Bushell v. Caterpillar, Inc.
State: Illinois
Court: 3rd District Appellate
Docket No: 3-96-0820
Case Date: 08/06/1997
No. 3--96--0820
_________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
A.D., 1997
MICHAEL BUSHELL, ) Appeal from the Circuit Court
) for the 10th Judicial Circuit
Plaintiff-Appellant, ) Peoria County, Illinois
)
v. )
CATERPILLAR, INC., a foreign ) No. 88-L-41
corporation, and CHARLES VAN TINE, )
individually and as employee and )
agent for Caterpillar, Inc., ) Honorable
) John A. Barra
Defendants-Appellees. ) Judge, Presiding
___________________________________________________________________
PRESIDING JUSTICE LYTTON delivered the opinion of the court:
___________________________________________________________________
Pursuant to the central agreement between defendant
Caterpillar, Inc. and the union to which plaintiff Michael Bushell
belonged, an arbitration hearing was conducted regarding
Caterpillar's termination of plaintiff's employment. Defendant
Charles Van Tine, a manager at the engine plant where plaintiff had
worked, testified that plaintiff slept on the job and falsified
employment records. Plaintiff filed suit in circuit court,
alleging that Van Tine and Caterpillar had defamed him. After
defendants filed a motion pursuant to section 2--619 of the Code of
Civil Procedure (735 ILCS 5/2--619 (West 1994)), the circuit court
dismissed the case, finding that, as a matter of law, defendants
had absolute immunity for statements made in quasi-judicial
proceedings. Plaintiff appealed, asserting that private
arbitration proceedings do not constitute quasi-judicial
proceedings. We affirm.
A narrow class of cases exist in which defamatory statements
are absolutely privileged. Ringier America, Inc. v.
Enviro-Technics, Ltd., 284 Ill. App. 3d 1102, 1105, 673 N.E.2d 444,
446 (1996), citing Allen v. Ali, 105 Ill. App. 3d 887, 890, 435
N.E.2d 167, 169 (1982). The defense of absolute privilege rests
upon the idea that conduct which otherwise would be actionable is
permitted to escape liability because the defendant is acting in
furtherance of some interest of social importance, which is
entitled to protection even at the expense of uncompensated harm to
the plaintiff's reputation. Thomas v. Petrulis, 125 Ill. App. 3d
415, 418, 465 N.E.2d 1059, 1061 (1984), quoting W. Prosser, Torts
114, at 776 (4th ed. 1971). Absolute privilege provides complete
immunity from civil action, even though the statements are made
with malice, because public policy favors the free and unhindered
flow of information. Ringier America, 284 Ill. App. 3d at 1105,
673 N.E.2d at 446; Starnes v. International Harvester Co., 184 Ill.
App. 3d 199, 203, 539 N.E.2d 1372, 1374 (1989). The privilege
embraces statements made in the course of judicial or
quasi-judicial proceedings. Parrillo, Weiss & Moss v. Cashion, 181
Ill. App. 3d 920, 925, 537 N.E.2d 851, 854 (1989). Whether an
otherwise actionable defamatory statement is protected by absolute
privilege is a question of law. Joseph v. Collis, 272 Ill. App. 3d
200, 210, 649 N.E.2d 964, 971 (1995); Layne v. Builders Plumbing
Supply Co., 210 Ill. App. 3d 966, 969, 569 N.E.2d 1104, 1106 (1991).
In determining the scope of absolute privilege, Illinois
courts have relied upon the Restatement (Second) of Torts (1977).
See Layne, 210 Ill. App. 3d at 971-72, 569 N.E.2d at 1108; Starnes,
184 Ill. App. 3d at 204-05, 539 N.E.2d at 1375. Section 587 of the
Restatement (Second) provides:
"A party to a private litigation * * * is absolutely
privileged to publish defamatory matter concerning
another in communications * * * 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
(1977).
The comments to section 587 indicate that the privilege extends to
communications such as those in this case:
"The rule stated in this Section is applicable to protect
parties to any action before a judicial tribunal.
* * *
Judicial proceedings include all proceedings in which an
officer or tribunal exercises judicial functions * * * an
arbitration proceeding may be included." Restatement
(Second) of Torts 587, comments b and f, at 249-50
(1977) (emphasis added).
In similar fashion, section 588 of the Restatement (Second)
provides:
"A witness is absolutely privileged to publish defamatory
matter concerning another * * * as part of a judicial
proceeding in which he is testifying, if it has some
relation to the proceeding." Restatement (Second) of
Torts, 588 (1977).
The comments to section 588 also indicate applicability in an
arbitration procedure such as the one in this case. See
Restatement (Second) of Torts 588, comment d, at 251 (1977).
The comments to sections 587 and 588 explicitly cite comment
c of section 585, which provides:
"The exercise of the judicial function is * * * not
confined to tribunals created by legislative provisions.
Thus, in a grievance proceeding arising under a
collective bargaining agreement, the arbiter is
exercising a judicial function * * *." Restatement
(Second) of Torts 585, comment c, at 245-46 (1977)
(emphasis added).
Of course, not all grievance or arbitration proceedings are
identical in scope or type; thus, we confine our analysis to the
case before us.
Under Illinois law, a tribunal is quasi-judicial when its
possesses powers and duties to (1) exercise judgment and
discretion; (2) hear and determine or ascertain facts and decide;
(3) make binding orders and judgments; (4) affect the personal or
property rights of private persons; (5) examine witnesses, compel
the attendance of witnesses, and hear the litigation of issues on
a hearing; and (6) enforce decisions or impose penalties. Adco
Services, Inc. v. Bullard, 256 Ill. App. 3d 655, 659, 628 N.E.2d
772, 774-75 (1993); Kalish v. Illinois Education Association, 157
Ill. App. 3d 969, 971-72, 510 N.E.2d 1103, 1106 (1987). A
quasi-judicial body need not possess all six powers; however, the
more powers it possesses, the more likely the body is acting in a
quasi-judicial manner. Kalish, 157 Ill. App. 3d at 972, 510 N.E.2d
at 1106.
Under the central agreement in this case, the arbitrator was
engaged by the parties "for the sole purpose of adjudicating
disputes that are properly before him." The arbitrator possessed
the power to apply and interpret the provisions of the collective
bargaining agreement in reaching his decision; however, he was
required to refrain from acting as mediator, conciliator or
independent investigator. The decision of the arbitrator was and
is "final and binding upon all parties to the dispute." The
precise procedural powers of the arbitrator were not enumerated in
the central agreement.
In the absence of an agreement to the contrary, arbitration
proceedings in Illinois are governed by the terms of the Uniform
Arbitration Act. 710 ILCS 5/1 et seq. (West 1994). Under the Act,
arbitration proceedings involve the presentation of evidence and
the cross-examination of witnesses. 710 ILCS 5/5 (West 1994).
Arbitrators are empowered to issue subpoenas for the attendance of
witness, and administer oaths. 710 ILCS 5/7(a) (West 1994).
Arbitration orders and awards are judicially enforceable and they
are appealable in the same manner as civil cases. 710 ILCS 5/14-18
(West 1994).
Based strictly upon the record before us, we agree with the
trial judge that the arbitration proceedings constituted quasi-
judicial proceedings, and therefore defendants are absolutely
immune from suit for communications made in plaintiff's arbitration
hearing. None of the cases cited by the defendant mandate a
contrary result. Matviuw v. Johnson, 70 Ill. App. 3d 481, 388
N.E.2d 795 (1979) and Fisher v. Illinois Office Supply Co., 130
Ill. App. 3d 996, 474 N.E.2d 1263 (1984) predate the Layne
decision, and neither case discussed the six-factor analysis now
widely employed in determining whether a body is quasi-judicial.
Indeed, in Fisher, this court went "beyond the briefs" in
addressing the absolute privilege issue. Fisher, 130 Ill. App. 3d
at 999, 474 N.E.2d at 1265. Fisher relied heavily upon a
Massachusetts case, Ezekiel v. Jones Motor Co., 374 Mass. 382, 372
N.E.2d 1281 (1978). A careful review of Ezekiel, however, reveals
that the grievance proceedings there bore little resemblance to
Illinois arbitration proceedings. Compare Ezekiel, 374 Mass. at
___, 372 N.E.2d at 1285 ("protections against false testimony
simply do not exist at a labor grievance hearing * * * [the]
witness at a grievance hearing need not give sworn testimony"),
with 710 ILCS 5/7(a) (West 1994) ("The arbitrator may issues
subpoenas for the attendance of witnesses * * * and shall have the
power to administer oaths").
A majority of jurisdictions that have addressed this issue now
hold that absolute immunity applies to grievance and arbitration
hearings. See Annotation, Libel and Slander: Privileged Nature of
Communications Made in Course of Grievance or Arbitration Procedure
Provided for by Collective Bargaining Agreement, 60 A.L.R. 3d 1041
(1974). Among the jurisdictions that do not afford such protection
to parties and witnesses, California courts are bound by unique
statutory terminology extending the privilege only to "official"
proceedings, and the lack of full judicial review of arbitration
cases. Moore v. Conliffe, 22 Cal. App. 4th 1099, 1103-07, 15 Cal.
Rptr. 2d 791, 794-96 (1993). "There is no such provision in
Illinois." Matviuw, 70 Ill. App. 3d at 488, 388 N.E.2d at 800.
Under Illinois law, absolute immunity applied to the
arbitration proceeding in this case. We wish to emphasize,
however, that this does mean that persons may lie to arbitrators
with impunity.[fn1] While absolute privilege provides complete
immunity from civil action (Ringier America, 284 Ill. App. 3d at
1105, 673 N.E.2d at 446), it does not preclude criminal prosecution
for perjury (720 ILCS 5/32-2 (West 1996)) or subornation of perjury
(720 ILCS 5/32-3 (West 1996)). Further, disciplinary proceedings
against professionals can be taken. For instance, Illinois Rules
of Professional Conduct provide that a lawyer shall not knowingly
make a false statement before a tribunal (134 Ill. 2d R.
3.3(a)(1)); assist in a fraudulent act (134 Ill. 2d R. 3.3(a)(2));
offer evidence known to be false (134 Ill. 2d R. 3.3(a)(4));
participate in the creation or preservation of false evidence (134
Ill. 2d R. 3.3(a)(5)); assist a client in conduct known to be
illegal (134 Ill. 2d R. 3.3(a)(6)); and/or falsify evidence or
counsel or assist a witness to testify falsely (134 Ill. 2d R.
3.4(a)(2)). When arbitrators reasonably believe that any such
violation has occurred, they should not hesitate to bring this to
the attention of proper authorities. Under such circumstances, the
reporting arbitrator is protected by absolute immunity. See
Starnes, 184 Ill. App. 3d at 204, 539 N.E.2d at 1374 ("In Illinois,
this rule has been applied to * * * communications to prosecuting
authorities concerning alleged criminal activities"), and Kalish
157 Ill. App. 3d at 976, 510 N.E.2d at 1109 ("Complaints to * * *
the Attorney Registration and Disciplinary Commission are
absolutely privileged").
The judgment of the circuit court of Peoria County is
affirmed.
Affirmed.
BRESLIN and MICHELA, JJ., concur.
[fn1]We express no opinion as to whether the defendant witness
in this action was lying in the grievance procedure, as plaintiff
has alleged in his complaint.
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