An Illinois appeals court has reversed a trial court, giving new life to a former high school football coach, who had alleged that the parent of one of his players defamed him in a successful campaign to have him fired.
In a majority decision, the Appellate Court of Illinois, Second District determined that a decision about whether the defendant acted with “actual malice,” a critical determination when the statements are directed to a governmental body, should be left up to a jury in remanding the case back to the trial court.
Tom Myers, the plaintiff, was the varsity football coach at Lake Forest High School (Illinois). In the fall of 2000, he alleged that the defendant, Nelson Levy, communicated several written defamatory statements to the school’s superintendent and athletic director, recommending that the plaintiff be removed as head football coach. Myers would later allege that the defendant sought to have him removed because he was angry that his son wasn’t starting at quarterback.
The defendant continued lobbying for the plaintiff’s departure the next month when he sent a letter to the superintendent requesting that the plaintiff be removed, which was accompanied “by a list of football parents who purportedly agreed with and signed the letter. The envelope and the bottom of each page of the list were labeled CONFIDENTIAL TO BE VIEWED BY DR. LAMBERSON ONLY.”
On January 25, 2001, the school board approved, with the recommendation of the athletic direct and superintendent, that the plaintiff be removed as football coach.
After the plaintiff’s removal, the defendant was quoted in the Chicago Sun-Times as saying, among other things, “you’ve had an incompetent coach in place for a decade who used to be a good coach.”
On March 30, 2001, the plaintiff filed a three-count amended complaint for “defamation, false light, and tortuous interference with prospective economic advantage or business opportunity.” Each of the three counts sought $50,000 in compensatory damages and $1 million in punitive damages.
The defendant moved for summary judgment, arguing successfully that the “plaintiff could never prove that defendant acted with actual malice because 42 football parents provided defendant with statements similar to his own.” He also presented deposition testimony from the superintendent and AD, which claimed that the “decision to remove plaintiff as head football coach ‘had nothing to do with parental pressure.’”
In ruling for the defendant, the trial court made three key findings, that the defendant’s statements were privileged because he directed them toward the school, a governmental body; that the defendant did not act with actual malice because he sincerely believed the veracity of the statements, and that defendant’s petition did not influence the decision to remove the plaintiff as coach.
On appeal, the plaintiff argued that there were issues of material fact that should have prevented then trial court from granting summary judgment.
In their analysis, the appeals court judges seized upon the revelations that the defendant had at one point been a supporter of the plaintiff, and that when the defendant’s son began competing with the coach’s son for the quarterback job, the tone changed. “The curious timing of defendant’s conduct suggests that a question of fact exists as to whether defendant acted knowingly or recklessly when he lobbied the two administrators to discharge plaintiff as coach,” held the court.
The court next turned toward whether an “absolute privilege” exists when statement are submitted to a governmental body. The key case law, noted the court was McDonald v. Smith, 472 U.S. 479, 86 L. Ed. 2d 384, 105 S. Ct. 2787 (1985), which noted that “the petition clause does not bar a defamation claim as long as the plaintiff proves that the defendant acted with actual malice.” Such a determination, it wrote, is better left to a jury
The majority was less charitable when considering whether the defendant’s misrepresentation of parental sentiment about the plaintiff constituted defamation. Specifically, it concluded that the petition was “substantially true” and thus not actionable.
The latter was point of contention for the dissenting judge, who believed such a determination should be decided by a jury. Myers v. Levy, No. 2-02-1334
App.Ct.Ill., 2d Dist., 12/1/03
Attorneys of Record: (for plaintiff) William R. Coulson and Arthur S. Gold, Gold & Coulson, Chicago, IL. (for defendant) Keevan D. Morgan, Peter L. Berk, Morgan & Bley, Ltd., Chicago, IL, Daniel P. Field, Scariano, Himes & Petrarca, Waukegan, IL.