Opposition — Rasky v. Columbia Broadcasting System, Inc.

No. 82-180

In the

Supreme Court of the Ani

Ocrosper Term, 1982

ALEXAND:

BENJAMIN A. RASKY,

Petitioner.

vs.

COLUMBIA BROADCASTING SYSTEM, INC., a/k/a

CBS-WBBM, a corporation, SUSAN AN DERSON, EL-

LIS B. LEVIN, EDGEWATER COMMUNITY COUN-

SEL, ORGANIZATION OF THE NORTHEAST, EDGE-

WATER RESIDENTS TOGETHER IN ACTION, 5600

BLOCK CLUB OF WINTHROP, corporations, MARION

VOLINI, LEROY BLOMMAERT, DALE BURTON,

GLORIA AITTNER (a/k/a BITNER), DAVID WAL-

KER, FAb.0 RINCON, KELLY SANDERS, ALBERT

GRIFFIN, and unknown officers and directors of the fore-

going community organizations, CHICAGO READER,

INCORPORATED, a corporation, and DON ROSE,

Respondents.

—————————————oq**K€{*_*{]_j]]]{]{=[$$]SS=S=S=S=S=S=S=S>S>S>S>>S>>>SS=======

ON PETITION FOR A WRIT OF CERTIORARI TO

THE APPELLATE COURT OF ILLINOIS

BRIEF OF RESPONDENTS CHICAGO READER,

INCORPORATED AND DON ROSE IN OPPOSITION

Sreven B. Berorape

Roan & GrossMAN

55 West Monroe Street

Suite 800

Yhicago, Illinois 60603

(312) 263-3600

(Counsel of Record for Respondents)

Office - Supreme

ILED

ER 1 STEvas.

Court, U.S.

1962

i

QUESTION PRESENTED

1. Whether the Appellate Court of Illinois, in applying

well-established principles of Illinois defamation law to

determine that Count VII of petitioner’s complaint failed

to allege a cause of action for libel, denied petitioner due

process of law.

TABLE OF CONTENTS

PAGE

TABL OF AUTHORITIES ii

STATEMENT OF THE CASE. ————: 2

Introduction 2

The Decisions Below 3

REASONS FOR DENYING THE WRIT 4

I. The Appellate Court Of Illinois Correctly Ap-

plied The Well Established Law of Illinois In

Defamation Actions And Properly Concluded

That Petitioner Had Not Stated A Cause Of

J Te Te ieerthdinseicctntincecmeinnnnnnes 5

A. The Respondents’ Article Is Capable Of An

Innocent Construction... 6

B. The Respondents’ Article Is Not Libelous

— . 9

1. The Article Does Not Accuse Petitioner

Of The Commission Of A Serious Crime 9

2. The Article Does Not Accuse Petitioner

of Professional Unfitness As An Attor-

— —„—ͤ —¾' 10

CONCLUSION . 1 — 12

TABLE OF AUTHORITIES

CASES

Abbott v. National Bank of Commerce, 175 U.S. 409

(1899) 5

Anderson v. Matz, 67 a 175, 384 N.E.2d 759

1878) . 8

iii

Andreani v. Hansen, 80 Ill.App.3d 726, 400 N.E.2d

679 (1980)

Archibald v. Belleville * Democrat, 54 III App. 2d

38, 203 N. E. 2d 281 (1964)

Ashe v. Hatfield, 13 — 214, 300 N. E. 2d 545

(1973)

Boddie v. Connecticut, 401 US. 11 ä

Bougadis v. Lange field, 69 III. App. 3d 1010, 387 N. E.

2d 965 (1979)

Bravo Realty, Inc. v. Columbia — Sutin,

Inc., 84 III. App. 3d 862, 406 N.E.2d 61 (1980)

Bruck v. Cincotta, 56 III. App.3d 260, 371 N. E. 2d 874

(1970) ... * 0

Conrad v. Logan, 4 II App. 3d 981, 283 N. E. 2d 54

1

Cooper v. Rockford Newspapers, Inc., 50 IIl. App. 3d

247, 365 N.E.2d 744 (1977)

Daww v. Field Enterprises, Inc., 78 Ill.App.3d 67, 397

N.E.2d 41 (1979)

Equitable Life Assurance Society v. Brown, 187 U.S.

Sy,

Hambric v. Field Enterprises, 8 40 III App. 2d 355

196 N. E. 2d 489 (1964)

Jacobs v. Gasoline Retailers Association, 28 III. App.

3d 7, 328 N. E. 2d 187 (1975)

John v. Tribune, 24 III. 2d 437, 181 N. E. 2d 105, cert.

denied, 371 U.S. 877 (198227——————.ꝙ;?ſ᷑“Pͤ—ͤ—eꝙſꝗ[.ů—.

Kakuris v. Klein, 88 III. App. 3d 597, 410 N. E. 2d 984

(1980)

Krass v. Froio, 24 III. App. 3d 924, 322 N. E. 2d 67

(1975)

LaGrange Press v. Citizens Publishing Co., 252 III.

App. 482 (1929)

11

iv

Lorillard v. Field Enterprises, 65 II. App. 2d 65, 213

N.E.2d 1 (1965) 8

Millingar v. Hartwpee, 73 U.S. (6 Wall.) 258 (1867) 5

Mitchell v. Peoria Journal-Star, Inc., 76 III. App. 2d

154, 221 N. E. 2d 516 (1966) m 9, 10

Proesel v. Myers Publishing Co., 24 II App. 2d 501,

165 N. E. 2d 352 (1960) 8

Reed v. Albanese, 78 III. App. 2d 53, 223 N. E. 2d 419

(1966) 9

Roemer v. Zurich Insurance Company, 25 M App 3d

606, 323 N. E. 2d 582 (1975) 7

Nice v. Sioux City Memorial Park — 349 U.S.

70 (1955) 5

Sloan v. Hatton, 66 III App. 3d 41, 383 N. E. 2d 259

(1978) mm ©

Tunnel v. Edwardsville Intelligencer, Inc., 43 III. 2d

239, 252 N. E. 2d 538, cert. denied, 397 U.S. 1021

ee 7

Valentine v. North American Company, 60 III. 2d 168,

328 N. E.2d 265 (1974) 6, 7

Van See Construction Company, Inc. v. Jensen & Hal-

sted, Ltd., 79 III. App. 3d 1084. 399 N. E. 2d 278

(1979) ii gt

Watson v. Southwest Messenger Press, Inc., 12 > mn.

App.3d 968, 299 N.E.2d 409 (1973) 7

Wealer v. Chicago Tribune Company, 69 III. App. 3d

610, 387 N. E. 2d 892 (1979) 6

Young v. Richardson, 4 III. App. 364 (1879) 6

Zeinfeld v. Hayes Freight Lines, Inc., 41 III. 2d 345,

243 N. E. 2d 217 (1968) 7

Zucht v. King, 260 U.S. 174 (1922) 5

IN THE

SUPREME COURT OF THE UNITED STATES

Ocroser Term, 1982

No. 82-180

BENJAMIN A. RASKY,

Petitioner,

vs.

COLUMBIA BROADCASTING SYSTEM, INC., a/k/a

CBS-WBBM, a corporation, SUSAN ANDERSON, EL-

LIS B. LEVIN, EDGEWATER COMMUNITY COUN-

SEL, ORGANIZATION OF THE NORTHEAST, EDGE-

WATER RESIDENTS TOGETHER IN ACTION, 5600

BLOCK CLUB OF WINTHROP, corporations, MARLON

VOLINI, LEROY BLOMMAERT, DALE BURTON,

GLORIA BITTNER (a/k/a BITNER), DAVID WAL-

KER, FABIO RINCON, KELLY SANDERS, ALBERT

GRIFFIN, and unknown officers and directors of the fore-

going community organizations, CHICAGO READER,

INCORPORATED, a corporation, and DON ROSE,

Respondents.

EEE

ON PETITION FOR A WRIT OF CERTIORARI TO

THE APPELLATE COURT OF ILLINOIS

BRIEF OF RESPONDENTS CHICAGO READER,

INCORPORATED AND DON ROSE IN OPPOSITION

=

STATEMENT OF THE CASE

Introduction

This cause was initiated by the filing of a five count

complaint, supplemented by a two count amended com-

plaint, against respondents in the Cireuit Court of Cook

County, Illinois. Count VII of the amended complaint

sought damages for defamation against respondents

Chicago Reader, Incorporated (the Reader“) and Don

Rose (“Rose”), based on a newspaper article written

by Rose and published in the Reader newspaper on

November 11, 1977. The article, entitled “Why Ellis Levin

Is A Marked Man,” discussed various community issues

and problems in Levin’s legislative district. After Levin

noted the importance of staying in touch with community

problems and providing a resource through government

to resolve them, the article stated:

One agency he [Ellis Levin] recently got to do its

job is the Illinois Department of Registration and

Education, which licenses real estate operators but

never saw fit to crack down on slum landlords until

Levin lit the fuse. The result: for the first time in

history a slum landlord operating in Uptown, Benja-

min A. Rasky, is under the gun to fix up his places

or lose his license.

Petitioner alleged that this statement constituted libel

per se.

The basis for the two sentence reference to petitioner

was a complaint filed by the Department of Registration

and Education of the State of Illinois (“DRE”) against

petitioner for numerous building code violations on

properties which he owned and operated. Following a

hearing, the DRE revoked petitioner’s real estate license.

The DRE’s decision was affirmed by the Appellate Court

of Illinois in Rasky v. Department of Registration and

Education, 87 III App.3d 580, 410 N. E. 2d 69 (1980). This

Court subsequently dismissed the petitioner’s appeal for

want of a substantial federal question. 102 S.Ct. 78

(1981).

The Decisions Below

In the present action, respondents Reader and Rose

filed their motion to dismiss Count VII. Based upon its

review of petitioner’s complaint, respondents’ motion and

the briefs and oral arguments of all the parties, the

trial court dismissed Count VII, with prejudice, holding

that it failed to state a cause of action. The court applied

the well-established Illinois “rule of innocent construc-

tion” and held that the allegedly defamatory statement

was not libelous. On November 23, 1981, the Appellate

Court of Illinois affirmed the trial court’s dismissal,

concluding

that a proper application of the rule of innocent

construction necessitates a finding that the term

‘slumlord’ or ‘slum landlord’ as used in the several

publications, is suseeptibie of an innocent con-

struction.

Rasky v. Columbia Broadcasting System, Inc., 103 III.

App.3d 577, 582, 431 N.E.2d 1055, 1059 (1981).

On February 1, 1981, the Appellate Court of Illinois

denied petitioner’s request for rehearing. On May 28,

1982, the Supreme Court of Illinois denied petitioner’s

request for leave to appeal the decision of the Appellate

Court.

*

REASONS FOR DENYING THE WRIT

This case is wholly unremarkable in every respect.

It is totally devoid of any unusual, novel, or significant

issues of state or federal law. Petitioner’s arguments

are a mere rehash of points thoroughly considered, and

properly rejected, by both the Illinois trial and appellate

courts. Petitioner now seeks to have this Court review

the allegations of his complaint to determine whether

the allegations of Count VII state a cause of action

under the Illinois law of defamation. However, this is a

wholly insufficient basis upon which to invoke the cer-

tiorari jurisdiction of this Court.

The Petition satisfies none of the standards of Supreme

Court Rule 17 for the granting of a writ of certiorari

to review a state court judgment. The Illinois courts

have not decided a federal question in a way which

conflicts with the decision of another state or federal

court. Nor have these courts decided an important ques-

tion of federal law which has not been, but should be,

settled by this Court.

In essence, petitioner makes the bare assertion that

the decision of the Appellate Court is erroneous in its

application of well-settled Illinois law and, therefore,

the dismissal of Count VII deprives him of his constitu-

tional rights. But, as will be demonstrated below, Illinois

law is clear, and the decision of the Appellate Court in

this case was correct. Under these circumstances, review

by this Court is plainly unwarranted.

Moreover, it is a long-established principle that this

Court will not review the decision of a state court which

presents no substautial federal question. Rice v. Sioux

City Memorial Park Cemetery, 349 US. 70 (1955);

Zucht v. King, 260 U.S. 174 (1922); Millingar v. Hartupee,

73 U.S. (6 Wall.) 258 (1867). It is equally well settled

that the bare assertion of a constitutional claim utterly

without foundation, or one so clearly and conclusively

settled by prior decisions of this court so as to admit of

no further argument, presents no substantial federal

question. Equitable Life Assurance Society v. Brown, 187

U.S. 508, 314 (1902). Petitioner’s assertion here that a

due process question is raised by the action of the

Illinois courts is groundless and unsupportable, being

merely an attempt to seek this Court’s review of ques-

tions of state law. See Abbott v. National Bank of Com-

merce, 175 US. 409 (1899), where this Court declared

that the dismissal of a libel action on grounds of privilege

raised no Fourteenth Amendment issue. See also Boddie

v. Connecticut, 401 U.S. 381, 378 (1971) (no deprivation

of due process to enter default judgment for failure to

appear or failure to comply with procedural rules).

Accordingly, this Court should deny this petition for a

writ of certiorari.

I. The Appellate Court of Illinois Correctly Applied The

Well Established Law of [linois In Defamation

Actions and Properly Concluded That Petitioner Had

Not Stated A Cause Of Action In Libel.

The Appellate Court’s holdings that petitioner failed

to state a cause of action because the purportedly defama-

tory language could be innocently construed and was not

libel per se is entirely consistent with established Illinois

law enunciated decades ago.

*

A. The Respondents’ Article Is Capable Of An Innocent

Construction.

The principles of Illinois defamation law relied upon

by the Appellate Court in affirming the dismissal of

the allegedly libelous statement are long-standing. Illinois

courts have consistently held that if an allegedly libelous

article can be innocently construed upon any reasonable

reading, it must be dismissed as nonactionable. Valentine

v. North American Co., 60 Tll.2d 168, 171, 328 N.E.2d

265, 267 (1974); John v. Tribune Co., 24 III. 2d 437, 442,

181 N.E.2d 105, 108, cert. denied, 371 U.S. 877 (1962);

LaGrange Press v. Citizens Publishing Co., 252 III App.

482 (1929); Young v. Richardson, 4 III. App. 364 (1879).

In John, the court stated:

We further believe the language of defendant’s article

is not libelous of plaintiff when the innocent construc-

tion rule is consulted. That rule holds that the

article is to be read as a whole and the words given

their natural and obvious meaning, and requires that

words allegedly libelous that are capable of being

read innocently must be so read and declared non-

actionable as a matter of law.

The meaning of the statement must be gathered not

only from the words singled out, but from the context.

Bravo Realty, Inc. v. Columbia Broadcasting System, Inc.,

84 III. App.3d 862, 406 N.E.2d 61 (1980); Sloan v. Hatton,

66 Ill.App.3d 41, 383 N.E.2d 259 (1978). Moreover, the

words must be read in their best possible sense. Wezler

v. Chicago Tribune Co., 69 III App.3d 610, 387 N.E.2d

892 (1979); Daww v. Field Enterprises, Inc., 78 III App. 3d

67, 397 N. E.2d 41 (1979). This rule applies irrespective

of whether the plaintiff or anyone else can suggest

other interpretations of the statement which might be

—

***

defamatory. Only if no possible innocent understanding

of an article is reasonably conceivable may the court

declare its words to be actionable. Zeinfeld v. Hayes

Freight Lines, Inc., 41 III 2d 345, 347-48, 243 N.E.2d 217,

227 (1968).

Applications of th innocent construction rule are

legion. It has consistently been invoked by Illinois courts

to uphold the dismissal of libel actions. See, e. g., Valen-

tine v. North American Co., 60 III. 2d 168, 328 N. E. 2d 265

(1974) (statement that an insurance company was dis-

charging plaintiff because “He was a lousy agent”);

Tunnell v. Edwardsville Intelligencer, Inc., 43 III. 2d 239,

252 N. E. 2d 538, cert. denied, 397 U.S. 1021 (1970) (state-

ment that a city attorney “was working to break the

law”); Cooper v. Rockford Newspapers, Inc., 50 III App.

3d 247, 365 N. E. 2d 744 (1977) (statement that a deputy

clerk of the court was a “political hack,” “hired in lieu

of modernization and data processing”); Jacobs v.

Gasoline Retailers Association, 28 Tl.App.3d 7, 328 N. E.

2d 187 (1975) (statement that reported a judgment of

$4,435 against plaintiff, a business manager, in which

he was pictured on a “wanted” poster); Roemer v.

Zurich Insurance Co., 25 Til.App.3d 606, 323 N.E.2d 582

(1975) (statement that plaintiff made “sexual advances”) ;

Krass v. Froio, 24 III App.3d 924, 322 N.E.2d 67 (1975)

(statement that the unknown powers in a trust will do

anything to influence the outcome of an election and

that people should ask plaintiff about the new home

offered to a trustee just after his election); Ashe v. Hat-

field, 13 III App.3d 214, 300 N. E. 2d 545 (1973) (statement

that criticized plaintiff’s ork as a journalist); Watson

v. Southwest Messenge Press, Inc., 12 Til.App.3d 968,

299 N.E.2d 409 (1975) (statement that plaintiff “fixed

parking tickets”); Conrad v. Logan, 4 III App.3d 981,

283 N. E.2d 54 (1972) (statement that plaintiffs took

money out of the company); Lorillard v. Field Euter-

prises, Inc., 65 III App. 2d 65, 213 N.E.2d 1 (1965) (state-

ment that plaintiff had obtained a “quickie divoree”) ;

Archibald v. Belleville News Democrat, 54 III. App.2d 38,

203 N.E.2d 281 (1964) (statement expressing disgust at see-

ing a fourteen year old girl viding in a convertible “half.

naked”); Proesel v. Meyers Publishing Co., 24 III. App. 2d

501, 165 N.E.2d 352 (1960) (statement that a public

official was “diverting” funds from one project to an-

other); Kakuris v. Klein, 88 Ill.App.3d 597, 410 N. . 2d

984 (1980) (statement that plaintiff executive, termi-

nated from his job, had a lack of achievement in basic

goals, did not have the qualifications needed to achieve

professional objectives, and that sources “refused to

comment” as to plaintiff’s “honesty and integrity”);

Bravo Realty, Inc. v. Columbia Broadcasting System, Inc.,

84 III. App.3d 862, 406 N.E.2d 61 (1980) (juxtaposition

of plaintiff-realtor’s advertising signs in midst of tele-

vised report on “panic peddling” and “blockbusting”

in changing Chicago neighborhoods); Andreani v. Han-

sen, 80 III. App.3d 726, 400 N. E. 2d 679 (1980) (statement

that plaintiff land developers were greedy and that their

conduct in refusing to sell land to village for badly

needed park, thereby forcing condemnation proceedings,

was disgraceful); Van See Construction Company, Inc.

v. Jensen d Halstead, Ltd., 79 III. App.3d 1084, 399 N. E.

2d 278 (1979) (statement that plaintiff, the general con-

tractor on a publie school renovation project, was not

painting the building properly); Anderson v. Matz, 67

III. App.3d 175, 384 N.E.2d 759 (1978) (statement that

plaintiff-physician’s diagnosis of personal injury victim’s

condition was not worthy of consideration by insurance

company evaluating merits of personal injury lawsuit) ;

Bougadis v. Langefeld, 69 Il.App.3d 1010, 387 N. E. 2d

965 (1979) (statement that plaintiff, the building com-

missioner for the Village of Berkely, had solicited con-

tributions for Little League baseball from a local mer-

chant in terms that sounded like “extortion”).

As the Appellate Court recognized in this case, the

Reader article accusing petitioner of being a “slum land-

lord” is unquestionably capable of an innocent construc-

tion. As properly reasoned by the court, “the terms

‘slam landlord’ and ‘slumlord’ can be construed to mean

that plaintiff owned buildings in a poor and dirty

neighborhood or, simply stated, that plaintiff was a land-

lord in a slum.” The Appellate Court, in making this

determination, correctly applied well-established Illinois

law and review by this Court is simply unwarranted.

B. The Respondents’ Article Is Not Libelous Per Se.

The Appellate Court aleo properly held that petition-

er’s claim was fatally defective because the two-sentence

reference to petitioner simply did not constitute libel

per se. Nothing in respondents’ publication charges peti-

tioner with either a serious crime involving moral turpi-

tude or of unfitness in his profession as an attorney.

1. The Article Does Not Accuse Petitioner Of

The Commission Of A Serious Crime.

For a publication to be libelous per se, the crime im-

puted must be either “infamous” or an indictable offense,

involve moral turpitude, and be punishable by death or

by imprisonment rather than by a fine. Mitchell v. Peoria

Journal Star, Inc., 76 Til.App.2d 154, 160, 221 N.E.2d

516, 520 (1966); Reed v. Albanese, 78 Tll.App.2d 53, 60,

223 N.E.2d 419, 423 (1966).

=~ =

Petitioner contends that the Reader article, referring

to him as a “slum landlord,” accuses him of engaging

in criminal housing management under Illinois law. Peti-

tioner is factually and legally wrong. At most, the state-

ment in question does no more than imply generally

that petitioner may have violated the building code, and

later states that he may lose his real estate license

because of such violations. Since violations of the build-

ing code are only punishable by fine, do not involve

moral turpitude and do not constitute infamous crimes,

respondents’ statements are not libelous per se for im-

puting the commission of a crime. See, e.g., Bruck v.

Cincotta, 56 III. App.3d 260, 264, 371 N.E.2d 874, 878

(1977) (charges of Chicago Municipal Code violations

are not defamatory per se for imputing to plaintiffs

the commission of a crime since violators are subject

only to fine and have not committed an indictable offense

involving moral turpitude) and Mitchell v. Peoria Journal

Star, Inc., 76 III. App. 2d 154, 160, 221 N.E.2d 516, 519 (1966)

(charge of violations of a municipal liquor ordinance

for which a fine was imposed is not libelous per se).

Again, the Appellate Court relied on well-settled Illinois

law to conclude that respondents’ article did not charge

petitioner with either an infamous crime or one of moral

turpitude and, therefore, could not support a claim for

libel per se.

2. The Article Does Not Accuse Petitioner

of Professional Unfitness As An Attorney.

Petitioner’s claim of libel per se based upon the con-

tention that respondents’ publication accused him of

professional unfitness as an attorney was also properly

rejected by the Appellate Court.

= jj

It is well-established under Illinois law that in order

for a statement to constitute libel per se for imputing

professional incompetence, it must refer to the plaintiff

in relation to his particular occupation. See, e.g., Hambric

v. Field Enterprises, Inc., 46 III. App. 2d 355, 196 N. E. 2d

489 (1964). In a license revocation hearing before the

DRE, petitioner filed an affidavit in which he stated that

the practice of law was his sole vocation from 1929

and that he has never entered into the real estate

brokers business. Respondents’ two sentence reference to

petitioner is silent with respect to petitioner’s competence

as an attorney. In fact, it does not even suggest or imply

that petitioner is an attorney. Therefore, based again

upon established Illinois precedents, the Appellate Court

properly concluded that

Since none of defendants’ statements alluded to

piaintiff’s qualifications or competence as a lawyer,

we must reject plaintiff’s contention that his pro-

fessional fitness as a lawyer was attacked. See gen-

erally Reed v. Albanese (1966), 78 Ill.App.2d 53, 223

N.E.2d 419; Hambric v. Field Enterprises, Inc., (1964)

46 Ill.App.2d 355, 196 N. E. 2d 489.

In summary, petitioner clearly failed to state a claim

for libel per se and review by this Court is simply not

justified.

~~ =

CONCLUSION

The petitioner suggests no valid reason why this

Court should review the dismissal of his complaint. Peti-

tioner’s status as an aggrieved litigant whose claim

has been rejected on the basis of settled legal rules is no

different than that of numerous other disappointed

suitors. Petitioner’s unfounded assertions of error by

the Appellate Court of Illino.s do not suffice to invoke

this Court’s jurisdiction or to impese yet another round

of appellate review upon these respondents. The Supreme

Court of Illinois did not accept petitioner’s appeal. This

Court should similarly refuse petitioner’s request for

review. The well considered opinion of the Appellate

Court of Illinois should be allowed to stand as the final

disposition of this action. For all of the foregoing

reasons, the Petition for a Writ of Certiorari should

be denied.

Respectfully submitted,

Sreven B. Bevorape

Roan & GrossMAN

55 West Monroe Street

Suite 800

(312) 263-3600

Chicago, Illinois 60603

(Counsel of Record for Respondents)

Darm W. Anpicn

Roan & Grossman

55 West Monroe Street

Suite 800

Chicago, Illinois 60603

(312) 263-3600