Find Laws Find Lawyers Free Legal Forms USA State Laws
Laws-info.com » Cases » Illinois » 5th District Appellate » 2001 » Busch v. Bates
Busch v. Bates
State: Illinois
Court: 5th District Appellate
Docket No: 5-99-0638 Rel
Case Date: 07/25/2001
                      NOTICE
Decision filed 07/25/01.  The text of this decision may be changed or corrected prior to the filing of a Petition for Rehearing or the disposition of the same.

NO. 5-99-0638

IN THE

APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT


ALVA W. BUSCH,

          Plaintiff-Appellant,

v.

JOSEPH BATES, GREG FERNANDEZ,
and WAYNE WATSON,

          Defendants-Appellees.

)
)
)
)
)
)
)
)
)
)
Appeal from the
Circuit Court of
St. Clair County.

No. 95-L-1015


Honorable
Robert P. LeChien,
Judge, presiding.


JUSTICE MAAG delivered the opinion of the court:

The plaintiff, Alva W. Busch, a crime scene technician for the Illinois State Police,filed a four-count complaint against the defendants, Joseph Bates, Greg Fernandez, andWayne Watson, Illinois State Police officers, on September 22, 1995, alleging that thedefendants had conspired to defame his reputation. The circuit court granted the defendants'motion to dismiss the plaintiff's second amended complaint. The court stated that since thedefendants made the statements pursuant to their mandatory duty to cooperate in the internalinvestigation of the plaintiff's conduct as a crime scene technician, their statements wereabsolutely privileged against claims of defamation so as to preclude actions for libel orslander. The circuit court dismissed the plaintiff's complaint with prejudice since bothcounts of the plaintiff's second amended complaint stated no alleged defamatorycommunication other than those statements made during and pursuant to the investigationinto a disciplinary matter. The plaintiff filed a timely notice of appeal.

The relevant facts are as follows. The plaintiff claimed that while investigating acrime, he saw Bates threaten a suspect in a homicide investigation. Subsequent thereto, theplaintiff filed a complaint with the Illinois State Police regarding Bates' conduct. OnNovember 9, 1994, Bates wrote a memorandum to Master Sergeant Dennis Higginsregarding the plaintiff's conduct during the homicide investigation of Carlos Robertson. Bates stated, "[The plaintiff] withheld information and did an inadequate job." Batesclaimed that the plaintiff attempted to interview subjects at the scene of the crime and thatit was not a crime scene technician's job to conduct interviews or to "sit in" on an interview. Bates alleged that the plaintiff had information that connected a homicide in Belleville withthe homicide of Robertson but that for a period of time he withheld that information fromthe agents working on the Robertson case. Bates claimed that the plaintiff did not properlyprocess the scene of the crime. Bates ended his memorandum to Higgins as follows: "Insummary, it is my feeling that [the plaintiff] should provide agents with all articles that areof evidentiary value and allow the agents to conduct the investigation unimpeded by hisinterference or input unless requested. Working with [the plaintiff] is an unpleasantexperience that I try to avoid whenever possible."

Fernandez wrote a memorandum to Master Sergeant Debra Landman on November17, 1994, expressing his concern about the plaintiff's conduct in the Robertson murderinvestigation. Fernandez stated that on November 3, 1994, he was the case agent for theRobertson murder investigation. When he arrived at the scene of the crime, he coordinatedwith the Illinois State Police officers, the crime scene technicians, the Washington Parkpolice, and the coroner. Fernandez specifically told the plaintiff that if he needed anythingwith regard to the crime scene, he should coordinate with Fernandez. After Fernandezobserved the plaintiff placing some items inside of his van, Fernandez asked the plaintiffwhat evidence he had found. The plaintiff stated that he had found a .380-caliber shellcasing and that he had "dug a bullet out of the floor under the victim's head." The plaintiffclaimed that he found no other evidence. The plaintiff told Fernandez that he was going tothe hospital to examine the victim's body. Fernandez told the plaintiff to call him after theexamination. Fernandez also asked the plaintiff if he had any additional information for theagents. The plaintiff claimed that he had no further information. Approximately one hourafter the plaintiff had left the scene, Fernandez called him at the hospital, since he had notheard from him. The plaintiff informed Fernandez that the victim had been shot twice in thehead and that they needed to search for another .380-caliber casing. Fernandez told theplaintiff that he would get the key if the plaintiff would meet him at the Washington Parkpolice department. The plaintiff never came to the Washington Park police department. Later that same evening, Fernandez received a telephone call from Captain Lay, commanderof the major case squad. The major case squad was investigating the shooting death of aconvenience store clerk in Belleville, Illinois. Lay explained that Larry Lorsbach, IllinoisState Police crime lab supervisor, contacted Lay and advised him that firearms specialistswere comparing the bullet that killed Robertson to the bullet that killed the conveniencestore clerk. Fernandez stated that this was the first time that he realized that the two crimeswere possibly connected. Fernandez then contacted the plaintiff and asked him about thebullet comparison. The plaintiff informed Fernandez that forensic scientist Jim Hall wasworking on it. Fernandez inquired as to why the plaintiff had not informed him that he wastaking this investigative step. The plaintiff did not respond. He told Fernandez that hewould contact him when he received the results. Approximately one hour later, Fernandezlearned that the bullets matched. Fernandez later learned that the plaintiff had first contactedLay with this information and then contacted Fernandez through Illinois State Police radio. Fernandez stated in his memorandum that the plaintiff had attempted to "run theinvestigation." Fernandez claimed that the plaintiff tried to get a picture of the suspect whenhe was confessing to his involvement in the murders. Fernandez and the plaintiff arguedoutside of the interview room. Fernandez later learned that the plaintiff was on the otherside of the one-way mirror with two detectives and another crime scene technician whileFernandez and others were interviewing the suspect. The plaintiff criticized the officers thatwere conducting the interview. The plaintiff also told the others in the room what he wasgoing to ask the suspect and whom he was going to interview. Fernandez claimed: "[Theplaintiff] consistantly [sic] pryed [sic] in investigative matters that did not involve him. Hecriticized the agents['] and detectives['] work during the investigation. [The plaintiff] wasa major distraction during this investigation." Fernandez claimed that they returned to thecrime scene at the plaintiff's request. The plaintiff supposedly wanted to search the housewith a canine unit. Fernandez noticed that the plaintiff was standing in the driveway doingnothing while the search was in progress. Fernandez later saw the plaintiff interviewing ablack female in the street. Fernandez requested that the plaintiff take additional photographsof the inside of the house, since the plaintiff's previous photographs did not depict the entireinside of the house. Fernandez closed his memorandum by noting that an investigation isa team effort and that the plaintiff had hindered this investigation.

According to Watson, Master Sergeant Mark Johnsey requested that agents providewritten memoranda about their interaction with the plaintiff during the Robertson homicideinvestigation. Johnsey made this request after the plaintiff filed a complaint regarding theconduct of Fernandez, Dye, and Bates. Watson's memorandum is addressed to MajorLonnie Inlow, Area V commander for the Illinois State Police. Basically, Watson claimedthat the plaintiff's conduct had been problematic for a number of years and that the agentshad been reluctant to document the plaintiff's interference with their investigations becausethey worked with the plaintiff "on almost a daily basis." Watson encouraged Major Inlowto interview "all the investigative master sergeants in District 11, as well as investigativecommanders of the major police departments such as Granite City, Madison County Sheriff's Office, and Belleville City." Watson stated that St. Clair County State's Attorney Bob Haidahad also expressed concern about the plaintiff's conduct and that he should be interviewed. Watson claimed that the plaintiff caused conflict and that his continued presence duringinvestigations involving District 11 investigative personnel was "detrimental to the cases." Watson opined that the plaintiff's conduct was problematic only when a case wasnewsworthy or highly visible.

In his complaint, the plaintiff alleged that the defendants made the aforementionedstatements in retaliation for making the complaint regarding Bates' conduct. Hence, theplaintiff claimed that the defendants conspired to and did spread false rumors and allegationsto the effect that the plaintiff withheld information during a homicide investigation and thatthe plaintiff acted improperly during that investigation. The plaintiff claimed that as a resultof the defendants' improper actions, his reputation was damaged and he lost businessopportunities.

The defendants filed a motion to dismiss the complaint, claiming that the complaintshould be dismissed for the failure to state a cause of action. The defendants alsocomplained that the plaintiff's complaint was barred by sovereign immunity. On February6, 1996, the circuit court denied the defendants' motion. The circuit court granted thedefendants leave to refile if the discovery process revealed insufficient facts to sustain thecause of action. The court also stated that the defendants' motion to dismiss based on animproper forum was denied.

The defendants moved for summary judgment on May 8, 1999, and again assertedthe defense of sovereign immunity. On June 7, 1999, the circuit court determined that theplaintiff failed to plead that the officers acted with malice or the intent to harm the plaintiffand, hence, that the plaintiff failed to plead that the officers acted outside of their stateemployment. The circuit court granted the plaintiff leave to file an amended complaint.

On July 2, 1999, the plaintiff filed his second amended complaint. The plaintiffclaimed that on November 3, 1994, he was employed by the Illinois State Police. On thatdate, the plaintiff witnessed Bates questioning Gerald Simpson, a suspect in a criminalinvestigation. During the questioning, the plaintiff witnessed Bates scare, threaten, andintimidate Simpson. As a result, Simpson confessed to murdering Sharon Bushong. Simpson's murder trial resulted in a hung jury, and the case was dismissed before Simpsoncould be retried. According to the State's Attorney, the jury stated that the State did notprove its case, and there was no additional evidence for the second trial.

In their answer, the defendants denied that they defamed the plaintiff or that theyconspired to defame the plaintiff. The defendants raised no affirmative defenses in theiranswer. The defendants then moved to dismiss the plaintiff's second amended complaint. The defendants argued that the complaint failed to plead malice with sufficient particularityand did not explain the oral defamatory statements that the officers allegedly made or towhom they allegedly made them.

The circuit court granted the defendants' motion to dismiss the plaintiff's secondamended complaint. The court stated that an Illinois State Police directive concerningcomplaints and disciplinary investigations clearly outlines a procedure of investigation,administrative determination of fault, implementation of disciplinary alternatives, and reviewof unfavorable decisions with a right to a hearing and other due process guarantees. Thecircuit court determined that the aforementioned process of investigation for the purpose ofdetermining discipline for a state employee is quasi-judicial in nature. The circuit courtstated that because the defendants made the statements pursuant to their mandatory duty tocooperate in the internal investigation of the plaintiff's conduct as a crime scene technician,their statements were absolutely privileged against claims of defamation so as to precludeactions for libel or slander. Finally, the circuit court dismissed the plaintiff's complaint withprejudice since both counts of the plaintiff's second amended complaint stated no allegeddefamatory communication other than those statements made during and pursuant to theinvestigation into a disciplinary matter. The plaintiff appeals.

Initially, we must address the defendants' argument that the circuit court lackedjurisdiction to hear this action because it is barred by sovereign immunity. We disagree.

Pursuant to article XIII, section 4, of the Illinois Constitution of 1970, "Except as theGeneral Assembly may provide by law, sovereign immunity in this State is abolished." Ill.Const. 1970, art. XIII,

Illinois Law

Illinois State Laws
Illinois Tax
Illinois Court
Illinois Labor Laws
    > Minimum Wage in Illinois
Illinois Agencies
    > Illinois DMV

Comments

Tips