No. 2--06--1275 Filed: 10-31-08

______________________________________________________________________________ IN THE AP PE LLATE COU RT OF ILLIN OIS SECOND DI STRICT

______________________________________________________________________________ DAVID M. NAL

EWAY and ) Appeal from the Circuit Court A.N., ) of Du Pa ge Co un ty. ) Plaintiff s-Appell ants, ) ) v. ) No. 04--CH--105 ) KAREN L. AGNI CH, ) Honorable ) Bonnie M. Wheaton, Defendant-Appellee. ) Judge , Pres idin g.

______________________________________________________________________________ JUSTICE O'MAL LEY d elivere d the opini on of the c ourt: Plaintiff s, David Na

leway and his six-y

ear-ol d daught er A.N., appeal f

rom a jury verdict in favor of defe ndant , Karen Agnich , on pl ainti ffs' a ction f or defamation and false-light invasion of privacy in connection with defendant's accusing Naleway of sexually abusing A.N. On appea l , plaintiffs argue that

the trial court tendered an incorrect jury instruction and that the trial court erred inbarring them from questioning de fend ant rega rding h er char ge of mi scond uct agai nst t he jud ge presiding over the trial. For the rea sons that follow, we affirm t he judg ment of the

trial cou rt. In2003, Naleway

was married to defendant's sister, Kristine, a nd A.N. was three y

ears of a ge. Late in 2003, A.N. underwent surgery to remove a deep and hairy mole from her back

and to remove growths called molluscum contagiosum from her thig hs, buttocks, and

groin. Jus tbe fo re su rg er y, Kristine and defendant

met with A.N.'s dermatologist, Dr. Annette Wagne r. Defend ant, a pod iatrist, informed Dr. Wagner that

she was conc erned that the moll uscum gr owths wer

e actua lly genital wa

rtsNo. 2--06--1275

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caused by s ex ua l a bu se . ( In h is te st im on y, Naleway stated that defendant never asked him if he had any genital warts; he testified that he in fact did not.) Dr. Wag ner exam i ned A.N. while she was under anesthesia beforethe surgery and determined that the growths were in fa ct molluscum and not genital warts. She testified that she a lso perfor med a t horou gh physica l exa minat ion, inclu ding a genital examination, on A.N. and found no signs of abuse. Dr. Wagner reca

lled that she thereafter informed Kristine and

defendant that the growths were not genital war ts. She further recalled that she communicated "clearly " that she had performed a full phy sical examination and

"had ab solutely no concerns and found nothing on phy sical exam to substantiate concerns for sexual abuse." Though defendant testified that she had professionally

treated A.N. in connection with her surgery by prescri bing p ain me dicat ion af terwar ds and also b y renderin g m edical opinions upon Krist ine's re qu es t, Kr is ti ne an d N al ew ay b oth testified that they never sought defendant's professional adv ice, never relied on any professional advice from defendant, and did not ask for defenda nt' s prescription. Kristine further testified that she did not

personally tell defe

ndant about A.N.'s surgery and did not want defendant

to be present. In response , defendant adduced testimony from a police officer who interviewed Kristine and re ca lled her say ing that she had sh

own A.N.' s molluscum

to defenda nt. Onthe weekend fol lowing her surgery , A.N. stayed with def

endant (at defendant's insistence, according to Kristine's testimony). De fendant testified that, over the course of the weekend, A.N. revealed, through conversation and conduct, that Nalewa y had sexually abused her, and defendant testified that she relayed her suspicions to Kristine. Defendant reporte d that she

told Kristi

ne that, if Kristine did not do something about the abuse, defendant would. Kristine testified that defendant warned that def endant' s complain

t might le ad to Nale

way and Krist

in e lo sing custody of A .N.No. 2--06--1275

-3-

(Plaintiffs adduced this testimony from Kristine, a s well as testimony reg ard ing what K ristine termed defend ant's "obsess [ion]" with A.N. and testimony regarding defendant's low opinion of Kri stin e's parentingskills, to imply that defendant was motivated to ga in custody of A.N. herse lf.) Kristine testified that she did notbelieve defendant's alleg ations either when they were made or

when they were dis cussed a

t trial. That night, after

relaying her allegations to Kristine, defendant contacted the Department of Childrenand Fam il y S ervices (DCFS ) and reported h er suspicio ns, and, for A .N.'s safety, DCFS ordered Naleway to leave the residence. The next day , Naleway , Kristine, and A.N. wereinterviewed by investigators from the local police and DCFS. Ultimately, neither police nor DCFS pursued the

casebeyond their initial investiga tion. Naleway te stified that he arranged for a letter to be sent to defenda nt to infor

m her tha t DCFS had

opted not t

o pursue i nvestig ation of h

im. A.N.'s pediatrician testified that defendant also contacted him in Sep t ember to relay her accusations against Naleway . The pediatrician recalled that he replied by telling

defendant that

the molluscum were not genital warts and that he did not suspect abuse. InDecemb er of the

same ye ar, def

endant a gain contact ed DCFS with a new c

harge against Na le wa y. Just

as with the

first charge, DCFS conducted an initial investiga tion and did not pursue the case further. The foll o wing Janu

ary , plaintif

fs filed s uit aga inst defe ndant for, among

other thin

gs, defamation

based on defenda nt's sexua l-abuse accusa tions ag ainst

Naleway . The matter proceeded to a jury trial, and the

jury found in favor of defendant. Plaintiffs timely appealed, with out fi ling a posttrial motion (see 735 IL CS 5/2--1202 (West 2006)).No. 2--06--1275

-4-

While this appe al was pe

nding, d efenda nt moved to

di sm is s t he ap pe al or , a lt er na ti ve ly, for summary affirma nce of the judgme

nt, due to p laintiff

s' fail ure to fil e a posttrial motion. See Johnson

v. Transport International Pool, Inc. , 345 Ill. App. 3d 471, 473 (2003) ("if the trial court has entere d judgment on a j ur y ve rd ic t, an d a pa rt y fails to file a posttrial motion, that party has for feited appella te review of all waivable issues"). I n response t o the motio n, plaintiffs suggested that we could consider the issues under the plain-error doctrine or under the princ iple that procedur al defa ult is a l i mitation on the parties and not on the court. In a sepa rate order, we summarily affirmed the trial court's judgment

on three of

plaintiffs' five arguments. We now addre ss only the two remaining issues. Before addressing those two remaining issues, we provide a brief background of the le gal principles underlying

this case. To establish defamation, a plaintiff must present facts showing that the defendant made a defamatory statement about the plaintiff, the defendant made an unprivileged publicationof that statement to a third party , and the publication caused damages. Solaia Te ch no lo gy, LL C v. Specia lty Publishing Co. , 221 Ill. 2d 558, 579 (2006). "A def amatory stateme

nt is a statement that harms a person's reputation to the extent it lowers the person in the ey es of the community

or deters the commu

nity from associ ating with h er or him." Solaia , 221 Ill. 2d at 579. Statemen ts that do not contain factual assertions are protected under the first amendment and may notform the basis of a defamation action. J. Maki Construct ion Co. v. Ch

icago R egiona l Council of Carpenters , 379 Ill. App. 3d 189, 199-200 (2008). Likewise, a statement

may not form the basis of a defamation action wher e it is substantially true. J. Maki Construction , 379 Ill. App. 3d at 203. There are two type s of defamatory statements: defamation per se and defamation per quod

. Brennan v. Kadner , 351 Ill. App. 3d 963, 968 (2004). I n an action for defam ation per quod , theNo. 2--06--1275

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plaintiff must plead and prove actual damages in orde r to recover. Imperial Apparel, L td. v. Co smo's Designer Direct, Inc. , 227 Ill. 2d 381, 390 (2008) (summarizing appellate c ourt decision). If a defamatory

statement is actionable per se , on the other hand, the plaintiff need not p lead or prove actual damage

to his or her reputation to recover. Bryson v. Ne ws America Publications, Inc. , 174 Ill. 2d 77, 87 ( 1996). " Rather, statement s that fal l wit hin these actionable per se categories are thought to be so obv

iously and mate

rially harmful t

o [the plain

tiff] that i

njury to the pla

inti f f's reputation may be presumed." Bryson , 174 Ill. 2d at 87. "In Illinois, there are

five ca te go ri es of

st at em en ts th at ar e c on si de re d d ef am at or y per se : (1) words that impute a person has committed a crime; (2) words that impute a person

is infect ed with

a loathsome communicable disease; (3 ) w ords that impute a person is unable to perform or lacks integr ity in performing he r or his emp loy ment dutie s; (4) wor

ds that impu

te a person lacks

ability

or otherwise prejudices that person in her or hi s profession; and (5) words that impute a person has engaged in adultery or forni cation." Solaia , 221 Ill. 2d at 579-80. Plaintiffs asserted that defendant made defamatory

statements accusing Nalewa y o f a crime; plaintiffs thus accused defendant of defamation per se . At trial , defendant did not deny that she made the allegedly defamatory

statements about Na le wa y; instead, she sought refuge under a qualified privilege and under the Abused a nd Neglected Child Reporting Act (Reporting Act) (325 I LCS 5/1 et seq. (West 2002)). A defamatory

statement is notactionable if it is privileged. Solaia , 221 Ill. 2d at 585. The presence or absence of a privilege is a que stion of law. Solaia , 221 Ill. 2d at 585. "There are two classes of privile ged sta

tements: t

hose subje ct to an a

bsolute p rivilege, and those subject to a conditional or qualifie d privilege." Solaia , 221 I ll. 2d at 585. "An abs olute priv ilege provides aNo. 2--06--1275

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complete bar to a c laim

for def amation, regar

dless of the de fendant's motive or the unr easonab leness of his or her conduct." Thompson v. Frank , 313 Ill. App. 3d 661, 664 (2000). A qualified privilege,

onthe other hand, can be exceeded and the pr ivilege thereby

defeated in circumstances where the defendant makes fa lse statemen

ts with an intent to injure or with a reckless disregard for the truth. Kuwik v. Starma

rk Star Ma

rketi ng & Ad

ministration, Inc. , 156 Ill. 2d 16, 30 (1993). A qualified privi lege prot ects com

munications that wou

ld normall

y be defama tory and acti onable, i

n order t o effect the policy of

protecting honest communications of misinformation in certain favored circumstance s an d thus facilitate the availability of c orrect information. Kuwik , 156 Ill. 2d at 24. To determine i f a qualified privilege exists, a court "looks only to the occasion itself for the communicationand determines as a matter of law and g eneral policy whether the occasion created

some recognized duty

or interest to make the commun ication so as to make it privileged." Kuwik , 156 Ill. 2 d at 27. I

n determ ining whether a

qualifie d privilege exists, a court i s to consider only the general typ e of comm

unication involved , not the pa rticular communic ation invo lved in the case sub judice

. Kuwik , 156 Ill. 2d at 28, quoting 2 F. Harper, F. James & O. Gr ay, Torts §5.25, at 214 (2d ed. 1986). The determination as to whe ther a q ualif ied pr ivil ege exists in a given case is a question of lawreserved to the trial court. Kuwik , 156 Ill. 2d at 25. After the trial court ha s determined that the defendant holds a qualified privilege, the only factual issue left

for a jur y is the question of whether the defe ndant abu sed the pr

ivilege in making

the allegedly

defama tory statemen t. Kuwik , 156 Ill. 2d at 25. Here, t

he tr ial co urt de termi ned th at the type of com muni catio n at is sue--d efenda nt's relaying her suspi cions abo

ut Nalewa

y to police and DCFS--should receive a qualified privileg e. Plaintiffs do not dispute that determination.No. 2--06--1275

-7-

Defendant

also asserted that her statements were protec ted under the Reporting

Act, which provides that "[a]n

y ph ysi cian *** having r

easonab le cause to

believe a child known to th em [ sic ] in their [ sic ] professi onal or of ficial c apacity

may be an ab used chil d or a neg

lected c hild shall immed iately

re por t o r ca use a re por t t o be mad e to [D CFS ]. " 32 5 ILCS 5/ 4 (W est 200 2). "In addition [to those who are required to report under section 4], any other person may

make a report if such person has re asonable cause to believe a child ma

y be an abuse d child

or a neglected

child." 325 IL CS 5/4 (West 2002). "Any person *** participating in good faith in the making of a report

or refer ral *** shall have

immunity

from any liability , civil, criminal or

that othe rwise mig ht result by reason of such act ions." 32 5 ILCS 5/9 (West 2 002). "F or the pur pose of a ny p roceed ings, civil

or criminal , the go od faith o f any persons r equir ed to repo rt ***, or permitted to report, cases of suspected child abu se or neg

lect *** shall be presumed." 325 IL CS 5/9 (West 2002). The trial court determined

that there was a factual question as to whether A.N. was " known to [defendant] in [her] professional or official capacity " (325 ILCS 5/4 (West 2002)) such thatdefendant was a mandatory

re po rt er , a nd th e t ri al co ur t t he re fo re le ft th at qu es ti on to th e j ur y. Withthat legal background, we move to address plaintiffs' arguments on appe al. Plaintiffs first argue that the jury

instruction regarding defenda nt's possession of a qualified pri vilege incorre ctly

stated the law, confused

th e j ur y, and misrepresented plaintiffs' position about whether they ag reed that defendant was a mandatory reporter. It is within the trial court's di scre tion to determine which instructions to give the jury , and

a reviewing court

will not disturb such a determination absent a showing that thetrial court abused its discre tion. Schultz v. Northeast Illinois Regional Commuter R.R. Corp. , 201 Ill. 2d 260, 27 3 (2002). In the jury

-instruction context, the standard for determining whether a c ourt has abuse d itsNo. 2--06--1275

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discretionis whether, as a whole, the jury instructions fairly, fully

, and comprehensivel y apprised the jury of the relevant legal principles. Schultz , 201 Ill. 2d at 273-74. We will reverse the tria l court for giving faulty

jury instructions only

where the instructions clearly misled the jury and resulted in prejudice to the appellant. Schultz , 201 Ill. 2d at 274. The trial cou

rt gave the jury a modifie d version

of Il linois Patte

rn Jury Inst ructions, Civil, No. 20.01 (2006). T

he instru ction stat ed as fol lows: "The plaintiff

s claim tha

t they were inj u red a nd sustained damage, and that the defenda nt was re sponsible

for their injuries i n one or more of the

following

respects:

a. The defendant defamed the Plaintiffs by repres enting t

o law enforcement auth oriti es and othe

rs tha t Plai ntiff Davi d Nal eway

had s exual ly

abus ed [A. N.]; b. The def

endant pl aced th e Plainti ffs in a false light before the public by representing

to law enforcement authorities and othersthat Plaintiff David Naleway had s exual ly

abus ed [A. N.]. The plaintiffs further claim that one or more of the fore going

was a pr oximate ca

use of their i njuries. The def endant de nies that she defa

med the pl aintiffs

. The def endant a lso sets up

the follow

ing aff irmative defense s: a. The defendant has a qualified privilege to make the statements rega rding the plaintiff [ sic ] and she did not abuse her privilege; and b. the defe ndant is immune from liability for making the statements regarding th e plaint iff [ sic ] because she was a mandated or permitted repor ter under the [Reporting Act], and she made said statements in good faith.No. 2--06--1275

-9- The plaintiff[s] assert[] that the defendant abused her qualified privilege and that she is not entit

led to immun

ity u nder the Abused a nd Negl ected Ch

ild Report

ing Act

. The defenda

nt furthe r denies that the p laintiff

[s] [were] injured or

susta ined damages." Another instruction told the jury that defe ndant enjoyed a

qualified privilege and that the jury was charged with determining whe ther the privilege had been abused. Plaintiff s' initial contention is that we must reverse the jury's verdict be cause the above instruction, which stated that plaintiffs "assert[ed] that the defendant abused her qualified privilege," incorre ctly

implied thatplaintiffs agreed that defendant's communication was entitled to a qualified privi lege when, in fact, plaintiffs disputed that point. We disagree. The trial court determined that defend ant's communication was qualifiedly pr ivileged. The issue of w

hether p laintiff

s agre ed with that determination was immaterial to the jury's ve rdict. Thus, even if we were to agr ee with plaintiffs that the above instruction was faulty for the reason stated, plaintiffs cannot make the showing of prejudice necessary

to mandate reversal. See Schultz , 201 Ill. 2d at 274. Plaintiffs next assert that the above instruction was erroneous because defendant "pre sented

no evidence" that she knew A.N. in a professional capacity so as to be a mandatory

reporter under the Reporting Act, and thus plaintiffs argue that the issue should not have be en prese

nted to th e j ur y. " ' "A ll that is re quired to

justify the givi ng of a n instruc tion is that there be some evidence inthe record to j ustify the theory of the in struction ." ' [Citati ons.]" LaFever v. Kemlite Co. , 185 Ill. 2d 380, 406 (1998). The evidence required to justify the trial court's giving

an instruction may be insubstan tial, and the question of what issues have sufficient support in the evidence to a llow an instruction is a matter within the trial court's discretion. LaFever , 185 Ill. 2d at 406. We disagreeNo. 2--06--1275

-10-

with plaintiffs' assertion that there was no evidence to support the notion

that def endant w as a mandated reporter. Although there was substantial evidence, primarily from Naleway

and Kristine, that defendant had

no part in A.N.'s treatment, defendant herself testified that she examined A.N. at Krist ine's request, and the police officer who interviewed Kristine offered testimony to confirm defend ant's position. Accordingly , we reject plaintiffs' position that the evidence did not justify the instructi on reg arding

the Repor

ting Ac t. We also disagree with plaintiffs' contention that the trial cour t should have instructed the jury that "malice is presumed under defamation per se ." Plaintiffs seem to imply in their brief that the trial court should have instructed the jury to apply a presumption of malice in determining whether defendant abused her qualified

privilege. We cannot adopt this approach. If, a s plaintif fs seem to assert, the malice necessary to overcome a qualified privilege wer e conclusively pr

esumed in every actionfor defamation per

se , t ha t p re su mp ti on wo ul d a lw ays eviscerate any qualified privilege, and the idea of a qualified privilege in a def amation per se

case wo uld become meanin

gless. Plaintiffs draw the ir

as sertion that malice is presumed in defamation per se cases from precedent that admittedly gives supe rfi cial support to their position. See, e.g. , Myers v. The Telegraph , 332 I ll. App. 3d 917, 925 (2002) (in a defamation per se case, "three presumptions arise:

a presumption of

falsity, a presumption of

damage , and a pr

esumption

of malice "); Joseph v. Col lis , 272 Ill. App. 3d 200, 210 (1995) ("Onc e it is determined that written or printed words are libelous per se , a pl aintiff h as the right to a cause of action for def amation without proof of malice and withouta showing

of speci al damag es, as bot h malice and

damage s are pr

esumed" ); Rosner v. Field Enterpr ises, Inc. , 205 Ill. App. 3d 769, 790 (1990) ("Onc e it is determ ined that writt en or printed words are actionabl e per se or libelou s per se , plaintiff has the right to a cause of action forNo. 2--06--1275

1 The United States Supreme Court later held on first amendment grounds that malice need be shown in cases of defamation reg ardin g public plaintiffs, media defendants, and/or matters of -11- defamation

without proof of malice and without a showing of special damage s, as both malice and damages are presumed"). However, these cases convey a misleading description of defamation per

se . To explain t

he mistake

underly ing plai ntiffs'argume

nt, we offer a brief digr

ession into the development of the law of defamation. In the e arliest actions for defamation, dating back to the MiddleAges, animus or bad intent was considered an element of the cause of action. J. Sipe, " Old Stin king, Old

Nasty , Old I

tchy Old Toad: " Defama

tion L aw, Warts

and All (A

Call for Re form) , 41 Ind. L. Rev. 137, 139 (2008). However, as the law evolved, courts discarded malice as an element of defamation: "But in an ordinary a

ction for a libel or

for words, though evidence of malice may be

given to increase the d amages, it never is considered as e ssential, nor is there any instance of a verdict for defendant o n the ground of want of mali ce." Bromage v. Prosser , (1825) 107 En g. Rep. 1051, 1055 (K.B.) As a way to accom modate the idea that

malice was no longer required a s a element of defamation, Illinois commo n law came to assign a prima fa cie inference of malice to the publication of defamatory

material (see, e.g. , Adair v. Timblin , 186 Ill. App. 133, 136 (1 914), quot ing Wright v. Woodgate , 2 Cromp. M . & R . 573 ), and, at that time, in the absence of some privilege, a plaintiff needed to show

malice only as

a prerequisite to obtaining punitive damages (se e, e.g. , Lorillard v. Field Enterprises, Inc. , 65 I ll. App. 2d 65 , 78 (1965 ) ("I n order t o recove r punitive damage s in

a libel action some malice must be found")). 1 It isin this context that courts stated that malice should beNo. 2--06--1275

public concern. New York Times Co. v. Sullivan , 376 U.S. 254, 1 1 L. Ed. 2d 686, 84 S. Ct. 710 (1964). As this case involves only private pa rties, we do not

include the New York Times malice requirement in our discussion. -12- presumed in cases of defamation pe r se . Lorrillard , a case from 1965 that appears in the chain of p recedent underly ing the t hree ca ses that su

perfic ially

support pl aintiffs ' position, illustra te s thi s development: "In order to

recove r punitiv e da mages in a libel action some malice must be found. I f the words ar e h el d t o b e p er se ac ti on ab le , t he ne ce ss ar y malice is imputed from the words themselve s; the law conclusively pr esumes malice in law, and gene ral damages, without proof of los s or injury, are concl usively presumed. " Lorillard , 65 Ill. App. 2d at 78. See also Cook

v. East Shore Newspapers, I nc. , 327 Ill. App. 559, 595 (1945) ("whe re the defamation is actionable per se , the general damage s without proof of loss or injury , is concl

usively presumed. Where actual malice exists, punitive dama ges may be awar ded"); Coop er v. Ill inoi s Pub lish ing & Printing Co. , 218 Ill. App. 95, 117 (1920) ("a s where the words ar e libelou s per se , exemplary and punitive damages may

be allowed even though based only upon implied malice"). However, in the time since Lorillard , courts have largely dropped the confusin

g refe rence t o malice as an element of defamation or of certain type s of damag es in a de famation case. T hus, instead of stating

that malic e and da

ma g es are presumed in an action for defa mation per se , the modern formulation of

defamation per

se explains simply that damages ar e presumed. E.g. , Bryson , 174 Ill. 2d at 87. The common-lawjustifica tion for the qualif

ied defa mation pri

vilege has alsoevolved w

ith the changing standards for de famation. The qualified privilege was at onetime seen to " 'rebut[] theNo. 2--06--1275

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prima facie inference of malice

aris ing f rom [a defa mator y s tatement] and t

hrow [] on [the plaintiff] the onus of p roving malic e.' " (Emphasis omitted.) Adair , 186 Ill. App. at 136, quoting 2 Cromp. M. & R. 573; see also Bloomfield v. Retail Credit Co. , 14 Ill. App. 3 d 158, 166 (1 973) ( citi ng Adair for the same proposition). However, perhaps as a refle ction of the fact that court s no longer require

a stateme n t to have been malicious to be considered defamatory , courts now view the qualified privi lege not as re

butting t he presu mption of ma

lice that attaches to a defamatory statement, but instead a s protecting com munications that wou

ld otherw ise be actionable. See Kuwic , 156 Ill. 2d at 30. The defendant's "malice" in making an otherwise qualifiedly pr

ivileged defamatory

statement is relevant now because it may demonstrate that the defendant exceeded or abuse d t he qu alified privilege, so that liability should attach. Kuwik , 156 Ill. 2d at 30. Even so, we wa

rn that " malice" is imprecise shorthand to describe the circumstances under whicha qualified privilege will be considered abuse d and thereby forfeited. See W. Prosser, Torts §115, at 794-95 (4th ed. 1 971) (" if the privil ege is otherwise established ***, the addition of the fact that the defen dant feels in dignati on and re sentment t oward th e plaintif

f and enj oys

defamin g him will notalway s forfe it [the privilege]" ). Courtsnow often instead use the term "actual malice" to describe the circumstances under

which a defendant will be seen to have abused a qualified privilege. See Kuwic , 156 Ill. 2d

at 30. "[A]n ab use of [the] qualified privilege may consist of any re ckless act whichshows a disregard for the defa med party' s rights, includingthe failu re to properl

y in vestiga te the truth of the matter , limit the sc ope of the materia l, or send the material to only the proper pa rties." Kuwic , 156 Ill. 2d at 30. Withthat dig

ression, we retur

n to the ins tant cas e . In a rguing that, bec ause this

was a ca se of defamation per se , the jury here should ha ve been instructe d to presu

me malice

to overc omeNo. 2--06--1275

-14-

defend ant's privilege (instead of being instructed that actual malice was required in order to defea t the quali fied p rivil ege attache d to defe ndant' s stateme

nts) , plaintiffs misconceive the role of malice ina case of a qualifiedly

privileged communication of defamation per se . The malice plaintiffs refer to as being presumed in a defamation per se case is the malice

that used to be nec essary

to establi sh damage s. Today, howeve r, we do n

ot use the word "ma

lic e" i n this cont

ext; we inste ad say

that a plaintiff who establishes defamation per se need not p

rove damages in

order to recover. Indirecting

us to the case law we cite above as giving superficial support to their position that malice should be presumed for purposes of assessing

the quali fied priv

ilege i nactions for defamation per se , plaintiffs invoke boilerplate that retains and misstates vestiges of an antiquated view of the law. Further, even if the law di d retain

a presum ption of ma

lice in de famatio n per

se cases, t

hat pres umption wou

ld relate only to dama

ges, and not to the qualified privilege. Based on the above discussion, we disagr ee with pl aintiffs

that the ju

ry s hould have been instructed to presume malice for purposes of deciding the ap plica bili ty of a qual ified privi lege in this case, and we r

eject pla intiffs' argume nt that the

verdict here shou ld be reversed due to faulty jury instructi ons. To the extent the language used in Myers , 332 Ill. App. 3d 917, Joseph , 272 Ill. App. 3d 200, and Rosner , 205 I ll. App. 3d 769, sug gests di ffere

ntly , we depa

rt from those deci sions. Plaintiff s' second a

rgumen t on appea

l is that the

trial cou rt committe d rever sib le error by precludingthem from questioning defendant about the contents of a c omplaint she f iled with the Judicial Inq

uiry Boa rd (JIB) ag ainst the judge presiding over the trial. (De fendant attached the complaint to a pretrial motion for substitution of judge that was eventual ly denied.) During trial, plaintiffs sought to in trodu ce int o evid ence de fendan t's JIB c omplaint a gainst t he trial j udge a

nd to examine de fendant

regar ding he r purpor ted allegation in the

complain t that she w

ould conti

nue toNo. 2--06--1275

-15-

pursue charges of sexual abuse by Naleway . The trial court

rec ogn iz ed t hat th e J IB complaint might be relevant, but it neverthe les s refused to allow plaintiffs to adduce testimony regarding the complaint, on the ground that the information was privileged. As a threshold issue, defendant asserts that the tra nsc ript of the hearing at which the trial court disallowed

plaintiff s' evide nce doe s not spec ifically

identify the document plain

tiffs soug ht to introduce, and defendant

further observes that plaintiffs never tendere d any document a s evidence for the record. Thus, defendant arg ues, the record is not sufficiently clear to allow our review

of this issue. We disagree. DuringNaleway's testimony, plaintiffs' counsel attempted to question Naleway as to whether he had any ba sis to be lieve that def endant in tended to file fur ther cha rges a gainst h im. Defe nse counsel objected, and, at the ensuing sidebar discussion, the trial court informed plaintiffs' counsel that he could not ask Naleway about his "fears about wha t [defend ant] may or may not do" un

less he could eli cit some su

pport for those fe ars. Plaintiffs' counsel responde d that "the defen dant wro te

anaffidavit out, and I think y ou're aware of it, that said that she inte nds to file further charges." Counsel further explained that the affidavit was "part of the matter that involved [the trial judg e]" and "part of their motion." The trial court did not allow plaintiffs' c ounsel to question Naleway regarding the d ocument. After the close of defendant' s case, plaintiffs' counsel and the trial court

en ga ge d i n t he fo ll ow in g c ol lo qu y:

"[COU NSEL ]: *** I

would like

to call [def

endant] as a rebuttal witness based on what we told your

Honor during the trial; that therewas a statement or actually a letter *** that we tendered to y

ou during Mr. Naleway

's-- THE COURT : This is a privileg ed commun ication. I' m not goin

g to allow that.No. 2--06--1275

-16- [COUN SEL ]: Not the ent ire exhibit, just the statement about the fact that she believes that this has sti ll--that

[A.N.] is still

being abused by

Mr. Naleway

and this letter was written in May of this y

ear. THE COURT: No, I'm not going to allow a ny t estimony with reg ard to that affidavit." The common-law record includes defenda nt's motion for substitution of judge for cause, to which defendant appended a copy

of her JIB complaint ag ainst the trial judge. The complaint, which bears defendant's signature a

nd is dated May 2006, includes the f ollowing passage: "[The trial cou

rt] put a r estraini

ng orde r on me[,] the

mandate d report

er, so tha t I cannot help my n

iece. I am the onl

y one who has tried to help her. I cannot call the police

or DCFS according to [the trial co urt] to r eport further abuse which I know has been occurring." Even though plaintiffs did not ten der the c omplaint se

parate ly as an exhibit, we can easily infer from the above portions of the record that the JIB complaint was the document the trial court barred plaintiffs from using

to question defend

ant. Be cause the recor

d allows ou

r revie w of plain

ti ffs ' argument that the trial court erred in excluding testimony regarding defe

ndant's JIB complaint, we address that arg ument on its

merits

. Norm al ly, a trial c ourt's d ecision r egard ing the a dmission or

exclusion o f eviden

ce rest s within its sound discretion and will not be disturbed absent an abuse of that discretion. People ex rel. Department of Tr

ansporta tion v. Kota

ra, L .L.C. , 379 Ill. App. 3d 27 6, 286 (2008). However, where the issue on appea

l is not whether the trial court properly exercised its discretion to exclude evi dence but instead whether the trial court misinterpreted the law in excluding evidenc e, the question presented on appeal is one of law, and our re view is de novo . See Townsend v. Sears,No. 2--06--1275

-17-

Roebuck & Co. , 227 I ll. 2d 147, 154 (2007) (questions of law are reviewed de novo ); see also Najas Cortes v. Orion Securities, Inc. , 362 Ill. App. 3d 1043, 1047 (2005) (a trial cour t abuses its discretion when it makes an error of law). Bec ause the basis of the trial court's decision to excl ude th e J IB complaint was its de

terminat ion that the

complain

t was priv

il eged as a matte

r of law, plaintiff

s' challenge to that decision presents a leg al question, which we review de novo

. Onthe question of whether the JIB complaint wa s privileged, the parties direc t us to our suprem e court' s decision in People ex rel. Illinois Judicial Inquiry Board v. Hartel , 72 Ill. 2d 225 (1978). In Hartel , Judge Charles Alfano had been arrested for two misdemeanor offenses, and the JIB began an investigation of the incidents. Hartel , 72 Ill. 2d at 227. Duri ng his cr iminal trial, Alfano sought to compel the JIB to disclose the fruit s of its investigation so that he could obtain any exculp atory

e vidence the JIB may

have uncovered. Hartel , 72 Ill. 2d at 227-28. The trial court ordered the JIB to produce its evidence, a nd the JIB filed an original petition for mandamus with the supreme court. Hartel , 72 Ill. 2d at 227-28. Our supreme cour t noted that the JIB, which was crea ted by the I llinois Cons titution, w as author ized under

article VI , section

15(c), o f the con stitution to conduct investigations, receive or initiate complaints concerning judges, conduct inve stig ations thereon, and file a complaint with the Courts Commission where an inve s tigation revealed a

reasona ble basis t o charge a j udge with misconduct or disability. Hartel , 72 Ill. 2d at 229. That section also provided

(as it now

provides ) that "[a]ll proceedings of the [JIB] shall be confidential except the filing of a comp laint with t he Courts C ommission." Ill. Const. 1970, art. VI, §15(c); see Hartel , 72 Ill. 2d at 229. The supreme court ultimately held that federal due process con cerns mandated that Alfano be allowed access to the JI B's evidence, bu t it emphasized that, as a clear constitutional mandate, the confidentiality pr ovisi on of section 15(c) "is impervious to legislativeNo. 2--06--1275

-18-

orjudicia l change, and it must be implemented except as overriding F ederal due proce s s requirement s compel [ courts] t o do otherwi se." Hartel , 72 Ill. 2d at 230. Th e parties here d ebate whether the interests at stake in this case rise to the sa me level as those at play in Hartel , so that those interests should override the co nfide ntial ity langu age of section 15(c). However, by

focusing on

th e in ter est s of

th e pe rso n se eki ng t o us e th e J IB evidence instead of the ident

ity o f the par

ty d is closing the JIB evidence, the litigants ove rlook a fundamental distinction between this case and Hartel . In Hartel , the question was whether the JIB c ould be comp elledto disclose information relating to an investigation. Here, by contrast, the JIB is not directly involved in the action, and th e qu est io n i s wh eth er t he c ont ent s of a J IB complaint already publicized by a private par ty may be used at trial. Article VI, s ection 15 , of the I

llinois Cons t it ution cre ated the JIB a nd outline s rules for its operation, but we do not read it as governing, or e ven relating to, the behavior of private parties. See Ill. Const. 1970, art. VI, §15. Therefor e, section 15(c) mandates confide

ntiality of JIB procee dings, butthat manda te, just

like sec tion 15 as a

whole, a pplies to the JIB , not to pri vate par ties. While section15(c) would have precluded the JIB from revealing

defenda nt's com plaint or i ts conten ts, it did not preclude plaintiffs' use o f that co mp laint once defendant disclosed it. Accordingly , we conclude that the tr

ial cour t erred in finding

that the c ontents of

a JIB complain

t, whichdefendant herself disclosed by

appending it to a motion filed in this case, was privileged and could not be used as evidence. Alth ough we conc lude that the trial court er red in excluding the JIB complaint evidence on the ground that it was privileged, our discussion does not end there. In her brief, de fendant argues that, notwithstanding the privilege issue, the JIB evidence was properly excluded as inappropriateNo. 2--06--1275

-19-

rebuttal evidence. Plaintiffs' argument regarding the JI

B complaint

centers on the trial court's refusa l to allow the

m to call defendant as a rebutt

al witnes s to answe

r questions rega

rding the compla

int. However, as defendant observes, plaintiffs called defe ndant as a witness in their case-in-chief but chosenot to questiondefenda nt rega rding the compla

int at that time . In chall enging t he tri al cou rt's decisionnot to all ow t hem to que st io n de fen dan t re gar di ng t he J IB complaint as rebuttal, plaintiffs failto direct us to any

portion of

defenda nt's evi dence that the JI

B evide nce woul d have se

rved to rebut. In fact, plaintiffs'

response to defendant's point that theJIB evidence was improper rebuttal concedes this very

point: in the ir reply

brief, p laintiff

s assert t hat t hey wer e "seeki ng to re call Defendant

in an effort to obtain additional testimony re garding malice." The purp ose of re buttal, of course, is not to provide a second opportunity to introduce evidenc e that could have been introduced ina plaintiff's case-in-chief. Rather, " [r]ebuttal e vidence is admissib le 'if it

tends to explain, re

pel, contradict or disprove the evi den ce of [the] defendant.' [ Citatio n.]" Lagestee v. Days I

nn Management

Co. , 303 Ill. App. 3d 935, 942 (1999). Because plaintiffs have not identified for us any portionof defendant's evidence that the JIB evidence w ould have rebutted, we conclude that they have not met their burden to establish reversible error. For the f orego ing rea sons, we a

ffirm the judgmen t of the tr ial cour t. Affirmed. JORGENSEN and BURKE, JJ., concur.