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Appeals panel points to legislative privilege in dismissing defamation suit against Lake Forest alderman

By Kenneth Lowe | May 29, 2014

Declining a litigant's "invitation to effectively gut legislative privilege," an Illinois appeals panel earlier this month upheld the dismissal of a defamation lawsuit lodged against a Lake Forest alderman over comments he made at a 2012 city council meeting.

The Second District Appellate Court in a May 21 unpublished order affirmed the lower court's decision to throw out Kerry Friedman's defamation suit against Lake Forest Second Ward Alderman David Moore, after determining the plaintiff simply couldn't overcome the fact his comments were "absolutely privileged."

Friedman sued Moore both as an individual and in his public capacity, as well as the City of Lake Forest.

Her suit stemmed from a previous action that arose out of her opposition to a neighbor's plan to perform property improvements. Friedman brought her challenge over her neighbor's permit to the City Council and at one point, sued her neighbor, claiming she represented the city's interests after the city had already issued the permit.

At a Feb. 6, 2012 council meeting that followed those events, Friedman alleged Moore read aloud a letter he wrote that included some very specific feelings about her attempts to derail the planned property improvements.

"I'd like to take a moment and make public my disappointment in my neighbor, Kerry Friedman, and her Unkind, Relentless, and Wasteful Pursuit of stopping a building project on land adjacent to her own," the May 21 appellate court order quotes Moore as saying at the council meeting.

It goes on to quote Moore as saying, "I feel strongly that these types of righteous, self-serving actions are not in character with Lake Forest and damage us all to an extent."

Friedman sued Moore and the city for defamation per se, false light, negligent infliction of emotional distress and deprivation of civil rights, asserting the comments he read during the meeting defamed her and were unrelated to any public business.

In seeking an unspecified amount of compensatory and punitive damages, she alleged Moore had defamed her "under color of state," and as a result, suffered financial and reputational damage and deterioration to her physical and mental well-being.

On behalf of the appeals panel, Justice Ann B. Jorgensen wrote that Friedman's suit hinged on whether speech delivered during a public meeting can ever be used as the basis of litigation.

Lake County Circuit Judge Christopher C. Starck ruled that it cannot and Friedman argued on appeal, according to the order, that "legislative immunity should not apply to defamatory statements made in a legislative session outside the scope of the legislator's official duties and intended to infringe upon an individual's rights."

In affirming the lower court and rejecting Friedman's arguments on appeal, the Second District held the absolute privilege of legislative speech overrides Friedman's concerns.

The panel further determined Friedman's contention that Moore's comments were unrelated to legislative work were false because he mentioned the hours of manpower and discussion the city had to engage in to address Friedman's efforts.

"We decline [Friedman]'s invitation to effectively gut legislative privilege," Jorgensen wrote for the panel. "We disagree with [Friedman] that the state was 'not even arguably germane to matters before the legislative body.'"

She added, "When Moore made his statement, he spoke as 'Alderman of the Second Ward,' at a City Council meeting, regarding plaintiff's actions that had embroiled the city in administrative and legal proceedings."

Justices Susan F. Hutchinson and Donald C. Hudson concurred in the order Jorgensen delivered.

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