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07/30/87 Christy S. Berkos, v. National Broadcasting

July 30, 1987

CHRISTY S. BERKOS, PLAINTIFF-APPELLANT

v.

NATIONAL BROADCASTING COMPANY, INC., ET AL., DEFENDANTS-APPELLEES



Moreover, although Karl had no duty to exonerate any of the Judges who presided over the 10 cases at issue, the Judges, including Berkos, were called and given an opportunity to comment. Karl further acted responsibly by specifically noting that there were no charges of wrongdoing against any of those Judges.

APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FOURTH DIVISION

515 N.E.2d 668, 161 Ill. App. 3d 476, 113 Ill. Dec. 683

Appeal from the Circuit Court of Cook County; the Hon. William R. Quinlan, Judge, presiding. 1987.IL.1088

APPELLATE Judges:

PRESIDING JUSTICE McMORROW delivered the opinion of the court. LINN, J., concurs. JUSTICE JIGANTI, Dissenting in part and Concurring in part.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MCMORROW

Christy S. (Berkos) appeals from the trial court's dismissal of his complaint against the National Broadcasting Company, Inc. , and Peter Karl (Karl) based upon their television broadcast of a particular news program segment pertaining to a Federal criminal investigation commonly known as "Operation Greylord." In the broadcast, NBC and Karl referred to certain actions taken by Berkos in his judicial capacity. The complaint alleged that the broadcast's references to Berkos, in their overall context, constituted libel, an appropriation of Berkos' name or likeness for the commercial advantage of Karl and NBC, the placement of Berkos in a false light, and the intentional infliction of emotional distress upon Berkos, and requested compensatory as well as punitive damages. After the trial court dismissed the entire pleading, Berkos filed a motion for reconsideration which also asked for leave to file an amended complaint. The trial court denied both requests, and Berkos appeals.

Upon review, Berkos urges essentially that the trial court's dismissal of his claims was in error because the method by which NBC and Karl structured their report imputed to Berkos the commission of a crime, that is, the acceptance of an alleged bribe of a Chicago police department police officer to "influence" Berkos' Disposition of a criminal case pending before him. NBC and Karl contend that their report was summarized from a Federal indictment against the police officer resulting from Operation Greylord and Cook County circuit court records to which the indictment referred. They maintain, in essence, that they are entitled to report to the viewing public the contents of official court documents, and that as a result Berkos' complaint was correctly dismissed by the trial court.

The parties' underlying legal arguments implicate fundamental principles regarding the news media's significant role in informing the public of the decisions of public officials. (See, e.g., Cox Broadcasting Corp. v. Cohn (1975), 420 U.S. 469, 491-92, 495, 43 L. Ed. 2d 328, 347-48, 95 S. Ct. 1029, 1044-45; Gertz v. Robert Welch, Inc. (1974), 418 U.S. 323, 339-41, 41 L. Ed. 2d 789, 804-06, 94 S. Ct. 2997, 3006-07; Time, Inc. v. Pape (1971), 401 U.S. 279, 284-92, 28 L. Ed. 2d 45, 50-55, 91 S. Ct. 633, 636-42.) However, the appeal before us does not afford an opportunity for the final application of those fundamental principles. This case comes before us on the pleadings. As a result, we are confronted only with the more preliminary and threshold questions of whether Berkos' complaint is legally sufficient to entitle him to proceed further on the merits of his claims, and if so, whether the additional, affirmative matters presented by NBC and Karl defeat Berkos' entitlement to further proceedings.

For the reasons set forth in detail below, we reverse and remand for further proceedings consistent herewith the trial court's dismissal of Berkos' libel and false-light claims. We affirm the trial court's dismissal of Berkos' complaint to the extent that it purported to plead claims for the commercial appropriation of Berkos' name or likeness and the intentional infliction of emotional distress.

Background

Berkos has been a circuit Judge in the circuit court of Cook County, Illinois, since his election to this office in 1980. As alleged in his pleading, NBC and Karl published a program on their 10 p.m. television newscast of December 19, 1983, which referred, inter alia, to certain actions taken by Berkos in his judicial capacity. The complaint does not specifically allege with particularity the contents of any portion of the news broadcast. However, NBC and Karl provided to both the trial court and this court upon review a transcript of the pertinent portion of the broadcast, as well as a videotape thereof, and Berkos does not contest the authenticity of these documents or the veracity of their contents. As a result, we state the content of that broadcast in its entirety here. The transcript reads as follows:

"CAROL MARIN: The Greylord investigation into judicial corruption is getting bigger. Peter Karl reports new names of Judges in court records -- Judges involved in cases where pay-offs were allegedly made. Peter . . .

PETER KARL: Carol, sources in the legal community tell Channel Five News that FBI Agents have been searching court records from the 2nd and 3rd District, in Skokie and Niles. And we have also learned that the U.S. Attorney's Office is getting more and more cooperation from more attorneys with knowledge of judicial corruption.

And, tonight, we can report that we found the names of five more Judges which appear in cases where the FBI allegedly put in 'the fix.'

The new names of the Judges surfaced in the case against Ira Blackwood, a Chicago Police Officer assigned to Traffic Court, but a man believed to have connections in many other courtrooms. The indictment against Blackwood charges him with 10 counts of extortion and racketeering. The government alleges that he solicited and received $4400 to influence 10 cases. All of the charges involve pay-offs from undercover FBI Agent David Ries. Two cases involved $800 in pay-offs. Judge John Murphy heard the cases; Judge Murphy was also indicted last week. The Blackwood cases were used against him.

In another case, Judge Christy Berkos was on the bench at Branch 29 when Kenneth Rollings who was charged with battery, was found 'not guilty.' It is alleged that $500 was paid to influence that case.

Two cases involved Judge Daniel O'Brien, at Branch 23; the charges were battery. A $400 and a $600 bribe were allegedly paid. Both defendants were found 'not guilty' by Judge O'Brien.

Judge Raymond Sadini [ sic ], of Branch 26, heard an FBI case of retail theft; there was a $400 bribe allegedly paid. The case was dismissed with 'leave to reinstate' by Judge Sadini [ sic ].

Judge Martin Hogan heard two cases involving possession of a stolen auto; two $600 bribes were allegedly paid. Both cases had a finding of 'no probable cause'; they were dismissed by Judge Hogan.

Judge Arthur Ellis heard the final case, in Branch 45; it was a battery charge. An alleged bribe of $400 was paid; the verdict was 'not guilty.' Judge Ellis said he knows nothing about the case, he hasn't been contacted by the FBI and that he hasn't talked to Blackwood, since he was assigned to 45.

And Circuit Court Judge Wayne Olson, who faces 55 counts of racketeering, extortion and mail fraud, today, in an exclusive interview, said he'll be exonerated.

JUDGE WAYNE OLSON: I'm confident I'm innocent of all the charges, Peter. And it is our intention to plead 'not guilty' to all of them.

KARL: We talked with Judge Berkos tonight, just a few moments ago; he said he substituted in Branch 29 a few times but that he doesn't know Ira Blackwood or the FBI Agent Ries.

Attempts to reach the other Judges failed. Judges Berkos, O'Brien, Hogan, Sadini [ sic ] and Ellis have not been charged with any criminal wrongdoing. The FBI has subpoenaed all the court records to these cases for the Greylord investigations.

Carol and Ron, the story intensifies."

The videotape of the broadcast shows that a photograph of Berkos and the portion of the Blackwood indictment regarding the Rollings case accompanied the presentation of the fourth paragraph set forth above regarding Berkos.

Berkos commenced an action against NBC and Karl, claiming that the broadcast constituted libel, a commercial appropriation of his name and likeness, the placement of Berkos in a false light before the viewing public, and the intentional infliction of emotional distress. He alleged, inter alia, that NBC and Karl "caused the program to be published following [Berkos'] express statement to them or their representatives that his normal assignment was a courtroom in the Daley Center hearing jury civil matters and that he had been a substitute Judge for one or two days during the Christmas holidays in 1981 in the Branch 29 courtroom where the subject case had been heard, knew none of the parties involved and had not received anything of value to influence the subject case or any other case."

Berkos stated that "[by] reason of said picture and portrayal, [NBC and Karl] falsely, wrongfully and maliciously imputed to [Berkos] the commission of a crime," that NBC and Karl "falsely, wrongfully and maliciously structured portions of the program to portray [Berkos] as a person who participated in the acceptance of a bribe to influence the Disposition of a case which had been heard by [him]," and that they "portrayed" his "name and picture . . . together with the Disposition of the case and the bribe in such a way as to indicate to any person viewing the program that [Berkos] had in fact accepted the bribe."

In response to Berkos' pleading, NBC and Karl filed a motion to dismiss the complaint on the basis that it failed to state a claim for which relief could be granted (Ill. Rev. Stat. 1985, ch. 110, par. 2-615) and that it was defeated by other affirmative matter not alleged in Berkos' complaint (Ill. Rev. Stat. 1985, ch. 110, par. 2-619(a)(9)). Affidavits of Karl and an NBC research associate were presented to support the motion to the extent that it relied upon affirmative matter not appearing in Berkos' pleading. A copy of the Blackwood indictment and certain Cook County circuit court records were also attached, as well as a videotape recording of the relevant portion of the broadcast, a transcript thereof, and an unauthenticated Xerox copy of the front page of a court document in the Rollings case, in which Rollings requested refund of bail to his attorney of record, approved by Judge Berkos.

Following briefing and oral argument, the trial court allowed the motion to dismiss for failure to state a claim and dismissed Berkos' complaint in its entirety. Berkos later sought reconsideration of the court's dismissal order. He also requested leave to amend his complaint, orally representing to the trial court that he would allege facts relating to NBC's prebroadcast "hype" and additional allegations concerning the actual malice of NBC and Karl. Berkos' motion for reconsideration and leave to amend was denied, and he appeals.

Opinion I. Defamation of Character

Berkos maintains that his pleading stated a claim for libel per se, on the ground that the news broadcast "imputes [to Berkos] the commission of a criminal offense (accepting a bribe) as well as imputing a want of integrity in the discharge of [Berkos'] duties as a circuit Judge." NBC and Karl respond that the trial court's decision was proper because their broadcast is reasonably given an innocent construction, is substantially true, and is privileged as a fair and accurate report of judicial records. They also argue that Berkos' libel action was correctly dismissed because it failed to allege the specific statements claimed to be defamatory and did not state sufficient facts regarding the alleged actual ...


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