GERALD CAIN AND COLLIN CAIN GRASSY LAKE HUNTING CLUB v. THE STATE OF ILLINOIS (2001)

OPINION

These consolidated tort claims arise from an investigation of suspected baiting of geese and other waterfowl by the operators of a private hunting club located adjacent to a state game refuge near the Village of Ware in Union County, Illinois. On January 14, 1997, Claimants Gerald and Collin Cain owned and operated the Grassy Lake Hunting Club on land farmed by them. Hunters paying daily fees hunt from pits or blinds owned by the Club located in crop lands attractive to migratory waterfowl in order that the hunters may lure the creatures by concealment, calls and decoys to stray within range. Both State and Federal laws prohibit the practice known as baiting whereby grain or other substances are introduced to or altered upon the areas being hunted in order to unnaturally create circumstances more attractive to the wild game than would exist under normal crop production methods. In this case, both State and Federal Conservation Agents jointly commenced an investigation of the Claimants Club on or about January 11, 1997, as a result of an anonymous tip that illegal baiting activities were taking place on the Claimant's Club, combined with observations of suspect activities on the Club premises made by Respondent's Conservation Police Officer Christopher Moorman. Moorman's Sergeant, Monte Burnham, District supervisor for the Department of Natural Resources, contacted Federal Wildlife Agent Timothy J. Santel in Springfield to invite him to review the case. Burnham escorted Officers Moorman and Special Agent

Santel to the Claimant's Club on January 13, 1997, thus beginning a series of events which led to this case. Claimants seek Judgment against Respondent in the sum of $100,000.00 based on multiple counts of negligence and slander.

Facts

Officers Santel and Burnham conducted surveillance and entered the Club premises during the afternoon and evening of January 13, 1997, and returned the following day taking photographs and video tapes. The agents observed thousands of waterfowl landing in the area suspected of being illegally baited. Agent Moorman had observed farm machinery being operated in the suspicious area in an unusual manner inconsistent with normal Crop husbandry activities. Waterfowl were observed to be particularly attracted to the area under suspicion to the exclusion of other nearby areas where mature crops remained in the field, not, having yet been harvested. The agents observed that a portion of the crops had been harvested while other areas contained unharvested standing corn. As a result of a fresh snow, the Agents observed tire tracks approximately 8 to 10 feet apart running through the length of a field of unharvested corn in the suspect area. The path between the machinery tire tracks revealed many stalks of corn lying over on the ground to which the full ears of corn were still attached. Harvesting debris, commonly associated with harvesting operations, such as corn cobs, husks, and other debris were absent from the path of the machinery, leaving only stalks bent over with the full unharvested ears of corn still attached.

Geese attempted to land in the immediate area with the Agents present. Agent Santel testified that this behavior was unusual but consistent with his experience of the determination of waterfowl visiting a baited area. Agent Santel testified that though the unharvested areas of the cornfield held full ears of corn, the corn on the stalks that had been bent or knocked over was more accessible and preferable to the waterfowl while feeding.

The Agents found that approximately 30 yards from the suspect machinery path (with bent over stalks holding full ears of corn), there was another machinery path or track showing the corn cobs, remnants and debris typical from normal combine harvesting operations apparent on top of the snow, and without the presence of abundant corn stalks with full ears of corn that had not been harvested.

After inspecting the suspect area on the Club, Agents Moorman and Santel met with Sgt. Burnham and decided that baiting regulations had been violated and that they would re-visit the Club the following day to determine if hunting was taking place near the baited area for purposes of making charges. Almost all cases of baiting migratory waterfowl are referred to and prosecuted by Federal authorities, whether or not Federal officers are involved in the initial investigation and apprehension of violators.

Accordingly, on January 14, surveillance on Claimant's Club was continued by Officers Moorman and Santel. At approximately 8:00 a.m. Hunters were observed taking geese and the Officers decided to make contact with Club personnel and hunters. The Officers separated, with Agent Moorman making contact with the hunters in the field, and Agent Santel making contact with the individuals at the Club House.

State Conservation Officer Larry Griffin, who was returning from a Court appearance in Jonesboro, Union County, Illinois, heard radio traffic between Moorman and Santel and offered assistance. Griffin was asked to meet Agent Santel at the Claimants Club House. Upon arriving at the Club, Agent Santel, met Griffin and asked him to take information from some hunters who were present by examination of their hunting licenses. Griffin later accompanied Santel and Claimant Cain back to the hunting fields, including the area where machinery had apparently gone through the field and knocked corn down. Griffin observed that in the area where the corn appeared to have been knocked down, the stalks were not cut. He also observed other areas where cobs and husks were present in the machinery path or tracks as though the grain had been harvested. Agent Griffin recalled hearing Claimant Collin Cain explain that his crop had a weak root system, insect damage and that the wind blew the corn stalks over. Grif fin heard Santel and Moorman advise Cain that 7 hunting pits near the suspected baited area would be considered for enforcement purposes as under the influence of the baited area and that any Hunting from those pits would be a game violation. Griffin testified that Federal Special Agent Santel did most of the talking. Officer Griffin advised hunters that it appeared that an area of the Club had been baited, and that they would be in violation if they hunted the baited area. Griffin testified that he did not communicate his suspicions concerning the baiting to the general public, but warned the hunters present on the Club that they could be subject to arrest.

Special Agent Santel advised Cain on January 14, 1997, that the baited area could not be hunted until 10 days after complete removal of the grain. After Cain called an attorney, he repeatedly requested that Officer Santel write him a note to the effect that the Club was closed, which Santel repeatedly refused to do, advising Cain that he had no authority to close the Club. Agent Santel was then asked to advise Claimants in writing that he was closing the pits that fell under the influence of the baited area. Santel refused to acquiesce in Claimant's request, but again advised Claimant that if hunters were permitted to hunt in the area affected by the baiting that citations could be written. The pits or blinds in question were identified by number for Claimant's information.

It is not the practice of Federal Agents to write citations in the field. Normal protocol is to review the information and evidence, check out criminal history and other information, and consult with the U. S. Attorney's Office as to whether or not charges should be filed. Santel and the other agents left the premises and Santel wrote his report. Santel testified that for reasons unknown to him, a decision was made in the hierarchy that charges would not be filed against Claimants.

All allegations of negligence against Respondent are based upon the actions of Agent Larry Griffin and Respondent's alleged failure to properly train Griffin.

Claimants Complaint in the consolidated cases are identical. Count 1 seeks damages for loss of business income for 3 days from 7 of the blinds identified to be under the influence of a baited area as follows:

(a) Failed to investigate the issue of baiting prior to acting.

(b) Failed to verify the truth or falsity of said criminal allegations.

(c) Failed to call in appropriate agencies, state or private, to investigate issues of insect infestation.

(d) Failed to identify pest-induced damage to crops.

(e) Disseminated false information

(f) The Department of Natural Resources, formerly The Illinois Department of Conservation, failed to properly train its agents in identifying baited fields and in discriminating between baiting and other naturally occurring phenomenona.

(g) The Department failed to properly train their officers to complete an investigation prior to making allegations or charges against any individuals.

(h) The Department failed to properly train their officers in the area of ascertaining what information should properly be released to the public during the course and scope of an arrest or crime intervention as alleged herein.

Claimants contend additional loses were sustained by Claimants proximately resulting from the actions of Respondent for loss of reputation, costs of needed advertising, physical improvements and mental suffering.

Count II of the Complaint seeks damages for defamation, based on statements alleged to have been made by Respondent's Agent Larry Griffin to third parties indicating that Claimants were guilty of illegally baiting their hunting fields.

Claimant's Negligence Theory

Under both Counts of the Complaint, Respondent's liability is predicated solely on the actions of Respondent's employee, Larry Griffin, a Conservation Police Officer for over 14 years. Griffin was not involved in the original surveillance and investigation of Claimants Hunting Club, but found his way to the location after hearing radio transmissions between Federal Agent Santel and Respondent's Conservation Police Agent Moorman. Arriving at the Club House on the Hunting Club, Agent Griffin was asked by Federal Agent Santel to take down routine information from hunters that were present at the Club House required for a Federal Waterfowl violation. Griffin thereafter accompanied Agent Santel, Claimant Collin Cain and a third party to the Hunting field in question, and made observations of the suspected baited area the same as observations previously made by Santel and Moorman. While observing the areas suspected of being baited, Griffin heard Claimant explain that the corn in question had a weak root system and worn stalks and that wind had blown the corn stalks over. After examining the field, Griffin heard his companion officers advice Cain that a number of the hunting blinds (7) would be considered to be under the influence of the baited area, and that hunters attempting to take game from those blinds could be cited for hunting over a baited field.

Griffin conferred with 6 or 8 of the hunters present at the clubhouse and advised them that there was a problem with baiting and that they would be in violation of game laws if they hunted in the area of the baiting.

Hunters that were present testified variously that Griffin had talked to them and had stated that it wasn't certain whether anybody would be charged, but that possibly the Club owners and employees would.

Claimants witness Fiser acknowledged that Griffin's statements were made in response to Fiser's inquiry as to what the problem was, and that an inquiry to Federal Agent Santel produced an identical response.

Fiser testified that he was an experienced police officer from Cedar Rapids Iowa, and had returned to hunt the Claimants Club in 1998 and had invited guests accompany him.

A hunter named Pauley heard about the Claimants problems in January, 1997, and returned as a customer to Claimant's Club subsequently, but testified he was fearful if he took guests to Claimants Club they would get in trouble.

Claimant's witness, Risso, testified that although he wasn't present at Claimants Club on January 14, 1997, he had been to the Club probably a dozen times since, but had abandoned the practice of merely sending his clients to Claimants Club to hunt. He now always accompanied them to Claimants Club so that he would know what was going on.

Claimant's witness, McReynolds, testified that he arrived at the Club on the afternoon of January 14, after Agents Moorman and Griffin had come back from the field in question. McReynolds testified that he had known Agent Griffin for 4 years prior to January, 1997, but did not have any conversation with Griffin on January 14, 1997. McReynolds recalled being questioned by Griffin on a previous occasion as to whether McReynolds thought that Claimant Collin Cain had baited geese on the Club. McReynolds testified that he had had run ins with Agent Griffin and Griffin made him feel like an outlaw.

A hunter named Wood testified that he had served as a hunting guide on the Claimant's Club for over 23 years and was working on January 14, 1997. He was in one of the pits acting as a guide for witness Fiser and his guests when their hunt was aborted by the presence of Respondent's Conservation Police Officer Chris Moorman. Upon returning to the Club House area, Wood testified that Agent Griffin had indicated to him that it was felt that an area of the hunting fields had been baited and that Claimants had knocked over the corn. Wood said he had been a friend of Claimant Cain for over 23 years, and he hunted on Claimant's Club for free but that there was work involved in guiding. Wood testified that Claimant had asked him to take a look at the hunting fields prior to January 14, 1997, and had heard Cain opine that the condition of the corn would prevent him from harvesting the corn.

Respondent's Conservation Police Sgt. Burnham was called by Claimant and testified that on January 15 he was invited to the Club by Cain to talk to a seed salesman named Cheatum and to view the hunting field. Burnham testified that on the night of January 14 and the early morning hours of January 15, there had been a very severe ice storm that made it difficult to get to the fields or to walk through the fields. Ice was coveting everything and that nothing could be made out. Burnham testified that after he had visited the Claimants fields on January 15, 1997, and after the severe ice storm he spoke on the phone with Federal Agent Santel's superior, Officer Budzyn, in Chicago. Burnham explained to Budzyn that nothing could then be determined from examination of the fields, and that there was no way to tell anything Æ Called as a witness by Respondent, Burnham testified that he had discussed the condition of the fields with Federal Agent Santel after Santel's investigation of February 13, 1997, and directed State Conservation Police Officer Moorman to accompany Santel to investigate the Claimants Club on January 14, 1997.

Claimants established that none of the Federal or State Conservation Police had had special training in determining the effects of insect damage to standing crops.

Griffin acknowledged that he was present to warn the Club operators (Claimants) and the hunters that if they continued to hunt in the baited area they would be guilty of a hunting violation.

Claimants testified that their customers were upset at the events of January 14, 1997, and their reputations and business were damaged.

Claimant Collin Cain (hereinafter referred to as Cain) testified that at the time of the incident the Club had 18 pits and approximately 10 or 11 had been used on January 14, 1997. Cain testified that when Special Agent Santel came to the Club House he asked to speak to Cain privately. Santel then asked Cain why he had not picked more corn in the hunting fields. Cain testified that he told Santel that the corn had not been picked because Cain was lazy. Cain remembered going-to the fields with Santel and Moorman and Griffin. Cain stated that he explained to Santel and the State Agents that the problem with the crops resulted from an infestation of insects that weakened the corn stalks and made the corn difficult or impossible to harvest.

Cain remembered Federal Agent Santel advising him on January 14, 1997, that 7 blinds or pits could not be hunted without violations being written because they were under the influence of a baited area. Cain was advised by Respondent's Sgt. Burnhamlon the morning of January 16 that a determination had been made that the area in question was not baited.

Cain did not personally know what contact Griffin had with the hunters, or hear what conversation Griffin exchanged with the hunters. Cain testified that he basically spoke with Federal Agent Santel.

On the 17th of January, 1997, Cain had the field examined by two representatives of the United States Department of Agriculture Billingsley and Troxiclair. These individuals later wrote letters to Respondent's Department of Natural Resources and to the U. S. Fish and Wildlife Service concluding that from the examination conducted by them at the request of Cain, the crops condition was as a result of stalk damage from insects and not manipulation by farm machinery.

As a part of efforts in opposition to the decisions and opinions of Federal Agent Santel and State Conservation Police Moorman and Griffin, Claimants sought through counsel a restraining Order in the Federal Court for the Southern District of Illinois. Cain explained that he and his father dropped that case when his attorneys informed him that a Federal Judge had called the attorney on the phone and advised that the Club could open back up.

The litany of negligent acts or conduct of which Conservation Police Officer Griffin is charged, commences with the charge that Griffin failed to investigate the crime, verify the allegations or engage in appropriate investigative techniques before acting. Griffin's actions where shown by the evidence to consist of taking information from hunters at the direction or request of Federal Agent Santel, accompanying Santel and Cain to the area of the hunting fields in question to observe the conditions, and answering inquiries from the hunters as to what the problem was as events developed on January 14, 1997, at Claimant's Club. There is little disparity between Agent Griffin's recollection of his comments to the hunters and the recollections of the hunters themselves. The weight of the evidence preponderates in favor of the conclusion that Conservation Agent Griffiin informed hunters that were present that if they hunted from pits or blinds under the influence of an area thought to be baited, they could be charged with violating Conservation laws prohibiting the taking of wild game in a baited area. Respondent cites Harris vs. News-Sung 269 Ill.App.3d. 648, 646 N.E.2d. 8,206 Ill.Dec. 876 (1995)holding that statements of a law enforcement officer regarding an investigation of charges cannot give rise to liability. The Appellate Court agreed that statements about an investigation made by a detective to a newspaper within the scope of his employment were absolutely privileged, and that claims based thereon were barred. In Geick vs. Kay, 236 Ill.App.3d. 868, 603 N.E.2d. 121, 177 Ill.Dec. 340 (1992) it was held that the absolute privilege in question could not be overcome even by showing of improper motive or knowledge of the statement's falsity, (Geick, 236 Ill.App.2d. at 875). Also see Dolatowsky vs. Life Printing and Publishing Company 197 Ill.App.3d. 23, 143 Ill.Dec. 757, 554 N.E.2d. 692 (1990). The absolute privilege doctrine originated as a defense against civil damage suits for defamation and kindred torts. Bart vs. Matteo 360 US 564, 569, 79 S.Ct. 1335, 1338 (1959).

The evidence is uncontradicted that at all times material to these claims, Conservation Police Officer Griffin was acting as a government official within the scope of his employment. In the Barr case supra, the United States Supreme Court explained that the absolute privilege extended to government officials and expressed a policy designed to aid in the effective functioning of government.

There is no evidence, that Griffin functioned in relation to Claimants in anything other than the performance of his official duties as a State Conservation Police Officer. The record is barren of any evidence that in making any of the statements attributable to Griffin, he at any time said anything or did anything beyond or outside the scope of his official duties.

Claimants contend that liability can be found in Respondent's failure to adequately train Griffin in techniques of criminal investigation including the pathology of the structure of grain crops under assault by insect populations. The record is bereft of any evidence supporting Claimant's contentions. Indeed, the evidence is uncontradicted that Griffin was an experienced and fully trained law enforcement official who was not only fully entitled to rely on the observations and decisions of Agents Santel and Moorman but who later confirmed their observations of the baited area with his own.

Claimants complain that Griffin's statements of the conclusions reached collectively by all the agents were somehow premature, and before the investigation was completed. The investigation was, in fact, completed by Agents Santel and Moorman, prior to Griffin's arrival on the scene. Unknown to Griffin, his immediate supervisor, Sgt. Burnham, had participated the previous evening an discussions with Santel and Moorman and concluded that observations should continue to be made to determine if hunting was taking place in the area of the baited field. The investigation was not incomplete because the agents chose to disbelieve Claimant's protestations of innocence in face of clear evidence to the contrary. The investigation was not incomplete because Agents did not immediately endorse the conclusions of a crop seed salesman whose employer reaped annual benefit from the Claimants good will and customer patronage. The investigation was not incomplete because professional agronomists solicited by Claimants to examine the crops on Claimants farm reached conclusions different than Griffin and the other Agent. The agronomists apparently made observations at locations selected by Claimants without supervision, and at a time three days following a severe ice storm in the general area. They concluded that the observations made by Agents Santel, Moorman and Griffin on January 14, 1997, had been incorrect.

Charges made by investigating officials that are not pursued on decisions of their superiors are not thereby rendered false. Char ges that are pursued without success are not thereby presumptively brought without reason or in bad faith. The record is barren of evidence as to the basis for the apparent decision not to prosecute Claimants for the violations observed by Agents Santel, Moorman and Griffin.

Claimants Defamation Theory

Claimants seek damages for defamation arising from slander alleged to have been committed against claimants by Agent Larry Griffin in the statements made by Griffin to the hunters present at the Club on January 14, 1997. Claimant argues that Agent Griffin's statements to the hunters present at the Club imputed the commission of a criminal offense to the Claimants and therefore constituted defamation per se giving rise to a claim which need not be supported by any showing of special damage. Respondent contends that Claimants are barred by the doctrine of public official immunity, and that the statements of Agent Griffin fell within the scope of absolute privilege.

The defense of privilege in cases of defamation has long been recognized at common law. Spalding vs. Vilas, 161 US 483, 40 L.Ed. 780, 16 S.Ct. 631 (1896); Blair vs. Walker, 64 Ill.2d. 1, 349 N.E.2d. 385 (1976). Privileged communications include those which are absolutely privileged and those which are only qualifiedly privileged. Where the privilege is absolute, it is not overcome even by a showing of improper motivation or knowledge of falsity. (See Blair supra 64 Ill.2d.1 at 5-6) The Illinois Supreme Court, in cases of defamation by a public official, has united the concepts of absolute immunity and absolute privilege in the Blair case supra, and has recited that the restriction on the rights of Claimants is justified by a countervailing policy that officials of government must be free to exercise their duties without fear of potential civil liability (Blair, 64 Ill. 2d. at 6).

In Illinois cases both prior and subsequent to the Blair case, the doctrine of absolute privilege has been applied to various executive officers of government including the Governor and others. In Ritchey vs. Maksin, 71111.2d. 470, 376 N.E.24. 991, 17 Ill.Dec. 662 (1978) the Supreme Court extended the absolute privilege to a Products and Standards Inspector II employed by the Illinois Department of Agriculture charged with investigating allegations of adulteration and misbranding of commercial feed products. In Morton vs. Hartigan, 145 Ill.App.3d. 417, 495 N.E.2d 1159, 99 Ill.Dec. 424 (1986) absolute privilege was extended to the Illinois Attorney General in a retaliatory discharge case, a tort closely related to interference with employment relations, and defamation, other similar type torts. In McLauqhlin vs. Tilendis, 115 Ill.App.2d. 148, 253 N.E.2d. 85 (1969) the doctrine was held to protect a school superintendent. In Larson vs. Doner 32 Ill.App.2d. 471, 178 N.E.2d. 399 (1961) a Mayor and Commissioners were protected. A School District architect was said to have absolute immunity in Haskell vs. Perkins, 16 Ill.App.2d. 428, 148 N.E.2d. 625 (1958). The absolute immunity doctrine has been applied to virtually every common law tort including, but not limited to, malicious prosecution, tortious interference with business, false arrest, blackmail, fraud, and intimidation. (See Morton, 495 N.E.2d. at 1165)

In Williams vs. Fisher, 221 Ill.App.3d. 117, 581 N.E.2d. 744, 163 Ill.Dec. 590 (1991), the Fifth District Appellate Court extended absolute immunity to the Coroner of Marion County, Illinois, in a defamation action for statements publicized by the Coroner in reference to a cause of death. The Court stated as follows:

Under the common law of Illinois, an official of the executive branch of state or local government cannot be held liable for statements made within the scope of his official duties. (Dolatowski vs. Life Printing and Publishing Co., (1990), 197 Ill. App.3d. 23, 28, 554 N.E.2d. 692, 695.)Defendant here was such an official, and his allegedly defamatory statements were clearly made within the scope of his official duties as County Coroner. What Defendant wrote on Cheatum's death certificates was therefore absolutely privileged and could not serve as the predicate for a civil defamation action against him.197 Ill.App.3d. at 29, 554 N.E.2d. at 695; Morton vs. Hartigan (1986), 145 Ill.App. 3d. 417, 425-426, 495 N.E.2d. 1159, 1164.)

In Gelck vs. Kay 236 Ill.App.3d. 868, 603 N.E.2d. 121, 177 Ill.Dec. 340 (1992), the Second District Appellate Court reiterated that absolute privilege is not overcome by any showing of improper motivation or even knowledge of falsity, and that the severe restriction on the rights of those claiming damage by defamation is justified by the policy that officials of government should be free to exercise their duties without fear of potential civil liability (see Geick, 603 N.E2d. at 127). In Harris vs. News-Sun, 269 Ill.App.3d. 648, 646 N.E.2d. 8, 206 Ill.Dec. 876 (1995), cited by Respondent, the Second District Appellate Court affirmed dismissal of actions against law enforcement officials on the basis of absolute privilege. In the Harris case a detective had made comments to news reporters concerning an investigation and arrest. Noting that the statements were made by law enforcement officials in the course of their duties, the Court held that absolute privilege barred the Plaintiff's claims against the Defendants predicated on claims of damage attributable to public statements made by the Defendants.

There is no evidence before the Court in this case to show that the statements of Griffin to hunters made at the Claimants premises concerning the problem were outside of or beyond the scope of Agent Griffin's employment responsibilities. Claimants contend that any privilege or immunity is not applicable because they contend that Agent Griffin's statements were made without a reasonable basis or complete investigation. Thus, Claimants claim for damages is based on a theory of negligent defamation and slander. Even if the Claimants had alleged that Griffin knowingly made false statements, under the circumstances in the case at bar, the defense of absolute privilege would not be avoided.

Conclusion

For the reasons stated above, it is hereby ordered that this claim be, and hereby is, denied.

RAUCCI, C.J.