Razavi v. Walkuski

• Decision Date: 01 June 2016
• Docket Number: No. 1–15–1435.,1–15–1435.
• Citation: 55 N.E.3d 252,404 Ill.Dec. 156
• Parties: Omid Shariat RAZAVI, Plaintiff–Appellee, v. Eva WALKUSKI and Ariel Zekelman, Defendants–Appellants (School of the Art Institute of Chicago, Defendant).
• Court: United States Appellate Court of Illinois

55 N.E.3d 252
404 Ill.Dec. 156

Omid Shariat RAZAVI, Plaintiff–Appellee
v.
Eva WALKUSKI and Ariel Zekelman, Defendants–Appellants (School of the Art Institute of Chicago, Defendant).

No. 1–15–1435.

Appellate Court of Illinois, First District, Third Division.

June 1, 2016.

55 N.E.3d 253

Paula M. Ketcham and Shawna S. Boothe, both of Schiff Hardin LLP, Vincent M. Casieri and Christopher T. Buckley, both of Schueler, Dallavo & Casieri, and Katie Gaughan, of Chicago Alliance Against Sexual Exploitation, all of Chicago, for appellants.

Deidre Baumann, of Baumann & Shuldiner, of Chicago, for appellee.

55 N.E.3d 254

OPINION

Justice LAVIN delivered the judgment of the court, with opinion.

404 Ill.Dec. 158

¶ 1 This interlocutory appeal arises from a defamation action that plaintiff Omid Shariat Razavi filed against defendants Eva Walkuski and Ariel Zekelman. Pursuant to section 2–619.1 of the Code of Civil Procedure (735 ILCS 5/2–619.1 (West 2014) ), defendants filed a combined motion to dismiss which the trial court denied. Thereafter, defendants filed a motion to certify a question of law pursuant to Illinois Supreme Court Rule 308 (eff. Jan. 1, 2016). The dispositive issue presented for review is:

¶ 2 “Under Illinois law, does the absolute privilege for reporting crimes to law enforcement apply to a college student's report of on-campus sexual violence to campus security, particularly when federal law encourages college students to report sexual violence to campus security?”

Based on the following, we find that the absolute privilege applies to statements that are made to campus security for the purpose of initiating legal proceedings.

¶ 3 BACKGROUND

¶ 4 We recite only those facts necessary to answer the certified question. The plaintiff and defendants were students at the School of the Art Institute (SAIC), a private institute of higher education located in Chicago, Illinois. Defendants met plaintiff in the fall of 2011, when all three were living in an SAIC dormitory. In September 2013, Walkuski reported to the SAIC campus security director that plaintiff had sexually assaulted her on several occasions and was also stalking her. SAIC's campus security director then escorted Walkuski to the Chicago Police Department (CPD) where she filed an incident report pertaining to the sexual assault and stalking. She also obtained a “plenary stalking no contact” order against plaintiff. Zekelman also reported to SAIC Campus Security that plaintiff had sexually assaulted her, but later withdrew her complaint. Thereafter, a disciplinary hearing was held to consider Walkuski's complaint against plaintiff and the SAIC student conduct board found the allegations to be credible. Subsequently, plaintiff was expelled from SAIC.

¶ 5 On July 22, 2014, plaintiff filed a defamation action against defendants and SAIC. In pertinent part, plaintiff alleged separate counts of defamation per se and defamation per quod against Walkuski for falsely reporting to SAIC campus security that plaintiff had sexually assaulted and stalked her. Plaintiff alleged separate counts of defamation per se and defamation per quod against Zekelman for falsely reporting to SAIC campus security that defendant sexually assaulted her. In response, defendants filed a combined motion to dismiss contending that their reports to SAIC campus security were absolutely privileged because the reports were made to law enforcement personnel. The circuit court denied defendants' motion, finding that whether the absolute privilege applied to reports of sexual violence made to campus security was a question of first impression in Illinois. Thus, the trial court certified the question at issue pursuant to Illinois Supreme Court Rule 308 (eff. Jan. 1, 2016).

¶ 6 ANALYSIS

¶ 7 A. Rule 308

¶ 8 We initially observe that a Rule 308 appeal is limited to answering a certified question of law and is not intended to address the application of the law to the facts of a particular case.

404 Ill.Dec. 159

55 N.E.3d 255

Walker v. Carnival Cruise Lines, Inc., 383 Ill.App.3d 129, 133, 321 Ill.Dec. 422, 889 N.E.2d 687 (2008). Thus, the parties' arguments pertaining to the underlying motion to dismiss are outside the scope of our review and will not be addressed. Id. Any answer we provide would be an advisory opinion and the courts of Illinois do not issue advisory opinions to guide future litigation. In re Estate of Luccio, 2012 IL App (1st) 121153, ¶ 32, 367 Ill.Dec. 777, 982 N.E.2d 927. We therefore decline defendants' invitation to use our “inherent power” to now reverse the trial court's ruling on the motion to dismiss in the “interests of judicial economy.”

¶ 9 The certified question asks whether campus security should be considered law enforcement for purposes of an alleged victim's report of sexual violence on campus. Before answering the question, we note that the parties have extensively briefed the potential effect of the SAIC student handbook's specific policies regarding the reporting of sexual assault and the administrative ways of handling such reports, but a detailed examination of these factual matters is outside the purview of our limited role here. Plaintiff has also made various arguments regarding statements that were made in the course of the SAIC investigation to personnel who were not employed within the campus security department. Specifically, plaintiff argues that these statements were not privileged, and thus, this appeal will not materially advance litigation. In our view, all of these fact-based arguments are outside the scope of the certified question, but we do note that generally once a privileged statement is made to law enforcement any subsequent restatements made in furtherance of an investigation fall under this privilege. See Belluomini v. Zaryczny, 2014 IL App (1st) 122664, ¶ 26, 379 Ill.Dec. 575, 7 N.E.3d 1 (“[a]n investigation is a continuum and it defies rational thinking to isolate certain portions of the investigation in order to apply different levels of privilege”); Morris v. Harvey Cycle & Camper, Inc., 392 Ill.App.3d 399, 404, 331 Ill.Dec. 819, 911 N.E.2d 1049 (2009). (“[d]efamatory statements that would otherwise be actionable will escape liability when the conduct is to further an interest of social importance such as the investigation of an alleged crime”). Based on the record before us, we further find that plaintiff has waived any such consideration by failing to object at the time that the question was certified in the trial court, or in the alternative, file an objection to defendants' Rule 308 petition for leave to appeal. See Mabry v. Village of Glenwood, 2015 IL App (1st) 140356, ¶ 15, 397 Ill.Dec. 97, 41 N.E.3d 508 (it is a well-settled principle that arguments not raised before the circuit court are forfeited and cannot be raised for the first time on appeal). As a result, we will not consider these arguments.

¶ 10 B. Absolute Privilege

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