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Chapski v. Copley Press





APPEAL from the Circuit Court of Kane County; the Hon. MARVIN DUNN, Judge, presiding. MR. JUSTICE NASH DELIVERED THE OPINION OF THE COURT:

Plaintiff, Robert A. Chapski, an attorney, brought this action to recover damages for alleged libel published by defendants, Copley Press, Inc.; The Daily Courier News; its editor and publisher, D. Ray Wilson; its executive editor, LeRoy Clemens; and a reporter, Michael Bailey.

The trial court dismissed the complaint finding that the innocent-construction rule applied to the newspaper articles in question and plaintiff appeals.

The series of newspaper articles upon which this action is based were published in the Daily Courier News from February 8, 1979, through January 25, 1980, and related to the death of two-year-old Kristie Hubbard as a result of child abuse. Plaintiff had represented the child's mother, Kathleen Hubbard, in both juvenile and divorce proceedings in Kane County in which Mrs. Hubbard had been granted custody of the child. The newspaper articles described the court procedures prior to the death of the child and plaintiff's role as an attorney in the case.

Plaintiff alleged in count I of his complaint that on September 14, 1978, while all of the interested parties were before the juvenile division of the circuit court, Judge Neil Mahoney entered an order returning custody of the child to Kathleen Hubbard. Subsequently, on September 21, plaintiff again appeared before Judge Mahoney, who then entered a written order confirming the order of September 14. Kathleen Hubbard had filed a petition for dissolution of marriage in Kane County on September 6, and plaintiff alleged that he was informed that her husband had filed a similar petition in the circuit of Cook County on September 12 in which he intended to seek custody of the minor child. On September 26, plaintiff obtained a "status quo order" of custody in the divorce action and on October 13, the parties, their attorneys and the minor child appeared in court and the child was examined for any marks or bruises; none were found and the orders granting custody to Kathleen Hubbard remained in effect from that date until February 2, 1979, when Kristie Hubbard died. Plaintiff further alleged that from October 13, 1978, until February 2, 1979, no further court proceedings were held concerning the custody of the child.

Plaintiff alleged that from February 8, 1979, through January 25, 1980, the defendants "seized upon this unfortunate set of circumstances to wrongfully and maliciously and with intent to defame and injure the plaintiff in his reputation, caused to be published in the aforementioned newspaper, false, defamatory, libelous articles and editorials * * *." The allegedly libelous portions of 10 newspaper articles were set forth in each of the first 10 counts of the complaint, and full texts of the articles were appended to it as exhibits.

Count I of the complaint was directed to an article published on February 8, 1979, with the headline "Child custody battle sad as child's death itself." It characterized the September 21 hearing as "impromptu" and quoted an assistant public defender that "it's my feeling that when an attorney comes in with a motion that will effect the status of the case, court procedures require proper notice to other parties."

The article which formed the basis for count II was published February 9 and concerned plaintiff's representation of Norman Platter, Kathleen Hubbard's boyfriend, who was accused in the beating death of the child. The article noted that custody of Kristie Hubbard had previously been taken from her mother in August, reportedly because of abuse of the child by Platter, and that custody was returned to Kathleen Hubbard in "an unscheduled hearing in September."

Count III was based on an article published February 11, 1979. It stated that based upon information supplied by plaintiff at "an unscheduled hearing" that the mother no longer lived with Platter, Judge Mahoney agreed to return the child to her without consulting the Department of Children and Family Services. The article also queried whether plaintiff knew of abuse of the child from the juvenile proceedings when he later appeared before Judge McCarthy, who in the mother's divorce proceeding was deciding on the custody of the child, and whether plaintiff had a legal or moral responsibility to inform Judge McCarthy of the alleged abuse.

Count IV of the complaint was based on an article published February 16, 1979, and bore the headline, "Who's to blame? Many questions in baby's death." It again referred to plaintiff's appearance at "an unscheduled hearing" during which he informed the court that Mrs. Hubbard had moved out of the Platter residence. The article also referred to a custody hearing held in the divorce proceedings and noted that although local rules required four days notice before a hearing, plaintiff did not mail notice of the proceeding until three days prior to it. The article also contained a statement attributed to the husband's attorney that he advised his client to seek local counsel because he felt someone was "going in the back door in Kane County." Although the article stated that the husband's attorney would not make any direct comment in reference to plaintiff, it quoted him as saying that in his opinion in custody cases a lawyer "has a responsibility to human life above that to his client".

Count V of the complaint was based upon an article published February 18, 1979, which bore the headline "To clear the record * * *." It purported to summarize the events reported in the previously published articles and noted that "Chapski did not mention to McCarthy the incident of physical abuse, the fact that DCFS was involved in the case, the fact that there were other court proceedings before Judge Mahoney, or the fact that there were criminal charges pending at that time against the mother and Platter. It is agree [sic] he had no legal requirement to do any of these things. Every lawyer contacted by me, though, said they would assume a moral obligation to do so."

Count VI of the complaint was founded upon an article published February 25, 1979, which bore the headline, "Legal report card: F." The excerpt reproduced in the complaint reads in its entirety:

"While no lawyer will publicly criticize anyone concerned with the case, five different lawyers have spoken to me privately, outlining their experiences with a shaky legal system that condones any lawyer who skirts the ethics of their profession.

`This is the culmination of several years of these shenanigans,' ...

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