Razavi v. School of the Art Institute of Chicago

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Appellate Court Date: 2019.03.28

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Razavi v. School of the Art Institute of Chicago, 2018 IL App (1st) 171409

Appellate Court OMID SHARIAT RAZAVI, Plaintiff-Appellant, v. SCHOOL OF

Caption THE ART INSTITUTE OF CHICAGO, EVA WALKUSKI, and

ARIEL ZEKELMAN, Defendants (Eva Walkuski and Ariel

Zekelman, Defendants-Appellees).

District & No. First District, Second Division

Docket No. 1-17-1409

Filed November 20, 2018

Decision Under Appeal from the Circuit Court of Cook County, No. 16-L-8406; the

Review Hon. Moira Johnson, Judge, presiding.

Judgment Affirmed.

Counsel on Deidre Baumann, of Baumann & Shuldiner, of Chicago, for appellant.

Appeal

Vincent M. Casieri, of Schueler, Dallavo & Casieri, of Chicago, for

appellee Ariel Zekelman.

Paula M. Ketcham and Hannah R. Roberts, of Schiff Hardin LLP, and

Rachel D. Johnson, both of Chicago, for other appellee.

Panel 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

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

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,

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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.”

¶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

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

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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

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 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.

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¶ 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

¶ 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.

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,

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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¶ 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

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.

¶ 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’

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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 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 United States 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

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.

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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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 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. 20 U.S.C. § 1092(f)(8)(B) (Supp. II

2014). 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

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

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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 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 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

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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 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 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

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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 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

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

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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 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 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

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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

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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