Lykowski v. Bergman
Annotate this Case
SIXTH DIVISION
FILED: 09/18/98
No. 1-96-4169
LAWRENCE M. LYKOWSKI, ) Appeal from the
) Circuit Court of
Plaintiff-Appellant/Cross-Appellee, ) Cook County.
)
)
v. )
)
ROBERT L. BERGMAN, individually and as )
Chairman of the 13th Judicial Sub-Circuit )
Republican Campaign Committee and THE )
13TH JUDICIAL SUB-CIRCUIT REPUBLICAN )
CAMPAIGN COMMITTEE, ) Honorable
) Harvey Schwartz,
Defendants-Appellees/Cross Appellants. ) Judge Presiding.
JUSTICE ZWICK delivered the opinion of the court:
This appeal is from a judgment entered pursuant to section 2-615 and 2-619 of
the Code of Civil Procedure (735 ILCS 5/2-615, 2-619 (West 1996)) on defendants'
motions to dismiss the plaintiff's one count complaint alleging libel. The cross-appeal
is from an order of the circuit court denying defendants' motion pursuant to Supreme
Court Rule 137 (134 Ill. 2d R. 137) for sanctions. In addition to defendants' Rule 137
cross claim, we are asked to consider (1) whether the trial court abused its discretion in
refusing to allow defendant Bergman to withdraw his originally-filed answer and
substitute therefor the motions to dismiss; (2) if not, whether the trial court
committed reversible error in dismissing the complaint either on grounds that it failed
to allege sufficient facts to state a cause of action for libel or because the statements in
the complaint alleged to have been libelous were protected by a defamation privilege;
and (3) whether the court abused its discretion in refusing to consider plaintiff's
proposed amended complaint.
The record establishes that on March 13, 1996, plaintiff, Lawrence M.
Lykowski, filed a one count complaint in the circuit court alleging libel against
defendants, Robert L. Bergman and the 13th Judicial Sub-Circuit Republican Campaign
Committee. Bergman was named in both his individual and representative capacities.
Lykowski alleged that he was a Republican candidate for the office of Judge of the
Circuit Court of Cook County, Sub-Circuit 13(A), and that, on or about March 14,
1996, Bergman accused him of "certain unethical acts and improper conduct," as well
as being a liar. Bergman was alleged to have made these allegations to the "the
newspapers" and to Lykowski's employer, the Cook County State's Attorney. The
complaint further asserted that Bergman made the accusations for the sole purpose of
disparaging and discrediting Lykowski in his campaign for the office of Judge.
Also on March 15, 1996, plaintiff Lykowski filed an Ex Parte Motion For
Temporary Restraining Order which sought to prevent Bergman from publishing any
further information regarding Lykowski. The Motion stated that Bergman had
"leaked" to "certain newspapers" a letter addressed to the Attorney Registration and
Disciplinary Commission (ARDC) for the sole purpose of defaming Lykowski's
professional reputation. The letter, which is dated March 9, 1996, was attached to the
motion as an exhibit. The motion alleged that Bergman's letter was libelous per se in
that it included following allegedly false allegations:
(1) that Lykowski had deliberately omitted truthful answers
to certain questions asked of him by the Chicago Bar
Association Judicial Evaluation Committee;
(2) that a murder conviction in the case of People v.
Phillips, 159 Ill. App. 3d 142 (1987) was reversed on appeal
because of improper comments made during the trial by
Lykowski; and
(3) that Lykowski was involved in improper conduct as a
prosecutor "regarding a DUI trial" that occurred on or
about February 4, 1994.
These specific allegations were not included in Lykowski's complaint. After listening
to testimony on the motion, the court denied Lykowski's request for a temporary
restraining order.
On that same day, March 15, 1996, defendant Bergman entered a hand-written
Answer to Lykowski's complaint. In the Answer, Bergman admitted many of
substantive allegations of plaintiff's complaint including the allegation that he had
accused Lykowski of certain unethical acts and improper conduct on or about March
14, 1996. Bergman denied, however, that (1) he had presented no evidence supporting
his charges of ethical misconduct, (2) charges of ethical misconduct had never before
been brought against Lykowski; and (3) he had made the allegedly false statements
concerning Lykowski for the sole purpose of disparaging and discrediting him.
Approximately four weeks later, on April 16, 1996, Bergman made an oral
motion to withdraw his Answer. The circuit court entered an order giving him leave
to withdraw it and to re-answer the complaint or otherwise plead within 14 days.
On May 1, 1996, Lykowski filed a Motion to Reconsider the court's order
allowing Bergman to withdraw his Answer. In the motion, Lykowski alleged that no
good reason had been offered which warranted allowing the withdrawal. In response
to this motion, Bergman filed a response which explained that the Answer had been
"hastily prepared" and that he had made the request to withdraw it so that pleadings
could be filed testing the sufficiency of the complaint. Bergman cited authority holding
that the decision to grant or deny such a request is within the sound discretion of the
trial court (see e.g., Premo v. Falcone, 197 Ill. App. 3d 625, 629, 554 N.E.2d 1071
(1990); Wheeler v. Caterpillar Tractor Co., 123 Ill. App. 3d 539, 541-42, 462 N.E.2d 1262 (1984), rev'd on other grounds, 108 Ill. 2d 502, 485 N.E.2d 372 (1985)) and
asserted that the court's April 16, 1996 decision to grant his request did not cause
Lykowski any undue prejudice.
On May 10, 1996, the court denied Lykowski's Motion to Reconsider. The
court also took notice of two motions to dismiss Lykowski's complaint and set them
for hearing on September 3, 1996.
On September 3, 1996, following hearing on the motions, the circuit court
entered an order dismissing plaintiff's complaint pursuant to the terms of sections 2-
615 and 2-619 of the Code of Civil Procedure. 735 ILCS 5/2-615, 2-619 (West 1996). In
addition, the court denied Lykowski's request to allow him to amend the complaint.
Lykowski thereafter filed this timely appeal.
Initially, we address Lykowski's claim that the trial court improperly allowed
Bergman to withdraw his hand-written answer and file in its place the motions to
dismiss. Section 2-616(a) of the Code (735 ILCS 5/616(a)(West 1996)) controls this
issue. This section states that amendments raising new defenses may be allowed at any
time before final judgment. Section 2-616(a) is to be liberally construed, and doubts
which exists concerning the propriety of allowing an amendment must be resolved in
favor of the party seeking to make it. People ex rel. Foreman v. Village of Round Lake
Park, 171 Ill. App. 3d 443, 525 N.E.2d 868 (1988). Factors to be considered in
determining whether the trial court abused its discretion in ruling on a request to
amend include whether other parties would sustain prejudice or surprise by virtue of
the proposed amendment and whether previous opportunities to amend pleadings
could be identified. Kupianen v. Graham, 107 Ill. App. 3d 373, 377, 437 N.E.2d 774
(1982).
Here, Bergman's motion to withdraw his answer was made for the purpose of
raising an affirmative defense and was made within a relatively short time after
plaintiff's complaint had been filed. Lykowski does not allege any particular prejudice
or surprise caused by the court's decision to allow the withdrawal of Bergman's
Answer, other than that he had to undergo the effort required to reply to the motions.
Accordingly, we find no abuse of discretion. Cf. Sunderland v. Tri-City Community
Unit School District No. 1, 193 Ill. App. 3d 266, 269-70, 549 N.E.2d 992 (1990);
Premo, 197 Ill. App. 3d at 629.
We next turn to the question of whether the trial court improperly dismissed
Lykowski's complaint, either pursuant to section 2-615 or section 2-619 of the Code.
The court specifically stated that it was granting relief on both grounds. We address
Bergman's section 2-615 motion first.
A motion to dismiss under section 2-615 tests the legal sufficiency of a pleading.
Doe v. Calumet City, 161 Ill. 2d 374, 384, 641 N.E.2d 498 (1994). In determining the
legal sufficiency of a complaint, all well-pleaded facts are taken as being true and all
reasonable inferences from those facts are drawn in favor of the plaintiff. Connick v.
Suzuki Motor Co., 174 Ill. 2d 482, 490, 675 N.E.2d 584 (1996). The sufficiency of a
complaint is an issue of law which we review de novo. Busch v. Graphic Color Corp.,
169 Ill. 2d 325, 333, 662 N.E.2d 397 (1996). The question on appeal from the granting
of a section 2-615 motion is whether the allegations in the complaint, when viewed in
a light most favorable to the plaintiff, are sufficient to state a cause of action upon
which relief can be granted. Connick, 174 Ill. 2d at 490.
Bergman notes that in order to survive a motion to dismiss pursuant to section
2-615, a complaint must state a cause of action that is both legally and factually
sufficient. Wieseman v. Kienstra, Inc., 237 Ill. App. 3d 721, 721, 604 N.E.2d 1126
(1992). A legally sufficient complaint is one which sets forth a legally recognized claim
upon which the plaintiff is entitled to recover damages. Northrop Corp. v.
Crouch-Walker, Inc., 175 Ill. App. 3d 203, 205-06, 529 N.E.2d 784 (1988). A factually
sufficient complaint must plead facts which are essential to the plaintiff's alleged cause
of action. Robbins v. City of Madison,193 Ill. App. 3d 379, 379, 549 N.E.2d 947
(1990). A complaint is properly dismissed pursuant to section 2-615 if it is either
legally or factually insufficient. People ex rel. Fahner v. Carriage Way West, Inc., 88 Ill. 2d 300, 430 N.E.2d 1005 (1981).
In this case, the plaintiff's complaint sought to make out a claim alleging libel, a
cause of action Bergman concedes exists in Illinois. The complaint is therefore legally
sufficient. Bergman argues, however, that Lykowski's complaint fails to set forth facts
sufficient to make out a libel claim. We agree.
While notice pleading prevails under the Federal rules (Conley v. Gibson, 355 U.S. 41, 45-47, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957)), a civil complaint in Illinois is
required to plead the ultimate facts which give rise to the cause of action. Thus, a
complaint for defamation must set forth the words alleged to be defamatory "clearly
and with particularity." Mittelman v. Witous, 135 Ill. 2d 220, 552 N.E.2d 973 (1989);
O'Donnell v. Field Enterprises, Inc., 145 Ill. App. 3d 1032, 1042, 491 N.E.2d 1212
(1986). In this case the complaint merely alleged that "on or about March 14, 1996, the
Defendant accused the Plaintiff of certain unethical acts and improper conduct," and
that "[d]efendants *** transmitted via facsimile a certain letter to the newspapers, that
the Plaintiff was a liar and was guilty of unethical and improper conduct." These
allegations are vague and conclusory and fall short of the "clearly and with
particularity" standard. Nowhere in the complaint is the nature of the "unethical" and
"improper" conduct set out, making it impossible for Bergman to answer the
complaint with any degree of certainty as to the allegations to which he is responding.
It simply cannot be determined from the face of the complaint, for example, whether
the statements which allegedly injured Lykowski were true or whether a privilege
might apply to their publication.
In addition, the complaint is factually deficient because it cannot be determined
from the complaint to whom the allegedly libelous statements were communicated.
The allegations that the libelous statements were transmitted "to the newspapers" and
to "plaintiff's employer" is not particularly helpful in this regard.
The complaint is factually deficient for a third reason. Where a public figure
such as a judicial candidate alleges defamation, he must establish that the defamatory
statements were made with actual malice, i.e., with knowledge of their falsehood or a
reckless disregard for their truth or falsity. Gertz v. Robert Welch, Inc., 418 U.S. 323,
41 L. Ed. 2d 789, 94 S. Ct. 2997 (1974). In Illinois, a factually sufficient complaint must
set forth specific allegations from which actual malice may reasonably be inferred, as
opposed to making bare allegations of actual malice. Mittelman, 135 Ill. 2d at 238;
Sweeney v. Sengstacke Enterprises, Inc., 180 Ill. App. 3d 1044, 536 N.E.2d 823 (1989).
Again, Lykowski's complaint is in this regard conclusory, alleging only that Bergman
knew his allegations were false and that the defamatory statements "were wrongful,
unlawful and malicious." Even if the actual statements had been set forth, there are no
allegations of fact in the complaint giving rise to a reasonable inference showing
Bergman knew the statements were false or that he proceeded in making the
statements with a reckless disregard for their falsity. For each of these reasons, the trial
court correctly granted the section 2-615 motion.
We now confront the question of whether the trial court properly dismissed
Lykowski's complaint on section 2-619 grounds. As we explain more fully below, the
issue is important for our ultimate resolution of the appeal. Bergman now claims, as he
did below, that because the statements Lykowski seeks to attack as libelous were first
made as part of an ARDC "quasi-judicial proceeding," Lykowski's complaint was
properly dismissed.
As with section 2-615 motions, we review the grant of a motion to dismiss
under section 2-619 on a de novo basis. Corluka v. Bridgford Foods of Illinois, Inc.,
284 Ill. App. 3d 190, 192, 671 N.E.2d 814 (1996). The purpose of a motion to dismiss
under section 2-619 is to dispose of issues of law and easily proved issues of fact at the
outset of a case. Zedella v. Gibson, 165 Ill. 2d 181, 185, 650 N.E.2d 1000 (1995). The
question on appeal is whether there exists in the record a genuine issue of material fact
precluding dismissal, or absent an issue of material fact, whether dismissal is proper as
a matter of law. Corluka, 284 Ill. App. 3d at 192.
For purposes of considering a section 2-619 motion, we treat all well-pleaded
facts and reasonable inferences that can be drawn from the complaint as true. Arlt v.
Great American Federal Savings & Loan Ass'n, 213 Ill. App. 3d 584, 587, 572 N.E.2d 1115 (1991). Section 2-619(a)(9) of the Code, the specific provision upon which
Bergman relies, provides for involuntary dismissal of a cause of action where the claim
asserted is barred by "affirmative matter" avoiding the legal effect of or defeating the
claim. 735 ILCS 5/2-619(a)(9) (West 1996). The reference to "affirmative matter" is said
to be something in the nature of a defense that completely negates the cause of action
or refutes crucial conclusions of law or conclusions of material fact contained in or
inferred from the complaint. Fancher v. Central Illinois Public Service Co., 279 Ill.
App. 3d 530, 534, 664 N.E.2d 692 (1996). In a defamation action, the issue of absolute
privilege is treated as an affirmative defense that may be raised and determined in a
section 2-619 motion. Harris v. News-Sun, 269 Ill. App. 3d 648, 651, 646 N.E.2d 8
(1995).
Bergman is correct that the ARDC sometimes acts as a quasi-judicial body and
that complaints filed with judicial or quasi-judicial bodies are often treated as being
absolutely privileged. It also true, however, that the ARDC sometimes acts merely as
an investigative agency. Under ARDC Disciplinary Commission Rule 55, matters
referred to the agency by members of the public are first considered by the ARDC
Administrator who passes them on, if they so warrant, to an Inquiry Board for review
and investigation. Dis. R. 55. The Inquiry Board is charged with promptly
determining whether there is sufficient evidence to justify the filing of a formal ARDC
complaint. Dis. R. 102, 104.
We agree that Bergman possesses an absolute privilege allowing him to make
defamatory statements to the ARDC concerning attorney Lykowski's alleged
professional misconduct. Although there is apparently some disagreement on the issue
among the various jurisdictions concerning whether a preliminary complaint to an
agency such as the ARDC should be protected by an absolute privilge, the better view,
in our judgment, is that an absolute privilege exists for any statements made during
any step preliminary and necessary to a judicial or quasi-judicial proceeding. See
generally Prosser and Keeton on Torts, (5th ed. 1984), 114 at p. 819 (hereinafter,
"Prosser"). Such a privilege provides a complete bar to any claim alleging defamation,
regardless of the speaker's motive or the unreasonableness of his conduct. This assures
that individuals are in no way discouraged from lodging complaints with the
appropriate disciplinary authorities. Thus, we conclude that statements made to the
ARDC regarding attorney misconduct, no matter how false or outrageous, are simply
beyond the reach of a civil complaint alleging libel.
We do not agree with Bergman's argument, however, that because he was
privileged to defame Lykowski before the ARDC, he was also free to do so to third
parties such as the media or Lykowski's employer. Cf. Prosser at pp. 819-20
("statements given to the newspapers concerning the case are not part of the judicial
proceeding, and are not absolutely privileged"). Thus, if Bergman's statements to third
parties are to be given protection from Lykowski's defamation claims, they must be
covered by a different form of privilege.
Bergman notes that a second type of privilege exists for defamatory statements
which represent a fair report of judicial or other public proceedings. He argues that all
of Lykowski's defamation claims are based upon Bergman's conduct in forwarding
copies of his written charges to the ARDC to third parties, but that he is entitled to
make such a publication under Illinois common law. We disagree with Bergman's
claim for two reasons.
Unlike the absolute privilege which attaches to statements made preliminarily
to a judicial or quasi-judicial proceedings, the fair reporting privilege asserted by
Bergman is merely a qualified privilege which does not serve to bar defamation claims;
rather, it merely enhances a defamation plaintiff's burden of proof. Kuwik v. Starmark
Star Marketing and Administration, Inc., 156 Ill. 2d 16, 27, 619 N.E.2d 129 (1993). A
defendant who establishes the existence of such a privilege forces the plaintiff to prove
that the defendant either intentionally published the material while knowing the
matter was false, or displayed a reckless disregard as to the matter's falseness. Kuwik,
156 Ill. 2d at 24. The privilege is limited to those situations where the public
proceedings are described by the defendant (1) completely and accurately, or where a
fair summary of the proceedings is made, and (2) the statements are not made solely
for the purpose of causing harm to the person defamed. Reed v. Northwestern
Publishing Co., 155 Ill. App. 3d 796, 797, 508 N.E.2d 772 (1987); Emery v. Kimball
Hill, Inc., 112 Ill. App. 3d 109, 112, 445 N.E.2d 59 (1983); Newell v. Field Enterprises,
Inc., 91 Ill. App. 3d 735, 744, 415 N.E.2d 434 (1980).
It follows that section 2-619 relief is properly granted on the basis of qualified
privilege, as opposed to an absolute privilege, only when there are no allegations of
actual malice made by the plaintiff and when it can be established that the statements
made in the judicial or quasi-judicial proceeding are complete and accurate or are a fair
summary of those proceedings. When a plaintiff alleges in his complaint that an
allegedly defamatory statement is made with malice as Lykowski attempted to do, a
question of fact is created as to whether any qualified privilege the defendant may
possessed has been forfeited through its abuse. Kuwik, 156 Ill. 2d at 27, citing
Restatement (Second) of Torts 593 through 599 (1977). The question for the finder of
fact becomes whether the defamatory statement was made solely for the purpose of
causing harm to the person who was defamed. Section 2-619 dismissal in such
circumstances is not appropriate.
More fundamentally, section 2-619 relief was improperly granted in this case
because Bergman's charges to the ARDC are simply not analogous to charges brought
in the circuit court or other public forum. The question of whether the public has the
right to be informed of the existence and nature of proceedings before the quasi-
judicial or judicial body is an important one in establishing the fair reporting privilge
because the privilege is based upon the public's interest in having access to the
proceeding. As discussed by Prosser,
"[I]t was clearly recognized to be in the public interest that
information be made available as to what takes place in
certain kinds of judicial, legislative and other public
proceedings. Therefore, a qualified privilege of a special
kind was recognized under which a newspaper or anyone
else might make such a report to the public. The privilege
rests upon the idea that any member of the public, if he
were present, might see and hear for himself, so that the
reporter is merely a substitute for the public eye this,
together with the obvious public interest in having public
affairs made known to all."
Prosser , 115 at p. 836. See also Newell, 91 Ill. App. 3d at 744.
In this case the public did not have a right to review Bergman's charges with the
ARDC because, contrary to Bergman's central premise, such charges are "private and
confidential" until the ARDC determines to act upon them in the form of a formal
complaint. See 134 Ill. 2d R. 766. Thus, Bergman cannot claim a privilege as someone
acting as a "substitute for the public eye" because the public has, at this early stage of
the ARDC complaint process, no right to information concerning the existence or
nature of the charges. Accordingly, Bergman's statements to third parties concerning
the charges he made to the ARDC are actionable to the extent that they can be shown
to have maliciously defamed Lykowski.
With the above analysis in mind, we examine whether the trial court properly
refused to consider Lykowski's request to amend his complaint. In his response to
defendants' motions to dismiss, Lykowski specifically asked the court to allow him the
opportunity to amend his pleadings if his complaint were found to be factually
deficient. He included with his response a copy of his First Amended Verified
Complaint for Libel (Defamation) which consisted of a three counts. The court
refused to consider the amendment, however, finding that even if the factual failings of
Lykowski's complaint were corrected, the defamation privileges Bergman enjoyed
would preclude Lykowski from ever making out a cause of action for defamation.
As we have concluded, Bergman was not privileged to forward copies of his
ARDC letter to third parties. Therefore, the court's reasons for refusing to consider
the amendment were erroneous. Accordingly, we remand the matter back to the trial
court for further proceedings.
Finally, we briefly address Bergman's cross appeal in which he claims the trial
court abused its discretion in refusing to award him Rule 137 sanctions against
Lykowski. We conclude that, until final judgment, such claims are necessarily
interlocutory in nature. In light of our disposition on the other issues presented, we
find that the cross appeal is not yet ripe for review.
In sum, plaintiff Lykowski's complaint alleging libel was properly dismissed
because it was factually insufficient to state a cause of action. The complaint was not
properly dismissed, however, on ground that defendant Bergman had a qualified
privilege to defame Lykowski, although an absolute privilege exists for Bergman to
make charges with the ARDC regarding Lykowski's allegedly unethical professional
conduct. On remand, the circuit court is directed to re-consider Lykowski's motion to
amend his complaint.
For the foregoing reasons, the judgment of the circuit court of Cook County is
affirmed in part, reversed in part and remanded for further proceedings consistent with
this opinion.
Affirmed in part; reversed in part and remanded.
CAMPBELL, P.J., and GREIMAN, J., concurring.
FILED: 09/18/98
No. 1-96-4169
LAWRENCE M. LYKOWSKI, ) Appeal from the
) Circuit Court of
Plaintiff-Appellant/Cross-Appellee, ) Cook County.
)
)
v. )
)
ROBERT L. BERGMAN, individually and as )
Chairman of the 13th Judicial Sub-Circuit )
Republican Campaign Committee and THE )
13TH JUDICIAL SUB-CIRCUIT REPUBLICAN )
CAMPAIGN COMMITTEE, ) Honorable
) Harvey Schwartz,
Defendants-Appellees/Cross Appellants. ) Judge Presiding.
JUSTICE ZWICK delivered the opinion of the court:
This appeal is from a judgment entered pursuant to section 2-615 and 2-619 of
the Code of Civil Procedure (735 ILCS 5/2-615, 2-619 (West 1996)) on defendants'
motions to dismiss the plaintiff's one count complaint alleging libel. The cross-appeal
is from an order of the circuit court denying defendants' motion pursuant to Supreme
Court Rule 137 (134 Ill. 2d R. 137) for sanctions. In addition to defendants' Rule 137
cross claim, we are asked to consider (1) whether the trial court abused its discretion in
refusing to allow defendant Bergman to withdraw his originally-filed answer and
substitute therefor the motions to dismiss; (2) if not, whether the trial court
committed reversible error in dismissing the complaint either on grounds that it failed
to allege sufficient facts to state a cause of action for libel or because the statements in
the complaint alleged to have been libelous were protected by a defamation privilege;
and (3) whether the court abused its discretion in refusing to consider plaintiff's
proposed amended complaint.
The record establishes that on March 13, 1996, plaintiff, Lawrence M.
Lykowski, filed a one count complaint in the circuit court alleging libel against
defendants, Robert L. Bergman and the 13th Judicial Sub-Circuit Republican Campaign
Committee. Bergman was named in both his individual and representative capacities.
Lykowski alleged that he was a Republican candidate for the office of Judge of the
Circuit Court of Cook County, Sub-Circuit 13(A), and that, on or about March 14,
1996, Bergman accused him of "certain unethical acts and improper conduct," as well
as being a liar. Bergman was alleged to have made these allegations to the "the
newspapers" and to Lykowski's employer, the Cook County State's Attorney. The
complaint further asserted that Bergman made the accusations for the sole purpose of
disparaging and discrediting Lykowski in his campaign for the office of Judge.
Also on March 15, 1996, plaintiff Lykowski filed an Ex Parte Motion For
Temporary Restraining Order which sought to prevent Bergman from publishing any
further information regarding Lykowski. The Motion stated that Bergman had
"leaked" to "certain newspapers" a letter addressed to the Attorney Registration and
Disciplinary Commission (ARDC) for the sole purpose of defaming Lykowski's
professional reputation. The letter, which is dated March 9, 1996, was attached to the
motion as an exhibit. The motion alleged that Bergman's letter was libelous per se in
that it included following allegedly false allegations:
(1) that Lykowski had deliberately omitted truthful answers
to certain questions asked of him by the Chicago Bar
Association Judicial Evaluation Committee;
(2) that a murder conviction in the case of People v.
Phillips, 159 Ill. App. 3d 142 (1987) was reversed on appeal
because of improper comments made during the trial by
Lykowski; and
(3) that Lykowski was involved in improper conduct as a
prosecutor "regarding a DUI trial" that occurred on or
about February 4, 1994.
These specific allegations were not included in Lykowski's complaint. After listening
to testimony on the motion, the court denied Lykowski's request for a temporary
restraining order.
On that same day, March 15, 1996, defendant Bergman entered a hand-written
Answer to Lykowski's complaint. In the Answer, Bergman admitted many of
substantive allegations of plaintiff's complaint including the allegation that he had
accused Lykowski of certain unethical acts and improper conduct on or about March
14, 1996. Bergman denied, however, that (1) he had presented no evidence supporting
his charges of ethical misconduct, (2) charges of ethical misconduct had never before
been brought against Lykowski; and (3) he had made the allegedly false statements
concerning Lykowski for the sole purpose of disparaging and discrediting him.
Approximately four weeks later, on April 16, 1996, Bergman made an oral
motion to withdraw his Answer. The circuit court entered an order giving him leave
to withdraw it and to re-answer the complaint or otherwise plead within 14 days.
On May 1, 1996, Lykowski filed a Motion to Reconsider the court's order
allowing Bergman to withdraw his Answer. In the motion, Lykowski alleged that no
good reason had been offered which warranted allowing the withdrawal. In response
to this motion, Bergman filed a response which explained that the Answer had been
"hastily prepared" and that he had made the request to withdraw it so that pleadings
could be filed testing the sufficiency of the complaint. Bergman cited authority holding
that the decision to grant or deny such a request is within the sound discretion of the
trial court (see e.g., Premo v. Falcone, 197 Ill. App. 3d 625, 629, 554 N.E.2d 1071
(1990); Wheeler v. Caterpillar Tractor Co., 123 Ill. App. 3d 539, 541-42, 462 N.E.2d 1262 (1984), rev'd on other grounds, 108 Ill. 2d 502, 485 N.E.2d 372 (1985)) and
asserted that the court's April 16, 1996 decision to grant his request did not cause
Lykowski any undue prejudice.
On May 10, 1996, the court denied Lykowski's Motion to Reconsider. The
court also took notice of two motions to dismiss Lykowski's complaint and set them
for hearing on September 3, 1996.
On September 3, 1996, following hearing on the motions, the circuit court
entered an order dismissing plaintiff's complaint pursuant to the terms of sections 2-
615 and 2-619 of the Code of Civil Procedure. 735 ILCS 5/2-615, 2-619 (West 1996). In
addition, the court denied Lykowski's request to allow him to amend the complaint.
Lykowski thereafter filed this timely appeal.
Initially, we address Lykowski's claim that the trial court improperly allowed
Bergman to withdraw his hand-written answer and file in its place the motions to
dismiss. Section 2-616(a) of the Code (735 ILCS 5/616(a)(West 1996)) controls this
issue. This section states that amendments raising new defenses may be allowed at any
time before final judgment. Section 2-616(a) is to be liberally construed, and doubts
which exists concerning the propriety of allowing an amendment must be resolved in
favor of the party seeking to make it. People ex rel. Foreman v. Village of Round Lake
Park, 171 Ill. App. 3d 443, 525 N.E.2d 868 (1988). Factors to be considered in
determining whether the trial court abused its discretion in ruling on a request to
amend include whether other parties would sustain prejudice or surprise by virtue of
the proposed amendment and whether previous opportunities to amend pleadings
could be identified. Kupianen v. Graham, 107 Ill. App. 3d 373, 377, 437 N.E.2d 774
(1982).
Here, Bergman's motion to withdraw his answer was made for the purpose of
raising an affirmative defense and was made within a relatively short time after
plaintiff's complaint had been filed. Lykowski does not allege any particular prejudice
or surprise caused by the court's decision to allow the withdrawal of Bergman's
Answer, other than that he had to undergo the effort required to reply to the motions.
Accordingly, we find no abuse of discretion. Cf. Sunderland v. Tri-City Community
Unit School District No. 1, 193 Ill. App. 3d 266, 269-70, 549 N.E.2d 992 (1990);
Premo, 197 Ill. App. 3d at 629.
We next turn to the question of whether the trial court improperly dismissed
Lykowski's complaint, either pursuant to section 2-615 or section 2-619 of the Code.
The court specifically stated that it was granting relief on both grounds. We address
Bergman's section 2-615 motion first.
A motion to dismiss under section 2-615 tests the legal sufficiency of a pleading.
Doe v. Calumet City, 161 Ill. 2d 374, 384, 641 N.E.2d 498 (1994). In determining the
legal sufficiency of a complaint, all well-pleaded facts are taken as being true and all
reasonable inferences from those facts are drawn in favor of the plaintiff. Connick v.
Suzuki Motor Co., 174 Ill. 2d 482, 490, 675 N.E.2d 584 (1996). The sufficiency of a
complaint is an issue of law which we review de novo. Busch v. Graphic Color Corp.,
169 Ill. 2d 325, 333, 662 N.E.2d 397 (1996). The question on appeal from the granting
of a section 2-615 motion is whether the allegations in the complaint, when viewed in
a light most favorable to the plaintiff, are sufficient to state a cause of action upon
which relief can be granted. Connick, 174 Ill. 2d at 490.
Bergman notes that in order to survive a motion to dismiss pursuant to section
2-615, a complaint must state a cause of action that is both legally and factually
sufficient. Wieseman v. Kienstra, Inc., 237 Ill. App. 3d 721, 721, 604 N.E.2d 1126
(1992). A legally sufficient complaint is one which sets forth a legally recognized claim
upon which the plaintiff is entitled to recover damages. Northrop Corp. v.
Crouch-Walker, Inc., 175 Ill. App. 3d 203, 205-06, 529 N.E.2d 784 (1988). A factually
sufficient complaint must plead facts which are essential to the plaintiff's alleged cause
of action. Robbins v. City of Madison,193 Ill. App. 3d 379, 379, 549 N.E.2d 947
(1990). A complaint is properly dismissed pursuant to section 2-615 if it is either
legally or factually insufficient. People ex rel. Fahner v. Carriage Way West, Inc., 88 Ill. 2d 300, 430 N.E.2d 1005 (1981).
In this case, the plaintiff's complaint sought to make out a claim alleging libel, a
cause of action Bergman concedes exists in Illinois. The complaint is therefore legally
sufficient. Bergman argues, however, that Lykowski's complaint fails to set forth facts
sufficient to make out a libel claim. We agree.
While notice pleading prevails under the Federal rules (Conley v. Gibson, 355 U.S. 41, 45-47, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957)), a civil complaint in Illinois is
required to plead the ultimate facts which give rise to the cause of action. Thus, a
complaint for defamation must set forth the words alleged to be defamatory "clearly
and with particularity." Mittelman v. Witous, 135 Ill. 2d 220, 552 N.E.2d 973 (1989);
O'Donnell v. Field Enterprises, Inc., 145 Ill. App. 3d 1032, 1042, 491 N.E.2d 1212
(1986). In this case the complaint merely alleged that "on or about March 14, 1996, the
Defendant accused the Plaintiff of certain unethical acts and improper conduct," and
that "[d]efendants *** transmitted via facsimile a certain letter to the newspapers, that
the Plaintiff was a liar and was guilty of unethical and improper conduct." These
allegations are vague and conclusory and fall short of the "clearly and with
particularity" standard. Nowhere in the complaint is the nature of the "unethical" and
"improper" conduct set out, making it impossible for Bergman to answer the
complaint with any degree of certainty as to the allegations to which he is responding.
It simply cannot be determined from the face of the complaint, for example, whether
the statements which allegedly injured Lykowski were true or whether a privilege
might apply to their publication.
In addition, the complaint is factually deficient because it cannot be determined
from the complaint to whom the allegedly libelous statements were communicated.
The allegations that the libelous statements were transmitted "to the newspapers" and
to "plaintiff's employer" is not particularly helpful in this regard.
The complaint is factually deficient for a third reason. Where a public figure
such as a judicial candidate alleges defamation, he must establish that the defamatory
statements were made with actual malice, i.e., with knowledge of their falsehood or a
reckless disregard for their truth or falsity. Gertz v. Robert Welch, Inc., 418 U.S. 323,
41 L. Ed. 2d 789, 94 S. Ct. 2997 (1974). In Illinois, a factually sufficient complaint must
set forth specific allegations from which actual malice may reasonably be inferred, as
opposed to making bare allegations of actual malice. Mittelman, 135 Ill. 2d at 238;
Sweeney v. Sengstacke Enterprises, Inc., 180 Ill. App. 3d 1044, 536 N.E.2d 823 (1989).
Again, Lykowski's complaint is in this regard conclusory, alleging only that Bergman
knew his allegations were false and that the defamatory statements "were wrongful,
unlawful and malicious." Even if the actual statements had been set forth, there are no
allegations of fact in the complaint giving rise to a reasonable inference showing
Bergman knew the statements were false or that he proceeded in making the
statements with a reckless disregard for their falsity. For each of these reasons, the trial
court correctly granted the section 2-615 motion.
We now confront the question of whether the trial court properly dismissed
Lykowski's complaint on section 2-619 grounds. As we explain more fully below, the
issue is important for our ultimate resolution of the appeal. Bergman now claims, as he
did below, that because the statements Lykowski seeks to attack as libelous were first
made as part of an ARDC "quasi-judicial proceeding," Lykowski's complaint was
properly dismissed.
As with section 2-615 motions, we review the grant of a motion to dismiss
under section 2-619 on a de novo basis. Corluka v. Bridgford Foods of Illinois, Inc.,
284 Ill. App. 3d 190, 192, 671 N.E.2d 814 (1996). The purpose of a motion to dismiss
under section 2-619 is to dispose of issues of law and easily proved issues of fact at the
outset of a case. Zedella v. Gibson, 165 Ill. 2d 181, 185, 650 N.E.2d 1000 (1995). The
question on appeal is whether there exists in the record a genuine issue of material fact
precluding dismissal, or absent an issue of material fact, whether dismissal is proper as
a matter of law. Corluka, 284 Ill. App. 3d at 192.
For purposes of considering a section 2-619 motion, we treat all well-pleaded
facts and reasonable inferences that can be drawn from the complaint as true. Arlt v.
Great American Federal Savings & Loan Ass'n, 213 Ill. App. 3d 584, 587, 572 N.E.2d 1115 (1991). Section 2-619(a)(9) of the Code, the specific provision upon which
Bergman relies, provides for involuntary dismissal of a cause of action where the claim
asserted is barred by "affirmative matter" avoiding the legal effect of or defeating the
claim. 735 ILCS 5/2-619(a)(9) (West 1996). The reference to "affirmative matter" is said
to be something in the nature of a defense that completely negates the cause of action
or refutes crucial conclusions of law or conclusions of material fact contained in or
inferred from the complaint. Fancher v. Central Illinois Public Service Co., 279 Ill.
App. 3d 530, 534, 664 N.E.2d 692 (1996). In a defamation action, the issue of absolute
privilege is treated as an affirmative defense that may be raised and determined in a
section 2-619 motion. Harris v. News-Sun, 269 Ill. App. 3d 648, 651, 646 N.E.2d 8
(1995).
Bergman is correct that the ARDC sometimes acts as a quasi-judicial body and
that complaints filed with judicial or quasi-judicial bodies are often treated as being
absolutely privileged. It also true, however, that the ARDC sometimes acts merely as
an investigative agency. Under ARDC Disciplinary Commission Rule 55, matters
referred to the agency by members of the public are first considered by the ARDC
Administrator who passes them on, if they so warrant, to an Inquiry Board for review
and investigation. Dis. R. 55. The Inquiry Board is charged with promptly
determining whether there is sufficient evidence to justify the filing of a formal ARDC
complaint. Dis. R. 102, 104.
We agree that Bergman possesses an absolute privilege allowing him to make
defamatory statements to the ARDC concerning attorney Lykowski's alleged
professional misconduct. Although there is apparently some disagreement on the issue
among the various jurisdictions concerning whether a preliminary complaint to an
agency such as the ARDC should be protected by an absolute privilge, the better view,
in our judgment, is that an absolute privilege exists for any statements made during
any step preliminary and necessary to a judicial or quasi-judicial proceeding. See
generally Prosser and Keeton on Torts, (5th ed. 1984), 114 at p. 819 (hereinafter,
"Prosser"). Such a privilege provides a complete bar to any claim alleging defamation,
regardless of the speaker's motive or the unreasonableness of his conduct. This assures
that individuals are in no way discouraged from lodging complaints with the
appropriate disciplinary authorities. Thus, we conclude that statements made to the
ARDC regarding attorney misconduct, no matter how false or outrageous, are simply
beyond the reach of a civil complaint alleging libel.
We do not agree with Bergman's argument, however, that because he was
privileged to defame Lykowski before the ARDC, he was also free to do so to third
parties such as the media or Lykowski's employer. Cf. Prosser at pp. 819-20
("statements given to the newspapers concerning the case are not part of the judicial
proceeding, and are not absolutely privileged"). Thus, if Bergman's statements to third
parties are to be given protection from Lykowski's defamation claims, they must be
covered by a different form of privilege.
Bergman notes that a second type of privilege exists for defamatory statements
which represent a fair report of judicial or other public proceedings. He argues that all
of Lykowski's defamation claims are based upon Bergman's conduct in forwarding
copies of his written charges to the ARDC to third parties, but that he is entitled to
make such a publication under Illinois common law. We disagree with Bergman's
claim for two reasons.
Unlike the absolute privilege which attaches to statements made preliminarily
to a judicial or quasi-judicial proceedings, the fair reporting privilege asserted by
Bergman is merely a qualified privilege which does not serve to bar defamation claims;
rather, it merely enhances a defamation plaintiff's burden of proof. Kuwik v. Starmark
Star Marketing and Administration, Inc., 156 Ill. 2d 16, 27, 619 N.E.2d 129 (1993). A
defendant who establishes the existence of such a privilege forces the plaintiff to prove
that the defendant either intentionally published the material while knowing the
matter was false, or displayed a reckless disregard as to the matter's falseness. Kuwik,
156 Ill. 2d at 24. The privilege is limited to those situations where the public
proceedings are described by the defendant (1) completely and accurately, or where a
fair summary of the proceedings is made, and (2) the statements are not made solely
for the purpose of causing harm to the person defamed. Reed v. Northwestern
Publishing Co., 155 Ill. App. 3d 796, 797, 508 N.E.2d 772 (1987); Emery v. Kimball
Hill, Inc., 112 Ill. App. 3d 109, 112, 445 N.E.2d 59 (1983); Newell v. Field Enterprises,
Inc., 91 Ill. App. 3d 735, 744, 415 N.E.2d 434 (1980).
It follows that section 2-619 relief is properly granted on the basis of qualified
privilege, as opposed to an absolute privilege, only when there are no allegations of
actual malice made by the plaintiff and when it can be established that the statements
made in the judicial or quasi-judicial proceeding are complete and accurate or are a fair
summary of those proceedings. When a plaintiff alleges in his complaint that an
allegedly defamatory statement is made with malice as Lykowski attempted to do, a
question of fact is created as to whether any qualified privilege the defendant may
possessed has been forfeited through its abuse. Kuwik, 156 Ill. 2d at 27, citing
Restatement (Second) of Torts 593 through 599 (1977). The question for the finder of
fact becomes whether the defamatory statement was made solely for the purpose of
causing harm to the person who was defamed. Section 2-619 dismissal in such
circumstances is not appropriate.
More fundamentally, section 2-619 relief was improperly granted in this case
because Bergman's charges to the ARDC are simply not analogous to charges brought
in the circuit court or other public forum. The question of whether the public has the
right to be informed of the existence and nature of proceedings before the quasi-
judicial or judicial body is an important one in establishing the fair reporting privilge
because the privilege is based upon the public's interest in having access to the
proceeding. As discussed by Prosser,
"[I]t was clearly recognized to be in the public interest that
information be made available as to what takes place in
certain kinds of judicial, legislative and other public
proceedings. Therefore, a qualified privilege of a special
kind was recognized under which a newspaper or anyone
else might make such a report to the public. The privilege
rests upon the idea that any member of the public, if he
were present, might see and hear for himself, so that the
reporter is merely a substitute for the public eye this,
together with the obvious public interest in having public
affairs made known to all."
Prosser , 115 at p. 836. See also Newell, 91 Ill. App. 3d at 744.
In this case the public did not have a right to review Bergman's charges with the
ARDC because, contrary to Bergman's central premise, such charges are "private and
confidential" until the ARDC determines to act upon them in the form of a formal
complaint. See 134 Ill. 2d R. 766. Thus, Bergman cannot claim a privilege as someone
acting as a "substitute for the public eye" because the public has, at this early stage of
the ARDC complaint process, no right to information concerning the existence or
nature of the charges. Accordingly, Bergman's statements to third parties concerning
the charges he made to the ARDC are actionable to the extent that they can be shown
to have maliciously defamed Lykowski.
With the above analysis in mind, we examine whether the trial court properly
refused to consider Lykowski's request to amend his complaint. In his response to
defendants' motions to dismiss, Lykowski specifically asked the court to allow him the
opportunity to amend his pleadings if his complaint were found to be factually
deficient. He included with his response a copy of his First Amended Verified
Complaint for Libel (Defamation) which consisted of a three counts. The court
refused to consider the amendment, however, finding that even if the factual failings of
Lykowski's complaint were corrected, the defamation privileges Bergman enjoyed
would preclude Lykowski from ever making out a cause of action for defamation.
As we have concluded, Bergman was not privileged to forward copies of his
ARDC letter to third parties. Therefore, the court's reasons for refusing to consider
the amendment were erroneous. Accordingly, we remand the matter back to the trial
court for further proceedings.
Finally, we briefly address Bergman's cross appeal in which he claims the trial
court abused its discretion in refusing to award him Rule 137 sanctions against
Lykowski. We conclude that, until final judgment, such claims are necessarily
interlocutory in nature. In light of our disposition on the other issues presented, we
find that the cross appeal is not yet ripe for review.
In sum, plaintiff Lykowski's complaint alleging libel was properly dismissed
because it was factually insufficient to state a cause of action. The complaint was not
properly dismissed, however, on ground that defendant Bergman had a qualified
privilege to defame Lykowski, although an absolute privilege exists for Bergman to
make charges with the ARDC regarding Lykowski's allegedly unethical professional
conduct. On remand, the circuit court is directed to re-consider Lykowski's motion to
amend his complaint.
For the foregoing reasons, the judgment of the circuit court of Cook County is
affirmed in part, reversed in part and remanded for further proceedings consistent with
this opinion.
Affirmed in part; reversed in part and remanded.
CAMPBELL, P.J., and GREIMAN, J., concurring.
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