{ "id": 221479, "name": "LAWRENCE M. LYKOWSKI, Plaintiff-Appellant and Cross-Appellee, v. ROBERT L. BERGMAN, Indiv. and as Chairman of the 13th Judicial Sub-Circuit Republican Campaign Committee, et al., Defendants-Appellees and Cross-Appellants", "name_abbreviation": "Lykowski v. Bergman", "decision_date": "1998-09-18", "docket_number": "No. 1-96-4169", "first_page": "157", "last_page": "168", "citations": [ { "type": "official", "cite": "299 Ill. App. 3d 157" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "415 N.E.2d 434", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "91 Ill. App. 3d 735", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3151315 ], "weight": 2, "year": 1980, "pin_cites": [ { "page": "744" }, { "page": "744" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/91/0735-01" ] }, { "cite": "445 N.E.2d 59", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "112 Ill. App. 3d 109", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5431964 ], "year": 1983, "pin_cites": [ { "page": "112" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/112/0109-01" ] }, { "cite": "508 N.E.2d 772", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1987, "opinion_index": 0 }, { "cite": "155 Ill. App. 3d 796", "category": "reporters:state", "reporter": "Ill. 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App. 3d 266", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2498181 ], "year": 1990, "pin_cites": [ { "page": "269-70" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/193/0266-01" ] }, { "cite": "437 N.E.2d 774", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "107 Ill. App. 3d 373", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3023870 ], "year": 1982, "pin_cites": [ { "page": "377" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/107/0373-01" ] }, { "cite": "525 N.E.2d 868", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "171 Ill. App. 3d 443", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3618089 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/ill-app-3d/171/0443-01" ] }, { "cite": "485 N.E.2d 372", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "108 Ill. 2d 502", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3130445 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/ill-2d/108/0502-01" ] }, { "cite": "462 N.E.2d 1262", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "123 Ill. App. 3d 539", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5678880 ], "year": 1984, "pin_cites": [ { "page": "541-42" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/123/0539-01" ] }, { "cite": "554 N.E.2d 1071", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1990, "opinion_index": 0 }, { "cite": "197 Ill. App. 3d 625", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2484044 ], "weight": 2, "year": 1990, "pin_cites": [ { "page": "629" }, { "page": "629" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/197/0625-01" ] }, { "cite": "159 Ill. App. 3d 142", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3612464 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/ill-app-3d/159/0142-01" ] } ], "analysis": { "cardinality": 1072, "char_count": 24461, "ocr_confidence": 0.78, "pagerank": { "raw": 4.05143228992093e-07, "percentile": 0.9077782140966519 }, "sha256": "1622d1019677ebec33ccbb7a10b52f157338f33d763ef666650182fbbd1c72a8", "simhash": "1:3b7d65f3afe08e56", "word_count": 3984 }, "last_updated": "2023-07-14T17:02:33.989314+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "CAMPBELL, RJ, and GREIMAN, J., concur." ], "parties": [ "LAWRENCE M. LYKOWSKI, Plaintiff-Appellant and Cross-Appellee, v. ROBERT L. BERGMAN, Indiv. and as Chairman of the 13th Judicial Sub-Circuit Republican Campaign Committee, et al., Defendants-Appellees and Cross-Appellants." ], "opinions": [ { "text": "JUSTICE ZWICK\ndelivered the opinion of the court:\nThis appeal is from a judgment entered pursuant to sections 2 \u2014 615 and 2 \u2014 619 of the Code of Civil Procedure (735 ILCS 5/2 \u2014 615, 2 \u2014 619 (West 1996)) on defendants\u2019 motions to dismiss the plaintiffs one-count complaint alleging libel. The cross-appeal is from an order of the circuit court denying defendants\u2019 motion pursuant to Supreme Court Rule. 137 (134 Ill. 2d R. 137) for sanctions. In addition to defendants\u2019 Rule 137 cross-claim, we are asked to consider (1) whether the trial court abused its discretion in refusing to allow defendant Robert L. Bergman to withdraw his originally filed answer and substitute therefor the motions to dismiss; (2) if not, whether the trial court committed reversible error in dismissing the complaint either on grounds that it failed to allege sufficient facts to state a cause of action for libel or because the statements in the complaint alleged to have been libelous were protected by a defamation privilege; and (3) whether the court abused its discretion in refusing to consider plaintiffs proposed amended complaint.\nThe record establishes that on March 13, 1996, plaintiff, Lawrence M. Lykowski, filed a one-count complaint in the circuit court alleging libel against defendants, Robert L. Bergman and the 13th Judicial Sub-Circuit Republican Campaign Committee. Bergman was named in both his individual and representative capacities. Lykowski alleged that he was a Republican candidate for the office of judge of the circuit court of Cook County, sub circuit 13(A), and that, on or about March 14, 1996, Bergman accused him of \u201ccertain unethical acts and improper conduct,\u201d as well as being a liar. Bergman was alleged to have made these allegations to the \u201cthe newspapers\u201d and to Lykowski\u2019s employer, the Cook County State\u2019s Attorney. The complaint further asserted that Bergman made the accusations for the sole purpose of disparaging and discrediting Lykowski in his campaign for the office of judge.\nAlso on March 15, 1996, plaintiff Lykowski filed an ex parte motion for temporary restraining order, which sought to prevent Bergman from publishing any further information regarding Lykowski. The motion stated that Bergman had \u201cleaked\u201d to \u201ccertain newspapers\u201d a letter addressed to the Attorney Registration and Disciplinary Commission (ARDC) for the sole purpose of defaming Lykowski\u2019s professional reputation. The letter, which is dated March 9, 1996, was attached to the motion, as an exhibit. The motion alleged that Bergman\u2019s letter was libelous per se in that it included following allegedly false allegations:\n(1) that Lykowski had deliberately omitted truthful answers to certain questions asked of him by the Chicago Bar Association Judicial Evaluation Committee;\n(2) that a murder conviction in the case of People v. Phillips, 159 Ill. App. 3d 142 (1987), was reversed on appeal because of improper comments made during the trial by Lykowski; and\n(3) that Lykowski was involved in improper conduct as a prosecutor \u201cregarding a DUI trial\u201d that occurred on or about February 4, 1994.\nThese specific allegations were not included in Lykowski\u2019s complaint. After listening to testimony on the motion, the court denied Lykowski\u2019s request for a temporary restraining order.\nOn that same day, March 15, 1996, defendant Bergman entered a hand-written answer to Lykowski\u2019s complaint. In the answer, Bergman admitted many of the substantive allegations of plaintiffs complaint, including the allegation that he had accused Lykowski of certain unethical acts and improper conduct on or about March 14, 1996. Bergman denied, however, that (1) he had presented no evidence supporting his charges of ethical misconduct, (2) charges of ethical misconduct had never before been brought against Lykowski; and (3) he had made the allegedly false statements concerning Lykowski for the sole purpose of disparaging and discrediting him.\nApproximately four weeks later, on April 16, 1996, Bergman made an oral motion to withdraw his answer. The circuit court entered an order giving him leave to withdraw it and to reanswer the complaint or otherwise plead within 14 days.\nOn May 1, 1996, Lykowski filed a motion to reconsider the court\u2019s order allowing Bergman to withdraw his answer. In the motion, Lykowski alleged that no good reason had been offered which warranted allowing the withdrawal. In response to this motion, Bergman filed a response which explained that the answer had been \u201chastily prepared\u201d and that he had made the request to withdraw it so that pleadings could be filed testing the sufficiency of the complaint. Bergman cited authority holding that the decision to grant or deny such a request is within the sound discretion of the trial court (see, e.g., Premo v. Falcone, 197 Ill. App. 3d 625, 629, 554 N.E.2d 1071 (1990); Wheeler v. Caterpillar Tractor Co., 123 Ill. App. 3d 539, 541-42, 462 N.E.2d 1262 (1984), rev\u2019d on other grounds, 108 Ill. 2d 502, 485 N.E.2d 372 (1985)) and asserted that the court\u2019s April 16, 1996, decision to grant his request did not cause Lykowski any undue prejudice.\nOn May 10, 1996, the court denied Lykowski\u2019s motion to reconsider. The court also took notice of two motions to dismiss Lykowski\u2019s complaint and set them for hearing on September 3, 1996.\nOn September 3, 1996, following hearing on the motions, the circuit court entered an order dismissing plaintiffs complaint pursuant to the terms of sections 2 \u2014 615 and 2 \u2014 619 of the Code of Civil Procedure (Code) (735 ILCS 5/2 \u2014 615, 2 \u2014 619 (West 1996)). In addition, the court denied Lykowski\u2019s request to allow him to amend the complaint. Lykowski thereafter filed this timely appeal.\nInitially, we address Lykowski\u2019s claim that the trial court improperly allowed Bergman to withdraw his hand-written answer and file in its place the motions to dismiss. Section 2 \u2014 616(a) of the Code (735 ILCS 5/2 \u2014 616(a) (West 1996)) controls this issue. This section states that amendments raising new defenses may be allowed at any time before final judgment. Section 2 \u2014 616(a) is to be liberally construed, and doubts that exist concerning the propriety of allowing an amendment must be resolved in favor of the party seeking to make it. People ex rel. Foreman v. Village of Round Lake Park, 171 Ill. App. 3d 443, 525 N.E.2d 868 (1988). Factors to be considered in determining whether the trial court abused its discretion in ruling on a request to amend include whether other parties would sustain prejudice or surprise by virtue of the proposed amendment and whether previous opportunities to amend pleadings could be identified. Kupianen v. Graham, 107 Ill. App. 3d 373, 377, 437 N.E.2d 774 (1982).\nHere, Bergman\u2019s motion to withdraw his answer was made for the purpose of raising an affirmative defense and was made within a relatively short time after plaintiff\u2019s complaint had been filed. Lykowski does not allege any particular prejudice or surprise caused by the court\u2019s decision to allow the withdrawal of Bergman\u2019s answer, other than that he had to undergo the effort required to reply to the motions. Accordingly, we find no abuse of discretion. Cf. Sunderland v. Tri-City Community Unit School District No. 1, 193 Ill. App. 3d 266, 269-70, 549 N.E.2d 992 (1990); Premo, 197 Ill. App. 3d at 629.\nWe next turn to the question of whether the trial court improperly dismissed Lykowski\u2019s complaint, pursuant to either section 2 \u2014 615 or section 2 \u2014 619 of the Code. The court specifically stated that it was granting relief on both grounds. We address Bergman\u2019s section 2 \u2014 615 motion first.\nA motion to dismiss under section 2 \u2014 615 tests the legal sufficiency of a pleading. Doe v. Calumet City, 161 Ill. 2d 374, 384, 641 N.E.2d 498 (1994). In determining the legal sufficiency of a complaint, all well-pleaded facts are taken as true and all reasonable inferences from those facts are drawn in favor of the plaintiff. Connick v. Suzuki Motor Co., 174 Ill. 2d 482, 490, 675 N.E.2d 584 (1996). The sufficiency of a complaint is an issue of law which we review de novo. Busch v. Graphic Color Corp., 169 Ill. 2d 325, 333, 662 N.E.2d 397 (1996). The question on appeal from the granting of a section 2 \u2014 615 motion is whether the allegations in the complaint, when viewed in a light most favorable to the plaintiff, are sufficient to state a cause of action upon which relief can be granted. Connick, 174 Ill. 2d at 490.\nBergman notes that in order to survive a motion to dismiss pursuant to section 2 \u2014 615, a complaint must state a cause of action that is both legally and factually sufficient. Wieseman v. Kienstra, Inc., 237 Ill. App. 3d 721, 722, 604 N.E.2d 1126 (1992). A legally sufficient complaint is one that sets forth a legally recognized claim upon which the plaintiff is entitled to recover damages. Northrop Corp. v. Crouch-Walker, Inc., 175 Ill. App. 3d 203, 205-06, 529 N.E.2d 784 (1988). A factually sufficient complaint must plead facts that are essential to the plaintiffs alleged cause of action. Robbins v. City of Madison, 193 Ill. App. 3d 379, 381, 549 N.E.2d 947 (1990). A complaint is properly dismissed pursuant to section 2 \u2014 615 if it is either legally or factually insufficient. People ex rel. Fahner v. Carriage Way West, Inc., 88 Ill. 2d 300, 430 N.E.2d 1005 (1981).\nIn this case, the plaintiffs complaint sought to make out a claim alleging libel, a cause of action Bergman concedes exists in Illinois. The complaint is therefore legally sufficient. Bergman argues, however, that Lykowski\u2019s complaint fails to set forth facts sufficient to make out a libel claim. We agree.\nWhile notice pleading prevails under the federal rules (Conley v. Gibson, 355 U.S. 41, 45-47, 2 L. Ed. 2d 80, 84-85, 78 S. Ct. 99, 101-02 (1957)), a civil complaint in Illinois is required to plead the ultimate facts that give rise to the cause of action. Thus, a complaint for defamation must set forth the words alleged to be defamatory \u201cclearly and with particularity.\u201d Mittelman v. Witous, 135 Ill. 2d 220, 552 N.E.2d 973 (1989); O\u2019Donnell v. Field Enterprises, Inc., 145 Ill. App. 3d 1032, 1042, 491 N.E.2d 1212 (1986). In this case the complaint merely alleged that \u201con or about March 14, 1996, the Defendant accused the Plaintiff of certain unethical acts and improper conduct,\u201d and that \u201c[defendants *** transmitted via facsimile a certain letter to the newspapers, that the Plaintiff was a liar' and was guilty of unethical and improper conduct.\u201d These allegations are vague and conclusory and fall short of the \u201cclearly and with particularity\u201d standard. Nowhere in the complaint is the nature of the \u201cunethical\u201d and \u201cimproper\u201d conduct set out, making it impossible for Bergman to answer the complaint with any degree of certainty as to the allegations to which he is responding. It simply cannot be determined from the face of the complaint, for example, whether the statements that allegedly injured Lykowski were true or whether a privilege might apply to their publication.\nIn addition, the complaint is factually deficient because it cannot be determined from the complaint to whom the allegedly libelous statements were communicated. The allegations that the libelous statements were transmitted \u201cto the newspapers\u201d and to \u201cplaintiffs employer\u201d is not particularly helpful in this regard.\nThe complaint is factually deficient for a third reason. Where a public figure such as a judicial candidate alleges defamation, he must establish that the defamatory statements were made with actual malice, i.e., with knowledge of their falsehood or a reckless disregard for their truth or falsity. Gertz v. Robert Welch, Inc., 418 U.S. 323, 41 L. Ed. 2d 789, 94 S. Ct. 2997 (1974). In Illinois, a factually sufficient complaint must set forth specific allegations from which actual malice may reasonably be inferred, as opposed to making bare allegations of actual malice. Mittelman, 135 Ill. 2d at 238; Sweeney v. Sengstacke Enterprises, Inc., 180 Ill. App. 3d 1044, 536 N.E.2d 823 (1989). Again, Lykowski\u2019s complaint is in this regard conclusory, alleging only that Bergman knew his allegations were false and that the defamatory statements \u201cwere wrongful, unlawful and malicious.\u201d Even if the actual statements had been set forth, there are no allegations of fact in the complaint giving rise to a reasonable inference showing Bergman knew the statements were false or that he proceeded in making the statements with a reckless disregard for their falsity. For each of these reasons, the trial court correctly granted the section 2 \u2014 615 motion.\nWe now confront the question of whether, the trial court properly dismissed Lykowski\u2019s complaint on section 2 \u2014 619 grounds. As we explain more fully below, the issue is important for our ultimate resolution of the appeal. Bergman now claims, as he did below, that because the statements Lykowski seeks to attack as libelous were first made as part of an ARDC \u201cquasi-judicial proceeding,\u201d Lykowski\u2019s complaint was properly dismissed.\nAs with section 2 \u2014 615 motions, we review the grant of a motion to dismiss under section 2 \u2014 619 on a de novo basis. Corluka v. Bridgford Foods of Illinois, Inc., 284 Ill. App. 3d 190, 192, 671 N.E.2d 814 (1996). The purpose of a motion to dismiss under section 2 \u2014 619 is to dispose of issues of law and easily proved issues of fact at the outset of a case. Zedella v. Gibson, 165 Ill. 2d 181, 185, 650 N.E.2d 1000 (1995). The question on appeal is whether there exists in the record a genuine issue of material fact precluding dismissal or, absent an issue of material fact, whether dismissal is proper as a matter of law. Corluka, 284 Ill. App. 3d at 192.\nFor purposes of considering a section 2 \u2014 619 motion, we treat all well-pleaded facts and reasonable inferences that can be drawn from the complaint as true. Arlt v. GreatAmerican Federal Savings & Loan Ass\u2019n, 213 Ill. App. 3d 584, 587, 572 N.E.2d 1115 (1991). Section 2 \u2014 619(a)(9) of the Code, the specific provision upon which Bergman relies, provides for involuntary dismissal of'a cause of action where the claim asserted is barred by \u201caffirmative matter\u201d avoiding the legal effect of or defeating the claim. 735 ILCS 5/2 \u2014 619(a)(9) (West 1996). The reference to \u201caffirmative matter\u201d is said to be something in the nature of a defense that completely negates the cause of action or refutes crucial conclusions of law or conclusions of material fact contained in or inferred from the complaint. Fancher v. Central Illinois Public Service Co., 279 Ill. App. 3d 530, 534, 664 N.E.2d 692 (1996). In a defamation action, the issue of absolute privilege is treated as an affirmative defense that may be raised and determined in a section 2 \u2014 619 motion. Harris v. News-Sun, 269 Ill. App. 3d 648, 651, 646 N.E.2d 8 (1995).\nBergman is correct that the ARDC sometimes acts as a quasi-judicial body and that complaints filed with judicial or quasi-judicial bodies are often treated as being absolutely privileged. It is also true, however, that the ARDC sometimes acts merely as an investigative agency. Under ARDC Disciplinary Commission Rule 55, matters referred to the agency by members of the public are first considered by the ARDC Administrator, who passes them on, if they so warrant, to the Inquiry Board for review and investigation. Dis. Com. R. 55 (eff. October 21, 1988). The Inquiry Board is charged with promptly determining whether there is sufficient evidence to justify the filing of a formal ARDC complaint. Dis. Com. R. 102 (eff. July 12, 1990); Dis. Com. R. 104 (eff. July 25, 1986).\nWe agree that Bergman possesses an absolute privilege allowing him to make defamatory statements to the ARDC concerning attorney Lykowski\u2019s alleged professional misconduct. Although there is apparently some disagreement on the issue among the various jurisdictions concerning whether a preliminary complaint to an agency such as the ARDC should be protected by an absolute privilege, the better view, in our judgment, is that an absolute privilege exists for any statements made during any step preliminary and necessary to a judicial or quasi-judicial proceeding. See generally W. Keeton, Prosser & Keeton on Torts \u00a7 114, at 819 (5th ed. 1984) (hereinafter, Prosser). Such a privilege provides a complete bar to any claim alleging defamation, regardless of the speaker\u2019s motive or the unreasonableness of his conduct. This assures that individuals are in no way discouraged from lodging complaints with the appropriate disciplinary authorities. Thus, we conclude that statements made to the ARDC regarding attorney misconduct, no matter how false or outrageous, are simply beyond the reach of a civil complaint alleging libel.\nWe do not agree with Bergman\u2019s argument, however, that because he was privileged to defame Lykowski before the ARDC, he was also free to do so to third parties such as the media or Lykowski\u2019s employer. Cf. Prosser at 819-20 (\u2018\u2018statements given to the newspapers concerning the case are [not] part of the judicial proceeding, and are not absolutely privileged\u201d). Thus, if Bergman\u2019s statements to third parties are to be given protection from Lykowski\u2019s defamation claims, they must be covered by a different form of privilege.\nBergman notes that a second type of privilege exists for defamatory statements that represent a fair report of judicial or other public proceedings. He argues that all of Lykowski\u2019s defamation claims are based upon Bergman\u2019s conduct in forwarding copies of his written charges to the ARDC to third parties, but that he is entitled to make such a publication under Illinois common law. We disagree with Bergman\u2019s claim for two reasons.\nUnlike the absolute privilege that attaches to statements made preliminarily to a judicial or quasi-judicial proceeding, the fair reporting privilege asserted by Bergman is merely a qualified privilege, which does not serve to bar defamation claims; rather, it merely enhances a defamation plaintiffs burden of proof. Kuwik v. Starmark Star Marketing & Administration, Inc., 156 Ill. 2d 16, 27, 619 N.E.2d 129 (1993). A defendant who establishes the existence of such a privilege forces the plaintiff to prove that the defendant either intentionally published the material while knowing the matter was false or displayed a reckless disregard as to the matter\u2019s falseness. Kuwik, 156 Ill. 2d at 24. The privilege is limited to those situations where the public proceedings are described by the defendant (1) completely and accurately, or where a fair summary of the proceedings is made, and (2) the statements are not made solely for the purpose of causing harm to the person defamed. Reed v. Northwestern Publishing Co., 155 Ill. App. 3d 796, 797, 508 N.E.2d 772 (1987); Emery v. Kimball Hill, Inc., 112 Ill. App. 3d 109, 112, 445 N.E.2d 59 (1983); Newell v. Field Enterprises, Inc., 91 Ill. App. 3d 735, 744, 415 N.E.2d 434 (1980).\nIt follows that section 2 \u2014 619 relief is properly granted on the basis of qualified privilege, as opposed to an absolute privilege, only when there are no allegations of actual malice made by the plaintiff and when it can be established that the statements made in the judicial or quasi-judicial proceeding are complete and accurate or are a fair summary of those proceedings. When a plaintiff alleges in his complaint that an allegedly defamatory statement is made with malice as Lykowski attempted to do, a question of fact is created as to whether any qualified privilege the defendant may have possessed has been forfeited through its abuse. Kuwik, 156 Ill. 2d at 27, citing Restatement (Second) of Torts \u00a7\u00a7 593 through 599 (1977). The question for the finder of fact becomes whether the defamatory statement was made solely for the purpose of causing harm to the person who was defamed. Section 2 \u2014 619 dismissal in such circumstances is not appropriate.\nMore fundamentally, section 2 \u2014 619 relief was improperly granted in this case because Bergman\u2019s charges to the ARDC are simply not analogous to charges brought in the circuit court or other public forum. The question of whether the public has the right to be informed of the existence and nature of proceedings before the quasi-judicial or judicial body is an important one in establishing the fair reporting privilege because the privilege is based upon the public\u2019s interest in having access to the proceeding. As discussed by Prosser:\n\u201c[I]t was clearly recognized to be in the public interest that information be made available as to what takes place in certain kinds of judicial, legislative and other public proceedings. Therefore, a qualified privilege of a special kind was recognized under which a newspaper or anyone else might make such a report to the public. The privilege rests upon the idea that any member of the public, if he were present, might see and hear for himself, so that the reporter is merely a substitute for the public eye \u2014 this, together with the obvious public interest in having public affairs made known to all.\u201d Prosser, \u00a7 115, at 836.\nSee also Newell, 91 Ill. App. 3d at 744.\nIn this case the public did not have a right to review Bergman\u2019s charges with the ARDC because, contrary to Bergman\u2019s central premise, such charges are \u201cprivate and confidential\u201d until the ARDC determines to act upon them in the form of a formal complaint. See 134 Ill. 2d R. 766. Thus, Bergman cannot claim a privilege as someone acting as a \u201csubstitute for the public eye\u201d because the public has, at this early stage of the ARDC complaint process, no right to information concerning the existence or nature of the charges. Accordingly, Bergman\u2019s statements to third parties concerning the charges he made to the ARDC are actionable to the extent that they can be shown to have maliciously defamed Lykowski.\nWith the above analysis in mind, we examine whether the trial court properly refused to consider Lykowski\u2019s request to amend his complaint. In his response to defendants\u2019 motions to dismiss, Lykowski specifically asked the court to allow him the opportunity to amend his pleadings if his complaint were found to be factually deficient. He included with his response a copy of his first amended verified complaint for libel (defamation), which consisted of three counts. The court refused to consider the amendment, however, find ing that even if the factual failings of Lykowski\u2019s complaint were corrected, the defamation privileges Bergman enjoyed would preclude Lykowski from ever making out a cause of action for defamation.\nAs we have concluded, Bergman was not privileged to forward copies of his ARDC letter to third parties. Therefore, the court\u2019s reasons for refusing to consider the amendment were erroneous. Accordingly, we remand the matter back to the trial court for further proceedings.\nFinally, we briefly address Bergman\u2019s cross-appeal in which he claims the trial court abused its discretion in refusing to award him Rule 137 sanctions against Lykowski. We conclude that, until final judgment, such claims are necessarily interlocutory in nature. In light of our disposition on the other issues presented, we find that the cross-appeal is not yet ripe for review.\nIn sum, plaintiff Lykowski\u2019s complaint alleging libel was properly dismissed because it was factually insufficient to state a cause of action. The complaint was not properly dismissed, however, on ground that defendant Bergman had a qualified privilege to defame Lykowski, although an absolute privilege exists for Bergman to make charges with the ARDC regarding Lykowski\u2019s allegedly unethical professional conduct. On remand, the circuit court is directed to reconsider Lykowski\u2019s motion to amend his complaint.\nFor the foregoing reasons, the judgment of the circuit court of Cook County is affirmed in part, reversed in part and remanded for further proceedings consistent with this opinion.\nAffirmed in part and reversed in part; cause remanded.\nCAMPBELL, RJ, and GREIMAN, J., concur.", "type": "majority", "author": "JUSTICE ZWICK" } ], "attorneys": [ "James E Driscoll, of James F. Driscoll, EC., of Schaumberg, for appellant.", "Richard A. Valentino, of Nelson & Valentino, of Arlington Heights, and Neil M.B. Rowe, of Levin, McFarland, Phillips & Leydig, of Chicago, for appellees." ], "corrections": "", "head_matter": "LAWRENCE M. LYKOWSKI, Plaintiff-Appellant and Cross-Appellee, v. ROBERT L. BERGMAN, Indiv. and as Chairman of the 13th Judicial Sub-Circuit Republican Campaign Committee, et al., Defendants-Appellees and Cross-Appellants.\nFirst District (6th Division)\nNo. 1\u201496\u20144169\nOpinion filed September 18, 1998.\nJames E Driscoll, of James F. Driscoll, EC., of Schaumberg, for appellant.\nRichard A. Valentino, of Nelson & Valentino, of Arlington Heights, and Neil M.B. Rowe, of Levin, McFarland, Phillips & Leydig, of Chicago, for appellees." }, "file_name": "0157-01", "first_page_order": 175, "last_page_order": 186 }