*1 hоwever, and we matters, disciplinary of extra-record inclusion counsel's pelleeg' Com Disciplinary Indiana de it to leave appendix, testimony in the deposition Appellees' whether the docu to determine that mission verification signed spite parts of copies misconduct. committed accurate "are counsel therein ments of con Also Appeal."1 on Record Affirmed. motion in his allegations Leone's cern counsel Appellees' that error correct to BAILEY, J., concur. C.J., KIRSCH, and in their facts jurisdictional "fabricated" App. Appellant's See complaints. various dated ("The Complaint Amended
at 889 repeatedly falsely states ...
August his by means Leone Defendant
that in business 'conducted
legal opinion ATC/Alpha' as 'agent a sales
Indiana' as Plain to 'made sales' and payphones
to By to Plaintiffs. sales' or 'assisted tiffs and Suzanne Virginia HARTMAN Amended Fourth May 2004 time of Swinehart, Appellants, actually details fabricated Complaint Defendants, Leone that effect expanded had con and the issuer agent аn 'acted KERI, Appellee-Plaintiff. Indiana', in 'made sales Dr. Gabe business
ducted 'materially aided sales' Indiana', or 02A03-0603-CV-135. No. opin legal relied on 'all Plaintiffs that omitted). of Indiana. court Appeals The trial ion'.") (citations Court litigat counsel Appellees' that not find did 27, 2006. Dec. us is before faith, the record in bad ed otherwise. to determine for us insufficient encouragement said, little we find
That si evasiveness counsel's
Appellees' accus strident to Leone's response
lence over jurisdiction have do not 'We
ations.11 115-17). documents The App. at lees' App. Appellant's payphone. a purchasing are contracts refer Appellees which Lephart testified Priscilla 875. Anderson, Keesling signed Haibe, legal opinion written a after remember did not she opinion; it is withdrew purportedly Leone testified Haibe 863. Earl Id. at by Leone. opinion they saw Leone's possible before opinion written legal review did not that he Id. at bought payphone. was withdrawn. it he before Leone she did Evelyn testified Haibe 867. ("[The only See, Br. at 12 eg., Appellees' 11. Id. at 871. name. Leone's recall ever Plaintiffs disputes is that thing Leone he is dispute that a factual opinion, [his] saw motion grant Leone's therefore We 10. on his favor have resolved not entitled de- these Appellees' references toas strike Affida- Plaintiffs' summary judgment. appel- 15 of their pages 14 positions on theme vits([ 'showed the salesman state that ] their brief, the verification as to as well late by James opinion legal Manual Sales to strike motion deny Leone's We appendix. in mak- these documents on I relied Leone. their page 8 of Appellees' statement toas Payphone invest my ing decision plaintiffs who two "at least brief to ac- fails statement Program.'"). This upon relied saw residents Indiana con- affidavits plaintiffs' knowledge that the with- supposedly he opiniоn before Leone's testimony. deposition their tradict (citing Appel- at 8 Br. Appellees' it." drew
1019 *3 (@IPFW"). jointly IPFW is owned Trustees of Indiana University and Pur- due, but managed by pursuant agreement to an between the two universi- ties. Keri one-year, worked under renew- able contracts that made him eligible for tenure years. However, after seven April Utesch, Dr. supervi- Keri's sor, notified employment Keri that his con- tract would not be renewed for the 2004- year 2005 academic due to unsatisfactory *4 performance.
Swinehart and Hartman had enrolled as graduate students in the School of Edu- cation at IPFW 2000 and respec- tively. Swinehart and Hartman both had employed been as Graduate Aides in Edu- Orr, Karen R. LLP, Stuart & cation Branigin at graduate IPFW. As students at IN, Lafayette, IPFW, Attorney for Appellants. Swinehart and good Hartman were friends and together. worked Hartman's Conteh, Swaray E. The Law Office of grade worst graduate as a student was a Conteh, Swaray LLC, IN, Indianapolis, "B," which she received in taught a class Attorney Appellee. for inKeri the summer of 2002. Hartman grade contested that to a review commit- OPINION tee in nine-page document, but subse- NAJAM, Judge. quently appeal. abandoned her May just On over a month STATEMENT THE OF CASE after Keri received his notice of nonrenew- Suzanne Swinchart and Virginia Hart- al, Swinehart and Hartman each filed for- man bring interlocutory this appeal follow- ("the mal complaints Purdue complaints") ing the trial court's denial of their motion with IPFW's Affirmative Action Office al- summary for judgment. We address a leging harassment Keri. Hartman's single dispositive review, issue on namely, complaint alleged also that Keri discrimi- whether communications made nated and retaliated against her. Among course of official proceedings brought un- Hartman's assertions allegation wаs an der the antiharassment policies of The that Keri against retaliated her "affect- ("Purdue") Trustees of University Purdue ing my grade point average." Appellants' protected by an absolute privilege. App. at 111. Swinehart claimed that Keri had made inappropriate sexual comments We reverse. personally her and to her class between July 2001 spring FACTS AND and the of 2002. PROCEDURAL HISTORY The pursu- filed In August of Dr. Gabe Keri be- ant policy to Purdue's for addressing came an Assistant Professor of Education "harassment in the workplace or the edu- in the School of Education at Indiana Uni- cational environment." Id. at 346. That versity-Purdue University Wayne at Fort policy is contained Executive Memoran- IPFW, to investi- Psychology ment of implement- ("C-33") C-33 No. dum had that Keri concluded Blakemore Resolving gate. Procedures by Purdue's ed environment educational hostile Harass- created Discrimination Complaints had Hartman both Swinehart ap- documents Both ("Procedures"). ment Hartman. it "seeks harassed states C-88 IPFW. ply staff, and students faculty, encourage final con expiration Following the harass- incidents address report IPFW, June tract harass- defines C33 at 348. ment." ("the federal lawsuit a federal brought hostile of a creation include ment District the Northern complaint") Further, C-83 environment. educational "DOE" and five IPFW against Indiana provides: complaint federal defendants.1 bring used not be shall policy This laws, most nota federal on various based charges malicious false knowingly ofAct Rights Civil Title VII bly students, or staff, faculty, any against laws state ("Title VII"), related organizations.... student recognized Act Tort Claims Indiana under against taken bewill action Disciplinary negli ("ITCA"), namely, intentional to have found group any person distress, negli of emotional infliction gent in bad harassmеnt charge of brought *5 termi wrongful and supervision, gent faith, who, is in bad faith, any person or VII, that Title under alleged, nation. per- another encouraged have found "con Swinehart, Hartman Utesch, Dr. charge. bring such group or son reputation [Keri's] to smear spired Id. of allegations unfounded false making among other stipulate, Procedures The teaching ineffective harassment sexual under these proceedings things, "[the at 169-70. Id. methodologies." law, of of a court are not Procedures dis- 2005, 9, the federal the legal counsel November of On presence the summary complete during granted the conduct court trict permitted not parties based Purdue of at 3538. in favor Id. judgment Procedures." of these requisite the establish inability Formal Com- "a Keri's require Procedures Facts" "Material days of In the ten ... within facie cases. prima filed must be plaint court district the оpinion, Process its Informal section conclusion the Purdue the performance, of discrimi- incident Keri's following the discussed days 120 pro- at 8355. the antibarassment complaints, nation harassment." and/or stated, in relevant initi- The court required ceeding. Here, Procedures ("the antiharassment proceeding of a part: ation merits investigate
proceeding") Aca- (c) Evaluation Third [Keri's] step, a first As complaints. Purdue Performance 2002-2008 Year demic Dr. assigned IPFW Chancellor Depart- Blakemore, Chair Elaine could he because either action causes of complaint to his subsequently amended
1. Keri discov- end of identify them positively place of defendant as the Purdue name of limita- two-year statute ery because re- defendants IPFW, DOE although five Irs. Bd. run. Keri had tions and Order Opinion her mained. 1:04-CV-224, Univ., WL Judgment, Dis- Summary No. Motion on the 43183, at *41- *14, Dist. LEXIS U.S. that Keri stated at Judge Springman Court trict 9, 2005), F.3d aff'd, 458 (N.D.Ind. Nov. against proceed could not he conceded Cir.2006). (7th federal under defendants fictitious public settings. His lectures are often complaints against [Student [Keri] con- during tinued the 2002-2003 academic unorganized and ineffective. He has year. In consistently failed to fulfill his respon- [Swinehart,] March graduate student employee IPFW, sibilities for supervising students in approached Dr. Utesch and reported the clinic setting. The School of Edu- had made inappropriate [Keri] com- protocol cation's for the formal evalua- ments to during her her interview for a tion faculty by students has been manager's position. clinic reported She violated because [Keri] did not leave that, the room while students were com- the summer of had [Keri] told her that she should tighter wear pleting evaluations. Female students pants and that she did big not have reрort inappropriate comments about enough "boobs" because she was white. appearance. their The trust and re- Also in March graduate second spect of students has been diminished student employee, [Hartman], reported power. misuse of I conclude that to Dr. Utesch that during his classes teaching performance is unsatis- bashed factory. [Keri] homosexuals and Catho- lies. Dr. Utesch believed be- [Hartman] *o ook cause her complaints were consistent (e) IPFW's Investigation of Formal with those from other students in other Complaints Against [Keri] classes taught by ... [Keri]. May 12, 2003, On [Swinehart] and [Hart- (d) Final [Keri's] Evaluation and Non- each man] filed a formal complaint reappointment [Keri], against claiming that he harassed From November 2001 through March against discriminated them in both 2008, Dr. Utesch received six student the classroom and in their work grad- *6 complаints about [Keri]. Two of them uate assistants. Elaine Blakemore was- were anonymous. All of them accused assigned by Chancellor Wartell to inves- [Keri] of inappropriate behavior. On tigate the complaints in accordance with the basis of these complaints, espe- and procedures. IPFW's She interviewed cially on the basis of and [Swinehart] the complainants [Keri], and as well as complaints, [Hartman's] Dr. Utesch de- Dr. Utesch and two other faculty mem- cided not to recommend for reap- [Keri] bers in Department the of Education pointment for the 2004-2005 academic Studies. She also interviewed thirteen year. On March he wrote current and former students from the concerning [Keri's] conduct: Counselor Education program repre-
On-going complaints student have be- senting four different academic cohorts. come more serious оver past year. the Blakemore issued a report detailed with I have had several meetings with extensive findings on both students' to attempt [Keri] to resolve concerns complaints. In the report she acknowl- about teaching his effectiveness and edged that, because of the gravity of professionalism. appear There allegations, [the] the investigation was be no changes. difficult for personally. her She noted Students subjected continue to that, be during the investigation, [Keri] discussion of inappropriate topics ir- cordial professional, and and that he was relevant to the content of the course bewildered the charges. She also within the classroom. He has criti- stated that she complainants found both cized faculty other and students credible genuinely and anguished about his behavior aspects of several found сom- Blakemore experiences. their accounts their that and inappropriate, for [Hartman] [Swinehbart] mended startlingly consistent. their with were forward come courage their complaints: find- report her concluded Blakemore my express like to I would Finally, university's the violated that ing [Keri] [Swinehart] toward respect utmost but complainant, the one toas policies com- courage their and [Hartman] other: to the not as I complaints. their forward ing "preponder- standard Using the who students other to several spoke by the required of the evidence" ance harmed been they had that believed I find University procedures, Purdue speak, afraid [Keri], were but Purdue has violated I that harmed. [Keri] careers future their lest out- policy University antiharassment said who students former spoke C- Memorandum in Executive lined their report wanted they hаd that com- specific they respect once 33. With his behavior about
concerns had, has they never university, but [Hartman] that Ms. I find plaints, left envi- educational a hostile felt distressed they experienced that Hence not. they had victim ronment, she is guilty and that who in- she applaud complaint In her university should harassment. awith forward victim to come willing had been are she dicated risk to possible at complaint serious find discrimination, I do not but they when themselves, particularly students Other the case. to be good partly the risk taking treated, I do similarly were of others. have could she grounds what know on stu- numerous interviewed Largely Blakemore discrimination. experienced questions general them asked not re- dents were complaints her because of Education frame, the School about time appropriate in the ported some noted Blakemore [Keri]. has Ms. [Swinehart] find TIeannot very supportive students under harassed specifically also been all; oth- had no oth- like [Keri] policy. complainants: corroborated ers Edu- Counselor students er *7 dismay and shock expressed Some certainly has she Program, cation they disrespectfully how about edu- hostile [al subjected been treated students other that thought environment. cational balance, On classroom. him ree- Blakemore findings, of her light In students majority of though, immediately "be that [Keri] ommended examples provided spoke I whom practi- and teaching his from removed with consistent that experiences and responsibilities, supervision cum com- [Swinehart's] and [Hartman] students with contact supervisor from to ev- speak I did Since plaints. IPFW." at Education School taken ever had who ery student universi- However, believed she possibly [Keri], I cannot from class academic 2003-2004 his honor ty should of students percentage know what should contract, that he year be- his ... found years the few over long so research his to continue allowed say, how- I can inappropriate. havior with interaction from was veiled he [ ] students many of the ever, that students. spoke I to whom students former presented Blakemore report her class: "she plot set out a malign him. University's Committee on Equity, Utesch and got on [Swinehart] board which concurred with Blakemore's con and set out a course that has resulted in 4, August 2008, clusions. On Chaneellor the utter destruction of [Keri's] career that, notified Wartell [Keri] in academia." Again, [Keri] does not year, 20083-2004academic he would be single out any part of the record to assigned position to a entirely dedicated support allegations. these Finally, researсh, but that he would not be points [Keri] report Blakemore's aas permitted university to use his office. document him exonerates August On a charge [Swinehart] [Keri] filed allegations. [Hartman's] of discrimination with the Equal Em such assertion is a stretch. ployment Opportunity Commission, *20, at 48183, 2005 U.S. Dist. LEXIS claiming [Purdue] discriminated (footnote omitted). at *60-61 and citation against him on the basis of race and The district court dismissed Keri's tort national origin.[ 2] against claims Purdue for intentional and negligent infliction of emotional distress as Univ., Keri v. Bd. Trs. No. untimely. In alternative, 1:04-CV-224, the district *8-9, WL at court dismissed 12-13, along claims U.S. Dist. LEXIS the negligent (N.D.Ind. supervision *24-27, wrongful 2005), 338-87 Nov. termination 'd, (7th claims Cir.2006) (citations because Keri failed to F.3d 620 off provide any evidentiary support. ap- omitted) On ("Keri "). I peal, the Seventh Circuit Appeals Court of The district court went on to grant sum- affirmed adopted the district court's mary judgment in favor of Purdue. Re- opinion. garding inability Kеri's a pri- establish While the federal complaint was pending ma facie case on claims, his Title VII court, district before the district court stated the following: March 2005, Keri filed the instant lawsuit in the challenges [Keri] non-reappointment Allen Superior against Court Swinehart only by calling question into the reliabili- it, Hartman. In Keri reasserted ty of the students' Utesch, Dr. Swinehart, and Hartman "con- referring previous to his positive evalua- cocted a scheme in which Hartman and [Keri], tions. who bears the burden to Swinehart would file false complaints pretext, show does not provide sexual harassment against Appel- [Keri]." Court with a reason to believe that Dr. lants' App. at 3. Keri alleged then Hannah [the Vice Chancellor of Aca- Swinehart and Hartman committed slan- demic or Dr. Affairs] Utesch simply against der him in the months preceding up made the stories of the students' the antihаrassment proceeding, that they complaints, by themselves or in collabo- *8 committed libel the Purdue complaints, ration with the students. He refers to and that they maliciously interfered with Dr. Utesch's conversation with [Swine- employment contract. hart] at the racquet [Hartman] club as indication conspiracy, of but he is Swinehart and Hartman moved for sum- supply any unable to basis for this claim. mary judgment. During oral argument, Further, he states that [Hartman] hated Keri clarified that he only challenging [Keri] because she received a "B" in his the contents of the Purdue complaints as 2. Keri is a black man and a native of Ghana.
1025 against defamation acts of tortious mitted granted court trial defamatory. The on However, based alle- of action on the causes summary judgment him. motion if the actionable may not be defamation with Keri's interference of malicious gation subject are statements tortious purported court de- The trial contract. employment Indiana, two there are In issues, privilege. to a the defamation motion on nied protect pur available types privilege not barred claims were Keri's stating that comments, defamatory absolute portedly estoppel, or collateral the ITCA Trot privilege. See qualified privilege to the merit" may be that, there "[wlhile Inc., N.E.2d pro- 632 Sys., antiharassment v. Ind. Waste ter argument If a state 1159, (Ind.Ct.App.1994). therefore 1162 quasi-judicial ceeding was where under cireumstances is made "this ment privilege, by an absolute protected ac right no absolutely privileged, it is courts of Indiana to the will defer Court though the statement even tion accrues poli- such to establish review appellate , Id. actionable. have been otherwise then would trial cоurt The at 621. cy." Id. fact of material question genuine found a immunity privilege Absolute of whether Swinehart the issue existed setting is well-established judicial in the protection had abused and Hartman State, See, 718 eg., H.B. v. Indiana law. court ex- the trial privilege qualified trams. 300, (Ind.Ct.App.1999), N.E.2d 302 proceeding. antiharassment tended judicial pro in a "[Plarticipants denied. for inter- its order certified trial court attorneys and judges, including ceeding, accepted. we which locutory appeal, lia from absolutely immune are witnesses [The actions.... judicial bility for their AND DECISION DISCUSSION immunity absolute provides law common or denial of grant reviewing When parts of integral who persons all are stan- our well-settled summary judgment Pfeifer, Hamed v. judicial process." for the as it is is the same of review dard (cit (Ind.Ct.App.1995) 672 647 N.E.2d genuine is a there whether trial court: LaHue, 334- 460 U.S. Briscoe v. ing fact, and whether of material issue (1988). 75 L.Ed.2d 36, 103 S.Ct. judgment as moving party is entitled to statements extends also principle That Ins. Co. Monroe Guar. of law. matter if those pleadings judicial contained (Ind. 968, 973 N.E.2d Corp., 829 Magwerks relevant pertinent are statements 2005). .be judgment should Summary Trotter, N.E.2d litigation. See sanctioned only if the evidence granted im purpose underlying "The 1162. 56(C) that there shows Trial Rule Indiana indepen judicial munity preserve is to and the fact of material issue genuine is no decision-making process.... dence aas judgment moving party deserves mat- grant underlie policies same [The be con- All must Id. evidence ter of law. judges immunity to absolute party, opposing in favor strued non-judi immunity to justify grant a material to the existence all doubts as quasi-judicial perform who officers cial moving against must be resolved issue H.B., at 802. N.E.2d functions." of law questions party. Coun- Tippecanoe novo. See de reviewed immunity also Qualified privilege Ass'n, N.E.2d v. Ind. ty Mfrs. Ind. in Indiana well-established law. (Ind.2008) *9 N.E.2d Chapman, Bank Nat'l In trans. denied. (Ind.Ct.App.1985), that Swinehart alleges we stated: Chapman, com- Hartman, complaints, in the Purdue concerning qualified privilege The rule a defamation, resultant suits for is so vital good is that a communication made in necessary integrity of our subject any faith on in judicial system matter which the it must be made party making the communication has an paramount to right of the individual interest or in reference to which he has legal remedy a when he has been duty public private, a either or either wronged. moral,
legal, social, if made to a per- question Id. The pertinence relevance or having corresponding son interest or operates qualification as a of the rule of duty, privileged. is and, privilege absolute application like the (citations itself, omitted). privilеge question .quotations is a Id. of law. privileges "qualified" Such because Id.
they: privilege absolute is change quality do[ ] the actionable of only granted when it is protect essential to published, merely words but rebut[ ] integrity judicial process. Lake the inference of imputed malice that is County Swanson, Juvenile Court v. in the absence of privilege. ap- In an N.E.2d 485 (Ind.Ct.App.1996). In case, propriate may trier of fact deter- Indiana, courts are hesitant and cautious privilege mine the by was abused exces- in applying judicial absolute privilege to publication, by sive use of the occasion areas outside the traditional adversarial improper
for an
purpose,
lack of process, such as quasi-judicial acts.
Id.
grounds
belief or
in
belief
the truth Nevertheless, there is no categorical rule
of what is said.
although
And
the term in Indiana for detеrmining when and
frequently
"malice" is
applied
viewing
apply
where to
an absolute privilege.
acts,
such
it appears the essence of the Rather, in determining whether a person
concept
speaker's
is not the
spite but his
to an
judicial
entitled
absolute
privilege,
privileged
abuse of the
occasion
going
adopted
we have
test,
a function-based
beyond
scope
purposes
looking to the nature of
per
the function
which the privilege exists.
formed and not the identity of the actor
(citations
Id. at 479-80
quotations
HB.,
performed
who
it.
713 N.E.2d at
omitted).
(citing
White,
Forrester v.
484 U.S.
108 S.Ct.
The reason underlying this doctrine is at 302-03. Both of those scenarios were public interest justified the freedom of under the rationale that expression by judicial participants roles "intimately associated with a proceedings, uninhibited the risk of proceeding." Id. at 302. Absolute
1027 against court directly to proсeeded stead to some extended has been also privilege or education claiming a hostile Indiana, Purdue proceedings administrative subject environment, be they would Rights Com work Civil Indiana the as with such they failed that defense the affirmative to im "[slince mission, rationale the pre- internal Purdue's advantage of the func to take and defined justified munity is See opportunities. corrective serves, person the ventative and protects it tions Raton, U.S. Boca 524 City Faragher v. attaches, [of the Commissioners of it to whom LEd.2d 662 141 are 118 S.Ct. Commission] Rights Indiana Civil they call attention (1998). support, immuni In quasi-judicial to absolute entitled "applies privilege that absolute F.3d the rule Baynerd, 180 v. ty." Crenshaw omitted). Cir.1999) On communications proposed to a (7th (quotation preliminary the communica- where proceeding quali judicial hand, extended we have the other proсeeding to a informal, relation but still tion has some more privilege fied faith good reasonably contemplated em "between communications important, consideration under serious partners, and business employees, ployers proceed- to the party possible or a eredi- organizations, witness fraternal of members Fink, 697 N.E.2d v. St. Eaton Van ing." Gatto agencies," and credit tors Inc., Restatement Sch., (citing 774 N.E.2d (Ind.Ct.App.1998) Richard (1977)). The Van communica (Second) § a school's Torts (Ind.Ct.App.2002), of showing good of requires employment rule Eaton regarding parents tions instant action of the faith, premise and the or administra members faculty of status lacked Hartman id, is that Swinehart and communications personnel, tive need address we in the faith. good officers law enforcement made to the antihar- if find that only we issue Chapman, investigation, an course of judicial is not itself proceeding assment at 479. N.E.2d nature. maintain Hartman Swinehart complaints Purdue comments
their
con
Hartman
Swinehart
privilege.
an absolute
protected
are
proceeding
the antiharassment
tend
that their state-
they contend
Specifically,
judicial
exercise
quasi-judicial
awas
an
to both
pursuant
made
ments
therefore,
extend
and,
be
should
functions
proceed-
quasi-judicial
and a
judicial
actual
Quasi-judi
judicial privilege.
absolute
ed
entitled
therefore,
they
and,
should
ing
in which
proceedings
are
proceedings
cial
privilege.
of absolute
protection
function
judicial
an exercise
there is
antiharassment
of whether
issues
The
v. Bd.
Lincoln
judge.
without
and,
nature,
if
judicial
was
proceeding
(Ind.Ct.
716, 721
Comm'rs, 510 NE2d
are
Purdue complaints
so, whether
Lincoln,
some
we identified
In
App.1987).
is-
privilege
absolute
by an
protеcted
re
judicial function
factors
salient
courts.
in Indiana
impression
of first
sues
proceedings:
quasi-judicial
quired
Antiharassment
of the
Nature
difficult,
impossible,
if not
it is
While
Proceeding
it
... we find
power
quasi-judicial
define
nature,
purpose
quality,
is the
contend
first
Hartman
Swinehart
name
than the
rather
performed,
act
complaints
Purdue
filing
that their
[that]
or board
officer
character
an actual
necessary prerequisite
"a
char-
its
it,
determines
which
performs
at 16.
Brief
Appellants'
judicial process."
Generally, the
judicial.
acter
that,
they
had
maintain
they
Specifically,
(1)
presence
in-
of:
consists
function
not filed
*11
(2)
notice;
the parties upon
the ascer-
Lincoln,
nature.
As an by counsel; "nature, sentation initial Blakemore was quality, and purpose" of the antiharass unable to remain impartial during the in- ment proceeding (8) indicates a quasi-judicial vestigation; proceeding was not lacked sub Blakemore counsel (4) Blakemore body; single limited authority to no provides (5) power, poena power; subpoena lacked *12 require such that position support unavailable was proceeding review adequate process necessary for are ments agree. cannot Keri. We to Rather, "[wle setting. quasi-judicial in a the emphasize, arguments Keris As proceedings in standard a lower accept not are Lincoln in identified standards it because bodies quasi-judicial before proceeding's aof determinative per se otherwise." to do unworkable would Rather, in addition nature. quasi-judicial "attempt to con Further, not will we standards, Procedures Purdue's to into a little board] administrative vert [an that is level highest the be at "should Marion Paynter v. rel. ex court." State City cireumstances." under the workable Court, Ind. 264 County Superior 675, Mishawaka, 261 Ind. of (1976). principle This 846, 851 N.E.2d procedural the from Aside at 68. N.E.2d envi in the educational true especially is above, Purdue's incorporated safeguards Univ. Bd. Curators See ronment. of of of op- an following: the require Procedures Horowitz, 98 S.Ct. 435 U.S. v.Mo. in to answer respondent the for portunity ("We (1978) to decline 55 L.Ed.2d claims, de- of stale an exclusion writing; judicial presence enlarge further older; ap- days or as claims fined thereby risk de community and academic to party third impartial anof pointment aspects of many beneficial of terioration interviewing by investigate We faculty-student relationship.").3 documents; de- reviewing witnesses were those restrictions say that cannot com- validity of the termination in this context. improper the evi- "preponderance under plaints appeal standard; initial Blakemore an argues further dence" impartial an role as to in her impartial conclusions investigator's remain unable to However, at least not consisting of Keri does panel, investigator. three member non- one position. at least of his support faculty member evidence present one either lack of member, with together Rather, that Blakemore's argues faculty he Hu- for ex- President her Vice or the demonstrated impartiality Chancellor re- for the Relations; opportunity respect" an "utmost toward pression man courage panel "for their with to meet spondent Swinehart Hartman Human complaints." for President their or Vice with coming forward Chancellor larg- for a see- Relations; opportunity an 14. Brief at Appellee's the Univer- demonstrates to the President words of those appeal ond context er bias, addition, Procedures but out Purdue's on a not In based sity. they were into and investigation demonstrat- the evidence require specifically a concern or mali- false afraid knowingly generally from students protection ed that As complaints. such charges. cious come forward above, stated: Blakemore quoted has not that Purdue arguments Keri's ut-my express like I would Finally, unper procedures adequate provided - [Swinehart] toward argument respect First, Keri's most regarding suasive. for- coming courage their legal have permitted [Hartman] that he was legal coun- permit proceedings must seems, assment dissent, princi- ignores this it 3. The cross-examination, penalties, sel, legal su- our announced ple-and the standards privi- an absolute perjury, in order such and this City Mishawaka preme court apply. lege to arguing the antihar- Lincoln-by Court Thus, I complaints. spoke specific allegation. ward with their we hold that the several other students who believed proceeding antiharassment was an exer- [Keri], they had been harmed but high- cise of the function with the speak, lest their future were afraid procedural safeguards est level of worka- I spoke harmed. to former careers be ble under circumstances. they said that had wanted students who Privilege Absolute conсerns about his behav- report their university, they
ior once left the but quasi-judicial The function of the had, they and that they never felt dis- antiharassment proceeding demonstrates *13 they guilty tressed and had not. an privilege. Again, the need for absolute university applaud Hence the should in determining person whether a is enti willing those who are to come forward judicial tled to an privilege, absolute we at complaint possible with serious risk per look to the nature of the function themselves, particularly they to when identity formed and not the of the actor taking partly good are the risk for the H.B., performed who it. 713 N.E.2d at others. Here, 302. proceeding the antiharassment Thus, Appellants' App. at 150-51. Blake- sought investigate claims of "harass more's comments do demonstrate not in workplace ment or the educational impartiality. lack of To the extent Keri environment," Appellants' App. by argues that Blakemore's bias was demon- employees Purdue so that Purdue could strated her of evidence consideration preventive take and corrective measures. Hartman, only cited Swinechart and effective, To proceedings require such provides evidentiary support Keri no complainants to be free from the prospect Indeed, argument. an such record retaliatory litigation for defamation. reflects that Blakemore considered evi- The absence of an privilege absolute would sources, dence from a including number of eviscerate the function proceed of those Keri. ings denigrate integrity Finally, in regard arguments to Keri's judicial function those proceedings serve. the antiharassment proceeding was grant qualified of a privilege is like body limited to a single and he was not wise settings insufficient because judicial review, afforded arguments such privileges require such a trier of fact to are not well-founded. Blakemore's investi- determine whether the privilege has been gation reviewed a three-member Chapman, abused. See 482 N.E.2d at panel with either the Vice President for 479-80. Human or Relations the Chancellor. Keri demonstrates, As the instant case if a option appeal also had the from that single grade unfavorable is sufficient to panel's decision to the President of the summary judgment overcome it would University, which he did. And Keri's bald take an extremely diligent student to avoid judicial assertion that he could not seek litigating fact, that issue before a trier of review of the proceeding antiharassment is thereby avoiding litigation. That threat of unpersuasive. If final Purdue's decision litigation chilling wоuld have a effect on from the proceeding antiharassment law, willingness of students to forth contrary come then he would be able with complaints seek a of harassment or legal equitable remedy hostile environments, prevent courts. we which turn would decline to address judicial whether he would being remedy be entitled re- universities from able to particular view of issues absent a more such situations. The instant case is direct- on the is barred privilege an absolute privi- absolute grant to the ly analogous complaints were Purdue that the grounds forum. traditional lege antihar- pertinent allegedly irrelevant Hartman's Hence, Swinehart Thus, hold we proceeding. made assment communications defamatory protect are is essential privilege an absolute proceeding antiharassment part em- judicial functions integrity of privilege. absolute by an protected proceeding. by the antiharassment bodied that our Hartman assert Swinehart action an such, cannot maintain As similar in accord conclusions against Swinehart defamation Specifical jurisdictions. from other cases complaints, the Purdue Hartman based from cite cases Hartman ly, Swinehart Hartman are entitled and Swinehart York California, and New Maryland, summary judgment. proposition the dual support quasi-judicial proceeding antiharassment Reversed. such, that the and, as See privilege. to absolute are entitled FRIEDLANDER, J., concurs. *14 Montalbano, Cal.App.3d 87
Brody v. J., separate DARDEN, dissents (1978); v. Reichardt Cal.Rptr. (2008); opinion. A.2d 566 Md. Flynn, 374 911, 462 Mogol, 118 Misc.2d Weissman DARDEN, dissenting. Judge, the (1983). note We N.Y.S.2d majority's York cases California, and New Maryland, dissent I respectfully to see- complaints applies privilege parental absolute involved each conclusion However, оf each ondary boards. school here. the analyzing after recognized, cases
those that the statements First, find I would af those boards protections procedural only enti- and Swinehart Hartman by respective that the respondents, the forded qualified as protection possible tled to an absolute entitled complainants proceedings I not believe do privilege. privilege. of the level rise to by Purdue provided cite also Hartman Swinebhart they lack because "judicial process" the Minnesota from case unpublished an judicial pro- of the protections inherent Keri And support. for Appeals of Court state themselves Procedures The cess. analogous is instant case that the argues law, of of a court they "are not the Northern from decision unpublished an for the counsel legal of presence and the not-for-publication A Illinois. of District conduct during the permitted not parties is prece as regarded be not 353). shall decision (App. With- Procedures." of these to estab except not be cited shall dent and counsel, Proce- by representation out lawor estoppel, judicata, collateral for cross-examination lish res provide do not dures 65(D). Rule Appellate Ind. case. Also, statements. adverse witness unpub consider Hence, we will in the course made adverse statements Illinois. from Minnesota cases lished oath, made under are not Procedures perjury. penalties subject to the jurisdictions no other identifies the Procedures also notes majority for an action position supporting into and investigation require "specifically anti- trump the need should defamation mali- knowingly false from proteсtion quasi-judi- filed harassment Op. at 1029. charges." cious fear from the free to be cial forums bring- by C-83 "remedy" provided argue does Keri Nor retaliatory litigation. ing charge, a false charge "a of harass- harassment were "good made in faith" is a faith," ment in bad disciplinary is action question of fact. The Procedure's specific against person brought who omissions protection for Keri that would that charge-not legal remedy for the provided be process-repre- person falsely charged. It precisely be- by counsel, sentation testimony under cause the Procedures fail provide oath, cross-examination, legal remedy- Keri the protections inherent judi- lead me to conclude that the statements process cial that I would find that the made therein should subject be to and privileges here must be found to quali- be tested the crucible of trial. The credi- fied-thereby requiring "a trier of fact to bility of those who made the adverse state- determine whether the privilege has been ments, Swinehart, Hartman and should be Op. abused." at 1080. put Therefore, to that test. I would affirm the trial court. Further, I would find that there is a question material of fact whether
Hartman and Swinehart abused that privi
lege. A communication may protected
by "qualified privilege if a need exists for
full and unrestricted communication re
garding matters on which parties have
a common interest or duty." Olsson v. Trs., Indiana Univ. Bd. 571 N.E.2d Michael HAMILTON, Kent *15 587 (Ind.Ct.App.1991), trans. denied. It Appellant-Plaintiff, seems clear to Purdue, me that faculty, its and it students have a common interest in the "report[ing] and address[ing] of inci Lilly Lois HAMILTON, Individually and 348). dents of harassment." (App. Under Representative as Personal of the Es qualified rule, privilege a communica tate PHilip Hamilton, Keith Appel tion is privileged if good made in faith on lee-Defendant. any subject matter in which party making the communication has an interest No. 80A02-0510-CV-929. if made to a person having a correspond Court of Appeals of Indiana.
ing duty. cited majority, protection qualified Dec. 2006. privilege applies to communication "made in good faith." Ind. Nat'l Bank v. Chap
man, 482 N.E.2d 479 (Ind.Ct.App.
1985), Thus, trans. demied. application of
the privilege "does not change the action
able quality of the published" words be
cause the trier of fact may still "determine
the privilege was abused ... lack of
belief grounds for belief in the truth of
what is said." Id. at 480.
I find that whether statements made
Hartman and Swinehart in the course of
reporting and addressing allegations of