Appellate Court Reviews Exclusion Of Judicial Inquiry Board Complaint In Defamation Action

David Naleway and his minor daughter sued the girl’s aunt, Karen Agnich, for defamation after Agnich accused David of sexually abusing the daughter. David and daughter appealed from a jury verdict in favor of Agnich. Two issues are notable for appellate practitioners.

During the trial, Naleway tried to introduce a complaint Agnich made about the trial judge to the Judicial Inquiry Board. But the trial judge would not allow the complaint to the JIB into evidence, saying it was a privileged communication.

Naleway appealed that ruling. But the complaint to the JIB was not made a part of the record in Naleway’s defamation case. Agnich argued that the appellate court should not consider the matter because “the transcript of the hearing at which the trial court disallowed plaintiffs’ evidence does not specifically identify the document plaintiffs sought to introduce, and … plaintiffs never tendered any document as evidence for the record.”

The Second District Illinois Appellate Court disagreed. The court ruled that discussion on the record in the trial court about the complaint to the Judicial Inquiry Board was sufficient to allow the appellate court to consider Naleway’s appeal, even in the absence of the document.

The parties also fought about the proper standard of review of Naleway’s challenge to the exclusion of the JIB complaint. The usual standard of review for an evidentiary ruling is whether the trial court abused its discretion. But Naleway argued for a de novo standard in which the trial court gets no discretion.

The appellate court agreed with Naleway, ruling that it was a question of law that required the tougher standard of review.

[W]here the issue on appeal is not whether the trial court properly exercised its discretion to exclude evidence but instead whether the trial court misinterpreted the law in excluding evidence, the question presented on appeal is one of law, and our review is de novo. … Because the basis of the trial court’s decision to exclude the JIB complaint was its determination that the complaint was privileged as a matter of law, plaintiffs’ challenge to that decision presents a legal question, which we review de novo.

Get the whole case, Naleway v. Agnich, No. 2-06-1275 (10/31/08) by clicking here.