeering as defined in 18 U.S.C. Section 1961(5) in the operation of an enterprise in violation of 18 U.S.C. Section 1962(a).

14. By engaging in mail and wire fraud, the Defendants * * * acquired and maintained an interest in or control of an enterprise through a pattern of racketeering in violation of 18 U.S.C. Section 1962(b).

15. By engaging in mail and wire fraud, the Defendants each conducted the business of an enterprise through a pattern of racketeering in violation of 18 U.S.C. Section 1962(c)."

The defendants initially moved to dismiss the second amended complaint, arguing that a civil RICO action may only be maintained in the Federal courts, and thus the circuit court lacked jurisdiction to hear count IV. After that motion was denied by the trial court, defendants filed their two-count counterclaim on September 10, 1985. Count I asserted a cause of action in defamation, alleging that the plaintiffs' count IV contained false and defamatory matter, was filed with "malicious intent," and was intended to mean the defendants were racketeers.

Plaintiffs responded by filing a motion to dismiss the defendants' counterclaim on September 18, 1985. They postulated that, because pleadings are to be accorded an absolute privilege from a defamation action, count I of the counterclaim sounding in libel and based upon allegations made in a complaint could not be maintained.

The trial court disagreed, apparently denying the plaintiffs' motion to dismiss after a hearing November 8, 1985. Plaintiffs thereafter filed a motion to reconsider, which was also denied by the trial court. In its memorandum of opinion denying that motion, dated February 13, 1986, the court specifically stated:

"It is this Court's opinion that great freedom must be allowed in letting the complaint and accusations stand, however severe, without being actionable, but the Court will not stand by and permit allegations to be made that are not honestly made and are done for an evil-disposed purpose of vilifying a party."

On February 21, 1986, plaintiffs filed a request for certification pursuant to Supreme Court Rule 308. On March 12, 1986, the court found that the February 13 order involved a question of law as to which there exists a substantial ground for difference of opinion, and that an immediate appeal would materially advance the ultimate termination of the litigation. The following question was then certified for appeal:

"[W]hether pleading a civil cause of action for violation of the criminal statute i.e. The Racketeer Influenced and Corporate [sic] Organizations Act [18 U.S.C. § 1961 et seq. (1982) ] is absolutely privileged from any counterclaim based on defamation, even if it is found that the civil cause of action was filed with malicious intent."

We allowed the permissive interlocutory appeal on April 14, 1986.

On appeal, plaintiffs contend the trial court erred in not dismissing the defamation claim, advancing that pleadings in a judicial proceeding are absolutely privileged so long as those statements have "some relation" to the proceedings. Defendants counter that any absolute privilege is qualified by a requirement that pleadings not be filed with malice. They assert that Illinois courts require a litigant to present an honest complaint, and that the immunity otherwise afforded pleadings may not be abused "as a cloak with which to gratify private malice." Defendants further believe, in any event, that the RICO action brought by the plaintiffs is irrelevant and not pertinent, and thus cannot be privileged. Finally, defendants maintain that no privilege may be accorded statements made before a court which lacks subject-matter jurisdiction; they argue that jurisdiction over a civil RICO claim rests exclusively with the Federal courts.

For purposes of this interlocutory appeal, we must assume, under the precise question certified, that the pleadings in question here were filed with malice.

We begin our analysis by recognizing the oft-stated principle in Illinois that anything said or written in a legal proceeding, including pleadings, is protected by an absolute privilege against defamation actions, subject only to the qualification that the words be relevant or pertinent to the matters in controversy. (Ritchey v. Maksin (1978), 71 Ill.2d 470, 17 Ill.Dec. 662, 376 N.E.2d 991; McDavitt v. Boyer (1897), 169 Ill. 475, 48 N.E. 317; Emery v. Kimball Hill, Inc. (1983), 112 Ill.App.3d 109, 67 Ill.Dec. 767, 445 N.E.2d 59; Libco Corp. v. Adams (1981), 100 Ill.App.3d 314, 55 Ill.Dec. 805, 426 N.E.2d 1130; Anderson v. Matz (1978), 67 Ill.App.3d 175, 23 Ill.Dec. 852, 384 N.E.2d 759; Weiler v. Stern (1978), 67 Ill.App.3d 179, 23 Ill.Dec. 855, 384 N.E.2d 762; Wahler v. Schroeder (1972), 9 Ill.App.3d 505, 292 N.E.2d 521; Macie v. Clark Equipment Co. (1972), 8 Ill.App.3d 613, 290 N.E.2d 912; Nolin v. Nolin (1966), 68 Ill.App.2d 54, 215 N.E.2d 21; John Allan Co. v. Brandow (1965), 59 Ill.App.2d 328, 207 N.E.2d 339; Talley v. Alton Box Board Co. (1962), 37 Ill.App.2d 137, 185 N.E.2d 349; Harrell v. Summers (1961), 32 Ill.App.2d 358, 178 N.E.2d 133; Maclaskey v. Mecartney (1944), 324 Ill.App. 498, 58 N.E.2d 630; Dean v. Kirkland (1939), 301 Ill.App. 495, 23 N.E.2d 180; Parker v. Kirkland (1939), 298 Ill.App. 340, 18 N.E.2d 709; see also Ginsburg v. Black (7th Cir.1951), 192 F.2d 823, cert. denied (1952), 343 U.S. 934, 72 S.Ct. 770, 96 L.Ed. 1342; Bond v. Pecaut (N.D.Ill.1983), 561 F.Supp. 1037.) The terms relevancy or pertinency, however, are not intended in the technical legal sense. (Talley v. Alton Box Board Co. (1962), 37 Ill.App.2d 137, 143, 185 N.E.2d 349, 352.) Also, relevancy or pertinency is not a strict requirement (Libco Corp. v. Adams (1981), 100 Ill.App.3d 314, 317, 55 Ill.Dec. 805, 807, 426 N.E.2d 1130, 1132); in fact, courts are generally liberal in construing this question, resolving all doubts in favor of relevancy or pertinency (Ginsburg v. Black (7th Cir.1951), 192 F.2d 823, Macie v. Clark Equipment Co. (1972), 8 Ill.App.3d 613, 615, 290 N.E.2d 912, 913-14). Moreover, relevancy or pertinency is a question of law to be determined in the first instance by the court. Ginsburg; Macie.

The privilege itself is steeped in public policy: it is uniformly recognized that the judicial system would best be served if persons with knowledge of relevant facts could report those facts to the court without fear of civil liability. Bond v. Pecaut (N.D.Ill.1983), 561 F.Supp. 1037, aff'd (7th Cir.1984), 734 F.2d 18; Parker v. Kirkland (1939), 298 Ill.App. 340, 18 N.E.2d 709.

Plaintiff calls our attention to another view in this area which substitutes a different yardstick for the "relevant and pertinent" inquiry relied upon by many courts. That analysis provides for an absolute privilege when otherwise defamatory material is published in a judicial proceeding if the statements have "some relation" to the litigation. Specifically, section 587 of the Restatement (Second) of Torts states the following:

"A party to a private litigation or a private prosecutor 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." (Emphasis added.) Restatement (Second) of Torts § 587, at 248 (1977).

The Restatement standard has gained wide acceptance, becoming the majority rule today. (See 38 A.L.R.3d 272 (1971).) At least two appellate courts in Illinois have heretofore embraced versions of the Restatement rule. See Talley v. Alton Box Board Co. (1962), 37...