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Ware v. Carey





APPEAL from the Circuit Court of Cook County; the Hon. NATHAN ENGELSTEIN, Judge, presiding.


In 1973 plaintiff, Mitchell Ware, filed a complaint against C. Bernard Carey, Ralph Berkowitz, Kenneth Gillis and Nicholas Iavarone, charging defamation. After several amendments and the dismissal of various counts, plaintiff's third amended complaint was reduced to three counts (counts I, III and X). Defendants filed their motion for summary judgment on all three counts and subsequently amended that motion. Plaintiff moved for summary judgment as to counts I and III. On January 19, 1978, the circuit court of Cook County granted summary judgment for defendants on all counts. Plaintiff appeals that order. Because of the death of defendant Berkowitz, the action has abated as to him.

At the time of the alleged defamatory publications, plaintiff was the deputy superintendent of the Chicago Police Department. His responsibilities included supervision of the intelligence division, internal affairs division, inspections division and vice control division. Defendant, C. Bernard Carey, was the Cook County State's Attorney. The remaining defendants were assistant State's attorneys.

Count I alleges that Carey defamed plaintiff by virtue of a press release and public statement issued on September 11, 1973. It was further alleged that Carey knowingly made these false, defamatory statements. Count III alleges that Carey defamed Ware when he knowingly made false defamatory statements on a television interview show. Count X alleges that Carey and the other defendants caused the Cook County grand jury to issue a letter to Chicago police superintendent James Rochford that defamed plaintiff. Ware also alleged that defendants acted with knowledge of the falsity of the letter's contents. The circuit court entered summary judgment for defendants on counts I and III, finding as a matter of law that actual malice did not exist. Summary judgment for defendants on count X was also granted because there was no genuine issue of material fact that defendants caused the drafting or publication of the letter.

Ware appeals on all counts, contending that factual issues remain necessitating remandment for trial on the merits. We affirm on all counts. Further development of the facts pertaining to each count follows in connection with the contentions of the parties.


Count I concerns Carey's September 11, 1973, press release, which follows in its entirety:

"I have called this press conference to call public attention to what appears to me a deliberate attempt by Mayor Daley and his Police Superintendent Conlisk and Mitchell Ware to cover up police corruption and downgrade the efforts being made by this Office and U.S. Attorney James Thompson to expose and prosecute the many instances of extortion, shakedown, and corruption in the Police Department.

Yesterday, a story appeared in one of the Chicago newspapers in which Mitchell Ware, Deputy Superintendent of Police in charge of inspectional services stated that now the cleanup of the Police Department in Chicago has been completed. According to Ware there can be no more corruption in the Police Department because if there was he would be aware of it.

This follows the recent statement by Ware's mentor, Mayor Daley, that there is no corruption in the Police Department. The public is corrupt, not the police.

Shortly before the Mayor's astounding pronouncement his Police Superintendent James Conlisk exploded to the press his confidence in the Police Department and in fact characterized prosecution of police extortionists as a smear on the top command of his Department. These public statements seem to me to be a deliberate signal to the police that official Chicago will continue to wink at corruption.

I want to go on record that nothing is further from the truth. The era of police shakedown and extortion is ending. Such practices will no longer be tolerated.

My office and the U.S. Attorney's office will continue to investigate and prosecute any illegal acts to the limit of the law. It is the height of irony that the C-5 unit which Ware credits with the miracle of completing the cleanup of police corruption in Chicago should be headed by Mayor Daley's protege, John J. Clarke, the man who is himself under indictment in the Federal Court on 8 counts of obstruction of justice and perjury. This is one more glaring example of Mayor Daley's contempt for the intelligence of the people of Chicago and their concern for a Police Department worthy to meet the challenge of crime.

Conlisk has publicly declared his confidence in Clarke despite the federal indictment. He can see nothing wrong in keeping a man in charge of this sensitive C-5 unit whose integrity has been challenged by the Federal Grand Jury. On the other hand, he cannot contain his indignation that at long last corruption within the Department is being brought to account before the courts>.

This City's Police Department faces a crisis of confidence with the public. This is not a time for officials to show weakness or avert their eyes. I call upon these officials to retract these obnoxious statements and join with me to root out police corruption.

Our office has charged or convicted 19 police officers this year, while the U.S. Attorney's Office has 61 indictments or convictions of police officers.

The vast majority of police are honest. They strive to be allowed to carry out their duty to protect the safety of the community. Without public respect and cooperation, their job can become difficult and bitter. To ignore and even condone police corruption puts an extra burden on the honest cop.

Mitchell Ware was appointed to clean up the Police Department when the public was crying out against obvious dishonesty, but now that the heat has cooled down, Daley, Conlisk and Ware think they can go back to the old routine of automatic whitewash.

U.S. Attorney Thompson and I are determined to rid the Police Department of the extortionists and shakedown artists of whatever rank. Chicago needs and is entitled to an honest Police Department."

Ware alleged that these statements were reported extensively by various Chicago newspapers, wire services and local radio and television stations. He contends that according to the plain meaning of the statement, Carey accused him of protecting and covering up police corruption.

After learning about this press release, Ware made a phone call to Carey. Ware alleged in his complaint that during this phone conversation "[t]he defendant Carey acknowledged and admitted the falsity of the statements complained of * * *."

Ware asserts that summary judgment on count I was improper because the depositions on file established a material issue of fact as to whether Carey published his statements with actual malice (i.e., with knowledge of the falsity of his remarks or reckless disregard of whether they were false or not). Troman v. Wood (1975), 62 Ill.2d 184, 189-190, 340 N.E.2d 292.

Carey offers four responses. First, by filing a cross-motion for summary judgment on count I, Ware conceded that no triable fact issues remained and waiver or estoppel prohibits his arguing this issue on appeal. Second, his press release is capable of an innocent construction. Third, no triable issue as to actual malice exists. Fourth, as Cook County State's Attorney, Carey is protected by an absolute privilege from defamation actions.

• 1 We find that Carey was protected by an absolute privilege from civil defamation and need not address the remaining issues.


Carey maintains that the public statement which forms the basis for count I is protected by the absolute executive privilege recognized in Blair v. Walker (1976), 64 Ill.2d 1, 349 N.E.2d 385. Alternatively, he claims the statement is non-actionable because of the doctrine of prosecutorial (quasijudicial) immunity as defined in Imbler v. Pachtman (1976), 424 U.S. 409, 47 L.Ed.2d 128, 96 S.Ct. 984. We agree that Blair is controlling and need not discuss quasijudicial immunity.

In Blair, plaintiffs were allegedly libeled by press releases made by Governor Walker. The Governor stated that plaintiffs used a corporate front and legal technicalities to obtain the home of a "helpless woman" through a foreclosure sale. He accused plaintiffs of violating real estate broker licensing laws and characterized them as "unscrupulous." The Governor further stated that he had instructed the Department of Registration and Education to revoke plaintiffs' real estate licenses.

The supreme court held that the Governor is protected from defamation actions by an absolute privilege when issuing statements legitimately related to matters committed to his responsibility. Plaintiffs contended that since the Governor had no express authority to license real estate brokers, he had acted beyond the scope of his duty. The court reasoned that the Governor did not violate the inherent, discretionary authority of his office by informing the public of actions he had directed be instituted against plaintiffs. The Governor's duties include supervision of the Department of Registration and Education. Department officers are his subordinates. If the Governor's statements had been communicated to Department officials, they clearly would have been absolutely privileged. The court also believed that the Governor did not exceed the bounds of his duty in communicating this message to his constituency.

Carey asks us to extend the Blair holding to afford him an absolute privilege in this case. Two issues concern us: (1) whether absolute executive immunity granted the Governor in Blair should be applied to the State's Attorney, and (2) if so, whether Carey acted within the scope of that immunity.

We note initially that the State's Attorney is an executive official as his office is part of the executive branch of government. (People v. Vaughn (1977), 49 Ill. App.3d 37, 363 N.E.2d 879.) Blair's grant of absolute executive immunity was held applicable to the chief executive officer of a municipality in Loniello v. Fitzgerald (1976), 42 Ill. App.3d 900, 356 N.E.2d 842. Statements made by a mayor during a city council meeting were within the ambit of this privilege. The Loniello court deemed it logical that a mayor, like the Governor, "should be able to carry out his daily responsibilities free from concern that his actions will result in civil damage suits." Blair, 64 Ill.2d 1, 7; see also Larson v. Doner (1961), 32 Ill. App.2d 471, 178 N.E.2d 399 (absolute privilege afforded mayor and city commissioners).

We are of the opinion that the policy underlying the grant of absolute immunity in Blair, Loniello and Larson is equally applicable to the instant case. Judge Learned Hand summarized the policy considerations favoring absolute immunity for government officials in Gregoire v. Biddle (2d Cir. 1949), 177 F.2d 579, 581, cert. denied (1950), 339 U.S. 949, 94 L.Ed. 1363, 70 S.Ct. 803:

"It does indeed go without saying that an official, who is in fact guilty of using his powers to vent his spleen upon others, or for any other personal motive not connected with the public good, should not escape liability for the injuries he may so cause; and, if it were possible in practice to confine such complaints to the guilty, it would be monstrous to deny recovery. The justification for doing so is that it is impossible to know whether the claim is well founded until the case has been tried, and that to submit all officials, the innocent as well as the guilty, to the burden of a trial and to the inevitable danger of its outcome, would dampen the ardor of all but the most resolute, or the most irresponsible, in the unflinching discharge of their duties. Again and again the public interest calls for action which may turn out to be founded on a mistake, in the face of which an official may later find himself hard put to satisfy a jury of his good faith."

• 2 Carey is the chief law enforcement official for Cook County, Illinois. The State's Attorney is a high-ranking executive officer and an officer of the court charged with the administration of the law. (People v. Dean (1923), 308 Ill. 74, 139 N.E. 37.) He has also been described as a "quasijudicial" officer. (People ex rel. Schreiner v. Courtney (1942), 380 Ill. 171, 43 N.E.2d 982.) We believe that his office and the social and public interests it furthers are comparable to the chief executive officials of municipalities. Accordingly, we hold that the State's Attorney has an absolute executive privilege from liability for defamation arising from the performance of his duties.

• 3 It remains to be considered whether Carey's press release under the circumstances of this case concerns matters legitimately related to matters committed to his responsibility. (Blair.) Duties of the State's Attorney are codified in section 5 of "An Act in regard to attorneys general and state's attorneys" ...

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