ILNews

Court grants absolute privilege case

Michael W. Hoskins
January 1, 2007
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The Indiana Supreme Court will consider whether absolute privilege exists for communications made in the course of official proceedings brought under a university's anti-harassment policies.

The court granted transfer Wednesday in Virginia Hartman and Suzanne Swinehart v. Dr. Gabe Keri , No. 02A03-0603-CV-135, which comes from Allen Superior Judge David Avery.

Keri became an assistant professor of education in August 2000 at Indiana University-Purdue University - Fort Wayne and was notified in April 2003 that his contract wouldn't be renewed because of unsatisfactory performance. Two students, Hartman and Swinehart, immediately filed sexual harassment complaints against him.

Keri ultimately sued in Allen Superior Court on grounds of defamation, alleging the two graduate students had conspired to commit slander against him. The trial court granted a motion for summary judgment on the allegation of malicious interference with Keri's employment contract but denied it on the defamation issues. The court found a material of fact on the issue of whether Swinehart and Hartman had abused the protection of qualified privilege that had been extended to the anti-harassment proceeding.

The Court of Appeals reversed in a Dec. 27, 2006, opinion and granted summary judgment for the students, holding that "absolute privilege is essential to protect the integrity of the judicial functions embodied by the anti-harassment proceeding."

In a separate dissenting opinion, Judge Carr Darden disagreed with the majority and noted that absolute privilege should not apply, that the statements by Hartman and Swinehart could potentially get qualified privilege protection, and that the Purdue proceedings don't rise to the level of "judicial process." He noted that the proceedings lacked representation of counsel, testimony under oath, cross-examination, and a legal remedy - therefore, the statements must be put to the test.

A date for oral arguments has not been set.
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  1. File under the Sociology of Hoosier Discipline ... “We will be answering the complaint in due course and defending against the commission’s allegations,” said Indianapolis attorney Don Lundberg, who’s representing Hudson in her disciplinary case. FOR THOSE WHO DO NOT KNOW ... Lundberg ran the statist attorney disciplinary machinery in Indy for decades, and is now the "go to guy" for those who can afford him .... the ultimate insider for the well-to-do and/or connected who find themselves in the crosshairs. It would appear that this former prosecutor knows how the game is played in Circle City ... and is sacrificing accordingly. See more on that here ... http://www.theindianalawyer.com/supreme-court-reprimands-attorney-for-falsifying-hours-worked/PARAMS/article/43757 Legal sociologists could have a field day here ... I wonder why such things are never studied? Is a sacrifice to the well connected former regulators a de facto bribe? Such questions, if probed, could bring about a more just world, a more equal playing field, less Stalinist governance. All of the things that our preambles tell us to value could be advanced if only sunshine reached into such dark worlds. As a great jurist once wrote: "Publicity is justly commended as a remedy for social and industrial diseases. Sunlight is said to be the best of disinfectants; electric light the most efficient policeman." Other People's Money—and How Bankers Use It (1914). Ah, but I am certifiable, according to the Indiana authorities, according to the ISC it can be read, for believing such trite things and for advancing such unwanted thoughts. As a great albeit fictional and broken resistance leaders once wrote: "I am the dead." Winston Smith Let us all be dead to the idea of maintaining a patently unjust legal order.

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