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Wanless v. Rothballer





Appeal from the Appellate Court for the Third District; heard in that court on appeal from the Circuit Court of Peoria County, the Hon. Richard E. Eagleton, Judge, presiding.


Rehearing denied January 30, 1987.

Frank Wanless, the plaintiff, brought this action for libel against defendants, Rhonda Rothballer and the Peoria Journal Star (Journal Star). A jury in the circuit court of Peoria County returned a verdict for the plaintiff and assessed compensatory and punitive damages totaling $500,000. The appellate court reversed the judgments, holding upon its de novo review that there was insufficient evidence in the record to convincingly establish the presence of "actual malice," as required in cases such as this where the allegedly libeled party is a public official. (136 Ill. App.3d 321.) The plaintiff was allowed leave to appeal (94 Ill.2d R. 315(a)), and he requests this court to consider whether the appellate court utilized the proper standard of review and, if so, whether the record discloses clear and convincing evidence of actual malice.

The plaintiff was village attorney for the village of Morton at the time defendants published the allegedly libelous articles in the January 20, 1977, edition of the Journal Star. On that date, defendants published three stories regarding the plaintiff's conduct as village attorney in the years 1972 through 1976, and those stories completed a series of articles investigating allegations of unethical conduct by Morton village officials.

The lead article on a single page of three articles regarding the plaintiff was headlined "Annexing to Morton . . . Village Atty. Wanless Paid By Clients, Taxpayers." It began: "Village Atty. Frank M. Wanless has been paid twice for preparing annexation papers — by the village and by clients wishing to annex to the village." There is evidence that the village of Morton had a policy that any landowner whose property was contiguous with village boundaries could petition for annexation and be annexed upon payment of a fee to the village. Landowners would have to prepare the necessary documents at their own expense, and during his tenure as village attorney, the plaintiff was paid many times to prepare annexation papers in his capacity as a private attorney. The plaintiff testified that he prepared those papers three or four times a year, and only in cases where the village's annexation fee had already been established. He further testified that attorneys who prepared annexation papers rarely attended meetings of the Morton board of trustees where such petitions were acted upon by majority vote; none of those who testified could recall a case where a properly drafted petition to annex contiguous land had been denied.

For discharging the duties of village attorney the plaintiff was paid $1,500 every month by the village as a retainer for 60 hours of legal work per month. The village was billed an additional hourly charge for every hour worked in excess of 60 hours in one month; if in any one month the plaintiff devoted fewer than 60 hours to village work, the difference was credited against time in excess of 60 hours expended in other months. About twice a year the plaintiff would submit a bill to the village for the balance of additional hours worked in the previous half year. Rothballer described how she came to the conclusion that Wanless had been paid twice for the same work:

"During the interview with the Plaintiff on October 29, 1976

he admitted that he would prepare annexation papers for private individuals when all the rules of annexation were laid down. Based upon these statements to me that the Plaintiff represented private individuals with legal matters which required action by the Board of Trustees of the Village of Morton, by whom the Plaintiff was paid a retainer fee to act as Attorney for said Village, I concluded that the Plaintiff was paid by both his private clients and by the Village of Morton for preparing annexation papers."

The evidence shows that the plaintiff was not retained to prepare, in the sense of drafting, annexation papers for the board of trustees; rather, as set forth above, village policy required landowners to bear that expense. By vote of the village trustees, that policy was reaffirmed in the spring of 1976. Rothballer wrote in the published article that "[m]any cities pay the attorneys' fees connected with annexation" while Morton policy was to not do so, indicating that she knew that annexing parties were expected to pay attorney fees. Although there was no evidence presented at trial to support the assertion that the plaintiff billed the village (by counting hours against the 60 hours covered by his retainer or counting hours as extra hours) for time spent actually drafting annexation papers, neither was evidence presented to negate the presumption that the plaintiff was paid by the village for his attendance at board meetings where the board of trustees considered or acted upon annexation petitions he had prepared.

Plaintiff's second allegation of libel arises from comments in the same article suggesting that the plaintiff had prepared a sewer-assessment ordinance which benefited his alleged client, WRCL Company, owner of the Waldheim subdivision.

"At a public hearing in August 1975 for a special assessment sewer project on N. Morton Ave., where Waldheim is located, Wanless said he was the attorney for the subdivision's development company known as WRCL Co.

So, he was representing [village of Morton] Trustee Zobrist [a partner in WRCL Company] in his annexation request, as well as representing the village. He also was preparing the special assessment project that would affect his client Zobrist, and future subdivision dwellers.

Once that [sewer trunk line] was furnished, the individual lots were assessed for the remainder of the sewer project costs. The entire sewer system for the subdivision ...

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