Appendix — Reed v. Northwestern Publishing Co.

88-1224 &) p

IN THE SUPREME COURT OF THE UNITED

STATES

MICHAEL REED,

Petitioner,

NORTHWESTERN PUBLISHING COMPANY,

d/b/a THE COMMERCIAL NEWS, BOB

WILSON and CARL YOUNG,

Respondents.

| APPENDIX |

RICHARD B. OPSAHL

425 E. Champaign Ave.

Rantoul IL 61866

(217) 893-3322

Counsel of Record

APPENDIX INDEX

OPINION OF THE SUPREME COURT OF

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OPINION OF THE FOURTH DISTRICT

COURT OF ILLINOIS........

JUDGMENT OF THE TRIAL COURT ON

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JUDGMENT BASED ON COURT'S

DIRECTED VERDICT.......

ORDER OF COURT ON POST-TRIAL

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A.82

A.84

A.86

(Docket No. 65876 of the Illinois Supreme Court -

Judgment affirmed)

MICHAEL REED, Appellant, v. NORTH-

WESTERN PUBLISHING COMPANY, d/b/a

The Commercial News, et. al., Appellees.

Opinion filed October 20, 1988

JUSTICE CUNNINGHAM delivered the opinion

of the court:

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

(CN), 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 I1l.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 con

ducted 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 voluntary 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. Méiller

testified that Massey had previously questioned him

concerning whether upon finding a place broken

into, would he accept something taken by

officers[.] Massey 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."

II. 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 Policy

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 ring-leaders, 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 incident." |

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

10

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.

11

‘Although he (Reed) was named in the 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

12

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, 84S. 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.

13

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 inter-

est 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

[4

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 Ili. 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

15

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]Jublic 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-

16

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, "[S]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 employee's place on the totem pole, but

because of the public interest in a government

employee's activity in a particular context." 275

S.C. at____, 270 S.E.2d at 125.

We adhere to our conclusion in Coursey that

a police officer is a public official. In this regard

we initially disagree with plaintiff's conclusion that

police officers lack greater access to the press than

do members of the general public. Moreover,

access to the press is not the test in determining

whether a person is a public official, but is merely

an advantage enjoyed by many public officials. As

noted by Justice Powell in Gertz, 418 U.S. at 344,

17

41 L. Ed. 2d at 807, 94 S. Ct. at 3009, "it is often

true that not all of the considerations which justify

adoption of a given rule will obtain in each

particular case decided under its authority."

Further, it is significant that in the 20 years

since the Coursey decision was rendered, countless

decisions throughout the country have addressed

the issue, and none to our knowledge has held to

the contrary. (Several courts, however, have

indicated that certain libelous statements were

unrelated to an officer's official conduct and were

therefore not qualifiedly privileged. See, e.g.

Himango v. Prime Time Broadcasting, Inc. (1984),

37 Wash. App. 259, 680 P.2d 432; Tilton v.

Cowles Publishing Co. (1969), 70 Wash. 2d 707,

459 P.2d 8.)

The cases deeming a police officer a public

official are based on sound reasoning. For

example, we find particularly insightful Gray v.

Udevitz (10th Cir. 1981), 656 F.2d 588, 591, in

which the court stated:

18

"The cop on the beat is the member of the

department who is most visible to the public.

He possesses both the authority and the

ability to exercise force. Misuse of his

authority can result in significant deprivation

of constitutional rights and _ personal

freedoms, not to mention bodily injury and

financial loss. The strong public interest in

ensuring open discussion and criticism of his

qualifications and job performance warrant[s]

the conclusion that he is a public official.”

In accord with Gray is Moriarity v. Lippe

(1972), 162 Conn. 371, 378, 294 A.2d 326, 330-

31, in which the court pointed out that "Tajlthough

a comparatively low-ranking government official, a

patrolman's office, if abused, has great potential

for social harm and thus invites independent

interest in the qualifications and performance of the

person who holds the position." Also on point is

Smith v. Russell (Fla. 1984), 456 So. 2d 462,

464, in which the court found that a police officer

was a public official and stated:

“The plaintiff is a highly visible

representative of government authority who

has power over citizens and broad discretion

in the exercise of that power. There are

probably no public employees more

recognizable than armed uniformed police

officers. Most citizens are interested [in

police officers’ qualifications] beyond their

general interest in the qualifications and

performance of all government employees."

We also find persuasive Roche v. Egan (Me.

1981), 433 A.2d 757, 762, in which the court

observed:

“Law enforcement is a uniquely governmental

affair. The police detective, as one charged

with investigating crimes and arresting the

criminal, is in fact, and also is generally

20

known to be, vested with_ substantial

responsibility for the safety and welfare of

the citizenry in areas impinging most directly

and intimately on daily living: the home, the

place of work and of recreation, the

sidewalks and streets. The nature and extent

of the responsibility of a police detective is

punctuated by the fact that a firearm, no less

than a badge, comes with his office."

Plaintiff submits that courts should determine

that, for purposes of applying the public official

designation, there are three groups of public

employees. He submits that (1) employees in

certain positions can as a matter of law be deemed

public officials, (2) some are as a matter of law not

public officials, and (3) others should be tested by

a "fact intensive analysis" on a case-by-case basis

as to whether they are public officials as a matter of

fact. Arguing that he falls into the third category,

he submits that there is no evidence in the record to

indicate that he himself is a public official.

21

In Rosenblatt v. Baer (1966), 383 U.S. 75,

88, 15 L. Ed. 2d 597, 606, 86 S. Ct. 669, 677, the

Court held that "it is for the trial judge in the first

instance to determine whether the proofs show

respondent [a supervisor of a county recreation

area] to be a 'public official.'"The Court noted that

“[s]uch a course will both lessen the possibility that

a jury will use the cloak of a general verdict to

punish unpopular ideas or speakers, and to assure

an appellate court the record and findings required

for review of constitutional decisions." 383 U.S.

at 88 n.15, 15 L. Ed. 2d at 607 n.15, 86S. Ct. at

677 n.15.

Although we do not question that there may

well be governmental employees whose positions

require the extensive “fact intensive analysis"

which plaintiff requests, the United States Supreme

Court clearly has not required this with respect to

those government positions the duties of which are

widely recognized. Indeed, in the landmark

decision of New York Times, the Court relied not

on a detailed exposition of the plaintiff's duties but

22

aaa

on the fact that his duties were generally the

supervision of certain city departments. (New York

Times, 376 U.S. at 256, 11 L. Ed. 2d at 692, 84 S.

Ct. at 713.) We note also that the numerous

decisions discussed above which have found a

police officer to be a public official did so not on

the basis of duties unique to that plaintiff but on the

basis of duties of police officers generally. We

further note that, as recognized in Belli v. Orlando

Daily Newspaper, Inc. (5th Cir. 1967), 389 F.2d

579, 588, "[i]n most cases it is a relatively simple

matter to determine whether the plaintiff is a public

official and whether the defamatory comment is

directed toward his official capacity.” (Emphasis

in original.) We note that plaintiff testified at trial

regarding his job duties, and we hold that in the

absence of any indication that plaintiff did not

perform the ordinary and customary duties of a beat

police officer, it was appropriate for the circuit

court to conclude that he was a public official.

V. THE VERDICTS WERE WARRANTED BY

23

THE EVIDENCE

The circuit court directed a verdict in favor of

Carl Young due to an insufficiency of evidence of

actual malice on his part. Having been directed that

Carl Young acted without malice, the jury was

required to consider the alleged malice of only Bob

Wilson and the corporate defendant. The jury

found (in special interrogatories) that no such

malice existed with respect to either the December

21, 1978, article with Bob Wilson's by-line, the

captions and pictures accompanying that article, the

December 23, 1978, article, the March 6, 1979,

article, the March 28, 1979, article, or the March

29, 1979, article.

A. Directed Verdict for Carl Young

The United States Supreme Court has held

that a ruling on a motion for a directed verdict or

summary judgment "necessarily implicates. the

substantive evidentiary standard of proof that

would apply at the trial on the merits." (Anderson

v. Liberty Lobby, Inc. (1986), 477 U.S. 242, 252,

91 L. Ed. 2d 202, 214, 106 S. Ct. 2505, 2512.)

While Anderson was applying the Federal Rules of

Civil Procedure, its observation was equally

applicable to actions in State court. With respect to

libel claims brought by public officials relating to

their official conduct, the first amendment

"mandates a ‘clear and convincing’ standard, [and]

the trial judge in disposing of a directed verdict

motion should consider whether a reasonable

factfinder could conclude, for example, that the

plaintiff had shown actual malice with convincing

clarity." 477 U.S. at 252, 91 L. Ed. 2d at 214,

106 S. Ct. at 2512.

Plaintiff fell far short of establishing with

convincing clarity that Carl Young's role in

publishing any articles at issue involved “actual

malice." His role in one of the December 21, 1978,

articles (the article containing no by-line) was

peripheral at most. His testimony indicates that he

was asked to call and obtain statements from one or

er

more officers mentioned in the report. He

remembers calling only one officer. He does not

recollect calling Officer Reed, and there is no

testimony in the record that he did so. (Reed does

not remember who from CN called him.) Carl

Young remembers typing his notes of these con-

versations and believes that he gave the notes to

Les Smith. Carl Young does not know whether Les

Smith actually wrote the article. Although Carl

Young had by this point “glanced at" the grand jury

report mentioning Reed, there is no indication that

he had studied the report at any length. Rather, a

fair reading of his testimony indicates that he was

busy that day preparing his "scanner" (police beat)

report, was asked to call one or more officers,

hurriedly did so and made notes of _ his

conversations, and then returned to his other

duties. If the burden of proof in this case were less

than it is, then plaintiff would perhaps have a better

argument that the motion for a directed verdict

should have been denied. However, after reading

the record, we, like the circuit court, fail to see

how a reasonable jury could find that plaintiff had

established with clear and convincing evidence that

on December 21, 1978, Carl Young wrote that Reed

was implicated in the report. There is even less

evidence that Young made such a statement while

actually entertaining serious doubts as to the truth

of the assertion.

The second article about which Carl Young's

involvement was questioned appeared on March 6,

1979. That articles contains the following

language:

"A seven page summary of the usually secret

grand jury testimony was released to the

public, and it named three current officers

and one sheriff's deputy as participants in at

least one of the 1970-71 break-ins.”

Although Carl Young stated that he "probably" read

the grand jury report between the time that the

December articles were published and the time that

this article was published, he stated that he based

27

the above-quoted statement on previous stories--

stories which he had little, if any, role in writing.

Considering testimony that Young relied on

previous stories, and considering that the report

itself is extremely murky in its discussion of

numerous officers, including Michael Reed (so that

unless one scrutinizes the report one could very

well conclude that Reed had been "implicated"), we

agree with the circuit court that a jury could not

reasonably find "clear and convincing evidence"

that Carl Young had "a high degree of awareness"

of the probable falsity of his articles.

Insufficiency of evidence with regard to

malice of Carl Young is equally applicable to the

Other articles about which he was questioned; there

simply is insufficient evidence, circumstantial or

Otherwise, to rise to the level of "clear and

convincing" proof.

B. Verdict for Bob Wilson

A aa ee

Plaintiff submits that the jury's verdict in

favor of Bob Wilson was against the manifest

weight of the evidence. Keeping in mind the heavy

burden of proof which the United States Supreme

Se

Court has imposed upon public official libel

plaintiffs, we must disagree with plaintiff's

assertion.

There can be no doubt that Bob Wilson failed

to scrutinize the grand jury report as carefully as

(one would hope) a responsible journalist would

do. He even acknowledged that in the December

21, 1978, article, he had falsely asserted that a

witness testified to finding Reed inside a dark,

burglarized building without their flashlight on.

Wilson stated that he had "mixed up some details

with another break-in at another place where

officers were seen inside without flashlights on."

Moreover, the jury explicitly found (by special

interrogatory) that Bob Wilson's December 21,

1978, article, as it relates to plaintiff, was false.

We cannot, however, say that the jury's finding

(also by special interrogatory) that Wilson acted

29

without malice is against the manifest weight of the

evidence.

In this regard we again note, without

disputing the jury's, finding of falsity, that a less

than thorough reading of the grand jury report

could easily leave one with the conclusion that

plaintiff was involved in some burglaries to some

extent. The possibility of this happening is

particularly evidenced by the testimony (in an offer

of proof) of the assistant State's Attorney who

drafted the report; the drafter indicated that he

himself believed he was naming Reed as being

“peripherally involved." We further note that, at

the request of the city editor, Randy Kirk, Wilson

called the State's Attorney's office and made some

effort to verify his report. Wilson testified as

follows in response to questioning regarding what

he asked when cailing the State's Attorney's office:

"A. I asked--I believe I first asked the

State's Attorney, Thomas Fahey, and he referred

me to Craig DeArmond since Craig DeArmond

30

a

conducted the grand jury and authored the

report.

Q. What conversation did you have with

Mr. DeArmond? :

A. I asked Mr. DeArmond what it meant to

have these--for these officers names to be

included in this report.

Q: What did-he indicate to you?

A AS OL EET AE PEG OP ON TR eC Y=

A. He said that those officers, unless their

roles are otherwise spelled out, were those

officers identified by two or more witnesses '

placed at the scene of two or more of these |

police burglaries.

Q. Did he indicate to you that they were

involved?

31

A. Not in--not each one as to their

specific acts."

Although this testimony does not indicate a

thorough investigation on Wilson's part, it certainly

weakens the assertion that when writing the article

he entertained serious doubts as to its accuracy.

Plaintiff argues, however, that actual malice

is clear from certain additional evidence. In this

regard plaintiff points out that Wilson

acknowledged looking at the log of grand jury

witnesses in September 1977, when the grand jury

was first convening regarding the alleged burglary

ring. Plaintiff apparently deems this relevant

because the grand jury report states that the accused

officers were given the opportunity to testify.

Plaintiff seemingly argues that Wilson must have

recognized that Reed was not an accused officer

since his name did not appear on the list of grand

jury witnesses. We find this argument

unpersuasive for several reasons. First, the grand

jury met on numerous occasions after September

32

1977; the absence of Reed's name from a witness

list in September does not exclude the possibility

that he was later called as a witness. Second, one.

can hatdly conclude that the reporter recalled the

names..on that log when reading the grand jury

report 15 months later. Nor does evidence that he

had previously heard certain officers named as

being involved (and had not heard Reed implicated)

indicate that, after reading the grand jury report and

calling the State's Attorney's office, he subse-

quently seriously doubted that the grand jury report

implicated Reed. Finally, contrary to plaintiff's

assertion, the fact that in attempting to meet a press

deadline Wilson spent only about three hours

writing the article does not necessitate a conclusion

that he seriously doubted its accuracy.

With respect to the December 23, 1978,

article authored by Bob Wilson (an article which the

jury found was also false as to plaintiff), we agree

that W:lson's failure to reread the grand jury report

evinces some carelessness, but we cannot say that

a aa

————o

as a matter of law this-faitiire requires a finding of

_-gcteal malice.

C. Verdict for CN

Having established that the jury's verdict in

favor of Bob Wilson is supportable and that the

directed verdict in favor of Carl Young was proper,

we next turn to the contention that the jury's verdict

in favor of the corporate defendant, CN, was

against the manifest weight of the evidence.

A corporation's liability for slander or libel

is based on the doctrine of respondeat superior; a

corporation is jointly and _ severally liable for

libelous statements actionable against its employee

when the employee is acting within the scope of his

employment. (Windsor Lake, Inc. v. WROK

(1968), 94 Ill. App. 2d 403; Randall Dairy Co. v.

Pevely Dairy Co. (1934), 274 Ill. App. 474. See

also Gertz v. Robert Welch, Inc. (7th Cir. 1982),

680 F.2d 527, 539 & n.19 (imputing an agent's

actual malice to the corporate defendant).) We

cannot, however circumvent the actual-malice

requirement in this case by pooling all of the

information arguably within the knowledge of

various employees and imputing all of that

knowledge to the corporate defendant to establish

that the corporate defendant acted with actual

malice. This is what plaintiff seems to be asking us

to do, pointing out the various items of information

which at some point were known (or may have been

known) to different employees. In our view,

before a corporate defendant may be found liable

under the actual-malice standard, there must be a

finding that at least one agent or employee involved

in publishing the material acted with actual malice.

As already discussed, defendant has not established

that either Wilson or Young acted with actual

malice. We also believe (as discussed below) that :

there was insufficient evidence to necessitate a

finding that any other employee involved acted with

actual malice. The other employees somewhat

involved in the publications at issued include Randy

Kirk and Ronald Dillman.

35

The evidence established that Randy Kirk,

city editor at the time of the publications in issue,

had heard a "flurry of rumors" in 1970 and 1971

about various officers being involved in burglaries.

He had heard some specific names mentioned, and

Reed's name was not among them. In 1976 or i977

an undisclosed source gave CN particular names

and dates regarding particular burglaries, which

information was passed along to Kirk. Still,

Reed's name was never mentioned to Kirk. In fact,

Kirk acknowledged that Reed's name was never

mentioned to Kirk before release of the grand jury

report.

Kirk's knowledge that certain individuals

were allegedly involved, in conjunction with the —

fact that Reed's name was not mentioned to him,

does not, in our view, amount to such clear and

convincing evidence that a jury would be required

to find that Kirk acted with actual malice. This is

particularly true in view of the undisputed evidence

that, upon seeing the long list of officers listed in

the draft of Bob Wilson's December 21, 1978,

36

article, Kirk explicitly instructed Wilson to verify

the names with the State's Attorney's office, and

that Wilson later reported to Kirk that he had done

so. Nor, in our view, does the failure to do any

further checking into this same issue _ before

allowing the follow-up story necessarily establish

actual malice on Kirk's part. Kirk supervised 12

reporters, and there is no evidence that he

undertook or should have undertaken the task of

verifying all of the facts in a story--a task which

the testimony indicates was primarily left to the

individual reporters.

Ron Dillman, the executive editor at the time

the articles in issue were published, was kept

abreast of the stories’ contents. He gave

uncontradicted testimony that he directed Kirk to

verify the facts in the December 21, 1978, story.

In view of this evidence, we fail to see how the

jury could be required to find that Dillman acted

with actual malice. Nor do we belive that his

failure to do any additional investigation before

allowing follow-up. stories to be _ published

37

necessarily indicates actual malice. Dillman was in

charge of overseeing the newspaper's entire

Operation; it is simply not realistic to expect

Dillman to have verified the role of each officer

whom his reporter stated was implicated.

In reviewing the jury's conclusions regarding

lack of malice, we have found that the circuit court

failed to submit any jury instructions as to one of

the December 21, 1978, articles, namely, the article

which contained no by-line but to which Carl

Young admittedly contributed. Perhaps the parties

understood that since there was no proof of any

other CN employee's involvement in this article,

and since a verdict was directed for Carl Young,

there was no need to submit an instruction on this

article to the jury. The record is completely unclear

on why this particular December 21 article was

dropped from deliberation, and the parties have not

addressed this occurrence. In any event, it is clear

that if there were any error in failing to have the

jury make an explicit finding regarding this article,

the error was waived by failure to object at trial.

38

|

(See Western Casualty & Surety Co. v. Brochu

(1985), 105 Ill. 2d 486, 500.) It is equally clear

that any such error was harmless. The reason is

that the only individuals (other than Carl Young)

arguably shown to be involved in this second

December 21, 1978, article were as much (if not

more) involved in the other December 21 article,

which contained the same _ allegedly libelous

statement that plaintiff had been "implicated" in

burglaries. The jury's having found no malice with

respect to the first December 21 article, it is

manifest that the jury was equally unconvinced of

malice with regard to the second December 21

article.

VI. INSTRUCTIONS REGARDING ACTUAL

MALICE

Plaintiff next submits that errors were

committed in instructing the jury regarding actual

malice. The court instructed the jury in part as

follows:

39

"The term ‘actual malice’ is a legal term and

does not lend itself to an exact definition. In

defining ‘actual malice, 'I instruct you that as a

matter of law, Michael Reed is a public official,

and public officials in actions based on libel

must show that the a«‘endant either knew that

the statement was false or that the defendant had

a reckless disregard for the accuracy of the

Statements.

Reckless disregard is not measured by

whether a reasonably prudent person would have

published or would have investigated before

publishing. There must be sufficient evidence to

permit the conclusion that the defendant in fact

entertained serious doubts as to the truth of the

publications. Publishing with such doubts

shows reckless disregard for the truth or

falsity."

40

This instruction adequately conveys to the

jury that "actual malice" denotes knowledge of a

statement's falsity or serious doubts as to its truth.

Plaintiff does not challenge this instruction

directly. Rather, he submits that the circuit court

erroneously refused additional instructions on the

actual-malice issue, instructions which he believes

clarify the meaning of actual malice and the means

of proving it. We examine these instructions with

due regard for the fact that, while a party is entitled

to have the jury accurately instructed, he has no

right to have any particular instruction submitted if

the subject of the instruction is adequately covered

in other instructions; needless repetition in jury

instructions should be _ avoided. sce, €.8.,

Kingston v. Turner (1987), 115 Ill. 2d 445, 448.

The first instruction regarding actual malice

which plaintiff submits was erroneously refused

States:

"If you determine serious inaccuracies were

made by a defendant in the reporting of the

41

aie

grand jury report, you may consider this as a

factor in determining whether there was

underlying malice."

This instruction does no more than inform the

jury that they may rely on circumstantial evidence

to determine a fact in issue; the import of the

instruction is that the more serious the inaccuracy,

the more likely its author may have acted with

actual malice. The jury clearly understood that if it

believed that such an inference were an accurate

One, it was perfectly free to draw such an

inference. The jury was_ instructed on

circumstantial evidence as follows:

“A fact may be proved by circumstantial

evidence. Circumstantial evidence consists of

proof of facts which give rise to a reasonable

inference of the truth of the fact sought to be

proved."

42

Considering this standard instruction, we

believe the jury was adequately instructed on the

use of the circumstantial evidence upon which

plaintiff now focuses.

The next instruction which plaintiff submits

was erroneously refused states:

"Actual malice does not necessarily connote

personal spite or ill will so much as an intention

to do an act from which injury may be expected.

Reckless disregard implies a higher degree of

culpability than negligence. Reckless means

indifference to consequences."

In indicating that reckless disregard for the

truth of a matter means "indifference to the

consequences," this instruction is inaccurate.

"Reckless disregard," for first amendment pur-

poses, does not mean indifference. Rather, it

means entertaining serious doubt as to a statement’ s

truth. The instruction is also inaccurate in

indicating that actual malice means an intention to

43

:

do an act from which injury may be expected.

Clearly, in publishing material indicating that an

individual is a burglar, an author recognizes that

injury may be expected. The issue, however, is

whether he knows that the statement is false or

seriously doubts that the statement is true. Because

this instruction was substantially inaccurate, it was

properly refused.

The next instruction which plaintiff submits

was erroneously refused states:

“Actual malice is a state of mind. It is a lack of

reasonable grounds for belief in the truth of the

published statement and therefore a _ reckless

disregard of the rights of the plaintiff. Malice

may not be implied or inferred merely from the

fact of the publication or merely from negligence

in the publication. However, actual malice may

be proved by either direct or circumstantial

evidence."

In indicating that actual malice is a lack of

reasonable grounds for belief in the truth of a

published statement, this instruction is clearly

erroneous. This instruction contains language more

indicative of a negligence standard, a_ standard

which was inapplicable to this case. Moreover, the

reference to circumstantial evidence is redundant of

a separate instruction. For these reasons, the

instruction was properly refused.

Plaintiff next submits that the following

instruction was erroneously refused:

"You, the jury, are instructed that actual malice

may be inferred when the investigation for a

story which is not ‘hot news' is_ grossly

inadequate. "

To support this proposition plaintiff cites

Curtis Publishing Co. v. Butts (1967), 388 U.S.

130, 18 L. Ed. 2d 1094, 87 S. Ct. 1975. In Curtis

Publishing Co., Justice Harlan, in a plurality

Opinion, stated that with respect to "public figures"

45

(as distinguished from "public officials"), actual

malice should not be required and a showing of

"highly unreasonable conduct constituting an

extreme departure from the standards’ of

investigation and reporting ordinarily adhered to by

responsible publishers" should be sufficient. (388

U.S. at 155, 18 L. Ed. 2d at 1111, 87 S. Ct. at

1991.) Justice Harlan then concluded that the jury

"must have decided that the investigation *** was

grossly inadequate in the circumstances" (388 U.S.

at 156, 18 L. Ed. 2d at 1112, 87 S. Ct. at 1992), a

finding which he found was supported by the

evidence and which he believed justified a verdict

for the plaintiff for false publication. Justice

Harlan thus did not state that "actual malice" could

be shown by failure to investigate, but merely that

"with respect to public figures" actual malice

should not be required. The majority, however,

rejected this conclusion and the Court has subse-

quently applied the actual-malice standard to public

figures. (See Herbert v. Lando (1979), 441 U.S.

133, 156, 60 L. Ed. 24 115, 121, 99 S.Ct. 1635,

46

1638-39.) Plaintiff has thus misconstrued Curtis

Publishing Co., as did Newell v. Field Enterprises,

Inc. (1980), 91 Ill. App. 3d 735, upon which he

also relies.

Plaintiff thus has not cited any authority

indicating that this instruction properly states the

law. However, even assuming, arguendo, that the

instruction does accurately state the law, it would

nevertheless have been error for the circuit court to

submit it, for numerous reasons. First, plaintiff

did not tender an instruction containing, nor have

we found, a definition of “hot news," the colloquial

term used by Justice Harlan. The definition of this

term is certainly subject to disagreement. Second,

and more important, the instruction improperly

focuses the jury's attention on a single point that

plaintiff wished to emphasize--the adequacy of the

investigation--rather than on the critical subjective

inquiry of whether defendant did actually entertain

serious doubts as to the truth of a publication. This

court has long held that instructions singling out

particular facts or evidence and giving them undue

47

Od lat he

prominence are erroneous. (See e.g., Mount v.

Dusing (1953), 414 Ill. 361; Garvey v. Chicago

Rys. Co. (1930), 339 Ill. 276; Hoffman v. Ernest

Tossetti Brewing Co. (1912), 257 Ill. 185.) We

further find that this instruction is argumentative

and was improper on this basis as well. Jury

instructions should not be argumentative in form.

(City of Waukegan v. Stanczak (1955), 6 Ill. 2d

594.) We further find that the instruction on

circumstantial evidence, in conjunction with the

instruction on actual malice, adequately informed

the jury regarding the relevance of any inadequacy

in the investigation.

Plaintiff next complains cf certain comments

made by the circuit court in ruling on the use of

evidence, comments’ which plaintiff claims

"psychologically inducjed] in the jury a predilection

to place upon the plaintiff an insurmountable

burden of proof." We find none of these statements

improper. In each instance the court was either

Stating its reasons for excluding evidence or

explaining the limited purpose for which such

48

evidence could be presented. This court long ago

held that a statute stating the jury instructions are to

be written was not intended to preclude a circuit

court, in admitting evidence, from orally telling the

jury the limited purpose for which certain evidence

is being presented. (People v. Horn (1923), 309

Ill. 23.) We believe that the current provision

regarding written instructions (Ill. Rev. Stat. 1987,

ch. 110, par. 2-1107) also was not intended to

preclude such contemporaneous explanations by the

circuit court. It is also well-established that a

Circuit court, in ruling on the admissibility of

evidence, may state its reasons for such rulings

without violating the provision requiring written

jury instructions. See South Park Commissioners

v. Ayer (1910), 245 Ill. 402.

Vil. INSTRUCTIONS REGARDING

BURDEN

OF PROOF

49

_ a en

Plaintiff next argues that the circuit court

erred in refusing four of his jury instructions

regarding the burden of proof. The first such

instruction is based on Illinois Pattern Jury In-

structions, Civil, No. 5.01 (2d ed. 1971) (IPI Civil

2d). The instruction submitted provides in part that

under certain conditions a party's failure to produce

a witness may permit an inference that the witness’

testimony would have been unfavorable to. that

party. Plaintiff refers us to testimony of Randy

Kirk, city editor of CN when the stories here in

issue were published. Mr. Kirk testified that "at 9

a.m. each day we have *** an editorial board

meeting” and that such a meeting was held on the

morning that the first allegedly libelous article was

published. Plaintiff submits that defendant's

failure to produce certain persons who attended this

meeting justifies giving IPI Civil 2d No. 5.01.

Kirk's testimony, however, indicated that he did

not recall the details of the December 21 meeting

and only presumes that he told those in attendance

that the burglary story was to be published that

50

|

day. His testimony does not indicate that he named

the particular officers to be mentioned in the story

or that plaintiff's name was even mentioned.

Considering that there is virtually no evidence

indicating that the others attending the meeting

received any information’ incriminating to

defendants, and further considering the fact that

their recollection would have greatly lessened

during the eight years that elapsed between the time

of that meeting and the time of the trial, we find

that the court did not abuse its discretion in

refusing the instruction. We agree with the holding

in Maynard v. Irving Davis Co. (1970), 122 Ill.

App. 2d 28, that the circuit court should have wide

discretion in determining whether to give this in-

struction.

Plaintiff next submits that the circuit court

erroneously refused his instruction No. 13, which

states the burden of proof. A court does not err in

refusing to give an instruction which is fully

covered by another instruction which the court does :

give. (Lau v. West Towns Bus Co. (1959), 16 IIl.

51

2d 442, cert. denied (1959), 361 U.S. 127, 4 L.

Ed. 2d 180, 80 S. Ct. 256; Ergang v. Anderson

(1941), 378 Ill. 312.) Such is the case here. The

court properly defined both "preponderance of the

evidence" and "clear and convincing evidence”

when reading the issues instructions, and these are

the definitions which plaintiff's instruction No. 13

sought to define. The court also articulated which

burden of proof applied to which issues, indicating

that plaintiff must prove by clear and convincing

evidence actual malice.

Plaintiff next complains that the court refused

his instruction "which summarizes and defines what

libel is." Plaintiff's instruction is similar to one

given except that his instruction explicitly mentions

pictures as a form of publication which can be

libelous, whereas the instruction actually given

refers only to "written statements.” We believe that

in applying the instruction which they actually

received, the jurors would have _ naturally

considered the picture of Michael Reed in

conjunction with his name and the caption

52

appearing under the picture, which caption is

entitled, "Current Officers Implicated in_ the

Report." In any event, any error in refusing

plaintiff's instruction was harmless, since the court

directed a finding that publication of the caption

and photograph was defamatory as a matter of law.

VIII. ADDITIONAL ALLEGED TRIAL

ERRORS

Plaintiff's mext complaint relates to a

reference in certain of the articles indicting that a

lie detector test would be given to all policemen

potentially involved, including him. Plaintiff

submits that, considering such references, the

circuit court erred in refusing to admit an April 6,

1979, CN article explaining the outcome of the lie

detector tests and indicating that plaintiff passed the

test. However, as the circuit court made clear to

the jury, defendant's innocence or guilt was not at

issue; the issue was whether CN accurately reported

the contents of the grand =jury_ report.

53

Consequently, the results of the lie detector tests

were irrelevant, and the court did not err in

excluding the article. It would have diverted

attention from the issues critical to the resolution of

the case.

Plaintiff next submits that the court

erroneously refused to submit his Exhibit 2 to the

jury. Exhibit 2 is a September 8, 1977, CN article

Stating that "sources" indicate that "as many as

seven officers" were involved in the break-ins.

This was not an article alleged to be libelous.

Rather, plaintiff attempted to use this article to

show that months before the grand jury report was

issued defendants knew that only seven officers

were involved in the break-ins and that plaintiff

was not one of them.

Initially we note that plaintiff apparently is

mistaken in concluding that the jury was not given

the exhibit. The transcript relates that the circuit

court initially determined which exhibits would go

into the jury room and did not include Exhibit 2.

Thereafter, the following exchange took place:

"DEFENSE COUNSEL: Our position is that

if they're going to have the grand jury report,

they should have everything.

THE COURT: Copies of newspapers?

PLAINTIFF'S COUNSEL: Right, all of

them.

THE COURT: Alright."

Thus, the record suggests that this newspaper

article was, in fact, given to the jury. If, however,

Exhibit 2 was not given to the jury for their

deliberations, plaintiff's counsel did not object and

therefore the issue was not preserved for appeal.

Moreover, plaintiff would not have been denied a

fair trial by the failure to submit this exhibit, and

therefore this would be an inappropriate case to

apply the exception to the waiver rule. (See

McElroy v. Force (1967), 38 Ill. 2d 528, 535.)

The relevance of this exhibit was extremely

tenuous; even if in September 1977 the defendants

55

knew that only seven officers were involved and

that plaintiff was not among them, this fact would

not be inconsistent with the conclusion that many

months later plaintiff did become suspected.

Plaintiff next argues that the court

erroneously refused to admit into evidence, or

allow interrogation regarding, articles published

after the instant 'suit was filed (post-filing

publications). Plaintiff argues that these post-filing

publications were probative of whether the

defendants herein published the earlier articles (the

allegedly libelous articles here in issue) with actual

malice.

We note again that it appears from the record

that all newspaper articles presented did go to the

jury. However, assuming, arguendol, that these

particular articles were withheld from the jury, it

was within the the court's discretion to do so, for

these post-publication articles lack significant

probative value. The reason is that there was no

evidence, other than the evidence presented of

knowledge preceding the publication of the articles

56

in issue, that defendants knew or _ seriously

questioned the truth of these post-filing publica-

tions. The cases cited by plaintiff in support of his

argument indicate that any subsequent publishing of

a libel with knowledge of its falsity is evidence of

actual malice. However, in the instant case

plaintiff showed only that CN _ repeated its

Statements after plaintiff filed suit; there is no

showing that, during the interim between when the

initial articles and the post-filing articles were

published, CN gained any additional information

which held it to question its initial newspaper

accounts.

Plaintiff's next complaint relates to testimony

of Craig DeArmond, who during 1978 and 1979

was an assistant State's Attorney of Vermilion

County. DeArmond testified during direct

examination by plaintiff's counsel that during 1978

and 1979 Thomas Fahey, State's Attorney, had a

policy established that all telephone calls regarding

Opinion matters were to be referred to him, and that

such policy would encompass a phone call seeking

en

an interpretation of a grand jury report. DeArmond

then testified that he did not recall whether CN

reporter Bob Wilson talked to him on December 21,

1978. Subsequently, on cross-examination,

DeArmond was asked whether he did not know if

such a conversation occurred on December 21,

1978, or whether he merely did not remember

whether such a conversation occurred. After

DeArmond indicated that he simply could not

remember, defense counsel, over objection, quoted

some earlier trial testimony of Bob Wilson, and

asked whether such testimony refreshed

DeArmond's memory. The Wilson testimony

quoted was: "I believe I first asked the State's

Attorney, Thomas Fahey, and he referred me to

Craig DeArmond, since Craig DeArmond conducted

the grand jury and authored the report."

Plaintiff submits that quoting this. prior

testimony was an improper means of refreshing

DeArmond's recollection. However, we agree with

the numerous appellate decisions holding that the

manner and mode of refreshing a_ witness’

58

| |

recollection is largely within the discretion of the

circuit court. (See, e.g., People v. Black (1980),

84 Ill. App. 3d 1050, 1054; People ex rel. Raines

v. Price (1976), 37 Ill. App. 3d 921, 925; People

v. Van Dyk (1976), 40 Ill. App. 3d 275, 279; Kerz

v. Arkin (1971), 2 Ill. App. 3d 1057, 1061.)

While it clearly would be a better practice to have

the prior testimony recounted outside the jury's

presence, so as not to unduly emphasize certain

testimony, we cannot say that the circuit court

abused its discretion in permitting this verbatim

recitation of an extremely brief portion of Wilson's

testimony, testimony with which the jury was

already familiar.

Plaintiff's final argument is that he was

unfairly prejudiced when Les Smith, a reporter for

CN from 1972 through 1978, refused to disclose a

source of some information which he obtained

relating to the burglary ring. Les Smith testified

that in the late winter or early spring of 1977,

another CN reporter ("Dan") received some infor-

mation from a confidential source that burglaries

59

were being conducted by police officers. Smith and

this other reporter checked into those allegations

and found no evidence that any such burglaries

were then occurring but "did come _ across

allegations that some had occurred in the early

1970's."'! These sources were "trusted police

officers," and some of these sources gave the

reporters names of officers allegedly involved in

the burglaries. Smith testified as to five names

which he specifically recalled hearing at the time,

but he could not recall whether other names were

also mentioned. He did, however, state that at no

point prior to reading Wilson's December 21, 1978,

article did he hear plaintiff's name mentioned in

connection with the burglary.

Despite a court ruling requiring disclosure of

Smith's sources, Smith refused during discovery to

disclose those sources, and at trial he again

refused. At no point did the court impose sanctions

for this noncompliance. Rather, outside the

presence of the jury, the court again listened to

arguments of counsel on this issue and concluded

60

, ‘

that the names of these sources were not relevant.

For reasons explained below, we believe that the

court did not abuse its discretion in reaching this

conclusion.

It is important to emphasize that Les Smith

was not a defendant and that the article which he

wrote was not one of the allegedly libelous ones;

rather, it was published over 15 months prior to the

earliest allegedly libelous article. It is also

important to note that Smith did not claim that his

sources had implicated plaintiff. Plaintiff

nevertheless attempts to establish relevance on the

theory that these sources not only failed to mention

plaintiff but also told Smith that only the officers

whom they mentioned were involved. Plaintiff then

argues that the conclusion which Smith must have

drawn is that plaintiff was definitely not involved.

It of course strains reasonableness to argue that the

sources would have purported to be sure that only

certain individuals were involved and no others.

However, plaintiff reaches this conclusion and then

submits that perhaps the authors of the allegedly

61

ee re

defamatory articles also talked to these same

sources and were given the same definitive list of

the only officers involved--a list not mentioning

plaintiff. This conclusion is also _ highly

speculative. Plaintiff then further submits that the

authors of the allegedly defamatory articles would

have been contemplating this conversation some 15

months later when they were writing the articles

and that recollection of this conversation would

have caused them, when reading the grand jury

report, to seriously doubt whether the report actu-

ally implicated plaintiff. Plaintiff's line of

reasoning fails to take account of the possibility

that during the 15-month time span evidence of

additional participants might have been discovered

and presented to the grand jury. This possibility

would surely have been apparent to the authors of

the allegedly libelous articles.

Plaintiff apparently believes that had the

names of these confidential sources been disclosed

prior to trial, he could have obtained the testimony

of these sources and perhaps established that the

62

above scenario occurred. Considering the long and

tenuous nature of the chain purportedly linking

these sources to any relevant issue in this case--the

state of mind of the allegedly defamatory authors--

we find that the court did not abuse its discretion in

concluding that the identity of these sources was

irrelevant.

IX. CONCLUSION

We certainly do not condone the defendants'

failure to thoroughly study the grand jury report

and verify that their interpretations of the report

were completely accurate. Nor do we wish to

understate the severe harm which plaintiff

undoubtedly suffered as a result of this publicity.

However, the United States Supreme Court has

mandated that public officials establish actual

malice when seeking damages for libelous

publications regarding their official conduct. Since

we find insufficient evidence to overturn the

verdicts on the actual-malice issue, and since we

63

re Fo. ate

find no other trial error which has. unfairly

prejudiced plaintiff, we are compelled to uphold the

verdicts and affirm the appellate court's decision.

Affirmed.

MILLER and STAMOS, JJ., took no part in

the consideration or decision of this case.

(Docket No. 4-80757 in the Illinois App. Court-

Fourth District-JudgmentAffirmed)

159 Ill.App.3d 699, 512 NE2d 828 (1987).

Michael Reed, Appellant v. Northwestern

Publishing Company, d/b/a The Commer-

cial News, Bob Wilson and Carl Young,

Appellees

Opinion filed August 24, 1987

Justice SCOTT delivered the opinion of

the court:

The plaintiff (Reed) brought this action

for libel against the Northwestern Publishing

Company, publisher of The Commercial News, a

newspaper in Danville, and two of its re-

porters, Bob Wilson and Carl Young. Reed al-

leged in his complaint that Wilson and Young

were the authors of some defamatory material

concerning Reed which appeared in The Com-

mercial News.

The trial court initially entered a sum-

mary judgment order in favor of defendants on

June 29, 1983, and denied plaintiff's motion to

vacate the order. Plaintiff's appeal to the

Fourth District Appellate Court resulted in

reversal of the summary judgment order (Reed

v. Northwestern Publishing Co. (1984), 129

Il.App.3d 133, 84 Ill.Dec. 305, 471 N.E.2d

1071). On remand, a jury trial was had on the

matter which resulted in a judgment for the

defendants The Commercial News and Bob Wil-

son. Defendant Carl Young was dismissed at

the close of the plaintiff's case upon a motion

for directed verdict.

Plaintiff then filed a post-trial motion

which was denied and, thus, appeals the di-

rected verdict in favor of Carl Young, and the

judgment in favor of Bob Wilson and The Com-

mercial News.

The facts of this case have been thor-

Oughly set forth by this court in plaintiff's

prior appeal of the trial court's summary

judgment order (Reed v. Northwestern Pub-

lishing Co. (1984), 129 IIlApp.3d 133, 84

66

Ill.Dec. 305, 471 N.E.2d 1071). Therefore, we

will briefly summarize the pertinent facts.

The newspaper articles of which plain-

tiff complains stemmed from a grand jury

investigation of burglaries and thefts allegedly

committed by several members of the Danville

Police Department during 1970 and 1971.

Testimony on this subject was presented to a

grand jury in several sessions in 1977 and

1978, and a seven-page report summarizing the

testimony and the current grand jury's findings

was released to the public on December 20,

1978. On the following day, The Commercial

News published photographs and two articles

relating to the investigation and report. The

caption "Current Officers Implicated in Report"

appeared under photographs of the plaintiff and

of two other members of the Danville Police

Department and of a county deputy sheriff. A

caption appearing below the above caption

stated "Four current law officers--Arnold

67

Yanders, Robert Testa, Michael Reed and

Kenneth Cox--were named by grand jury wit-

nesses as joining in at least one or a few of

the reported break-ins by policemen." In an

article titled "Grand Jury Describes Police

Burglary Setup," Bob Wilson referred to the in-

volvement of two officers in several burglar-

ies and then wrote:

"Massey, Roland and several other wit-

nesses at the grand jury sessions identi-

fied other officers involved too.

They included former policemen Jerry

Hill and Richard Moody and current oOffi-

cers Sgt. Robert Testa, patrolman Arnold

Yanders, patrolman Mike Reed, and former

patrolman Kenneth Cox, who is now a

county deputy."

The article further stated, "Lt. Edwin McGee

also testified about the Harding Pharmacy bur-

glary, saying he came on the scene and found

Hill, Roland, Massey and Officer Mike Reed

68

inside but without their flashlights turned on."

An accompanying article headlined "3 Deny

Roles in Burglaries," stated "grand jury testi-

mony summarized in the report said Reed was

spotted inside a pharmacy with two officers

who committed several burglaries."

On December 23, 1978, The Commercial

News published another article written by

Wilson concerning the investigation which

summarized the grand jury's report by identi-

fying the plaintiff as one of three current offi-

cers who had been named as participants in the

misconduct. The article also repeated plain-

tiff's denial of the incident which had been

quoted in one of the articles published two

days earlier.

Carl Young wrote later articles concern-

ing the investigation on March 6, 10, 28 and 29,

1979, which were also published by The Com-

mercial News. These articles referred to the

presence on the Danville police force of three

69

current officers who had been mentioned in the

grand jury report as participants in the

misconduct. The officers were not specifically

mentioned by name in these articles, but one of

the articles did concern the City's decision to

administer polygraph tests to a total of seven

current police officers.

Plaintiff argues that the articles

published by The Commercial News were

libelous in that they portrayed the plaintiff as

a burglar and being involved in a police

burglary ring, and further, that the allegations

contained in the articles published by the de-

fendants were not supported by the grand jury

investigation report.

The plaintiff's name was mentioned

twice in the grand jury report. The first refer-

ence came in a summary of an Officer Miller's

testimony in which Officer Miller described his

suspicion of police misconduct and the ensuing

internal investigation of the problem. Officer

70

Miller described a police burglary of the local

American Legion Hall, an occurrence in which

two other officers admitted their involvement.

The grand jury report said:

"Officer Miller described the Legion

burglary of December 21, 1970 and how

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 previ-

ously questioned him concerning whether

upon finding a place broken into, would he

accept something taken by Officers(.)

Massey 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

71

ee

scene, Officer Miller found a bottle of

Scotch under his side of the seat in their

squad car."

The other reference to plaintiff came in

the summary of Officer McGee's testimony,

who had also taken part in the internal investi-

gation. The grand jury report stated:

"Lt. Edwin McGee testified as to his

responding to the August 25, 1971 bur-

glary at Harding's Pharmacy where he

found Officers Hill and Reed at the scene

with Roland and Moody showing up later.

His investigation of the scene, specifi-

cally 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."

72

We acknowledge that the statements

concerning the plaintiff in the articles pub-

lished by The Commercial News and the state-

ments concerning the plaintiff in the grand

jury report are not parallel. However, the

question is whether the statements, headlines

and pictures published by The Commercial

News were done so with actual malice.

Plaintiff initially argues that the actual

malice standard for !libels of public officials

set forth in New York Times Co. v. Sullivan

(1964), 376 U.S. 254, 279-80, 84 S.Ct. 710,

725-26, 11 L.Ed.2d 686, does not apply to this

situation as he was merely a patrol officer and

cannot be construed to be a public official. We

believe this question has already been decided

in Reed v. Northwestern Publishing Co. (1984),

129 Ill.App.3d 133, 84 IIl.Dec. 305, 471 N.E.2d

1071, wherein this court, when ruling upon an

appeal of summary judgment for defendant,

determined that plaintiff Reed was a public

73

official according to Illinois courts that have

considered the issue. (See Coursey v. Greater

Niles Township Publishing Corp. (1968), 40

'Il.2d 257, 239 N.E.2d 837.) We concur with the

prior decision that Reed is a public official and

thus subject to the public official standard of

New York Times.

Our inquiry must therefore focus on

whether the jury verdict in favor of the defen-

dants is against the manifest weight of the

evidence. Spankroy v. Alesky (1977), 45

IIl_App.3d 432, 4 Ill.Dec. 126, 359 N.E.2d 1078.

The jury found that although the Decem-

ber and March publications were false and

defamatory, they were not published with

actual malice. Thus, we must review the case

and determine “whether the result reached

below was one which is reasonable on the

facts in evidence, not whether other conclu-

sions might also have been reached." Lynch v.

74

Board of Education (1980), 82 Ill.2d 415, 423,

45 Ill.Dec. 96, 103, 412 N.E.2d 447, 454.

In New York Times, 376 U.S. at 279-280,

84 §$.Ct. at 725-26, the Supreme Court held

that the first amendment to the United States

Constitution "prohibits a public official from

recovering damages for a defamatory falsehood

relating to his official conduct unless he

proves that the statement was made with

‘actual malice'--that is, with knowledge that

it was false or with reckless disregard of

whether it was false or not." The meaning of

making a statement with knowledge is clear,

however, determining what constitutes a

reckless disregard of the truth requires

further explanation. In Garrison v. Louisiana

(1964), 379 U.S. 64, 74, 85 S.Ct. 209, 215, 13

L.Ed.2d 125, the Supreme Court defined reck-

less disregard as requiring proof that the

defendant had a "high degree of awareness of

their probable falsity." The Supreme Court

75

further stated in St. Amant v. Thompson

(1968), 390 U.S. 727, 731, 88 S.Ct. 1323, 1325,

20 L.Ed.2d 262 that:

"There must be sufficient evidence to

permit the conclusion that the defendant

in fact entertained serious doubts as to

the truth of his publication."

See also Fogus v. Capital Cities Media, Inc.

(1982), 111 IlLApp.3d 1060, 67 Ill.Dec. 616,

444 N.E.2d 1100. Therefore, the defendants

must have been more than merely negligent in

reporting the falsehoods; there must have been

some high degree of awareness or doubt with

regard to the accuracy of the statements made.

[1] Additionally, actual malice must be

proved with convincing clarity. (Catalano v.

Pechous (1980), 83 Ill.2d 146, 50 Ill.Dec. 242,

419 N.E.2d 350, cert. denied, 451 U.S. 911, 101

S.Ct. 1981, 68 L.Ed.2d 300 (1981).) We inter-

pret this to mean a higher standard of proof

than the preponderance of the evidence test.

76

Plaintiff contends that all of the named

defendants acted with reckless disregard of

the truth. Plaintiff states that The Commer-

cial News had conducted an independent inves-

tigation and had inside information from an

undisclosed source concerning the police bur-

glary ring; further, that Dan Olmstead and Les

Smith, agents of the newspaper, knew that

these inside sources were giving names of

those policemen involved and that plaintiff

was not one of them. Nonetheless, plaintiff

states, when the December 21, 1978, article

authored by Bob Wilson was published, plain-

tiff was listed as a policeman involved in the

burglary ring, which caused the editor of The

Commercial News concern as he knew that

plaintiff was not involved.

Defendants maintain, however, that dur-

ing 1977, Bob Wilson's only information about

the police burglaries was that the grand jury

investigation was pending that Dan Olmstead

77

and Les Smith were looking into the matter. He

had no information concerning names, dates or

places, and no such information had been sup-

plied to him.

The evidence also indicates that when

Wilson first saw the grand jury report, it was

late in the afternoon of December 20, 1978.

The following morning at 7:30 a.m., he was

instructed to write a summary of the report,

with a 10:30 a.m. deadline; further, on the

morning of December 21, 1978, city editor

Randy Kirk asked Wilson to check the content

of the grand jury report with the State's

Attorney's office. Wilson, as requested, inter-

viewed an assistant State's Attorney responsi-

ble for preparing the grand jury report. The

assistant State's Attorney told Wilson that if

an officer's name had been included in the

report, they were officers identified by two or

more witnesses as being at the scene of two or

more burglaries.

78

[2] We believe that the jury was faced

with a situation of whom to believe. After

undoubtedly determining that the statements

were false, the jury had to decide whether the

defendants acted with reckless disregard when

publishing the articles. At this point, the

credibility of the witnesses must have been

taken into account. The jury obviously believed

the defendants and we do not consider the

jury's decision to be against the manifest

weight of the evidence; particularly when the

plaintiff must prove his case by clear and con-

vincing evidence.

[3] With regard to defendant Carl Young

and the articles that he authored which

appeared in The Commercial News on March 6,

10, 28 and 29 of 1978, we believe the trial

court correctly dismissed Young as a defen-

dant. The articles were devoid of plaintiff's

name. Although Young relied upon the earlier

articles authored by Wilson, we need not

determine whether Young acted with actual

malice because the articles do not libel the

plaintiff. If plaintiff's name had been men-

tioned, we would then need to consider actual

malice, but the articles were merely general-

ized statements concerning the incident and, at

best, infer to one well read on the particular

subject that plaintiff had any involvement.

The only phrase that could be considered as

regarding the plaintiff was, "three current

officers." This phrase, without more, is not

enough to base a libel action.

Plaintiff urges that numerous instruc-

tions were erroneously denied by the trial

court upon defendants’ objections and that

those instructions would have appropriately

instructed the jury concerning actual malice

and the burden of proof to be applied. The trial

court, however, formulated’ instructions

regarding actual malice and the burden of

proof. Upon review of those instructions, we

80

believe that the trial court fairly, appropri-

ately and adequately instructed the jury as to

applicable law of the case. Any of the

instructions proposed by plaintiff would have

either been superfluous or inaccurate. We

believe the instructions, taken as a whole,

were proper.

Lastly, plaintiff raises objections to

numerous alleged errors by the trial court and

asks for reversal upon those grounds. We have

reviewed each alleged error and without sum-

marizing the numerous allegations are of the

Opinion the trial court was either not in error,

or the error did not prejudice the plaintiff's

case.

Accordingly, the decision of the trial

court is affirmed.

Affirmed.

HEIPLE and WOMBACHER, JJ., concur.

81

SE

IN THE CIRCUIT COURT FOR THE FIFTH

JUDICIAL CIRCUIT OF ILLINOIS

VERMILION COUNTY, DANVILLE, ILLINOIS

MICHAEL REED,

Plaintiff,

NO. 79L330

V.

NORTHWESTERN PUBLISHING

COMPANY d/b/a THE COM-

MERCIAL NEWS; BOB WILSON;

and CARL YOUNG,

me eee eee ee ee”

Defendants.

JUDGEMENT ON THE VERDIC?

Based on the answers to six special

questions submitted to and answered to the

Jury, which answers are of record in this case,

judgement is hereby entered infavor of the

defendants, BOB WILSON and NORTH-

WESTERN PUBLISHING COMPANY d/b/a THE

82

COMMERCIAL NEWS, and against the plaintiff,

MICHAEL REED, to all Counts of the Second

Amended Complaint filed herein.

ENTERED this 1st day of July, 1986.

/s/ Carl A. Lund

Judge

APPROVED AS TO FORM

/s/ Thomas B. Meyer,

Attorney for Defendants

/s/ Richard B. Opsahl,

Attorney for Plaintiff

83

bd I

IN THE CIRCUIT COURT FOR THE FIFTH

JUDICIAL CIRCUIT OF ILLINOIS

VERMILION COUNTY, DANVILLE, ILLINOIS

MICHAEL REED,

Plaintiff,

NO. 79L330

V.

NORTHWESTERN PUBLISHING

COMPANY d/b/a THE COM-

MERCIAL NEWS; BOB WILSON;

and CARL YOUNG,

ee ee ee a ee ee ee

Defendants.

JUDGEMENT BASED ON COURT'S DIRECTED

VERDICT

Upon motion by defendant, CARL YOUNG,

for directed verdict as to that defendant, said

motion being granted by the court, judgement

is hereby entered in favor of the defendant,

CARL YOUNG, and against the plaintiff,

84

Michael Reed, as to all Counts of the Second

Amended Complaint pertaining to the

defendant, CARL YOUNG.

ENTERED this 1st day of July, 1986.

/s/ Carl A. Lund

Judge

APPROVED AS TO FORM::

/s/ Thomas B. Meyer

Attorney for Defendant

/s/ Richard B. Opsahl

Attorney for Plaintiff

85

PE PE 6 oS PRET Yt

IN THE CIRCUIT COURT FOR THE FIFTH

JUDICIAL CIRCUIT VERMILION COUNTY,

DANVILLE, ILLINOIS

MICHAEL REED,

Plaintiff,

NO. 79L330

V.

COMPANY d/b/a THE COM-

MERCIAL NEWS; BOB WILSON

and CARL YOUNG,

)

)

)

)

|

NORTHWESTERN PUBLISHING )

)

)

)

)

Defendants. )

RDER OF RT

This cause came on for hearing on

October 8, 1986, on plaintiff's post-trial

motions. Plaintiff Michael Reed was

represented by his attorney, Richard B. Opsahl,

and defendants Northwestern Publishing

Company and Bob Wilson were represented by

86

Thomas B. Meyer. The Court has considered the

written post-trial motions with the

amendment thereto filed on the day of the

hearing. Arguments of counsel and authorities

cited.

Plaintiff's Motion for Judgment Not-

withstanding the Verdict on Liability is not

meritorious and is denied.

if

Plaintiff's Motion for New Trial, which

refers to the verdict being against the weight

of the evidence and objects to the failure to

give certain instructions, has been considered

by the Court. A great deal of time was spent

prior to trial and during the trial on the proper

instructions of the jury. The Court reiterates

its earlier holding that the jury was properly

instructed, that the jury instructions were

adequate and clear enough that the jury could

understand them, and the Motion for New Trial

is denied.

Hl

87

The Court has considered the plaintiff's

Motion for Judgment as to Liability As Against

Carl Young and finds that the motion is not

meritorious, and the motion is denied.

IV

The Court has considered the Motion for

New Trial As To Carl Young, finds that the

motion is not meritorious, and the motion is

denied.

V

The Court has considered the various

alleged errors in evidentiary rulings and finds

that the motion in connection thereto is not

meritorious, and the motion is denied. It is

therefore the order of the Court that the post-

trial motions of the plaintiff, Michael Reed,

are denied.

Entered this 16th day of October, 1986.

/s/ Carl A. Lund

Circuit Judge

88