Razavi v. Sch. of the Art Inst. of Chi.

2018 IL App (1st) 171409

122 N.E.3d 361

428 Ill.Dec. 352

Omid Shariat RAZAVI, Plaintiff-Appellant,

v.SCHOOL OF THE ART INSTITUTE OF CHICAGO, Eva Walkuski, and Ariel Zekelman, Defendants,

(Eva Walkuski and Ariel Zekelman, Defendants-Appellees).

No. 1-17-1409

Appellate Court of Illinois, First District, Second Division.

Opinion filed on November 20, 2018.

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

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.

JUSTICE LAVIN delivered the judgment of the court, with 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, 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 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, 404 Ill.Dec. 156, 55 N.E.3d 252 ( 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...