Hill v. Schmidt

ILLINOIS OFFICIAL REPORTS

Appellate Court

Hill v. Schmidt, 2012 IL App (5th) 110324

Appellate Court ANTHONY HILL, Plaintiff-Appellant, v. SANFORD SCHMIDT and

Caption ALTON TELEGRAPH, Defendants-Appellees.

District & No. Fifth District

Docket No. 5-11-0324

Filed May 7, 2012

Held The dismissal of plaintiff’s pro se complaint alleging defamation and

(Note: This syllabus reckless endangerment based on a newspaper article concerning

constitutes no part of plaintiff’s prosecution in a murder case was affirmed where the

the opinion of the court statements made were protected by the fair-report privilege, they did not

but has been prepared constitute defamation per se or per quod, and plaintiff failed to allege any

by the Reporter of special damages.

Decisions for the

convenience of the

reader.)

Decision Under Appeal from the Circuit Court of Madison County, No. 11-AR-288; the

Review Hon. Thomas W. Chapman, Judge, presiding.

Judgment Affirmed.

Counsel on Anthony Hill, of Robinson, appellant pro se.

Appeal

Thomas Scott Stewart, of Ogletree, Deakins, Nash, Smoak & Stewart,

P.C., of St. Louis, Missouri, and John A. Bussian, of Bussian Law Firm,

of Raleigh, North Carolina, for appellees.

Panel JUSTICE WELCH delivered the judgment of the court, with opinion.

Justices Goldenhersh and Stewart concurred in the judgment and opinion.

OPINION

¶1 The plaintiff, Anthony Hill, appeals the order of the circuit court of Madison County

dismissing his pro se defamation complaint filed against the defendants, Sanford Schmidt

and Alton Telegraph. For the reasons that follow, we affirm the decision of the circuit court.

¶2 On April 27, 2011, Hill filed a pro se complaint against the defendants, Sanford Schmidt

(the Alton Telegraph’s courthouse reporter) and Alton Telegraph (the daily newspaper of

Alton, Illinois), alleging defamation and reckless endangerment arising from a news report

on the prosecution and sentencing of Hill in a murder case. Specifically, Hill alleged that an

article published by the Alton Telegraph (the article was titled “Alton man gets 15 years in

fatal shooting” and was published April 8, 2011) contained statements unfounded “in fact

and substance” and resulted in Hill being labeled a jailhouse snitch. Hill further alleged

Schmidt and Alton Telegraph had malicious intent in publishing the article, which was based

on “assumptions and not facts,” and the publication recklessly endangered his life.

¶3 The article, which was written by Schmidt, reported that Hill pleaded guilty to

solicitation of murder after initially being charged with the first-degree murder of Willie

Johnson. According to the article, Hill cooperated with authorities following his arrest. The

article further stated that Hill agreed to testify against his brother, Demetrius Hill, who was

the shooter in the case. Demetrius ultimately pleaded guilty to second-degree murder and was

sentenced to 20 years in prison. The article identified Ben Beyers, an assistant State’s

Attorney for Madison County, as saying that Hill received a deal because he cooperated with

authorities and had agreed to testify against the shooter. Beyers was quoted as saying that

conflicting evidence existed as to whether Johnson had a gun and that a trial on a first-degree

murder charge could have resulted in acquittal.

¶4 On April 28, 2011, Alton Telegraph published a correction to the original story, which

stated that Hill cooperated with authorities but did not agree to testify against a codefendant,

his cousin Demetrius Hill. The article clarified that the new information was provided to the

newspaper by Hill’s mother and was “contrary to facts reported in a recent account of Hill’s

guilty plea.” The article concluded by stating that the “Telegraph regret[ed] the errors.”

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¶5 On June 7, 2011, the defendants filed an answer denying the allegations contained in

Hill’s pro se complaint. According to the answer, the published statements were a

substantially accurate account of reports given by a public official (Ben Beyers) in his official

capacity (as assistant State’s Attorney) and were therefore immune from liability under the

Illinois fair-report privilege. Also on June 7, 2011, the defendants filed a combined motion

to dismiss and motion for summary judgment pursuant to section 2-619.1 of the Code of

Civil Procedure (735 ILCS 5/2-619.1 (West 2010)). In the combined motions, the defendants

argued that Hill’s claims were barred under the first amendment and Illinois common law

because a privilege existed for those who report on the contents of government records and

proceedings, which included statements made by government officials in the course of their

official duties. Specifically, the defendants noted that Schmidt relied on official statements

made to him by Ben Beyers, an assistant State’s Attorney, during an April 7, 2011, interview

concerning Hill’s prosecution. He also relied on official court proceedings concerning the

prosecution. Additionally, the defendants argued that Hill’s claim of reckless endangerment

did not state a civil cause of action recognized under Illinois law. Further, the defendants

argued Hill’s defamation claim should fail because it was not pled with sufficient

particularity to state a defamation claim. Specifically, the defendants noted that the pro se

complaint did not identify with sufficient clarity and particularity the alleged defamatory

statements, or even the article in which the defamatory statements were published. Last, the

defendants argued they were entitled to a judgment as a matter of law because the pleadings

and affidavits on file revealed that no genuine issue of material fact existed.

¶6 On July 6, 2011, Hill filed a pro se response to the defendants’ combined motion to

dismiss and for summary judgment, arguing the defendants failed to provide (1) any evidence

that the statements contained in the article were accurate and (2) an affidavit from Beyers

verifying that the statements contained in the article were obtained during an interview with

him. According to Hill, the defendants were not protected under the Illinois fair-report

privilege because the defamatory statements were (1) unfounded, (2) not matters of public

concern, and (3) not statements made during judicial or quasi-judicial proceedings.

¶7 On July 18, 2011, the trial court dismissed Hill’s pro se complaint with prejudice. First,

the court determined that the statements in the article did not fall within one of the five

categories of statements established under Illinois law as defamation per se. With regard to

Hill’s claim that the article resulted in him being labeled a jailhouse snitch, the court noted

that defamation law did not protect against injury to antisocial reputation. The court then

concluded that a statement identifying a person as a government informant cannot form the

basis for a defamation suit.

¶8 The trial court further concluded that the reporter’s privilege applied to Hill’s claims. The

court noted the relevant question to ask when determining whether the reporter’s privilege

applied was “whether the reporter reported what the official said.” The court then concluded

that the original article contained a fair and accurate summary of the official statements made

by assistant State’s Attorney Beyers. The court explained that public statements made by

Beyers in his role as assistant State’s Attorney were protected by the fair-report privilege

because the State’s Attorney’s office was responsible for reviewing criminal charges. The

court determined that Beyers’s statements were “sufficiently public” because the privilege

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extended to statements made by law enforcement officials acting in their official capacity.

¶9 Further, the court examined the corrected article and the statements made in the original

article and determined that it did not believe that “the defendants truly harbor[ed] differing

views on the question of the accuracy of the report of [Hill’s] willingness to testify against

his family member.” Accordingly, the court dismissed Hill’s pro se complaint with prejudice

pursuant to the fair-report privilege. Hill appeals.

¶ 10 On appeal, Hill argues the trial court erred by dismissing his complaint because the

statements contained in the April 2011 article were not protected by the fair-report privilege.

Specifically, Hill argues the statements were not protected by the privilege because the

statements were unfounded and not of public concern. He also argues that the defendants

failed to present any evidence that (1) the interview with Beyers actually occurred and (2)

Beyers made the statements contained in the article. He notes that the following

consequences resulted from the article being published: (1) he was immediately discharged

from his job as a mechanic in the family business (an allegation not included in the

complaint), (2) he was labeled a jailhouse snitch, (3) his life was threatened, and (4) it

detrimentally affected his relationship with his family (an allegation not included in the

complaint). He points to the subsequently published correction to the initial article as support

for his position that the statements in the first article were unfounded.

¶ 11 Section 2-619(a)(9) of the Code of Civil Procedure (735 ILCS 5/2-619(a)(9) (West

2010)) provides for the involuntary dismissal of a cause of action when the claim asserted

against the defendant is barred by other affirmative matter avoiding the legal effect of or

defeating the claim. The trial court’s decision to grant a motion to dismiss is reviewed de

novo. Myers v. The Telegraph, 332 Ill. App. 3d 917, 921 (2002). “For purposes of a section

2-619 motion, the court must treat as true all well-pleaded facts and reasonable inferences

that can be drawn from the complaint.” Id. at 921-22. The issue of privilege as an affirmative

defense may be raised by and determined by a motion to dismiss under section 2-619.

O’Donnell v. Field Enterprises, Inc., 145 Ill. App. 3d 1032, 1041 (1986).

¶ 12 The fair-report privilege protects news accounts of written and verbal statements made

by governmental agencies and officials acting in their official capacities. Tepper v. Copley

Press, Inc., 308 Ill. App. 3d 713, 717 (1999). “The publication of defamatory matter

concerning another in a report of an official action or proceeding or of a meeting open to the

public that deals with a matter of public concern is privileged if the report is accurate and

complete or a fair abridgement of the occurrence reported.” Restatement (Second) of Torts

§ 611 (1977). This definition was adopted by our supreme court in Catalano v. Pechous, 83

Ill. 2d 146, 167-68 (1980). The protection of the fair-report privilege extends to statements

made in judicial proceedings. Defend v. Lascelles, 149 Ill. App. 3d 630, 636 (1986). The

privilege has also been extended to statements of law enforcement officials made in their

official capacities. Myers, 332 Ill. App. 3d at 923. Further, in Dolatowski v. Life Printing &

Publishing Co., 197 Ill. App. 3d 23, 29 (1990), the First District concluded that oral

statements made by a deputy police superintendent in an interview with a reporter were

protected by the fair-report privilege regardless of whether the statements were made in an

interview setting as opposed to statements made during an official press release.

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¶ 13 Here, the offending statements were obtained during an interview with Beyers in his

official capacity as a prosecutor in the State’s Attorney’s office. The interview concerned

Hill’s involvement in the 2008 murder of Willie Johnson. Therefore, the fair-report privilege

applies to the statements contained in the April 8, 2011, article as long as the summary was

an accurate and complete report or a fair abridgement of the statements made by Beyers.

¶ 14 To qualify for the privilege, the news media is required to summarize the written or

verbal statements in a fair and accurate manner. Myers, 332 Ill. App. 3d at 923. In

determining whether the news account is an accurate and complete report or a fair

abridgement of the statements, the court looks at the accuracy of the summary of the written

or verbal statements rather than the truth or falsity of the information being summarized.

Hurst v. Capital Cities Media, Inc., 323 Ill. App. 3d 812, 818 (2001). The defendant can

demonstrate the “substantial truth” of the report by showing that the “gist” or “sting” of the

summary is true. Gist v. Macon County Sheriff’s Department, 284 Ill. App. 3d 367, 371

(1996). “When determining the ‘gist’ or ‘sting’ of allegedly defamatory material, a trial court

must ‘look at the highlight of the article, the pertinent angle of it, and not to items of

secondary importance which are inoffensive details, immaterial to the truth of the defamatory

statement.’ ” Id. (quoting Vachet v. Central Newspapers, Inc., 816 F.2d 313, 316 (7th Cir.

1987)).

¶ 15 Here, the record contains an affidavit of Schmidt filed in support of the defendants’

section 2-619.1 motion that sets forth the official statements made to him by Beyers in the

April 7, 2011, interview. According to the affidavit, Beyers reported that Hill pleaded guilty

to solicitation of murder after initially being charged with first-degree murder. Beyers also

stated that Hill agreed to testify against his brother, Demetrius Hill, who was the shooter.

Further, Beyers stated that conflicting evidence existed as to whether the victim had a gun

and that a trial on a first-degree murder charge could have resulted in an acquittal.

¶ 16 In the April 28, 2011, correction published in the Alton Telegraph, it was noted that Hill

cooperated with authorities but did not agree to testify against a codefendant, his cousin

Demetrius Hill. However, the author explained that the information was obtained from Hill’s

mother and that it was contrary to the facts reported in the original article. The article then

stated that the Alton Telegraph regretted “the errors.”

¶ 17 In its July 18, 2011, order, the trial court compared the statements contained in the

original article with the content of the corrected article and concluded that the original article

contained a sufficiently fair and accurate summary of the official statements made by Beyers

in his capacity as the assistant State’s Attorney. The trial court stated as follows with regard

to its comparison of the two articles:

“[I]n the April 8, 2011[,] article, Defendant Schmidt reports that Beyer[s] said plaintiff

agreed to testify against his brother, but in the 4-28-11 publication, the paper reports that

the plaintiff’s mother states there was an agreement to cooperate with authorities, but no

agreement to testify against his cousin. There is thus between the two publications a

difference as to the relationship, (brother as opposed to cousin), and as to whether

Anthony Hill agreed to testify against the relative, but not as to whether Anthony Hill

agreed to cooperate with authorities.

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Although the reporter is consistent in his representation that Ben Beyer[ ]s said that

plaintiff would testify against a family member in both his affidavit and his April 8th

article, the court considers whether, by its correction, the paper itself creates such a

question as to the accuracy of the reporter’s rendition of the event that the privilege

cannot apply. Since it cannot be said that the gravamen of the plaintiff’s case (to the

extent it can be discerned), turns on which family member he is testifying against, the

court focuses on the difference between the April 8 article and the correction on whether

[he was] willing to testify.

The correction is ambiguous, depending on whether the boilerplate (‘Correction,’

‘regrets the errors’) or the content, is stressed.

Since it is labeled as a ‘correction’, the reader could conclude some extra import of

the second statement, as the paper itself in effect says, by that label, that its prior

formulation was not correct. The paper also says it regrets the errors, which suggests it’s

abandoning errors to the extent of the correction. On the one hand, then, one defendant,

the Telegraph, corrects the other defendant, its reporter, considers his work in error and

contrary to the correction, and regrets the error.

On the other hand, the paper suggests, through the substantive content of the

correction, that the plaintiff’s mother has something to say contrary to the facts as stated

in the paper’s prior reporting. The suggestion is also that readers consider the source of

the correction, the plaintiff[’s] mother, which could be compared with the source of the

prior article, the Assistant State’s attorney. The mother of the plaintiff would be better

aware of the family relation, (cousin, not brother) but perhaps not of the plaintiff’s

discussions with the assistant state’s attorney as to plaintiff’s level of cooperation or

willingness to testify against the family member. While it’s labeled as a correction, the

content of the second publication is to add to what was stated before, to place the new

information before the reader, but also to refer back to the previous report.

***

Under the relevant privilege law, it is not the fact of a difference of viewpoint as to

whether the shooter was plaintiff’s brother or his cousin, or as to whether the mother or

the state’s attorney is right about whether plaintiff agreed to testify against him. In

resolving whether the privilege applies, the court does not question whether someone else

believes differently than the official, or whether someone else is more correct than the

official, or whether the status of affairs in the world is entirely different than that

described by the official or in official proceedings, rather the court merely asks whether

the reporter reported what the official said.

The court does not conclude, based on the correction, with its boilerplate ‘The

Telegraph regrets the errors’, that the defendants truly harbor differing views on the

question of the accuracy of the report of [Hill’s] willingness to testify against his family

member or that either the defendants or the average reader would conclude a retraction

of the accuracy of the reporting of Beyer[s]’s 4-7-11 statement in the 4-8-11 article. The

court does not conclude, based on this record, that defendant Schmidt substantially

inaccurately communicated what Beyer[s] said.” (Emphasis in original.)

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¶ 18 The court then concluded that the main elements of privilege were alleged by Hill in the

first paragraph of his complaint. Specifically, Hill stated as follows in the first paragraph of

his pro se complaint: “Defendant Sanford [Schmidt] intentionally submitted a story that he

knew was unfounded, as his information came from Assistant State[’s] Attorney Ben Beyers

who is quoted as saying that there was conflicting evidence that could have resulted in an

acquittal if plaintiff went to trial.” The court determined Beyers’s public statements were

protected by the fair-report privilege because the State’s Attorney’s office was responsible

for reviewing criminal charges and would therefore be considered law enforcement. The

court further concluded that the statements made by Beyers were “sufficiently public”

because it was a statement made by a law enforcement official in his official capacity.

¶ 19 The only significant difference between the two articles is that the corrected article

reported that Hill did not agree to testify against a family member. However, the author

explained that this information was obtained from Hill’s mother and was contrary to the

statements published in the original article. Like the trial court, we believe that the April 28,

2011, corrected article does not indicate that the defendants were attempting to correct the

accuracy of the information contained in the original report. Instead, the language of the

corrected article merely revealed that the defendants received a different version of the

circumstances surrounding Hill’s prosecution of Johnson’s murder. As explained by the trial

court, the proper focus under the fair-report-privilege law is whether the reporter accurately

reported what the official said, not whether someone disagreed with the reported summary.

In his affidavit, defendant Schmidt maintained that his original article accurately reported

what Beyers said in the April 7, 2011, interview. Further, we note that both the original

article and the corrected article reported that Hill agreed to cooperate with authorities in the

prosecution of Johnson’s murder.

¶ 20 Additionally, Hill himself alleged in his complaint that the information from the article

was obtained from Beyers. Therefore, we find that the original article contained a sufficiently

fair and accurate summary of the official statements made by Beyers in his capacity as the

assistant State’s Attorney. Accordingly, the trial court did not err in determining that the

statements were protected under the fair-report privilege.

¶ 21 The trial court also determined that, regardless of the applicability of the fair-report

privilege, the statements contained in the original article did not constitute defamation per

se or defamation per quod.

¶ 22 “A defamatory statement is a statement that harms a person’s reputation to the extent it

lowers the person in the eyes of the community or deters the community from associating

with her or him.” Solaia Technology, LLC v. Speciality Publishing Co., 221 Ill. 2d 558, 579

(2006). Two types of defamatory statements have been recognized under Illinois law:

defamation per se and defamation per quod. Brennan v. Kadner, 351 Ill. App. 3d 963, 968

(2004).

¶ 23 A statement constitutes defamation per se if the harm is obvious or apparent on its face.

Solaia Technology, LLC, 221 Ill. 2d at 579. Illinois recognizes the following five categories

of statements as defamation per se: (1) words that impute the commission of a crime, (2)

words that impute an infection with a loathsome communicable disease, (3) words that

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impute an inability to perform or lack of integrity in performing employment duties, (4)

words that prejudice a party or impute a lack of ability in a person’s profession, and (5)

words that impute a person has engaged in adultery or fornication. Id. at 579-80.

¶ 24 Here, the offensive statements contained in the original article did not fall within one of

the five categories of statements that Illinois has recognized as actionable as defamation per

se. Therefore, the trial court correctly determined that the statements contained in the original

article did not constitute defamation per se.

¶ 25 Defamation per quod occurs where either the defamatory character of a statement is not

evident on its face and extrinsic evidence is needed to explain its defamatory meaning or a

statement is defamatory on its face but does not fit within one of the five categories of

statements actionable as defamation per se. Bryson v. News America Publications, Inc., 174

Ill. 2d 77, 103 (1996). In order to recover under defamation per quod, the plaintiff must plead

and prove special damages, i.e., actual damages of a pecuniary nature. Kurczaba v. Pollock,

318 Ill. App. 3d 686, 694 (2000). “[G]eneral allegations such as damage to one’s health or

reputation, economic loss, and emotional distress are insufficient to state a cause of action

for defamation per quod.” Id.

¶ 26 Here, the trial court found that defamation per quod was not applicable to Hill’s claims

because he failed to allege special damages. Based on our review of Hill’s pro se complaint,

we agree with the trial court that Hill failed to plead and prove special damages. For the

foregoing reasons, the judgment of the circuit court of Madison County is hereby affirmed.

¶ 27 Affirmed.

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