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10/20/88 Michael Reed, v. Northwestern Publishing

October 20, 1988

MICHAEL REED, APPELLANT

v.

NORTHWESTERN PUBLISHING COMPANY, D/B/A THE COMMERCIAL NEWS, ET AL., APPELLEES



SUPREME COURT OF ILLINOIS

530 N.E.2d 474, 124 Ill. 2d 495, 125 Ill. Dec. 316 1988.IL.1547

Appeal from the Appellate Court for the Fourth District; heard in that court on appeal from the Circuit Court of Vermilion County, the Hon. Carl A. Lund, Judge, presiding.

APPELLATE Judges:

JUSTICE CUNNINGHAM delivered the opinion of the court. MILLER and STAMOS, JJ., took no part in the consideration or decision of this case.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE CUNNINGHAM

In the circuit court of Vermilion County, plaintiff, a Danville police officer, filed this libel action against the Northwestern Publishing Company, doing business as The Commercial News , and two of its reporters, Bob Wilson and Carl Young. Wilson and Young were authors of certain allegedly defamatory material concerning plaintiff appearing in CN. The circuit court initially granted defendants' motion for summary judgment, but this ruling was reversed on appeal (Reed v. Northwestern Publishing Co. (1984), 129 Ill. App. 3d 133), and trial was held. At the close of plaintiff's case, a judgment was directed in favor of Carl Young, and subsequently the jury found in favor of defendants CN and Bob Wilson.

Plaintiff appealed, raising substantially the same issues presented here, and the appellate court upheld the verdicts (159 Ill. App. 3d 699). Pursuant to Supreme Court Rule 315 (107 Ill. 2d R. 315), we granted plaintiff's petition for leave to appeal.

We shall briefly summarize the investigations of a police burglary ring which gave rise to the grand jury report and the newspaper articles involved in this action. We shall then summarize pertinent portions of the grand jury report and the newspaper articles. Next we shall analyze whether plaintiff is a "public official" for first amendment purposes. Then we shall discuss the evidence supporting the verdicts and address numerous alleged trial errors. I. INVESTIGATIONS LEADING TO GRAND JURY REPORT

During 1970 and 1971 there were (according to testimony of Randy Kirk, city editor of CN) suspicions and rumors afloat that some police officers in the Danville area were involved in burglaries. An internal investigation was conducted at that time through the Danville police department and the Vermilion County State's Attorney's office. However, investigators concluded at that point that insufficient evidence existed to bring charges against any officers. Some years later, in approximately 1975, CN reporters received (from undisclosed sources) some information regarding particular officers involved in some particular burglaries. CN reporters provided this information to the Vermilion County State's Attorney's office. With this information the State's Attorney's office launched a renewed investigation, which eventually led to an investigation by the grand jury.

The grand jury first met in September 1977 to investigate the alleged burglary ring. CN staff writers Les Smith and Dan Olmstead reported the fact of this meeting in CN's September 8, 1978, edition (an article not directly in issue here), stating that the grand jury probe related to suspicions that "as many as seven former or present Danville police officers" may have been involved in burglaries.

The grand jury meetings occurred numerous times, concluding in 1978. Several officers who were alleged to have been involved in some of the burglaries were granted immunity from prosecution in return for their grand jury testimony. Other current and former officers were also called to testify. II. CONTENTS OF GRAND JURY REPORT

At the Conclusion of its investigation, the grand jury submitted to Vermilion County Circuit Judge James Robinson a seven-page report (drafted by then-Assistant State's Attorney Craig DeArmond). The grand jury requested that the report be made public, and the report was released on December 20, 1978.

According to the grand jury report, 34 unsolved burglaries were committed in Danville in 1970 and 1971. The report noted that during 1970 and 1971 a series of suspicious burglaries attracted the attention of several ranking officers, and that during this time 37 burglaries were reported, of which only three were solved or cleared by arrest. The remaining 34 burglaries, according to the report, were all discovered by one of four officers, each of whom was either on patrol duty during a night shift or was voluntarily accompanying his colleagues on such patrol. The burglaries all occurred at night, and the targets were all commercial establishments. The report listed 14 particular burglaries for which the grand jury had received evidence.

The grand jury report refers to plaintiff twice. The first reference is in a summary of the testimony of Officer Joseph Miller, who at all relevant times worked for the Danville police department. Miller had participated in an internal investigation of the suspected misconduct, and the grand jury report summarizes his testimony regarding a burglary of the local American Legion Hall as follows:

"Officer Miller described the Legion burglary of December 21, 1970 and how [Officer] Massey had fortuitously discovered an open window, failed to call it in, met with Officer Hill and returned to the Legion, leaving Miller posted outside. Miller testified that Massey had previously questioned him concerning whether upon finding a place broken into, would he accept something taken by officersMassey also asked him what his favorite liquor was; to which Miller replied, 'Scotch'. After all officers who initially responded; including: Calvin Norman, Jerry Hill, Jack Roland and Michael Reed, had left, the owner was called to check out the premises. When they left the scene Officer Miller found a bottle of Scotch under his side of the seat in their squad car."

The grand jury report also refers to plaintiff in summarizing the testimony of Lieutenant Edwin McGee, who, like Miller, had participated in the police department's internal investigation. The grand jury report states:

"Lieutenant Edwin McGee testified as to his responding to the August 25, 1971 burglary at Harding's Pharmacy where he found Officers Hill and Reed at the scene with Roland and Massey showing up later. His investigation of the scene, specifically including the watch case and shaver display showed nothing to be missing or disturbed, however, when he read the report submitted the next day by Hill, it showed watches, shavers and radios to have been taken along with a large amount of cash."

The report states that a grand jury investigation should have been conducted years earlier. The report states that the limitations period had run regarding the burglary offenses and that officers could thus not be prosecuted for their participation in the offenses. The report concludes that there "is no indication that the situation as it existed in 1970 and 1971 exists today." III. CONTENTS OF POST-REPORT NEWSPAPER ARTICLES

On December 21, 1978, the day following the release of the grand jury report, CN published four articles relating to the burglary ring, two of which articles appeared on the front page and are directly in issue here as being allegedly libelous. One such allegedly libelous article (under Bob Wilson's by-line) is entitled, "Grand Jury Describes Police Burglary Setup." It contains pictures of plaintiff and several other officers above the caption, "Current Officers Implicated in Report." Beneath the caption is the statement, "Four current law officers -- Arnold Yanders, Robert Testa, Michael Reed and Kenneth Cox -- were named by grand jury witnesses as joining in at least one or a few of the reported break-ins by policemen." The article itself states that the grand jury's investigation "determined that up to 10 police officers were involved in the break-ins." The article also states, "The 'usual practice', according to the grand jury testimony of a former policeman identified as one of the ringleaders, was to split whatever was taken among the patrolmen on the scene." The article also states that certain officers had admitted involvement in certain burglaries, and the article further states, "[The witnesses] identified other officers involved too. They included . . . Patrolman Mike Reed . . .." Later the article states, "Lieutenant Edwin McGee also testified about the Harding's incident, saying he came on the scene and found Hill, Roland, Massey and Officer Mike Reed inside but without their flashlights turned on."

The other December 21 article (containing no by-line but admittedly contributed to by Carl Young) is entitled, "3 Deny Roles in Burglaries," refers to Reed as one of the officers "implicated" and quotes him as denying any involvement.

On December 22 a follow-up article by Bob Wilson was published, again mentioning plaintiff as one of the officers "implicated." This article focuses on the possibility of criminal or disciplinary charges against the officers and is entitled, "Next Move Weighed in Burglary Ring Case." Plaintiff did not base any cause of action on this article but apparently introduced it as evidence that in publishing other articles Wilson and CN acted with malice.

A December 23, 1978, allegedly libelous article by Bob Wilson also discusses the possible action against the officers and again lists Mike Reed as one of the current officers "named as participants in one or more incidents."

On March 6, 1979, CN published another allegedly libelous article written by then-staff writer Carl Young. This article is entitled, "Policemen Face Choice: Take Lie Detector Tests or be Fired." The article does not mention particular officers by name but states that "the grand jury . . . reported that up to 10 police officers . . . were involved in break-ins at local service stations and stores in 1970-71." The article goes on to state that "the report said 3 of the officers were still on the Danville police force." The assertion either that three current officers had been implicated in a burglary ring or that three current officers had been implicated in at least one of the break-ins is again made in an allegedly libelous article written by Carl Young, appearing on March 10, 1979, and in two allegedly libelous articles appearing on March 28, 1979, and March 29, 1979, respectively, neither of which contains a by-line.

On April 6, 1979, CN published an article by Carl Young summarizing the results of the lie detector tests. The article states in part:

"Officers Mike Reed and Joseph Miller took the tests and passed, [Mayor David] Palmer said. No disciplinary action will be taken against them, he said.

'Although he (Reed) was named in the grand jury report, we could find absolutely no evidence of wrongdoing on his part,' Palmer said. He said there was 'absolutely' no evidence of wrongdoing on the part of Miller.", Plaintiff wanted this article admitted on the question of malice, but defendants objected to the article on relevance grounds and it was excluded.

CN published several articles covering the progress of the instant libel action. Plaintiff sought to have these articles admitted as indicating prior malice, but these articles were refused as irrelevant. IV. PLAINTIFF IS A PUBLIC OFFICIAL

The United States Supreme Court has emphasized that erroneous statements are inevitable in free debate, and that such statements must be afforded some protection if freedoms of expression are to have the "breathing space" which they need to survive. (New York Times Co. v. Sullivan (1964), 376 U.S. 254, 272-73, 11 L. Ed. 2d 686, 701-02, 84 S. Ct. 710, 721-22.) To afford this "breathing space" to public debate, the United States Supreme Court has held that a "public official" seeking to recover for libel with respect to comments involving his official conduct must prove that the statements were made with "actual malice," that is, with knowledge that the statements were false or with reckless disregard of whether the statements were false. 376 U.S. at 279-80, 11 L. Ed. 2d at 706, 84 S. Ct. at 726.

Following the New York Times decision, the Supreme Court in Rosenblatt v. Baer (1966), 383 U.S. 75, 15 L. Ed. 2d 597, 86 S. Ct. 669, had occasion to discuss the meaning of the term "public official." The Court stated that the "designation applies at the very least to those among the hierarchy of government employees who have, or appear to the public to have, substantial responsibility for or control over the conduct of governmental affairs." (383 U.S. at 85, 15 L. Ed. 2d at 605, 86 S. Ct. at 676.) The Court further stated that the designation applies "[w]here a position in government has such apparent importance that the public has an independent interest in the qualifications and performance of the person who holds it, beyond the general public interest in the qualifications and performance of all government employees." 383 U.S. at 86, 15 L. Ed. 2d at 606, 86 S. Ct. at 676.

This court had occasion to apply the definition of "public official" in Coursey v. Greater Niles Township Publishing Corp. (1968), 40 Ill. 2d 257, in which a police officer sought damages for allegedly libelous statements. We found that the officer was a public official, stating:

"Although as a patrolman he is 'the lowest in rank of police officials' and would have slight voice in setting departmental policies, his duties are peculiarly 'governmental' in character and highly charged with the public interest. It is indisputable that law enforcement is a primary function of local government and that the public has a far greater interest in the qualifications and conduct of law enforcement officers, even at, and perhaps especially at, an 'on the street' level than in the qualifications and conduct of other comparably low-ranking government employees performing more proprietary functions. The abuse of a patrolman's office can have great potentiality for social harm; hence, public Discussion and public criticism directed towards the performance of that office cannot constitutionally be inhibited by threat of prosecution under State libel laws." 40 Ill. 2d at 265.

Plaintiff has asked us to reconsider our decision in Coursey. He submits that this court erroneously applied the "public official" designation as that term has been interpreted by the United States Supreme Court. He argues that a police officer neither has nor appears to have substantial responsibility for or control over government affairs. He further indicates that the public does not take an interest in the qualifications and performance of a police officer except when he becomes involved in a particular controversy.

Plaintiff also directs our attention to the comment in Gertz v. Robert Welch, Inc. (1974), 418 U.S. 323, 41 L. Ed. 2d 789, 94 S. Ct. 2997, that "[p]ublic officials and public figures usually enjoy significantly greater access to the channels of effective communication and hence have a more realistic opportunity to counteract false statements than private individuals normally do." (418 U.S. at 344, 41 L. Ed. 2d at 808, 94 S. Ct. at 3009.) Plaintiff submits that a police officer does not have such access to the press and that therefore part of the rationale for designating an individual a "public official" is inapplicable here.

Plaintiff also argues that "the Supreme Court has not held that anyone as low ranking as a policeman or as a teacher is a public official," and suggests that the designation applies only to higher-ranking employees. The status of a teacher is not at issue here, and we do not comment on such status. As his argument applies to the status of a police officer, however, we agree with the observation in McLain v. Arnold (1980), 275 S.C. 287, 270 S.E.2d 124, where the court stated, "imply speaking, the status of a public official may be deemed sufficient to warrant application of the New York Times privilege, not because of the government ...


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