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No. 2--05--0141

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

JUSTICE CALLUM delivered the opinion of the court:

Plaintiff, Frank Hood, sued defendants, the Illinois High School Association (IHSA) and Martin L. Hickman, the IHSA's executive director, for negligence and defamation. The trial court dismissed the action (see 735 ILCS 5/2--619(a)(9) (West 2002)) as barred by the Local Governmental and Governmental Employees Tort Immunity Act (Act) (745 ILCS 10/1--101 et seq.(West 2002)). On appeal, plaintiff argues that defendants are outside the Act's protection because the IHSA is not a "local public entity" as defined by section 1--206 of the Act (745 ILCS 10/1--206 (West 2002)). We agree, and we reverse the judgment and remand the cause.

Plaintiff's complaint alleged as follows. He was most recently employed as the basketball coach at privately owned Christian Life High School (CLHS) in Rockford. CLHS belongs to the IHSA, as do the vast majority of high schools, private and public, in Illinois. The IHSA makes and enforces rules to assure that its members' sports teams operate fairly. All member schools and their employees must follow these rules. On September 18, 2002, CLHS told the IHSA that plaintiff had violated IHSA rules pertaining to recruiting student athletes. CLHS's allegation was untrue. By a letter dated November 5, 2002, the IHSA, by Hickman, found that plaintiff was guilty of recruiting violations. Effective that day, the IHSA barred plaintiff from coaching at any IHSA member school for one year. The ruling prevented plaintiff from completing the 2002-03 season and made him unemployable for 2003-04. Defendants did not use due care in investigating the case and failed to inform plaintiff of the charge or allow him to answer it with evidence. Also, defendants defamed plaintiff by publishing its ruling on the IHSA's website and elsewhere.

Defendants moved to dismiss the complaint under section 2--619(a)(9) of the Code of Civil Procedure (735 ILCS 5/2--619(a)(9) (West 2002)), claiming the affirmative defense of immunity under the Act.⁽¹⁾ Defendants' motion noted that the IHSA is an unincorporated voluntary association of public and private high schools and that plaintiff's claims arose from defendants' official actions. The IHSA's claim of immunity relied on section 2--109 of the Act, which states, "A local public entity is not liable for an injury resulting from an act or omission of its employee where the employee is not liable." 745 ILCS 10/2--109 (West 2002). Hickman's claim of immunity for his alleged negligence relied on section 2--201 of the Act, which states, "Except as otherwise provided by Statute, a public employee serving in a position involving the determination of policy or the exercise of discretion is not liable for an injury resulting from his act or omission in determining policy when acting in the exercise of such discretion even though abused." 745 ILCS 10/2--201 (West 2002). A "public employee" is an employee of a local public entity. 745 ILCS 10/1--207 (West 2002). To establish their immunity to the defamation counts of the complaint, defendants relied on section 2--107 of the Act (745 ILCS 10/2--107 (West 2002)), which states, "A local public entity is not liable for injury caused by any action of its employees that is libelous or slanderous ***."

Defendants' invocation of the Act was premised on their assertion that the IHSA is a "local public entity." Section 1--206 of the Act defines that term as follows:

" 'Local public entity' includes a county, township, municipality, municipal corporation, school district, school board, educational service region, regional board of school trustees, community college district, community college board, forest preserve district, park district, fire protection district, sanitary district, museum district, emergency telephone system board, and all other local governmental bodies. 'Local public entity' also includes library systems and any intergovernmental agency or similar entity formed pursuant to the Constitution of the State of Illinois or the Intergovernmental Cooperation Act as well as any not-for-profit corporation organized for the purpose of conducting public business. It does not include the State or any office, officer, department, division, bureau, board, commission, university or similar agency of the State." (Emphasis added.) 745 ILCS 10/1--206 (West 2002).

Relying in part on Carroll v. Paddock, 199 Ill. 2d 16 (2002), defendants argued that the IHSA is "organized for the purpose of conducting public business." 745 ILCS 10/1--206 (West 2002). Defendants noted that public schools make up about 85% of the IHSA's membership. As a result, it has been held that, "although the IHSA is a purely voluntary association, the overwhelmingly public character of the IHSA membership is sufficient to confer state action" under the federal due process clause (U.S. Const. amend. XIV) and federal civil rights law (42 U.S.C.