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Danekas v. Wise

OPINION FILED OCTOBER 17, 1978.

FRANKLIN DANEKAS, PLAINTIFF-APPELLANT,

v.

KENNETH WISE ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of Ogle County; the Hon. F. LAWRENCE LENZ, Judge, presiding.

MR. JUSTICE RECHENMACHER DELIVERED THE OPINION OF THE COURT:

The plaintiff appeals from a summary judgment granted to the defendants in a libel suit arising out of an editorial published in the defendant newspaper.

The plaintiff was formerly — several years previous to the libel suit being filed — chief of police of Rochelle. However, at the time of the libel action he was only a patrolman. The allegedly libelous editorial stated that a certain council member was attempting to get the plaintiff reinstated as police chief, or at least assistant chief, of Rochelle and deplored this possibility because, it said, Danekas had run a "mickey mouse" force while he was chief. The editorial said Danekas had been guilty of illegal and unprofessional conduct while in office, had arranged or condoned the burglary of a political opponent's business office, had deliberately ignored and neglected to prosecute another burglary, had secretly given information from the police files to an attorney for use in litigation against the city and had insulted and attempted to undermine the authority of the present chief.

The complaint for libel stated that all of the charges against the plaintiff were "false and known by the defendants to be false and defendants' publication thereof was with total and reckless disregard for the truth or falsity of any of said charges. That both the expressed language and the clear import of the allegations made in the aforesaid publication is that the plaintiff has been guilty of the commission of various criminal offenses all of which are false and totally without foundation in fact." The plaintiff alleged that as a result of the libel he had been damaged both as a public official and as a private citizen and he demanded $1,000,000 in compensatory and punitive damages.

The answer of the defendants admitted the publication of the article in question and that the defendant, Wise, was the author, but pointed out that the plaintiff was a public official and contended that the editorial was true or substantially true in all of its allegations and constituted fair comment about a public official under United States and Illinois constitutional privileges protecting free speech. In answer to the plaintiff's interrogatories concerning the basis for the defendants' allegations, the defendants supplied depositions, affidavits and public records indicating the sources of information, in addition to Wise's own knowledge and memory, which Wise relied on in writing the allegedly libelous editorial.

The defendants then moved for summary judgment on the basis that the plaintiff is a public official; that the editorial was not published with actual malice, that is with knowledge of its falsity or reckless disregard of its truth or falsity; that the plaintiff had failed to claim special or actual damages as a result of the publication, and that based on the defendants' pleadings, depositions and affidavits on file there is no genuine issue as to a material fact.

The trial court, after considering the pleadings, affidavits, briefs and arguments of counsel, granted the defendants' motion for summary judgment. The court stated in its opinion sustaining the motion that under New York Times Co. v. Sullivan (1964), 376 U.S. 254, 11 L.Ed.2d 686, 84 S.Ct. 710, the first amendment to the Constitution "protects a newspaper from liability for defamatory misstatements except where there is clear and convincing evidence of the newspaper's knowing or reckless falsity," and the court found that a showing of actual malice was lacking.

In this appeal, the plaintiff contends the trial court erred in granting the motion for summary judgment because "there is substantial evidence upon which a jury could properly find that the publication was made with `actual malice' as defined by the New York Times rule." The plaintiff has not, however, provided any evidence that would indicate actual malice on the part of the defendant, Wise, author of the offending article, and he relies on deductions or arguments based on (1) the length of time between the alleged acts or failures of the plaintiff and the publication of the editorial in question and (2) that no criminal action was ever filed against the plaintiff while he was police chief, implying doubt as to the validity of the charges against him.

• 1, 2 In a libel action against a newspaper, however, the plaintiff must come forth with something more than deductions and arguments based upon the publication to establish a prima facie case of malice. Under the New York Times rule, he must show evidence — not proof, but at least evidence — of actual malice on the defendant's part in making the publication. Thus, actual malice cannot be deduced from mere passage of time, as indicating ignorance or recklessness as to the facts, nor can malice be assumed from an accusation of wrongdoing, which is not followed up by a criminal prosecution. Neither of these factors even indicate that a statement is false, let alone indicating that it was made knowing that it was false, or with indifference to its truth or falsity.

Moreover, in this particular case, the inference of malice, based on a gap in time between the alleged conduct and the publication, is repudiated by the defendant's deposition explaining the reason for the editorial comment. The deposition, as well as the editorial itself, clearly indicates that the defendant, Wise, was motivated to editorialize as he did on the position of police chief in Rochelle, because he had just been informed by one of the councilmen of the City of Rochelle that another councilman of Rochelle was maneuvering to bring the plaintiff back to a position of power — either that of chief or assistant chief — in the city police administration. The defendant, Wise, indicates very clearly, both in the editorial itself and in his deposition, that it was this current maneuvering which inspired the editorial and that his comments were the result of his belief that immediate action was necessary to enlist public support for the present police chief and forestall the movement to restore the plaintiff's influence. In his deposition, Wise relates that the editorial was written and published after he learned from a council member of the possibility of a movement to reappoint Danekas, about 2 weeks before the question of reappointment of the present police chief was to come before the council. Therefore, he had to act quickly to make his viewpoint known. The concluding paragraphs of the editorial confirm that the matter was of current interest to the public:

"Or do we read the community wrong? Does the community stand behind the removal of Winston Brass?

We would like to hear from the residents and we are sure the members of the council want the feelings of the voters."

The timing of the editorial, therefore, appears to be due to a newly arisen situation and the lag in time between the conduct in question and the publication thus carries no implication of falsity or doubt.

As to the suggestion at oral argument that the failure to prosecute the plaintiff for his alleged misconduct in office infers his innocence of any wrongdoing, it is noted that Commissioner McCaslin's deposition relates that while the plaintiff was police chief in 1969, he was asked by the city council to resign and at his own request was then reduced to the rank of detective and ended up eventually in the rank of patrolman. Some time later, while he was a patrolman, he was suspended from active duty for 5 days for publicly referring to the current police chief, Winston Brass (who was a Pakistani), as a "nigger." It can hardly be seriously maintained that no official notice was taken of the plaintiff's conduct in view of the investigation of his office, his subsequent resignation as police chief and ...


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